fandom_lawyers: Crossposted from my own LJ...One of my f

aka heidi8 (

pinkfinity) wrote in

fandom_lawyers,
@ 2005-02-14 17:47:00

Crossposted from my own LJ...

One of my friends (

likebunnies) got a C&D from the MPAA saying that they own the rights to NC-17 and RATED NC-17, and that she has to cease from using same. I haven't seen the actual letter yet, but she's posted about it on her LJ.

While MPAA has a registration for NC-17 as a design mark, they (a) don't disclaim "NC-17" from the mark as a whole, and they (b) don't have a registration for it as a separate typed mark. As I understand it, she wasn't using the design formative at all. And the registration for the design mark covers only "entertainment services rendered through the medium of motion pictures", and she's not using it for vids, only for fics, as I understand it.

Yes, of course the MPAA can protect their rights in and to the mark for motion pictures, but am I right in thinking that (a) there is a descriptive element that has built up over time due to nonenforcement of this mark for things other than motion pictures, (b) the "famous mark" cases, including Ringling, aren't a help to the MPAA if they're claiming diluiton, (c) fanfiction is sufficiently far afield from motion pictures, especially when said fanfic is based on a book series, and (d) it would be pretty hard (and kind of amusing) to tarnish the mark "NC-17"?

I can see a few arguments on the MPAA's side, as well, but given that she's not really using it as advertising or in marketing, and that she's most likely using it in a descriptive sense, does anyone else think the MPAA is overreaching, just a little bit?

ETA: Here's the "other data" from the MPAA's registration for NC-17 & Design:

THE CERTIFICATION MARK, AS USED BY PERSONS AUTHORIZED BY CERTIFIER, CERTIFIES THAT, IN THE OPINION OF APPLICANT'S RATING OR APPEALS BOARDS, MOST AMERICAN PARENTS WILL CONSIDER THE MOTION PICTURE INAPPROPRIATE FOR VIEWING BY ANYONE UNDER THE AGE OF 18, BY REASON OF ITS DEPICTION OR TREATMENT OF VIOLENCE OR SEX OR ABERRATIONAL BEHAVIOR OR DRUG ABUSE, OR A COMBINATION OF THESE OR OTHER ELEMENTS.

Emphasis mine. I think that pretty much sinks any plausible argument they could make, althgough I would still love to see them allege that HP fanfic tarnishes the NC-17 mark.

(55 comments) - (Post a new comment)

	rivkat 2005-02-14 10:55 pm UTC (link)
	That's ... pretty hysterical, in a terrifying way. I think the problem with the MPAA's position is more basic: there's no use in commerce, since she's not selling goods or services in commerce unless she's selling vids, which I take it she's not. That said, all your other points seem valid too. (Reply to this)

	par_avion 2005-02-14 11:10 pm UTC (link)
	That's bizarre. Are they going to send a C&D to every fanfic website? Or is there something particular about her site that drew their attention? A quick google search shows that nerve.com uses the term NC-17 to describe some photographs. (Reply to this) (Thread)

	pinkfinity 2005-02-15 01:53 pm UTC (link)
	Seems aestheticism.com also got a letter. (Reply to this) (Parent)

	nnaylime 2005-02-15 05:17 pm UTC (link)
	A West Wing site (that has now been taken down as a result) also got the letter. (Reply to this) (Parent)

	hiddenhibiscus 2005-02-14 11:54 pm UTC (link)
	I would love to see the office staff that's dealing with all the C&D's being sent out. I can't believe they'll even make an impact with the number of sites using the rating system, and I have to agree with rivkat, the first thing that came to mind was the lack of commercial involvement. (Reply to this)

jocelyncs
2005-02-15 12:01 am UTC (link)

This is exceedingly odd. Is likebunnies posting stories on her LJ or does she have an archive?

I'm wondering what brought her to the MPAA's attention. Are they going after big archives like adultfanfiction.net too in some huge blanket action (seems like an awful lot of trouble for something so silly) or did likebunnies attract their attention specifically for some reason?

(I sure hope they're not going after HP fanfiction in particular!)

(Reply to this)

iocaste212
2005-02-15 12:29 am UTC (link)

This doesn't surprise me. The reason we have the NC-17 mark at all is that originally, the MPAA didn't trademark the X rating. I think it was afraid of some kind of monopolization claim if it owned all recognized ratings.

Anyway, porn producers quickly coopted the X rating, making it impossible for a "serious" but adult film to distinguish itself. SO the MPAA created NC-17 to fill the void.

(Reply to this) (Thread)

pepperjackcandy
2005-02-15 04:32 am UTC (link)

Anyway, porn producers quickly coopted the X rating, making it impossible for a "serious" but adult film to distinguish itself. SO the MPAA created NC-17 to fill the void.

I think that this is what set them off. Though why her site in particular, and why now, after it's been used by fandom for so many years.

I wonder if nc-17 fic writers could get around the "you obviously intend to give the impression that the MPAA has endorsed this fic" thing by explicitly stating that the author has made that determination.

(Reply to this) (Parent)

(no subject) -

mhari, 2005-02-16 05:04 am UTC

tigress35
2005-02-15 12:52 am UTC (link)

That's pretty sad. The original idea behind the ratings was so that the government would stay out of censorship. Considering it's supposed to just be a system of letting ppl know what content a movie has, I wouldn't see why they should care if anyone else uses the system as well, especially for non-profit. It's not like anyone else can come in and start movie ratings, like they have competition or threat. Ridiculous.

(Reply to this) (Thread)

	dmitchell1985 2005-02-16 09:07 am UTC (link)
	gasp I love your icon! I had to show some Luthor love quickly. =D DLM (Reply to this) (Parent)

	notrafficlights 2005-02-15 01:10 am UTC (link)
	I think it's a hoax. (Reply to this) (Thread)

	pinkfinity 2005-02-15 01:11 am UTC (link)
	What in the letters looks false to you? (Reply to this) (Parent)(Thread)

(no subject) -

notrafficlights, 2005-02-15 02:17 am UTC

	kyanoswolf 2005-02-15 01:57 am UTC (link)
	According to www.uspto.gov, the only goods and services the MPAA has the mark registered for is motion pictures. Are books and short stories in the same class of goods and services as motion pictures? (Reply to this) (Thread)

pinkfinity
2005-02-16 05:52 pm UTC (link)

They';re not, but that's not 100% definitive - for example, a registration for a motion picture could protect against someone using the same term for video games, or sheets, or t-shirts, as they're all interrelated. And even a registration for a motion picture could bar use of the same term for a book series. But this isn't a regular mark - it's a certification mark for a specific type of good, so it should be limited even further, to just those types of goods.

(Reply to this) (Parent)

mandysbitch
2005-02-15 12:30 pm UTC (link)

THE CERTIFICATION MARK, AS USED BY PERSONS AUTHORIZED BY CERTIFIER, CERTIFIES THAT, IN THE OPINION OF APPLICANT'S RATING OR APPEALS BOARDS, MOST AMERICAN PARENTS WILL CONSIDER THE MOTION PICTURE INAPPROPRIATE FOR VIEWING BY ANYONE UNDER THE AGE OF 18

Hmmm. I see what they're getting at. If I'm reading what they are saying correctly, then the non-profit argument would probably be inconsequential given the reliance angle they seem to be going for... And it's kind of funny because I had, not so long ago, given some thought to the arbitrary nature of rating s in fanfiction and that surely they had to be a little unreliable given that they are up to the discretion of the writer and not an independent rating body.

I suppose they could argue that anyone seeing the mark on internet fanfiction *could* be misled into thinking the work had been rated (tangentially - say by and independent rating body similar to the MPAA or associated with) by the MPAA or the Appeals Board. I'm guessing this person would be completely unfamiliar with internet fanfiction (and not more than a little naive).

I would still love to see them allege that HP fanfic tarnishes the NC-17 mark.

It *does* make me wonder why they didn't go for a rating more likely to mislead with negative consequences - such as a G rating.

But doesn't the C & D imply by extension that NO recogniseable rating system be used on fanfiction? Surely there's a public benefit in having a system of ratings that is recogniseable across mediums? *Especially* in a non-regulated arena.

Perhaps the easiest thing would be to disclaim - "This story is rated by the author and not by and independent body." Like fanfic needs more disclaiming...

(Reply to this) (Thread)

	cschick 2005-02-15 04:28 pm UTC (link)
	I wonder if using that disclaimer for an archive as a whole would be sufficient. That's basically what we've done--more to avoid reader complaint than to "protect" ourselves against the MPAA. (Reply to this) (Parent)(Thread)

(no subject) -

mandysbitch, 2005-02-17 03:15 am UTC

	nullabona 2005-02-15 01:49 pm UTC (link)
	Isn’t the cat already out of the bag here? I’ve been reading fanfic for about 10 years and I believe the MPAA styled ratings have been in use most of that time. Wouldn’t the MPAA had to have taken action before now? Hasn’t this rating system already been Kleenex’ed-Nulla (Reply to this) (Thread)

pinkfinity
2005-02-15 01:52 pm UTC (link)

Exactly. That's what I'm saying at (a) in my post - I've only been in the fanfic side of fandoms for five years, but the nc17 designation has only existed for 15 in the first place, so nonenforcement by them for a third, or two thirds, of that time frame makes this a "refrigerator" situation, at least for things that aren't films. I think the MPAA's argument would be stronger against a vid site, though, as those are forms of motion pictures.

(Reply to this) (Parent)(Thread)

(no subject) -

cschick, 2005-02-15 04:32 pm UTC

(no subject) -

goddess_blue, 2005-02-26 07:50 am UTC

(no subject) -

pinkfinity, 2005-02-26 12:46 pm UTC

(no subject) -

mistressrenet, 2005-02-15 02:28 pm UTC

(no subject) -

loveanddarkness, 2005-03-30 11:24 pm UTC

cschick
2005-02-15 06:23 pm UTC (link)

Hey, Heidi (and Rivka too) . . .

If the MPAA was planning to give a publisher permission to use their marks as ratings for written works, would this event make slightly more sense?

In the past several days, NPR programs (Marketplace and Weekend Edition) have done several reports on Harlequin and their plans to attract younger readers. The Weekend Edition report focused on the "edgier" lines being created by Harlequin, and the Marketplace report on Harlequin's entry into the movie industry. Although I personally believe that the movie rating system isn't a great system to use for written works, I could see Harlequin--on entering into a partnership with the MPAA--wanting to use the rating system in order to define some of their new lines.

(Reply to this) (Thread)

dancingrain
2005-02-15 09:09 pm UTC (link)

This is the best potential explanation I've seen yet for what otherwise doesn't seem to make tons of sense, timing-wise (years too late).

Also, it might be worth our remembering that the MPAA not long ago joined the RIAA in deciding to sue customers for file-sharing, so they may be trying to begin a generalized online crackdown - ie, they're starting to get scared that they've let things get out of control on the internet and want to take something that feels to them like decisive action.

(Reply to this) (Parent)

(no subject) -

ide_cyan, 2005-02-16 05:36 am UTC

executrix
2005-02-16 04:47 am UTC (link)

Using NC-17 is very US-centric on what is, indeed, the World Wide Web--I've seen a number of comments from people in other countries asking what NC-17 means.

The MPAA would be stuffed trying to show consumer confusion, but I'm not sure it wouldn't be better to use something like "one blue square: no sexual content" to "four blue squares: explicit sexual content, you can't read this unless you click to indicate you are of legal age in your jurisdiction."

Also: Universal City Studios v Nintendo (2d Cir 1984): no risk of consumers confusing arcade game "Donkey Kong" with film "King Kong"
Hormel Foods v. Jim Henson Products Inc., 36 USPQ2d 1812 (SDNY, but I can't read my own notes for the year): no risk that consumers will confuse "Spa'am" (Character in Muppet Treasure Island) with processed ham product (admittedly, there was a parody defense asserted that isn't present in this situation)
Charles Atlas Ltd v. DC Comics Inc., 112 F.Supp.2d 330 SDNY 2000): comic book readers would not confuse "Flex Metallo" comic book character with Charles Atlas body-building courses (parody defense here too).

(Reply to this)

	kalikamaxwell 2005-02-16 04:51 am UTC (link)
	I would just like to say they're going to have a mighty lot of fun. Fandom isn't just the USA. On top of that, I've seen these ratings used in at least one other language. It's really spread out by now. (Reply to this)

dmitchell1985
2005-02-16 09:05 am UTC (link)

They are definitely going overboard. They should spend their time focusing on the archives, or better still, those horrible movies which are made every year.

I know that they do not make the actual movies, but hell, they know someone who does! *tsk*

This reminds me so much of the "police." Being given too much powers allows you the precious time to focus on the unimportant. Instead of nabbing something or someone worth while, they spend their time being a flat out bully. *huggles

likebunnies*

Who knows, they might come after me next. I use the rating system, and I showed some support. I must be a threat as well!

Yours,

Danielle

(Reply to this)

Fan Works Rating System

nataku245
2005-02-21 02:49 am UTC (link)

It would be difficult to do I think as the fan fiction community is so far spread but if enough people could come together on major fan fiction forums for discussion and they could spread the word throughout the fandoms they are a part of, the authors could sit down and create a Fan Fiction Rating System. Like say have - just for example - R18+ (Rated 18+), R13+ (Rated 13+), RA (Rated All), and so on. The 'Entertainment Software Rating Board' (ESRB) uses a seperate rating system for rating console and computer games than is used by the 'MPAA' for movies as does the 'The TV Parental Guidelines Monitoring Board' for TV programs - though theirs is based off the MPAA's rating system.

So why can't the fanfiction community create a standardized rating system for fanfiction and fanart? If we could...problem solved, no more claims of copyright infringment and it would help eliminate confusion about rating meanings for those not familiar with the MPAA rating system if it were standardized. If enough archives - especially the large ones - used the fanfiction rating system then other archives new and old would begin to use it as well. Authors and archive owners could form our own 'ratings board' and the board could set the ratings system and apply the new system to their stories and archives and spread the word to the mailing lists and messageboards asking people to also spread the word to lists and boards that have not had notices posted to them about the new rating system. Sorry for the never ending sentence heh.

Hmm I'm getting more detailed as I go, I'm on a tangent now folks! The board could create an icon that archive owners can place on their main archive pages in clear view of visitors that links back to a site that gives the details and purpose of the rating system, why it was created and who the boardmembers are that created the system. It would also show readers and authors which archives use the system and which ones do not. Unfortunately I think that this is unlikely to happen, but the amount of cooperation and support that would be needed for a project like this to work would show people just what the fanfiction community can do.

I'm a huge fanfiction fan, I read FF in different anime, book, movie and TV fandoms and have published fanfiction off and on since 2000 when I have the time, so far in only one fandom. I'm a bit worried about how this is going to affect the larger archives not just ones that are specific fandoms like Fiction Alley, Heliopolis/Helio2/Area 52 (Stargate archives) and Gundam Wing Addiction are, but ones like Adult Fanfiction that are multi-fandom archives that use the MPAA rating system. FF.Net no longer uses the NC-17 rating but how long will it be before the MPAA goes after archives using the G, PG, PG-13 and R ratings as well since all of them are registered trademarks of the MPAA?

Rating Systems

http://www.esrb.org/esrbratings_guide.asp#symbols
http://www.tvguidelines.org/ratings.asp
http://www.mpaa.org/movieratings/

(Reply to this) (Thread)

	Re: Fan Works Rating System closertofine 2005-02-21 02:50 pm UTC (link)
	That makes an awful lot of sense to me -- but I know it's going to be awfully difficult for the bigger archives to retroactively implement. (Reply to this) (Parent)

Re: Fan Works Rating System -

pinkfinity, 2005-02-21 03:45 pm UTC

Re: Fan Works Rating System -

jennem, 2005-02-23 06:24 pm UTC

Re: Fan Works Rating System -

nataku245, 2005-02-23 10:02 pm UTC

Re: Fan Works Rating System -

simplelyric, 2005-02-25 12:40 am UTC

another 2 cents
(Anonymous)
2005-02-21 08:52 pm UTC (link)

I agree that it that could be remedied - let's just come up with our own rating system - same basic premise but we could choose our own symbols - maybe (for Mag-7) M7-1 for G, M7-2 for PG, M7-3 for NC17, and M7-4 for R, and M7-5 X or for extra warnings and list them??? that way they can't bitch about it - but I agree that legally they are in shallow waters - its become a generic term like aspirin or jello so it would be hard to enforce - but by using our own system we can beat them to the punch. (other fandoms could use the same number system with their own initials and before long it would be understood by all fan readers/writers) Although reading some of the other comments I can also see that retrofitting large Archives could be a problem - sigh - Klingoncat17

(Reply to this) (Thread)

Re: another 2 cents
(Anonymous)
2005-02-21 11:18 pm UTC (link)

Why so difficult?

A - All audiences.
10+ - Ten and above (duh!)
13+
15+
17+

Especially if we want to get rid of this nonsense, we should make something everyone recognizes easily, and recognizes wherever and whoever they are, can be used for everything. In that regard, it probably should add a code for why it gets the rating:

Three basics:

S - Sex
V - Violence
W - Words

Then there are two modifiers, yielding 3 possibilities for all the three basics:

GS - Gratuitous Sex: Porn/pure smut
ES - Contains Explicit Sex description, however not full on plotless porn.
S - Basic sex, nothing major, nothing graphical, but enough younger kids shouldn't check it out.

GV - Gratuitous Violence: the porn of violence or close too, mostly one giant string of dead bodies and blood and gore.
EV - Explicit Violence, equivalent to GS.
V - violence, equivalent to S.

GW - Gratuitous Words: a giant string of profanities and swearing. (Undoubtedly only some type of parodies would get this.)
EW - Explicit Words: some good swearing, but not entire sentences with just swearing, equivalent to ES and EV.
W - Equivalent to S/V, but with swearing.

Thus ratings would become:

17+GS - Utter complete and total porn smut.

15+EV - A story suitable for 15 and up, having quite some violence in there, possibly with cut off limbs and blood splattering around.

13+SVW - The one that will mostly be used - I'm guessing - for thirteen and up, with a moderate to good dose of sex, violence, and bad words, but never getting explicit.

(Reply to this) (Parent)(Thread)

Re: another 2 cents -

shadow_diva, 2005-02-22 04:14 am UTC

Re: another 2 cents - (Anonymous), 2005-02-22 05:09 am UTC

Re: another 2 cents -

therespollux, 2005-03-05 06:13 pm UTC

Re: another 2 cents -

nataku245, 2005-02-23 10:48 pm UTC

	goddess_blue 2005-02-24 01:10 pm UTC (link)
	As it is, if they've used the words 'certification mark', aren't they referring to that nifty little typewritten letter with the box around it that they depict on movies in the theatre or on tapes and DVDs when you rent? Can they trademark the actual letters? (Reply to this) (Thread)

goddess_blue
2005-02-24 01:12 pm UTC (link)

Ah, no. Now I see where you've already mentioned this here:

While MPAA has a registration for NC-17 as a design mark, they (a) don't disclaim "NC-17" from the mark as a whole, and they (b) don't have a registration for it as a separate typed mark. As I understand it, she wasn't using the design formative at all. And the registration for the design mark covers only "entertainment services rendered through the medium of motion pictures", and she's not using it for vids, only for fics, as I understand it.

(Reply to this) (Parent)

The Manga Rating System?

forevagreeneart
2005-02-24 11:46 pm UTC (link)

This is just a thought, but how about the manga rating system? I'm fairly sure that it
hasn't been copyrighted, and it's clear enough to be understood by people who are new
to the rating system here it is:

E: Everyone
T: Teen (13+)
OT/T+: Older Teens (16+)
M: Mature (18+)

Thoughts? Agreements? Disagreements?

Sincerely,
Maria Rosenfire

P.S. If anyone knows whether or not this is copyrighted, please tell me!

(Reply to this) (Thread)

	Re: The Manga Rating System? therespollux 2005-03-05 06:03 pm UTC (link)
	Manga? The gaming industry uses those ratings for all sorts of games. Maybe check if THEY have copyrighted it. If there's a governing body in the game industry for that! LOL (Reply to this) (Parent)

therespollux
2005-03-05 06:02 pm UTC (link)

This isn't even solely about HP fanfic, or NC-17 fanfic, is it? I would think the MPAA would send the same letter to someone using the G -- General Audiences rating or any of the other ratings. But as they are a Motion Picture company, I can't see how on earth anyone would confuse using the ratings as some kind of approval of writings by a motion picture company. It sounds absolutely ludicrous. I hope someone with a good amount of money will fight this. All of the "little guys" won't be able to.

(Reply to this) (Thread)

	loveanddarkness 2005-03-30 10:24 pm UTC (link)
	If it were solely a matter of us having an excellent argument on our side but no money to fight the big bad MPAA, individually, to have our argument tested in court, the EFF or ACLU might weigh in on our side. I don't think that's going to be the case here. (Reply to this) (Parent)

akuma_river
2005-03-10 04:18 pm UTC (link)

Another sign that the world is ending. Do these people have nothing better on their hands then to crush the little guy? These companies make trillions of bucks a year and yet they get a wittle scared by the web. Personally I am all for free stuff, be they music, manga, whatever.

As for the rating systems, I guess use the game system. Easy and simple enough.

Question why only the NC-17? I would think that MPAA would want to stay away from that kind of stuff. OH well.

Political Correctness strikes again.

(Reply to this) (Thread)

	beekay 2005-03-16 02:45 pm UTC (link)
	Well, maybe they are simply starting at the top of the food chain, and hope that the rest will get so scared that they don't have to go for the 'G' users... (Reply to this) (Parent)(Thread)

(no subject) -

akuma_river, 2005-03-20 10:25 am UTC

I'm not an IP lawyer and don't play one on the internet, but....

loveanddarkness
2005-03-30 11:19 pm UTC (link)

Several comments here.

(1) This is a link to an actual letter from the MPAA about this:

http://www.livejournal.com/users/carissa_lynn/41743.html

This LJer's Harry Potter fic site made explicit reference to the MPAA's standards, and actually linked to the MPAA's website it as a way of helping authors review the MPAA's standards and use them appropriately. I would bet that if the MPAA were to pick any case to test, it would be this one.

(2) I think their argument is not so strong on the dilution thing, but I can see their issue about confusion of sponsorship or origination. They haven't read our fic, and they wouldn't because it's not within the scope of their business enterprise, but we're self-applying their proprietary certification code. While it is true that one cannot copyright 'an idea' the coding letters - G, PG, etc. - are registered to one entity, the MPAA, and thus, to them those letters carry with them the MPAA's standards, system, and reputation. That is, in fact why we use their codes - because they are shorthand way of expressing something, and a commonly-known set of concepts.

(3) With reference to: there is a descriptive element that has built up over time due to nonenforcement of this mark for things other than motion pictures that's exactly what they're trying to prevent. All brand-named products or services that become commonly used in the language and culture ("Kleenex" "Rollerblade" "Coke" "JiffyLube" etc.) fight this fight. I imagine some win and some lose.

If someone wants to fight the MPAA on this, I would be interested in how the arguments shake out.

(Reply to this)

This Rating System is great!
(Anonymous)
2005-12-22 03:07 pm UTC (link)

"A rating system is a tricky thing - proper warnings are far more important than categorising a website or a tale as suitable for a certain age group. And the "parental guidance" part always looked rather silly to me, anyway - how many Elflings do you know who would ask their mothers to read tales of a frivolous nature with them?

The following solution will hopefully make all involved happy. As Lord Glorfindel is not bright enough to memorise illogical groups of letters, we went for colours..."

- EOAS Master Feronil -

EOAS and Master Feronil gets all credits. Wish I could have invented something like this though...

Master Feronil's most logical rating system

GREEN:
story suitable for each, all and everybody, all age groups

BLUE:
subtle innuendo (sexuality and/or violence), teens

YELLOW:
explicit innuendo (sexuality and/or violence), older teens

ORANGE:
descriptions of intimate sexual acts and/or description of violent acts, older teens/adults

RED:
graphic descriptions of sexual and/or violent acts, adults of legal age only

(Reply to this)

(55 comments) - (Post a new comment)

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