it’s getting really annoying how eating makes you gain weight
'Fair dealing for the purposes of humiliation, embarrassment & mockery' is a bit of a contradiction in terms.
That’s what AJ Hall, British lawyer/IP specialist/fanfic writer said on Twitter this morning.
As fans and fanfic writers, we’ve been discussing Caitlin Moran’s objectionable actions at the BBC’s Sherlock screening in requiring Martin Freeman and Benedict Cumberbatch to read a piece of John/Sherlock slash aloud with a slightly different perspective.
Ethically, what Moran did was wrong, and that’s been discussed by Midlredandbobbin, the awesome author of the fic in question, on tumblr, on blogs, and on Twitter. (This won’t be the first time she did something awful, btw.)
But legally, did she do anything wrong?
The answer is, under English law, probably.
In all of the English-speaking countries, a fanfic writer holds the copyright in her exact word choices fromthe moment of creation. That doesn’t mean she gets copyright in the characters that come from others’ works, or in the lines that she quotes from the canon or from other sources, or in short phrases or names, but in each sentence that she pens, she owns some rights; posting a story or image or article online does not put that work in the public domain; it simply means that the work “has been made available to the public”.
Even if the quoted work itself was copyright infringing (which is a very difficult issue given the creators’ tolerance of non-for-profit fanworks so giving rise to implied licence arguments, especially given the [& ]public domain status of John Watson & Sherlock Holmes) that doesn’t give owners of copyright in source text ownership rights over the derivative work. [See the arguments behind the removal of the conversion damages when 1956 copyright act was repealed.] That point was made clear back in 1988, when the Copyright Designs and Patents Act was passed, although earlier cases had already pointed in the same direction.
The ”Fair dealing” exception is here: http://www.legislation.gov.uk/ukpga/1988/48/section/30 . It limits fair dealing to criticism, review and news reporting.
I don’t believe that the dealing yesterday was fair; it might have been for the purposes of review (of the underlying fanfic) but I’d say arguably it wasn’t, it was to mock fan creators and /or as a joke. In any case, the dealing does not seem to have been fair in all the circumstances of the case for example no effort made to seek consent and there was the ambush element [etc] of both the actors and the author.
Infringement is caused by taking the ”whole or substantial part” of the underlying work without a lawful excuse, but “substantial part” is a qualitative not quantitative test - clearly the scene had been cherry-picked for shock value, which is exactly the circumstances where a limited volume copy can still be “substantial”.
In other words, had Caitlin Moran read a few sentences from this fanfic, or even a few fanfics, that might have been unethical or immoral but it might not have been infringement. However, reading a significant portion of the story could be seen as a “public performance” of the author’s work; as it was done without her permission, it would be infringement if it wasn’t covered by any of the elements of “fair dealing”.
A copyright-protected work can be quoted, publicly performed, etc. “for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work.” Acknowledgement is required (and did not happen at the Sherlock event) except in limited circumstances. Fair Dealing might have applied in this live Q&A situation, except for the fact that the way Ms Moran handled it here may have infringed on the author’s copyright and/or moral rights.
Along those lines, if the BBC wanted to release this Q&A on a DVD at some point in the future, or put it on YouTube, could they do so without cutting most or all of the fanfic, or getting permission from the author?
While we think they can include a few sentences, we believe that using all of the reading without permission from the author, in the context in which it was used at the Q&A ,would infringe on her copyright and might also infringe her moral rights, which are an element of UK copyright law that does not have a parallel in the US.
As the UK Copyright Office says:
Moral rights give the authors of literary, dramatic, musical, artistic works and film directors the right:
to be identified as the author of the work or director of the film in certain circumstances, e.g. when copies are issued to the public.
to object to derogatory treatment of the work or film which amounts to a distortion or mutilation or is otherwise prejudicial to the honour or reputation of the author or director.
Ms Moran’s commentary during this portion of the Q&A could [easily] be deemed derogatory, and given what the author said in her posts yesterday, the use of her story in this context can be viewed as a distortion of the honour of the author.
She wrote this story, and others, to share with friends and within the fandom. Is it distorting her honour to take her “writing out of context without permission, belittling it and using it to embarrass actors who I deeply admire”?
As a matter of law, it may very well be.
[ETA: We wonder if this has occurred to the BBC and is part of the reasoning behind their request that people pull down video of the Q&A. We also wonder if video of this portion of the Q&A might be distributable pursuant to Fair Dealing in connection with reporting on the topic, or commentary or criticism thereof.]
Dear Caitlin Moran,
Yesterday afternoon I was with my friend and looking through the list of people she follows on Twitter, and your name appeared. I had already heard about you, mostly because your books had been recommended to me. I wondered for a moment if I should follow you too - I’m shy about following celebrities but you’re the type of person someone like me, who likes to think herself a feminist, wouldn’t be ashamed to publically be interested in. My friend, in any case, spoke very highly of you. “And you know,” she told me, “she’s hosting the Q&A of The Empty Hearse BFI event today!”
It was only one more reason to envy you, a massively successful writer only a few years older than me, living a life of highbrow glamour at exclusive events, rubbing shoulders with interesting people. I was about to yield.
Alas, in our Internet age, what a difference a few hours makes.
In a rather spectacular manner, you managed to antagonise an entire fandom made up almost entirely of young, liberal-minded women like me, aka your core readership. How did you accomplish this? On paper, it doesn’t sound like much: you picked an erotic Sherlock fanfic off the Internet and made the stars of the show read an extract aloud for shits and giggles. But while it was most certainly shit, it wasn’t giggles for anyone, and least of all for us.