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Re: desktop branding market

From: Brandi Jasmine <bj_at_brandijasmine.com>
Date: Fri 06 Jul 2001 09:20:58 -0500

JULIANA MINSKY <jm_at_surfmedia.com> WROTE:

>Are your clients happy or upset about the proliferation
>of fan developed desktop gizmos (screensavers,
>wallpaper, browser skins, etc.) available on the web?
>Are companies generally looking the other way and
>enjoying the word-of-mouth exposure, or are they
>making cease & desist efforts and working toward
>having their own sanctioned versions developed and
>available at official sites? Are companies well aware
>of this phenomenon?

You better believe they are.

I do celebrity portraits
(See: http://fan.starwars.com/CastleAvioh/files/starwars.html
for one sample - I have others, but only by private
request). I have researched this topic for several months
now.

What you can and cannot do is complicated - but it comes
down to this - if there is any commercial profit involved
the ONLY way to ensure you will not be sued is to ask for
permission in advance. 90% of them will NOT give you
permission. Of the 10% who are left, they want exclusive
contracts, they will charge for the rights, some, like
Paramount, even charge you to LOOK at your proposal -
in the thousands of dollars I hear. Some have a firm
"don't call us, we'll call you" policy with licensing and
story ideas. I suspect that is because they fear they will
be sued by some artist or writer whose pitch matches
something they are working on already.

I have a series of "fan" pages that I have done - strictly
non-profit for the fun of it
 (http://www.brandijasmine.com/fan/index.html) - and I
have decided to protect myself by seeking permission.
The Canadian people I spoke to were more than happy to
give permission and the Air Farce people were wonderfully
gracious.

I wish the same could be said for the properties in the US.
I don't know if you heard about the X-Files imbroglio.
They attempted to shut down all fan sites and had a near
civil war in the fan community as a result. I gather they
backed off or there is a new crop of fans who haven't been
targeted because the sites are back. But for months, many
of the "now-former fan sites" displayed only the mean-
spirited "cease and desist" letters they got from the
company. Lucas (the Star Wars people) did the same thing,
but they learned from the experience and ultimately came
up with a creative way to allow it and still keep their
lawyers happy. They put together a free site for fans to
put up fan sites. But that is a totally "non-profit"
deal. The "for profit" market is a totally different story.

I blame the hyper-reactivity on the part of many companies
on a small clause in copyright law that says a company
must "vigorously protect its marks" or some verbiage to
that effect - a lot of companies figure that means they
have to go after every infraction, no matter how trivial,
no matter the risk to audience relations - because they
fear it means they might lose their marks. I also understand
there is an exception - editorial expression is an exception
under "fair use" in copyright laws. I could post a review
along with my portraits and claim they are editorial
illustrations. It might pass muster. But I am unwilling to
be a test case.

BTW does anyone know what the standard editorial policy
is in print publications for portraits and caricatures? You
often see them in Time and the like - do editors feel
obligated to seek out permissions for such illustrations
or are they, like papparazzi photos, protected as "fair
use"? That is something I have not been able to get an
answer to.

---

Brandi Jasmine - Writer, Photographer, Illustrator
www.brandijasmine.com - www.astrology.ca - www.twostar.com



Received on Fri Jul 06 2001 - 09:20:58 CDT


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