The Legend of Zelda: Fair-Use Chronicles

Bound by Law's spiky-haired heroine fights for fair use and against the erosion of the public domain

Bound By Law © 2006, 2008 Keith Aoki,
James Boyle, Jennifer Jenkins

January 12, 2009 was the first annual World’s Fair Use Day (“WFUD”).

Fair use is a doctrine that permits artists/creators to use (for limited purposes) works under copyright without getting permission from the rights’ holders.  These limited uses include parodies, teaching, news reporting and commentary.

WFUD aims to bring attention to the doctrine of fair use and generate support for it.

The fair-use doctrine is especially important when considering whether fan fiction and/or fan films violate copyright.  Fan fiction and fan films are all the range these days — technology and the internet have made production and distribution more popular than ever before.  So much so, some fans spend years creating fan fiction and movies even though they risk being sued for doing so.

Take the recent dispute between Nintendo and the non-profit fan film based on the “Legend of Zelda.”  After five years of hard work, a small independent studio finally released “The Hero of Time,” a not-so-great feature-length fan film that paid tribute to Zelda.  It appears that the die-hard Zelda fans made this film with nothing but good intentions.

See for yourself:

The creators of the fan film, however, failed to get approval from Nintendo to make the mediocre fan film.  Within days of the film’s December 14, 2009 release, Nintendo, who owns the copyright, demanded that the film be shut down.  In the spirit of Christmas, Nintendo agreed not to sue so long as the creators removed the film from the internet no later than January 1, 2010.

The creators of the fan film had little choice but to acquiesce.  “The Hero of Time” is no longer available.

And as with most attempts at censorship, by shutting down the film, Nintendo not only alienated fans and consumers, but it also fell victim to the “Streisand effect.”

Since the removal of the film from the website, lots and lots of different blogs have written about Nintendo’s censorship.  The fan film is now much more famous than it would have been before all this legal brouhaha.  (The term “Streisand effect,” by the way, originated when Ms. Streisand unsuccessfully sued to remove a photograph of her gigantic mansion from the internet; the lawsuit made the photograph one of the most famous photos of all time.)

As for the fan-film makers?  Not to worry, the creators of the film have not been deterred from making fan films.  They are already at work on their next project.   One hopes that this time they either get permission from the holder of the copyright or that they take a primer in copyright law so that they are ready to assert a fair-use defense.

As a good place to start, Siouxsie recommends that they purchase Bound by Law? Or, that they read attorney Theodora Michaels’ post on how to limit the likelihood of being sued when creating fan fiction.

In the meantime, they can listen to the soothing sound of Zelda’s “Song of Time” as played on a carrot.

Streisand Photo Credit:

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~ by siouxsielaw on January 14, 2010.

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