MPAA

[heidi]

Trying to crosspost to fandom_lawyers but it's in read-only mode, so I'm posting it here instead...

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 of 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 sinks almost every argument they could make.

Comments

[longstrider.livejournal.com]

The MPAA overreact? Just not possible. I mean all of their responses to problems in their industry are so measured and well reasoned.

On a more serious note. I have very little familiarity with trademark, what I do have is all bleed over from what I know about copyright as an academic librarian, but that sounds really weak.

[empressov.livejournal.com]

Definitely overreacting and I've always thought it very odd we try to use the ratings desigined for films to rate literary works.

That said, at least the MPAA has good taste in the smut they peruse. I wonder how they found it?

[misako.livejournal.com]

I LOVE your icon.

[longtimegone]

I agree with you.

Now, were Jori, or anyone for that matter, using the NC-17 (or G, PG, PG-13 and R) to promote her fics as specifically rated by the MPAA, I might see where there is a problem. That would imply some sort of endorsement where none clearly exists.

(d) it would be pretty hard (and kind of amusing) to tarnish the mark "NC-17"?

In which "dilution" means "you people are writing too much Harry Potter porn"? *laughs*

[wordplay.livejournal.com]

*is gobsmacked* Huh. That's...well...just...huh. It'll be interesting to see what they do with other ratings then, won't it? Holy criminy, what a mess.

So, your point up there about the design mark - that's the little box around the rating part? And just in general, how do they handle issues when trademarked and copyrighted material becomes lexicalized (like we talk about Coke machines and Xerox machines and the like)?

The worst part is that I can't really figure out a good way to bring this before my Professional Writing students tonight without going into the whole "your professor knows way more about Harry Potter porn than is strictly appropriate for you to know about" angle, and that's a pity because it would actually be a very worthwhile discussion for them. *ponders*

[heidi8.livejournal.com]

Here's how people like COKE handle it - they are wild about sending out C&D letters whenever something is written which misues the mark. I spent many a day sending C&D letters to those who wrote phrases containing "The Greatest ____ On Earth" because my client, Ringling, deemed it infringment of THE GREATEST SHOW ON EARTH.

This is a snip from the Guide to Proper Trademark Usage:

ould be used as nouns or verbs. Nor should marks be pluralized, or used in the possessive form. Non-adjectival uses of marks, over time, can result in genericness, or a finding of unintentional abandonment -- even when such use emanates from the public, rather than a trademark owner. For this reason, the owners of marks such as Coke®, Kleenex®, Xerox®, and FedEx®, expend considerable efforts to educate the public concerning the proper use of marks.

One way to ensure that a mark is used in proper adjectival context, is to follow each use with the generic noun for the product identified. For example, generic terms for the trademarked products and services mentioned in the preceeding paragraph, are "soft drink," "facial tissue," "photocopier," and "overnight courier service." Using these terms after the marks, makes them adjectives, rather than nouns.

Using the word, "brand," after a mark, and before the generic product name, further guards against non-adjectival use.

The thing is, the MPAA doesn't use the "NC-17" formative as an adjective in narrative usage much, hence, I think, the design mark designation for it.

[luminousmarble.livejournal.com]

Yeah--yeah. If they're not using the actual design mark, how can they really and truly claim that there is infringement? I am slogging through an IP class right now, but. I suppose they did sorta invent the rating, and that ratings based on movie ratings don't work so well for fic anyway, but this is kinda ridiculous.

And what littletort said about tarnishing NC-17 ratings.

[heidi8.livejournal.com]

Ask Amy about our conversations regarding Tarnishing Voldemort.

[pixielore.livejournal.com]

I think they're going a bit overboard. "NC-17" is used all over the place. Why do they have a problem with it now?

Will fanfics have to come up with their own ratings now?

K - Kids
KP - Kids with parental guidance
T-13 - Teens 13 and up
A - Adults 18 and up
P - P0rn.

XD lol

[likebunnies.livejournal.com]

I have made the post public

http://www.livejournal.com/users/likebunnies/150546.html

and I've already taken down all my fandom web sites related to that certain web host (Netropolitan Enterprises). I did that because it seemed like the easiest thing to do considering the day I have had. They supposedly sent an e-mail out but I haven't had that e-mail addy since 1998 and they sent the letter to my old address and it took several days to be forwarded here.

[no-remorse.livejournal.com]

I wonder how with the millions of NC-17 rated fics in cyberspace they came knocking on your door instead of AFF.net's or who knows what. It's not like you are the first fanfic hit when you search Google for the term "NC-17". That honour goes to a Snape/Hermione page. (Who would have thought?)

[copperbadge.livejournal.com]

And also COPYRIGHTING A MOVIE RATING IS REALLY DUMB.

Jesus, that's like copyrighting the colour green.

[heidi8.livejournal.com]

It'[s not! It's a trademark! And I can see why they want to protect it for, you know, movies. But fanfic does not = movies! Ever!

[maeglinyedi.livejournal.com]

On the one hand I want to laugh, because dude...if the MPAA wants to ban their ratings from every single fanfiction site in every single fandom out there that uses it...they have their work cut out for them.

But on the other hand, someone did get a C&D letter for something our entire fandom does. Use MPAA ratings. So where does that leave the rest of us?

[ceilidh]

I wonder if anyone else had no clue about this and thought that movie ratings were, you know, like speed limits or thermometer markings. O_O

[suzycat.livejournal.com]

I did.

[dejaspirit.livejournal.com]

Except,as I remember it, they've gone after a few domain name holders, I believe one was www.ratednc17.com and won. I could be wrong. *googles*

[heidi8.livejournal.com]

They threatened and it seems the guy caved. No precedential value.

[laleonaenojada.livejournal.com]

I may be getting copyrights and trademarks confused, but it would seem to me that unless the "NC-17" is used in the specific design that makes it so recognizable on movie posters/movie trailers, etc., it wouldn't be considered infringement. So, basically, I think your point about it being a design mark is right on.

~A

[noblerot.livejournal.com]

Incredible, this entire episode. Just in-fucking-credible.

[twigged.livejournal.com]

The MPAA is going to go broke on postage if they're serious about stopping the use of their rating system in fandom. That's almost too laughable to take seriously.

[jocondite.livejournal.com]

*wanders in from blythely's link*
I suppose, did it become a real issue, writers could simply switch to the British equivalent, R-18. That said, I really don't believe they have a case.

*giggles inappropriately at the situation*

[lady-t-220.livejournal.com]

Very true, I doubt the BBFC would really give much of a rat's ass if you swiped U, PG, 12A, 12, 15 and 18 from them. Or if they did it would take them so long to get through the govornmental red tape it really wouldn't be worth the effort.

[curia-regis.livejournal.com]

That would probably affect all fanfic websites (except maybe skyehawke.com because they use the Australian rating system).

MPAA is so over-reacting.

[ceilidh]

I wouldn't be surprised if the Australian equivalent of the MPAA has the same sort of opinion of things.

[selinakyle47.livejournal.com]

Huh. Why the focus on NC-17, and not the entire ratings system (G, PG, PG-13, R)?

[ashinae.livejournal.com]

Possibly, possibly because they are/might be the only motion picture ratings system that uses that designation. G, PG, and R are used by the Canadian rating system. Maybe? I know nothing; that's the only thing I can think of, I really.

[stakebait.livejournal.com]

Oh, lord.

Do we have to go through and change every single NC-17 rating to

"Not suitable for readers under age 17 in the judgement of this author, who is not the Motion Picture Association of America, as you can easily tell by the fact that a) No Motion, b) No Picture, c) No Association?

Sheesh.

[lynnenne]

*snort* Plus, d) no America, for many of us.

[hermorrine.livejournal.com]

That's just lovely. I can't get to my email (we've been having problems with our ISP and for some bizarre reason, I can get to LJ and NOTHING else, including my email) so who knows what I've got waiting there. I am really not in the mood for another legal fight. *sigh*

[dorrie6.livejournal.com]

I think you're right, if it is true that they don't own trademark on just the letters themselves, and also if whatever fic counts as (books? web pages?) is not in the same class as motion pictures, they would have to have it trademarked in that class as well to be protected.

This is, at least, what I've gleaned from some struggles with trademark registration for the company I work for.

[notabluemaia.livejournal.com]

Hi, Heidi8 - I am very interested in the development of the cyber communities and fandoms - and in first amendment protections. Your lj was mentioned on 4Lobsters - this post and the links are fascinating. I hope you do not mind that I 'friend' you; I would like to follow this development re ratings and chilling effects. (I am an attorney with a new life as a ff writer and illustrator)

[heidi8.livejournal.com]

Nice to meet you! Did you join fandom_lawyers yet? It's a great resource for this type of discussion - and I agree, it's a fascinating framework to apply legal issues to!

[flyby.livejournal.com]

The fact that ff.net (which iirc introduced the US rating system to online fanfic, and remains the largest user thereof) has not receieved anything similar (and nor has any other fic community) strongly suggests that someone is trying it on. As far as I can see, if they were threatening to prosecute someone they'd pick a big and well-known target. I suspect that someone has used their header and made up a name and email - or pinched one from the MPAA directory. Heaven knows there are enough idiots out there who are offended by NC17 slash fanfic.

[heidi8.livejournal.com]

For some reason, it seems they're only concerned with the NC17 rating, which vaguely makes sense given that the mpaa doesn't have worldwide exclusivity with regard to PG or R, both of which have been used in other countries, so they can't really make the same arguments about exclusivity. And ffn doesn't use the NC17 designator anymore in terms of rating what is actually on that site.

[divabat.livejournal.com]

Got here from daily_snitch and... o_O!

If the MPAA thing doesn't go well, feel free to use the Malaysian ratings system:

U (G, ok for all)
18SX (18+ due to sexual content)
18SG (18+ due to violence)
18PL (some mix of the above)

and something else which has to do with political/religious content or something.

Sounds too much like a prank to be credible...

[mogliecat.livejournal.com]

I might be way off the mark here, but I think everyone is getting way to worked up over this. Why not just stop using the rating system? Yeah, it's annoying that the MPAA is doing this, but is it even worth the fight?

Everyone should just relax, imho.

[jadedofmara.livejournal.com]

You must not be aware of the MPAA's reputation (along with the RIAA).

Two points:

1) The MPAA is bad. Microsoft-level of evil-ness.
2) They're wrong.

It's worth it. It's always worth it when big groups try to bully individuals and smaller groups.

[spookykat.livejournal.com]

Well, if worse comes to worse, I think that the fanfiction community could easily devise its own ratings system that would be universal throughout all fandoms. I also think that this would clarify some differences between what constitutes as different levels of audience censorship that enable equal and appropriate ratings.

If the themes, depictions, word-use and character-actions are appropriate for everyone to read, then the rating could be anything from an A1 to an A3 (A3 might contain slash and a kissing scene, but otherwise appropriate for a general audience). B3 would be, for example, Sirius and Remus snogging and holding hands and maybe some harsh language. C would include smut and really gory violence would be a C3. D would include violent smut and detailed non-con or, just really detailed smut.

That's all we have to do really if it becomes a problem is to be politically correct.

But as for now, we'll keep it like it is, thanks.

~SK