All’s Fair in War and Intellectual Property

Presentation Overview

How does copyright work? Fair use? Creative Commons? What kind of content can we – as SCA artisans, researchers, and lovers of history – use as we create our own works? Can we protect the work we make under mundane law? Mundanely, I have a PhD in media (specifically media law), and spend my days teaching 250+ students “how not to get sued” in my role as a professor. I’ve always fielded Intellectual Property questions from SCA friends, generally one a month. It just never really clicked that my mundane skill set could have practical use/implications for my hobby.

The goal of this presentation is to propose/draft a series of basic handbooks to help SCA participants navigate Intellectual Property in a way that is practical and empowering. I already know the law; with this project I really want to encourage feedback about what would be most useful for the populace, and engage in feedback/dialogue to make this a useful long-term project.

Presentation Outline

  1. Intellectual Property Handbooks
  2. Intellectual Property Workshops
  3. About Intellectual Property

Intellectual Property Handbooks

The model for my handbooks comes from the Fair Use Library for the Center for Media & Social Impact (CMSI), which is based out of American University. According to the Center, “Copyright concerns fundamentally affect the creative choices media makers believe they can make. As part of its mission to provide educational support to creatives in media that matters, CMSI develops tools to better understand how to employ fair use, the right to use copyrighted material without permission or payment, under some circumstances. Filmmakers, journalists, teachers, visual arts professionals, librarians, archivists and more all have collaborated with CMSI to clarify how fair use works with their most common practices.” (CMSI).

CMSI focuses on one aspect of Intellectual Property: fair use. Their handbooks establish a Code of Best Practices for various contexts of media usage: documentary film, visual arts, journalism, online video, etc. You can access the various codes for reference/overview here:

CMSI Codes of Best Practice

Code of Best Intellectual Property Practices for the SCA: I would like to create a series of handbooks that address aspects of content creation in the SCA. This would entail over-viewing more aspects of Intellectual Property (ex: copyright, fair use, Creative Commons), but in a more narrow way (ex: bardic). So far, I have identified the following areas for possible handbooks:

Code of Best IP Practices for SCA Documentation & Research

  • Geared towards A&S research and documentation
  • Ethics (plagiarism) vs. copyright (law)
  • Source text/images/etc.
Ornamental old chest on ground” (Gonullu, 2020)

Hypothetical example: You are creating documentation for a Kingdom A&S entry. You visited a museum and took a photo of the 14th century illuminated manuscript you are using for reference. Is the photo copyrighted? Can you use it? (Answer: When you take a photo, you are creating a new and original work that is copyrighted by you. You are welcome to use the photo without permission of the museum.) What if you want to use a photo of the 14th century illuminated manuscript that you found in a book?

Code of Best IP Practices for SCA Presentation & Online Presence

  • Geared towards A&S display (both in-person & online, via class content but also digital portfolios)
  • issues with live streaming (Zoom, Twitch)
  • social media and copyrighted content

Hypothetical example: You have put together a class for the SCA on 16th century hats. You have pulled heavily from images in books and museum websites. All of your sources are cited. You plan to give your class on Zoom. Is this legally ok? (Answer: Since the purpose of the class is educational, you should be protected under fair use. That being said, there might be some extra considerations if you’re showing video, playing music, or using a substantial amount of a copyrighted work without permission.)

Code of Best IP Practices for Bardic

  • Specific deviations of music industry practices (separate protection of lyrics and musical content)
  • Limits of “inspiration” (role of filk/parody)
  • Performance vs. recording

Hypothetical example: You write a SCA filk song with your own lyrics, but you set it to Rollings Stones music. Is this legally ok? (Answer: With songs, both music and lyrics are copyrighted separately. While it’s good you wrote your own lyrics, you are likely committing copyright infringement without a license for the music. You can probably sing it around a campfire, but you shouldn’t record it on a CD.)

Code of Best IP Practices for Heraldry

  • What can/can’t be copyrighted (images/words/phrases/styles)
  • Inspiration vs. copying

Hypothetical example: You are putting together a guide on SCA heraldry. Instead of drawing images yourself, you want to include copied pictures from a 1970s book on medieval heraldry. Is this legally ok? (Answer: This would depend… if you’re teaching a class on heraldry, it mostly would fall under fair use. If you wanted to produce a handbook on heraldry, you are bringing more copyright infringement issues to the forefront. You’d be better off drawing your own images based on the 1970s book- inspiration- vs. copying a substantial portion of a source without permission.)

Intellectual Property Workshops

Ideally, after I produce and post the Best Practices for Intellectual Property Handbooks, I would like to conduct a series of hands-on workshops to walk people through the handbooks, and teach them how to accurately reason through and advocate for themselves on specific issues of Intellectual Property law. In the workshops, one of the best teaching tools will be more in-depth hypotheticals like the ones above.

I want to walk you through an example of how a workshop might go.

  1. Discuss/overview the relevant area of Intellectual Property & the SCA (Code of Best IP Practices for SCA Presentation & Online Presence)
  2. Present the relevant handbook (Code of Best IP Practices for SCA Presentation & Online Presence)
  3. Go through a series of examples and ask the audience to engage in small groups and reason through the issues raised by the hypothetical.
  4. Discuss as a group, and answer any questions raised by the exercises.

For example, say I had a costuming blog online and wanted to use this medieval meme:

(Hiatus Games, 2020a)

We would begin with a series of questions:

  1. Is this work copyrightable? (Yes, it is creative, original, and fixed in a tangible medium.)
  2. Who owns the work? (It is labeled with Deus Lo Vult, which is a board game from Hiatus Games, a Ukrainian Board Game developer. They started creating medieval memes to popularize/amuse their fans.)
  3. What is this meme based on? (It is based on a 2019 meme mashup of a 2011 scene from Real Housewives of Beverly Hills, while the cat- named Smudge- was first posted to Tumblr.)
“What is the cat meme?” (Mitchell, 2019)

4. If we don’t have permission to use the medieval version of the meme, can we? (Well, it depends on fair use. This new version of the meme is a separate, copyrighted creation in its own right. If we are using it in a new and different way – transformative we’re more likely to be within fair use. If we’re using it in an educational way, such as this workshop, it is more likely to be fair use. If we’re just using is for a laugh… we’re not likely to be sued, but it’s less likely to be fair use.)

About Intellectual Property

*The following material is excerpted from class content I have created mundanely for my profession. It is not published in the traditional sense, and I include it here to familiarize anyone interested with an overview of the various areas of Intellectual Property law. (Blevins, 2021)

Trademarks helps businesses distinguish their goods and services in the marketplace by protecting logos, colors, even phrases associated with the businesses. The original purpose of trademarks were to protect consumers in the marketplace by giving them reassurance that the products they were buying were genuine.

Let’s look at Nike sneakers as an example. If a consumer buys a Nike sneaker, they are not just buying any sneaker, but that particular brand – both any social caché it represents, as well as quality. The government helps guarantee that by allowing businesses to protect their associated branding. No other sneaker company can be called Nike. No other sneaker company can sell its products with the “Just Do It” logo. No other sneaker company can put the Nike swoosh on their sneakers.

Trademarks are very narrow though. It would contravene the idea of intellectual property to remove language/colors/phrases from the marketplace of ideas. So while no other sneaker company can use Nike’s associated trademarks, an author could have a character in a book say “just do it,” and a restaurant may have Nike on the menu to signify a victoriously good dish in allusion to the Greek goddess Nike. The idea is to prevent confusion in the marketplace. No one ordering a sandwich would be confused if they weren’t served sneakers (in fact the opposite is true!).

Trademarks also have to be protected by the company that registers them. We’ll talk about how copyright is different below, but if companies do not actively protect their trademarks (often in the form of lawsuits), then they can lose protection for them. Also, sometimes a trademark word or brand is too successful, meaning that if a trademark becomes the generic term for a product or service, there is no reason to continue to distinguish it for consumers.

Man Holding a Hammer in Front of Anvil” (Asmussen, 2017)

Trademark and the SCA: Generally speaking, trademark is not much of an issue for SCA usage. The exception might be merchants using trademarked logos/images without permission in their wares.

Patents are part of intellectual property in that they protect the rights of inventors. Historically, inventors have been a secretive lot, creating inventions and then keeping those inventions to themselves. It is in society’s best interests to make those innovations available for use to the public. To encourage this, the government provides inventors with patents. If an inventor registers their unique invention with the US Patent and Trademark Office, the inventor get protection and monopoly of their invention for twenty years. This means they are the only one to make money off of their invention during this time.

Patents and the SCA: Generally speaking, patents are not an issue for SCA usage.

Copyright protects creative expression. You write the Great American Novel. You publish it. Without copyright someone else could take your entire book and publish it themselves. Would you spend years writing the Great American Novel the Sequel? Probably not. By protecting creative expression, making it the creator’s property, we are rewarding people who artistically create things. This gives creators proprietary interest in their works and increases the likelihood that they create more. Part of copyright’s purpose is to encourage more creative expression. This is in the best interests of society because it means more art, more music, more ideas added to the proverbial marketplace of ideas.

Copyright and the SCA: Copyright substantially impacts what we do in the SCA. Use of creative expression (images, drawing, photography, sculpture, research, etc.) all implicates copyright. Creation of our own creative expression also implicates copyright, since the moment we take a picture, draw something, etc. it is copyrighted.

Creative Commons is an optional set of copyright licenses, designed to address some of the inflexibility in the rights granted to copyright holders. These licenses were created by scholar Lawrence Lessig in 2001 but are legally robust, meaning if you use a work licensed under Creative Commons, you and the copyright holder are still protected by law.

Essentially, under Creative Commons, while US copyright law grants copyright holders six exclusive rights, those copyright holders can choose to relinquish some of their rights. Why would they do that?

Well, imagine that you’re a new remix artist, trying to make it big in the music scene. It is copyright infringement for people to take your sampled music without permission. But under Creative Commons you could license your work so it could be taken as long as credit (attribution) was given to you.

“Creative Commons licenses” (n.d.)

Creative Commons and the SCA: Creative Commons represents a valuable resource for SCA use. Not only can we freely use materials according to the guidelines set by Creative Commons licensing, we should also consider licensing our own medieval work/research under Creative Commons. This allows us to retain ownership while providing clear, flexible guidelines for other SCAdians to follow.

Fair Use is an exemption to copyright protections. Fair Use permits a limited copying (or use) of a copyrighted work. This is an exemption for the public, not something copyright holders have any control over. This is an attempt in the law to balance the author’s rights to their work, with the public’s interest in commenting/critiquing/addressing that work while it is still relevant (before it takes 90+ years to enter the public domain). 

The best way to think of Fair Use is to consider meme culture. Memes have huge cultural impact – they are the shorthand of how we communicate with each other. But they have a very short shelf life. A meme that was a cultural shorthand for communicating in 2016 is nearly incomprehensible in 2017. The relevancy of the context is fleeting.

Fair Use is a little difficult to grasp because it is a flexible framework offered by the law. Instead of set and fast rules, the framework lets the public interpret and use it to their benefit. This is also why it is so important to understand Fair Use. In order to use to correctly, you have to understand your rights, the framework, and how to make a good argument for why your use would fall under the Fair Use exemption.

There are four factors that guide Fair Use:

1. the purpose and character of the work

2. the nature of the copyrighted work

3. the amount and portion used

4. effect on the market

“The trolley problem” (Hiatus Games, 2020b)

Fair use and the SCA: Fair use allows us to balance protecting an author’s interest with the public’s ability to use/interact with the work without permission. Most of what we do in terms of research in the SCA utilizes fair use, even though we’re not always aware of the legal side of how and why we cite materials, etc.


Citations

  • Asmussen, R. (2017). Man Holding a Hammer in Front of Anvil. Pexels. Retrieved June 4, 2021 from https://www.pexels.com/photo/man-holding-a-hammer-in-front-of-anvil-334032/
  • Blevins, K. (2021). Law of Mass Media: Intellectual Property. University of Idaho.
  • CMSI. (n.d.). Fair Use Library. Center for Media & Social Impact. Retrieved June 4, 2021 from https://cmsimpact.org/program/fair-use/
  • Creative Commons. (n.d.). About the Licenses. Creative Commons. Retrieved June 4, 2021 from https://creativecommons.org/licenses/
  • Gonullu, M. (2020). Ornamental old chest on ground. Pexels. Retrieved June 4, 2021 from https://www.pexels.com/photo/ornamental-old-chest-on-ground-6243761/
  • Hiatus Games. (2020a). Unnamed. Bored Panda. Retrieved June 4, 2021 from https://www.boredpanda.com/ancient-style-recreation-memes/?utm_source=google&utm_medium=organic&utm_campaign=organic
  • Hiatus Games. (2020b). The trolley problem. Bored Panda. Retrieved June 4, 2021 from https://www.boredpanda.com/ancient-style-recreation-memes/?utm_source=google&utm_medium=organic&utm_campaign=organic
  • Mitchell, A. (2019). What is The Cat Meme, and Why Is That Woman Yelling? An Explanation of the Hilarious Viral Moment. Oprah Daily. Retrieved June 4, 2021 from https://www.oprahdaily.com/entertainment/a29739536/cat-meme-taylor-armstrong-explained/
  • Smithfield Decretals. (n.d.). Two knights fighting over a hound from BL Royal 10 E IV, f. 105. PICRYL. Retrieved June 4, 2021 from https://picryl.com/media/two-knights-fighting-over-a-hound-from-bl-royal-10-e-iv-f-105-68ec1a.

9 Replies to “All’s Fair in War and Intellectual Property”

  1. This is great service to the arts community! I feel like a handbook of this sort could become the “required reading” for many of us in approaching our arts and documentation.

    Thank you!

  2. Fantastic work! I’m a library technician-turned-Records Management Analyst and I know a heck of a lot about IP and copyright (or at least know where to find that information). May I suggest a handbook section (or future project) regarding the differences in IP/copyright in different countries? Particularly for Canada since we have just *slightly* different rules, but being so close to the US we get a lot of technically false (for us) information regarding copyright through US media. I’m sure doing it for every country where the SCA operates would be a major undertaking, but perhaps some information on the obvious differences could be of help to some folk. Overall, well done and thanks for sharing!

  3. I am so excited for you to do these handbooks and classes. IP fascinates me and I want to know more – both for the sheer geeky pleasure of it and to check that I am correctly following the intent and the law. This would be an amazing service to the community and I look forward to watching how you proceed.

    1. Thank you so much! I’m really wanting to make a resource that is accessible/helpful to the greater SCA community. If you have time, I’d love to hear what interests you about the topic (and what you feel might be relevant in terms of SCA) via a meeting next weekend! If not, I’d appreciate any thoughts in the future too. I’m sure it’ll take me a bit to wrangle the handbooks. 🙂

  4. Thanks for writing about this. I’ve been interested especially in Intellectual Property rights (but have never really studied it.) I also have some stories I should tell you about sometime.

Leave a Reply

Your email address will not be published. Required fields are marked *

eighteen − 7 =


Request a One-on-One Conference

Please login or register to book a one-on-one appointment with this Exhibitor!