Important!! Re Pern-Related Art

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Title: Important!! Re Pern-Related Art
Creator: Dee Dreslough
Date(s): April-May 1997
Medium: online (alt.fan.pern)
Fandom: Pern
Topic:
External Links:
Click here for related articles on Fanlore.
excerpt from Will Fair Use Survive? Free Expression in the Age of Copyright Control By Marjorie Heins, Tricia Beckles, published by Brennan Center for Justice, Free Expression Policy Project page 43. Click to read.
excerpt from Will Fair Use Survive? Free Expression in the Age of Copyright Control By Marjorie Heins, Tricia Beckles, published by Brennan Center for Justice, Free Expression Policy Project page 44. Click to read.

In April 1997, fan artist Dee Dreslough received a C&D notice from one of Anne McCaffrey's lawyers.

Her fan art was listed as being "inspired by Pern' but it did not use any copyrighted images from the book covers.[1].

While her fan art was made freely available to her fellow fans, she did use the fan art examples as a means of soliciting commissions for her other art.[2] After receiving the C&D she posted about it to the Usenet group alt.fan.pern. The ensuing discussion covered many topics, including fair use, the then Blue Ribbon campaign, the timing of Anne MCaffrey's C&D letters as they related to her ongoing attempts to sell the movie rights to the series.

The artist initially defended her right to create fan works inspired by the book series and to use the fan art as a means of generating commissions - however, she felt that the costs of defending her rights were too high and she removed her website, canceled a fanzine [3] and disbanded the fan club.

She then later reversed course and apologized to Anne McCaffrey saying "It was wrong of me to associate Pern with my art without permission or licensing. I deserved to get hit with the rolled up newspaper, regardless of the niggling legalities of fair use and gray areas. Anne McCaffrey continues to amaze me with how gentle and understanding she is even when she is the wronged party. She is a most gracious person, and I can't express how sorry I am to have put her in any distress"[4]

The C&D Letter

"Dear Ms. Dreslough:

I represent Anne McCaffrey and recently had occasion to review your web page entitled "Dee's Dragonrider Art Gallery (Tables Version)". You have made clear in the text of your materials that the artwork appearing at this web site is inspired by and based upon Ms. McCaffrey's Dragonriders of Pernr series and you appear to understand fully the copyright and trademark rights[5] reserved to Anne McCaffrey, by your reference to her works. You also seem to understand that you may be violating her rights by your statement found on your web site that "if mentioning my inspiration is something that can get me sued . . oh well. If I've goofed, let me know where to fix and I will.*sigh*"

Indeed, you are seriously violating Anne McCaffrey's trademark and copyright rights by your efforts to copy her work (creating "derivative" works) and marketing them over the Internet. As you indicate, you have not received permission from Anne McCaffrey to do so and the mere fact that you disclaim such endorsement does not allow you to violate her rights. Moreover, by both displaying the artwork and permitting it to be downloaded over the Internet, you not only violate Ms. McCaffrey's rights, but you contribute to others violating her rights which is, in itself, a contributory copyright and trademark violation. We have, for example, confirmed that your pictures are being used by others. For example, David York gives you credit for graphics appearing on his Pern page.

By this letter, I am advising you that you must remove your art gallery from the Internet immediately. Should you fail to cease and desist from these copyright and trademark infringements, we will have no alternative but to proceed with a legal action for an injunction and damages, as allowable under the copyright and trademark laws. Anne McCaffrey has not hesitated to prosecute copyright and trademark violations against others who have violated her rights over the Internet. On her behalf, we have obtained substantial monetary judgments, in those cases in the middle and low six figures, for such violations. Ms. McCaffrey takes these copyright and trademark violations seriously.

Please promptly confirm by return letter that you are complying with this demand. If you fail to do so, we will be required to take further action.

Very truly yours, Jay A. Katz

cc: Anne McCaffrey (via facsimile)"

The Fan Artist's Initial Response

"I'm writing to let everyone who may be using any of my Pern inspired art know that they should remove it from their web pages. I just was notified by Anne McCaffrey's laywer that I had no right to draw the pictures (they're derivative works, and therefore in violation of her copyright), and I certainly had no right to charge for time or materials to do them, and that anyone who downloads them is contributing to the infringement of Anne's copyright. He may go after people using the art - not just me. I don't know.

I am so sorry about this. My non-Pern inspired stuff is still copy ok, and I'm going to expand my gallery with all new non-Pern dragon stuff.

For your own sakes, please remove any Pern-inspired/related/vaguely similar art from your sites if you're using it! I think I've reached all of my commission customers, but if you paid for a piece and haven't gotten a letter from me, please email me with your RL address. I'm refunding all commissions."

The Fan Artists Second Response

Well, after spending a day consulting with people who have intellectual property lawyers at their disposal, as well as with a book on copyright, I've found that Mr. Katz was making claims to rights that he didn't actually have. Basically, he was bullying me to get me to do what he wanted, regardless of whether or not he had grounds to do so. To clarify: It is permissable to draw pictures when inspired by written works. They are not derivative works. And, it's also fine to cite an artist's inspiration. Long story short - the only way for Mr. Katz and myself to settle this would be in court, but by the simple fact of economics, I can't afford to defend myself.

Because of this, I'm leaving Pern fandom. I'm tired of living in fear while trying to give other people the opportunity to create something beautiful. I love the books...I always will, but I can't put any more blood, sweat or tears into the clubs, the genre, or anything that might profit Mr. Katz or his law firm while causing the ruin of my fledgeling family and business.

I do not hold Ms. McCaffrey responsible for any of this, and I will continue to buy and enjoy her books. I suspect that her lawyer is simply overzealous, and is representing her poorly in this matter.

The fanzine has:
3 subscribers
2 picture submissions
1 story

It wasn't going to make this publication go-round either. Despite the germ of a good idea, it just doesn't seem to be appealing to fans. I've been advertising for 6 months at least, with very little interest generated.

The MUSH site has maybe 9-10 players, as it was just starting up.

If someone on this list would like to take over the club, I am fine with that. I will transfer all my subscriber files, text stories, guidebooks, picture files by other artists to whoever is the new editor. The HTML for the web pages (but none of the art I made) is also welcome to be used by whomever takes over. (Using the art may get you in trouble with Mr. Katz.) Anne McCaffrey's email is available on her web page at http://members.aol.com/dragnhld She is the one who must formally transfer the club rights to a new individual.

However, the MUSH berth on purple is mine and will remain mine (I accepted it as a payback for an art contract that was never fufilled), and all Pern references will be wiped off it. The current database will be destroyed, and replaced with a fresh one. It will no longer be a PernMUSH. I make this announcement with apologies to Kate and Kuyel, who had just come on board and were excited to start groups on the system, but Delphi, TinyTim and TinyCWRU mushes are still open for those who want to build at their own risk.

This list will be dispanded and shut down, and the highpass web site will be removed from http://purple.cow.net/~highpass.

You all are welcome to reconnoiter and rebuild the club with your own resources.

I'm sorry it has to be this way, but I just can't do this anymore. I will miss fandom dearly, and I will forever be a fan of Ms. McCaffrey's books -- just not her lawyer."

What Anne McCaffrey Said

On May 2, 1997, the fan artist quoted an excerpt from a private email exchange she had with Anne McCaffrey:
""Since I have quickly and completely cooperated with her requests, "need have no further worries. I am personally very sorry to have had to limit your project but it had to be done." exerpt from a letter from Anne McCaffrey that has made me feel a /lot/ better about the whole situation. Basically, long story short, she had Mr. Katz come down like a ton of bricks on me because she had to - "You are obviously very aware of the popularity of the World of Pern (r) and the whole nine yards and I can't blame you for wanting to help artists. But I also have far too many totally unscrupulous people on the web taking quick advantage who know and care little about Pern." and it's upset her that she's had to take this action."

The Fan Artist's Third Response

After quoting the excerpt from the Anne McCaffrey email, the artist offered a third response to the events:

"It was wrong of me to associate Pern with my art without permission or licensing. I deserved to get hit with the rolled up newspaper, regardless of the niggling legalities of fair use and gray areas. Anne McCaffrey continues to amaze me with how gentle and understanding she is even when she is the wronged party. She is a most gracious person, and I can't express how sorry I am to have put her in any distress. So, here's the letter from Mr. Katz. I'm still leaving fandom to strike out on a bold new Public Domain World project, and I will not do Dragonriders of Pern inspired art ever again as a penance. I think this has resolved itself well, all things considered, and I still feel, and always will feel."

Her Website Disclaimer

Still, even though the fan had been told she need not worry, the artist did place a prominent disclaimer on the remaining art at her website:
"In 1997, I shut down my original website and destroyed all my Pern®-inspired art when Anne McCaffrey's lawyer contacted me. At that time, I had a page with free Pern®-inspired dragonrider art [pictures of people's original MUSH/fanfic characters] that had a link advertising my commission page and the rest of my gallery. Please note -- I was not selling my Pern® inspired art. I was letting fans use it for free -- you couldn't buy prints or anything like that. I was only using it to advertise my ability to do commission service work in any genre. If someone actually commissioned something from me, I didn't put it up on the site, so I thought I was basically creating a one-of-a-kind original piece of art for them. If they didn't like it and didn't pay, I then gave it to the rest of the fandom for free. I recently saw a few other websites doing this, so I'm adding a little 'tutorial' here to help folks stay out of trouble.

Learn from my mistake: Don't associate your Pern® fan art with any pages that you use to drum up business, like a commission page. Keep your Pern® fan art separate from any and all other art you do!!! According to her lawyer, you technically can't even DISPLAY your Pern® fan art without her expresssed permission in advance, but I know exceptions are made for many fans anyway. "Your images are recognizable as based upon Anne's books and as such cannot be marketed, displayed, transmitted, sold or used without Anne's permission. " - J.Katz The legal merits of this claim are seriously in question...but they have money, and you probably don't have as much, so if you don't want trouble, keep it all separate.

I agreed to remove all my art and stop drawing Pernese® dragons after that point. I do not want to risk another possible lawsuit for my own original works through any misunderstandings. The dragons on this site, and dragons I have drawn after May 5, 1997 are NOT Pernese®. No Pernese® dragons are on my site. I have destroyed them all.

Pern® fans are welcome to use my art, just like any other dragon fans are - I just need additional clarity on those pages to ensure that Ms. McCaffrey does not think I'm ignoring our agreement by drawing Pernese® dragons again and allowing them to be downloaded, or using the popularity of her world to further my own career. That's why I am hesitant to even have the word 'Pern®' on my pages anywhere...but I have to explain this all for those of you who are using my dragons on her pages.!"[6]

Historical Context

At the time the McCaffrey C&D letter was sent fandom had begun receiving more and more takedown notices from lawyers objecting to online fan fiction and fan art. This culminated in the X-Files fandom launching Free Speech Is Out There campaign. It leveraged from the existing EFF Blue Ribbon Campaign for free speech.

"Hmmm...I admit I don't know all the details from both sides, but this sort of this is running rampant on the web. My X-Files page has a link to that blue ribbon campaign, my Trek page has a link to yet another blue ribbon campaign (both demanding free speech in the light of Fox and Viacom, respectively, cracking down on personal webpages celebrating the shows). Does my books page with it's little tribute to McCaffrey need a blue ribbon now too? I really hope that the writer herself isn't on a crusade to destroy fandom art, because that would just ruin the books for me...knowing that those words were written by someone who so detests her fans and is so egomaniacal that they must squelch any fan art. I don't want to think that, so I'll just hope that this is some dumb lawyer venture, and not Ms. McCaffrey's own project.....

Later the same person wrote:

You're absolutely right...people shouldn't make money off of other people's stuff without permission. It's just that these days webpages are being persectued by lawyers merely for displaying images. I don't know if anyone's noticed, but over the past week or so every single Simpsons page

I know of that had sound files on it has either been shut down completely or forced to remove the sound clips. Now really...I understand copyright and all that, but how does celebrating a show you love by repeating quotes ad naseum and allowing other people to hear them too (which they could off their own tv sets) hurt the creators? It's not like these websites make money from the sounds...it's simply fans enjoying the bits together.

And yet Fox has had it's lawyers crack down on X-Files and Simpsons pages.

I just hope that now that I finally got my webpages up and running, which have Startrek, X-Files, SImpsons and Pern stuff on them, some lawyers aren't going to order me to cease and desist...probably won't, since all I have is a few images up. I'm small fish, I guess.

It just seems to me that it's not worth it to go after websites that don't make money anyway, and all you do is make your fans resent you."

Fandom Responses

"I was under the impression that as long as you did not portray any of Anne's characters, there was no infringement of copyright. Of course, UK law may differ from US copyright law. After all, most of the pieces on your site were persona pieces done as private commission. I fail to understand how this violates the rights, but I'm sure it was better explained to you. I for one will be sorry to see your work go away, as I've enjoyed it.:
"I don't think that authors are out to try to keep people from enjoying their writings through creating related art, stories, whatnot. The author *does* have a copyright, though, so naturally they don't want people making money off their ideas at their expense. They can't control the quality of work done by unauthorized people, so it's misleading to let them sell it as "<insert copyrighted book/ show/world here>" products. That said, I think Anne is pretty cool with letting Pern fans do their own thing. Mercedes Lackey doesn't allow Valdemar-based MU*s, so Pern fans *do* have blessings to count in that Anne does allow such things (with minor alterations). It might not be as much fun to have restrictions on what you can do with other people's ideas, but ultimately it's for legalese protection-type stuff; if you came up with some wildly popular fantasy concept, you'd probably want restrictions on who can do what with it too. And *nobody* can prevent you from creating whatever you want for your own free-of-charge use, as far as I know.. so grab your cray-pa's and go nuts :)"
"Every time I read one of these things about Anne's Copyright, it makes me damn angry, it seems to me that Anne (or her lawyers) are saying to the world you can read what it says in the books, imagine it, but not share your version of it with anyone else ! It always seems to me so selfish and money grabbing, as if she hasn't made enough out of all our collections of books/related material. Actually one of the primary reasons that I have gone off buying Anne's work is this, sorry she's a great writer, but her attitude leaves a lot to be desired, IMHO."
"I agree with you, Dee drew me a picture of my Dragon, and his rider. And now I am forced to take it off my webpage.

Anne also forced a Email RPG that I was a member of to close. Then anne turned around and said she didn't sell the movie rights after all.

I doubt we will ever see a pern movie!

Maybe we should start a petition?"
"Now, just out of curiosity, could her artwork be considered derivative based solely on the content of the pictures? In other words, if her pages didn't have the word "Pern" or "Anne McCaffrey" on them anywhere, could Anne's lawyers go after the artwork based on the fact that the dragons portrayed therein looked like Pern dragons are described? The answer to that has lots of implications. Also note that copyright law in the U.S. also has 'fair and acceptable use' clauses."
"It is tough for the artist. You find inspiration in something and even though you don't have the rights to it, you create your art anyway. Then people start offering you $ for what you've done. Next thing you know the offices of Leechum, Suckem and Grab are calling and threatening to sue your grandchildren four times removed, and remove your gold fillings, if you don't cease and desist. .... ....And just to be clear: I support AM's right to protect her copyrighted material. I won't pay for anything I know is in violation of AM's copyright. On the other hand, my skewed morals don't bother me too much when I find free copyright violation art on the net and I infringe on her rights by downloading it. (I will probably burn for this)."
"O.k, can someone explain to me the difference between Pern clubs, which roleplay in Anne`s pern but are careful to never use Anne`s characters, and Dee`s artwork, which uses the *basic* pern dragon and rider but is careful not to use Anne`s characters. Surely they fall within the same boundaries? I`m not attacking Anne here `cos she may be right or have an overzealous lawyer, but I think maybe she/her lawyer are going a bit over the top on this."

The Ripple Effect

Two years later, fan artists continued to express worry over whether they would get sued for creating fan art based on Pern characters:
: I was thinking of making a Pern website, and I'm not sure of where one crosses the border into breaking certain copyright laws, and I've heard of some people who've had to shut down their website because some of Anne's lawyers told them to. Are there any specific NO-NO's? Can I draw a dragon, scan it, then put it on my page?" [7]
Some readers advised placing fan art only on sanctioned club websites, not charging any fees and re-stating the author's required copyright and trademark notices:
"I already have my own pern art gallery, of my own paintings of people and dragons from a fan club. I don't sell these drawings and didn't charge the fan club members for them. They're on the club pages, which is an official club, but my personal gallery is not part of the club website. I stated AM's copyright on my page, among the terms and conditions for use of my pictures. I am sure I am not breaking any laws, but out of courtesy I mailed AM about my page anyway." [8]
Others warned that fan artists' could draw fan art but should not show it to anyone:
"As far as I know if you draw one of Anne's characters for your own personal enjoyment that's ok. But displaying it for others to see or selling it is a no no. Right now with all the goings on with the TV show and them owning the rights to the Dragonriders of Pern ® (or whatever they own), the lawyers are being pretty heavy handed. I think if there was no show we fans wouldn't have any trouble (well, maybe not as much trouble) as there has been in the past. The biggest thing to avoid is making money from selling the pictures, which you have done." [9]
One fan tried to offer more practical advise:
"I had the same problem with my Who's who page, so I emailed her asking for her permission. Basically I was told to just add "The World of Pern is copyrighted to Anne McCaffrey (c) l967. 'The Dragonriders of Pern' (R) is a registered trademark." A lot of Pern pages have that on their pages or something similar." [10]
In a separate post one reader wondered why there was so little fan art for the book series:
"I have recently discovered this newsgroup, and have thoroughly explored the Web sites listed on Yahoo, Lycos, MsWeb, Excite, AltaVista, and Snap. I find the sites sadly lacking in artistic representations of the Pern novels. I cannot believe that with the extraordinary number of fantasy artists out here (I, myself am a Celtic artist), there are no paintings or drawings other than the book covers on any of the sites. I do think the thirteen or fourteen books on Pern hold a wealth of possibilities for fantasy paintings. I only wish I had the talent to put down some of my imaginings of the scenes. but my talent lies in geometric graphics, not illustrative work. Just doing landscapes alone would be worthwhile. The dragonlovers guide to Pern is really the only book to do justice to some of the ideas. Online, the images seem to be culled from D&D and Dragonlance."[11]
Fans pointed to the Dee Dreslough case as to why they were leery of producing fan art:
"Well, I can't speak for anyone else, but after what happened to Dee Dreslough I'm very wary of putting any of my Pern related art on the web. If you want to see original Pern art, then joining one of the offline fanzine clubs is probably the way to go." [12]
In a third post one fan wondered:
"Out of curiosity, what are the laws about artwork? I see them posted everywhere, book cover art, the Ruth picture and others from the calendar, and, like Francois wonderful site, scans of book covers. Where is the line for copywrite infringement? I've got quite a collection of Pern art and dragon art I picked up from sites all over. If I set up a web page, how do I keep from legal troubles if I post art that I don't know the origin?"[13]
To which a reader replied:
"I believe that so long as you are not selling copies of the pictures or drawing pictures of Anne's characters and selling them you are ok in posting them on your site. It's making money off of copyrighted material that is the problem. But you would need to be cautious if drawing your own pictures. Don't do anything that closely resembles copyrighted material, from People of Pern or descriptions in Anne's books. Maybe that's taking it too far on the cautious side, but better safe than sorry." [14]
In 2007, a fan who reviewed fantasy books read about Dee's encounters with Anne McCaffrey's lawyers and took steps to protect her blog from similar problems:
"Needless to say, I was rather worried considering the amount of references to various things on my site. For security’s sake (and my own sanity’s sake), I’m going to put up disclaimers right here so EVERYONE can see them.

I do not own The Dragonriders of Pern, Pern, or any other Pern-related item; they belong to Anne McCaffrey.....

I am not making any profit off of my mentions of these characters/series. They are mentioned only in passing or in the context of a review."[15]

Post-script

In 2000, the fan artist created a support group for fans who were the subject of C&D notices from copyright holders. An archived version of the website can be found here.

"There is a sad but growing collection of people (myself included) who have been contacted by lawyers and forced to destroy our fan materials, halt our club activities, or who have been misused, abused or excluded from clubs for whatever reason. Fandom is a political monster -- there's a lot of infighting, favoritism and abuse. This group is for anyone who's been hurt by an organized group around a shared fiction (either an original theme, or based on a popular TV, Book, Movie, etc)>"
The support group was eventually disbanded but the author wrote:
"Burned for fandom was a support group for those people who'd been emotionally hurt during their time in fandom -- in particular Anne McCaffrey's Dragonriders of Pern® fandom.

It's long gone idle, but I made some lifelong friends through it. Thanks, guys. :)

If you need to find people interested in protecting Fandom activities, please visit The Organization of Transformative Works.

I hope you all do better with fandom than I did. :)"[16]

References

  1. In the book 'Will Fair Use Survive?', Dee noted that her dragons differed from the book descriptions in both structure (they had ears and proto-horns) as well as coloring (striped and multi-hued). See Will Fair Use Survive? Free Expression in the Age of Copyright Control By Marjorie Heins, Tricia Beckles published by Brennan Center for Justice, Free Expression Policy Project page 44; link page 1.
  2. "It was a free art download site, but also an advertisement for my commission service..." See the artist's May 1, 1997 post; archived link.
  3. New Fanzine Forming post to alt.fan.pern dated Dec 31, 1996; archive link.
  4. the artist's May 1, 1997 post; archived link.
  5. At the time, fans were asked to include a trademark notice on their websites and in their fanzines. It is not clear whether the trademark notice was used on the art portfolio. In 2003, years later, the artist said she actually chose not to use the Pern name so as to *not* confuse people: "My gallery was not called Dragonrider Art - it was Dragon Rider art. I used two words in an attempt to be even further from Dragonriders of Pern(r) - her logotype trademark which uses the one word 'dragonrider'. I also tried to make it very clear that my art was not any official creation of hers. It was just inspired by the books, just as the fans who were requesting the art from me were inspired by the books to write up their own Pern characters."
  6. Important Notice archive copy dated 2003.
  7. Copyrights post to alt.fan.pern dated May 5, 1999; archived link.
  8. Copyrights post to alt.fan.pern dated May 5, 1999; archived link.
  9. Copyrights post to alt.fan.pern dated May 5, 1999; archived link.
  10. Copyrights post to alt.fan.pern dated May 5, 1999; archived link.
  11. Anne McAffrey project dated Jan 10 1999; archived link.
  12. Anne McAffrey project dated Jan 10 1999; archived link.
  13. Pern Fan Fiction post to alt.fan.pern dated Jan 5, 1999; archived link.
  14. Pern Fan Fiction post to alt.fan.pern dated Jan 5, 1999; archived link.
  15. Me no own, you no sue, Archived version
  16. Dreslough.com - The Home of Dee Dreslough's Artwork and Novel!, Archived version