The Fandom Menace: an official site in fans' clothing
|Title:||The Fandom Menace: an official site in fans' clothing|
|Date(s):||December 5, 2000|
|Topic:||copyright, fanworks, ownership, fandom and profit|
|External Links:||The Fandom Menace: an official site in fans' clothing, Archived version|
|Click here for related articles on Fanlore.|
The Fandom Menace: an official site in fans' clothing is a 2000 essay by Fox.
Related Star Wars Essays of the Time
The years 1999 and 2000 were a time of a lot of discussion about Star Wars fandom and profit.
- It's Not Wise to Upset a Wookiee: LFL and Internet Copyright Issues (September 1, 1999)
- Fox Takes On Fan Web Sites: Star Wars sites could see more legal action (February 13, 2000)
- Starwars.com Fan Homepages Protest Site (March 10, 2000)
- Fans.starwars.con (March 12, 2000)
- In Defense of Starwars.com (March 24, 2000)
- The Fandom Menace: an official site in fans' clothing (December 5, 2000)
- also see Viacom Crackdown
- fandom noun : 1) the fans of a sport or famous person.
- fandom.com noun : 1) yet another corporate website that's ticked off the fans they're supposed to be "all about".
You may have heard by now about the boycott of Fandom.com. I called for it the third Monday in November, in a message I sent to six or seven mailing lists; by Tuesday morning, it had evidently traveled farther and wider than I'd had any reason to believe it would. The editors at Trek Today, a Star Trek news site, contacted me for an interview, calling me an "organizer" and saying the situation was "escalating rapidly." I felt like Jimmy Hoffa. The thing has reached people I've never heard of -- it's reached fandoms I've never heard of. I've apparently started something big.
It actually began pretty quietly. Carol Burrell, who owns Fandom.tv (http://www.fandom.tv) -- a site, as you might surmise, devoted primarily to TV fandoms -- mentioned on a list of which I am a member that she had received a cease & desist letter from a law firm representing Fandom, Inc., which operates F.com. The letter began by claiming that Fandom, Inc. owns all exclusive rights in and to the trademark "Fandom." This, as you can imagine, raised some eyebrows among fellow list-members, and since I work in an intellectual-property law firm -- where a lot of people know a lot about trademarks -- I did some digging.
As it turns out, Fandom, Inc. does not hold a registered trademark on "Fandom" (http://tarr.uspto.gov). Now, registration is not required to trademark an item -- but it's a good idea if you want to go claiming exclusive rights to things, because you can only register a trademark if you can demonstrate that you were the first to use the mark in commerce (http://www.uspto.gov/web/offices/tac/doc/basic/basic_facts.html). But registered or no, holding a trademark doesn't allow you to prevent others from making legitimate fair use of that material. If the material is (1) used in everyday speech, and (2) used in its everyday sense by the alleged infringer, fair use applies and the trademark holder looks for other people to sue.
Fandom, Inc. would like us to believe that the word "fandom" is so descriptive that the world associates it only with them. Their letter claims that it is "a strong and distinctive source identifier for its commercial activities," and that this strength and distinction has been achieved "[through] continuous, widespread use, including radio, print and other advertising" (http://fandom.tv/fcom). I, for one, have never seen or heard an advertisement for F.com, on the radio, in the news, or anywhere else. I've never even seen a banner advertising it on any other website. I'd heard about the site only through word of mouth -- which, incidentally, is how Internet news travels best in this Internet age, and how my call to boycott F.com traveled so far so fast.
The "continuous, widespread use" to which they refer, on the other hand, seems like a silly thing to say. They call the mark "famous and distinctive" (http://fandom.tv/fcom/fcom2.html). They're certainly entitled to trademark the word "fandom," but the implication that the word was *not* in widespread use before they did so -- which, if true, would quash any fair use argument -- is foolish. I did some more digging.
The word "fandom" appears in Merriam-Webster's Online Dictionary (http://www.m-w.com) with the definition "all the fans (as of a sport)" and dated to 1903. This demonstrates that the word was in regular use *before* 1903, as dictionaries typically lag a few years behind current speech. Furthermore, the Library of Congress Catalog (http://catalog.loc.gov) includes many books with the word "fandom" in the title, the first being "Ty Cobb, the idol of baseball fandom," by Sverre O. Braathen, published in 1928. The word's been around for a while, and everyone knows what it means. Trademarking it won't stop other people from using it.
In the Trek Today article, a spokeswoman for F.com says "I think that most reasonable people would agree that someone else operating a domain with a dot-tv suffix who is operating in the same space causes some confusion among our audience and concern for us,"(http://www.trektoday.com/news/fandom.shtml) and perhaps that's true. But wouldn't a simple disclaimer at the top of Fandom.tv meet the case? The letters, as you can see, are quite strongly worded -- but this is standard legal language. A lawyer or other experienced person wouldn't bat an eye, but it's designed to intimidate the individual, and it did. The spokeswoman goes on to say "I don't think the folks at Yahoo would be very happy if someone else started running yahoo.tv." Objection! Not a similar situation. Yahoo! is a well-established site, and anyone attempting to register yahoo.tv -- if they were even able to do so; I bet Yahoo! already owns that URL -- would clearly be doing so with the intent to divert users from the original Yahoo! site. This is known, in the trade, as "bad faith." Carol Burrell, on the other hand, had never heard of F.com when she registered Fandom.tv -- "good faith" -- and besides, her site does not compete with F.com.
And this is really the meat of the matter. F.com is far less a fansite than it is an official site. The largest portion of its front page is devoted to the "Fandom Shop." Its "fandomains" are described as "unofficial sections maintained by real fans" (emphasis added), forcing one to assume that the *official* sections are maintained by someone *other than* real fans. Its Terms and Conditions contains a "License and Idea Submission" clause, requiring the Real Fan to sign over any and all intellectual property posted on the site to Fandom, Inc. -- unpleasantly reminiscent of other, official sites' terms of service. Fandom.tv has no such provision in its Terms of Service (actually, it makes it clear that while it provides web space to other fans, their intellectual property is their own). Neither does Echo Station (which offers the same disclaimer). In fact, most fansites do not claim ownership of their visitors' intellectual property; most official sites, on the other hand, do -- as does F.com. It's hard not to conclude that F.com isn't really a fansite at all, but a wannabe official site, looking to make a buck of the fans' devotion.
Let me say right now that I don't think there's anything wrong with that. F.com has every right to do what they do and call themselves Fandom.com while doing it. (I wish they'd quit saying they're run "by the fans, for the fans," but that might just be me.) But trying to claim that a true fansite, one set up and maintained solely for the love of the material, is competing with them, is mean and misguided. Fandom.tv does not lure consumers away from F.com -- it probably doesn't even attract them away unintentionally. The real issue is that Fandom, Inc. wants the .tv domain for their TV-specific stuff, but that name is already registered. Unfortunately, their legal fight is doomed to fail. Carol Burrell acted in good faith, made fair use of a word that exists in everyday speech, and does not unfairly compete with the F.com site. They can't nail her on trademark infringement. Their best, wisest, safest bet, to avoid alienating fans who are only now realizing the extent of Fandom, Inc.'s desire to control the market, studio-style, is to back off now. Leave Fandom.tv alone. Accept a disclaimer at the top of the site, if absolutely necessary, saying "Fandom.tv is not affiliated with Fandom.com or any other site not expressly so designated herein," or something along those lines.
There are certainly those who disagree with me -- owners of F.com's fandomains, mainly -- and they're entitled to do so. They urge me to blame the lawyers, rather than Fandom, Inc., which I almost do; I blame the lawyers in addition to Fandom, Inc. They note that if the boycott is going to adversely affect anyone, it's going to adversely affect them, since they're Just Real Fans maintaining Real Fansites for F.com. That's probably true, and I'm very sorry it's the case. But what fandomain owners need to realize is this: if Fandom, Inc. wins in this dispute, and gets Fandom.tv away from Carol Burrell -- along with written assurance that neither she nor anyone associated with her in any way will ever use "fandom" in a top tier again -- fandom as a whole will have been done a grave disservice. Fandom, Inc. wants to be the only thing people think of when they hear the word "fandom," and it's not just URLs that they'll go after to do this. They will systematically try to assure that mentions of "fandom" only and always refer to their site. Eventually, even mentions of the word that don't refer to them will be assumed, by new fans and non-fans, to do so. The rest of us will have to specifically note that by "fandom," we *don't* mean F.com, and never have. That's entirely unreasonable. Fandom belongs to the fans. It's a community. Trying to get a monopoly on the word is anathema to the whole *idea* of fandom. Fandom, Inc., of all people, should -- if they really are fans -- realize that.
Beyond the hullabaloo about the word "fandom" lurks the even greater question: if Fandom.com wins, what will be next? What common word will suddenly attract the attention of an official site with the kind of cash it takes to chase the little guy out without even a fight?As I write this, the boycott is still going strong. Monday, November 27, was ostensibly the deadline for Carol Burrell to give in to Fandom, Inc.'s demands (http://fandom.tv/fcom/fcom2.html), but instead the two sides are meeting to talk deal, hoping to negotiate a settlement that will benefit both sides. This couldn't have happened if fans hadn't passed my original call to boycott around the net as far and as quickly as they did. F.com may not be suffering financially because we're withholding our business from their site, but they are clearly feeling the effects of the attack on their image, or they wouldn't have come to the table. I continue to hope that the boycott will have its desired ultimate effect; the success so far has been encouraging.