Wednesday, August 22, 2012

Is 'Paranormal Activity 4' Ripping Off 'MarbleHornets?'

I am not a lawyer. This post is not legal advice, just an explanation of the Fair Use Act and Internet Copyright law. Do not use this to help yourself in a case. If you need help hire a lawyer. Kay? Great. Thanks.

The Internet is a tricky thing. Following copyright policies, such as the Fair Use Act, for work that you put up on the Internet is even more complicated than adhering to other copyright laws. So, when a meme goes viral and people start using it to make YouTube videos, can the original creator of the meme sue users for damages, or does the meme belong the Internet?

In an interview with Businessweek, copyright attorney Anthony Falzone, executive director of the Fair Use Project at Stanford Law School stated that "for the originator of a meme, legal protections are slim, and that’s the way it should be. If you’re the first person to do the video S- - - Girls Say, that doesn’t mean someone else can’t use the same idea with girls saying different stuff. Just because you’re the first one to do something doesn’t mean you should be the only one to get to do it.”

So, according to Falzone,  no one can truly claim to own the copyright for Slender Man, or any other meme spawned on the Internet for that matter, because we all own them and can use them in different ways.

Take Slender Man For Example:

The character was created on the Something Awful forums by a single user, in June 2009, and soon the pictures and the concept of Slender Man went viral. By the end of the month, "Marble Hornets" had made its first Slender Man video and put it up on its YouTube channel.

Three years later and now movies are being made that are using images based on Slender Man and plot lines that are "inspired by" his myths such as "Entity."

With the appearance of two Slender Man games and several Slender Man Youtube series, the question of copyright and trademarks have begun to bubble up to the surface of the Internet.

Can two different video games use the same character design and same basic game mechanics and not infringe on each other's copyrights? Can movies and Youtube series use Slender Man and not worry about breaking copyright law?

Like the concept of Bigfoot, the urban legend of Slender Man itself is not copyrighted. However, the way certain elements, such as symbols or icons used in each work about Slender Man, are protected by copyright law.

The "Entity" version of Slender Man has long fingers that end in wicked sharp nails and could be considered claws. The original version of Slender Man had tentacles. In "Marble Hornets" Slender Man aka the Operator, has hands and really long arms. So, they are all a little different in character design, and both the Entity and the Operator would be considered derivative works of the original version of Slender Man.

The "Entity" kidnaps children, just like the original version and MH's Operator. However, since it's just a similar theme and they all seem to kidnap people in different ways, it's not a copyright infringement issue.

Technically the scene at 0:35 on the "Entity" trailer with the pictures on the walls was inspired by Alex's room on "Marble Hornets," so that in and of itself isn't copyright infringement, even though it appears to the average viewer that it is ripping off the Youtube series.

Making your own version of a work is not considered an infringement of a copyright. This means that people can make copycats of "Marble Hornets," such as "Paranormal Activity 4" and "Entity," as long as they don't use the same icons that were created for the YouTube series. This is because the movies were made in order to be sold for a profit, and the icons and symbols used in "Marble Hornets" are a part of its brand image.

This is the actual cover box design for the "Marble Hornets" DVD. 
The X-ed out circle symbol  is clearly used as a part of the product's identity.

The only way to legally use the icons is to change the way they are drawn or how the icon is perceived by the audience. Which, at least according to what is presented to us on the trailer, "Entity" does not do, as they are used to signal the arrival of the Entity, just as "Marble Hornets" uses it to mark an area where Slender Man, aka the Operator, is visiting.

According to Stanford University, if the icons taken from "Marble Hornets" have been transformed by adding new expression or meaning, or value was added to it by making new aesthetics, then they are not considered to be copyright infringement.

But, if it is used with the same purpose, in the same way, such as to signify or herald the arrival of the Entity aka Slender Man aka the Operator, it infringes on MH's copyright.  So, while the symbol is drawn in blood on the windows, floors and walls, and not in pencil or scratched onto a surface with a rock, it is still used to mark the arrival of the Entity. Since the icon is still used in the same way, it could be considered copyright infringement (see the last entry under "Parody") in civil court. The use of the X-ed out circle symbol in "Entity" is also considered copyright infringement according to information on Chilling Effects, as it is a readily identifiable symbol of "Marble Hornets."

Unfortunately, unless the X-ed out circle symbol itself is trademarked by "Marble Hornets," it can't be fully protected by the law. If it were, and the X-ed out symbol was used in a movie that is a derivative of MH, such as "Entity," it'd be the same as making a Transformer's "mockbuster" and using the same exact icons that represent the Autobots and Deceptacons on your robot characters. And that's a no-no. It infringes upon the trademark and it shouldn't be done or you may find yourself being sued.

As far as I know, "Marble Hornets" hasn't filed for copyright of it's materials, and they haven't trademarked any of the symbols that they used, so it doesn't seem as though they are really worried about this. Some owners of copyrighted materials will turn a blind eye to such things and thus far, most of the confusion about the legality  of two different Slender Man video games, and movies that appear to be ripping off "Marble Hornets," has come from loyal fans and forums such as

But, Cassie, what about "Paranormal Activity 4?" It's ripping off "Marble Hornets too!"

Yes it is, but not in the same way.

Is the material found in the "Paranormal Activity 4" trailer copyright infringement?

Unfortunately, no, it is not. No one has a copyright on static appearing in film. And really, filmmakers should be able to utilize that special effect in their movies without much hassle on their part, as movies have utilized static to signal the arrival of ghosts or other paranormal entities for many years now.

While it is a bit disconcerting to see the director try so damned hard to emulate a fantastic work of horror and just not deliver it well at all, it is not infringing on any copyright laws, nor "ripping them off," it just means that they lack imagination and can't figure out a way to make the concept entirely their own.

The emulation or homage to "Marble Hornets" in "Paranormal Activity 4" is quite apparent from the camera angles, the presence standing ominously outside that can be seen from the window, and when the demon appears in the room behind the girl without making a sound, just like how the Operator from "Marble Hornets" moves silently when it is stalking its prey. The static that signals the demon's approach to the camera at the end is just pixelated video feed that isn't accompanied by that god awful noise that occurs when the Operator is near the main characters in "Marble Hornets," so it's not blatantly mimicking the series either.

Besides, I highly doubt that a Paranormal Activity movie will be able to pull off the kind of suspense and horror that "Marble Hornets" has managed to perfect. (Which is just sad, considering the huge difference in their production budgets.)The entire thing lacks the finesse and subtlety that MH manages to use to great dramatic effect to create suspense, paranoia and dread in the viewer.

The biggest difference between "Entity" and "Paranormal Activity 4" is the first copies icons and uses images from "Marble Hornets" that are readily identifiable and represent it's "heart" or a symbol that is recognizable by people familiar with the product, which is considered a violation of copyright laws, whereas "Paranormal Activity 4" does not.

The same holds true to the video games that are being made about Slender Man. As long as the games use different mechanics to signal Slendy's approach, as well as implementing new and unique ways to play a game featuring what is considered to be a "stock character" on the Internet (i.e. a meme), then it isn't copyright infringement.

"Slender" uses page collection as the main goal of the game. The Slender Man mod for Valve's source engine, "Slender: Source," uses creepy doll collection to win the game. Because the game mechanics are different, each derivative work is not considered to infringe on any copyrights owned by the creators of the video games.

While no one can copyright Slender Man or it's derivatives (it's far too late for that),  it does give us all a lot to think about. Following Internet copyright laws does not mean that you can't make a "mockbuster" or imitate other people's work. You can, and doing so is covered by the Fair Use Act. However, you can't cut and paste icons that are readily associated with another person's work or use scripts or written texts word-for-word and act like you made them yourself. That's ripping them off (also called plagiarism), which is an infringement of copyright laws, and that's just wrong.

Internet laws are constantly changing and attempting to catch up to the nebulous and ever changing environment that creates the memes of the Internets. So, in order to avoid copyright infringement: give credit where credit is due, always attribute a source, and try to make your own spin on things that you post online. And if you can't, well, just say that it's a parody. Heh.

Or you can add a copyright symbol followed by the year and your name somewhere on the work itself, like this:
Copyright © 2012 by Cassie Carnage

Ha! I just copyrighted this post! Take that Internets!

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