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The Twilight copyright saga: Forbidden love and forbidden T-shirts

By Christina Mulligan
Sunday, July 4, 2010; B04

You don't need to see "Eclipse" to realize that the Twilight saga's body count is rising. The latest movie installment of the vampire series sold $68.5 million worth of tickets on Wednesday, according to its distributor -- the second-highest single-day total in box office history.

But when it's not breaking box office records, Summit Entertainment, the studio that made the Twilight series, is doing its best to make sure that if you want to see a vampire brooding, you do it through Summit. The company seems to be lobbing lawsuits at pretty much anyone who uses Twilight's name or images without its permission.

(Photos from the Twilight Saga)

Late last year, Summit sued to shut down an unofficial Twilight fan magazine, in part for using stock publicity photos that Summit had distributed to the news media. The production company had licensed the use of the photos for "journalistic purposes," and it argued that Beckett Media, the magazine's publisher, violated the license because its use of the pictures wasn't journalistic enough.

Summit also objects to fans making Twilight T-shirts without its approval. In 2009, the company demanded that Zazzle.com, a service that lets people upload, print and sell their own clothing designs, remove its users' Twilight-themed T-shirts from its site.

The company also sued Topics Entertainment for making a documentary about Forks, Wash., the real-life town where the Twilight books and films take place. Among other claims, Summit accused Topics of copyright infringement because both the DVD cover of that documentary and the DVD cover of Summit's own documentary on the town featured a moonlit forest.

Most recently, Summit filed a lawsuit against fashion line BB Dakota, which truthfully advertised that one of its jackets -- which it subsequently renamed the Bella Jacket -- had been worn by Kristen Stewart's character in the first Twilight film. In the court complaint, Summit demanded that BB Dakota "deliver to Summit for destruction" each of the jackets, saying they had illegally been given the Bella name.

Naturally, Summit is trying to maximize profits from the Twilight franchise. It understandably wants to prevent the bootlegging of Twilight DVDs. And it had its own Forks documentary in the works and a deal with a Zazzle competitor. But its lawsuits go far beyond curbing piracy and end up limiting how we can talk about pop culture.

The law may be on Summit's side in some cases, but the spirit of what the company is doing -- shutting down almost anyone referencing Twilight without its permission -- shows the shortcomings in how we understand and interpret copyright law.

In its lawsuits, Summit essentially argues that it should control almost any expressive activity related to the Twilight franchise because it has copyrighted the material and acquired trademarks associated with the movies. The studio might win its cases, but it fundamentally misunderstands the purpose of intellectual property law. Trademarks exist to prevent customer confusion about the source of a product, not to prevent discussion of the product or the trademark itself.

For example, a "Team Jacob" or "I Love Twilight" T-shirt shouldn't infringe Summit's trademarks unless customers are likely to be confused about whether the shirt is one of the company's official products. Copyright isn't about protecting "property"; it's a means to an end. The Constitution states that copyright's purpose is to promote the progress of "science" -- a term historically used to mean "knowledge." The earliest federal copyright statute's explicit aim was to encourage learning. In the 1984 case Sony v. Universal City Studios, the Supreme Court made clear that copyright "has never accorded the copyright owner complete control over all possible uses of his work."

By suing a magazine for fans, a platform for fan-made T-shirts and a documentary filmmaker, Summit is attacking speech that should be free. It shouldn't matter that these works are made for profit -- speech is no less important because it is sold. And if Summit can sue these entities, it can sue amateurs as well.

Why is it so important that the public be able to put werewolves on T-shirts?

"Fairy-stories," J.R.R. Tolkien observed many decades ago, have "permanent and fundamental things to talk about." "Eclipse" is no exception. The tension between "Team Edward" and "Team Jacob" -- as fans of the heroine's two love interests call themselves -- is about more than actor Taylor Lautner's rock-hard abs and actor Robert Pattinson's dreamy eyes. Twilight forces viewers to ponder timeless questions: How much should one change or sacrifice for love? Who is an ideal man, and who is a dangerous one?

Films such as the Twilight saga resonate because they show us complex characters grappling with big issues.

If Summit wants to respect the interests of others while still turning a profit, it should take a cue from the woman who created Twilight -- the books' author, Stephenie Meyer. Her official Web site includes links to hundreds of unofficial sites, which host fan-written fiction, art and photos from the films, along with commentary.

Meyer does not forgo copyright protection -- she doesn't let her fans download her books for free and was justifiably upset when a draft of a Twilight sequel, "Midnight Sun," was leaked before it was completed. But by supporting fan fiction and art, Meyer recognizes that she's not the only person who has a say in what the Twilight series represents.

Summit Entertainment's lawsuits will probably be more successful than they should be. The ambiguity of the law, especially copyright law's fair-use defense, along with the high costs of civil litigation and the possibility of huge punishments for infringement, will probably push several parties to reach settlements, even when they might have won their case.

Moreover, the recording and film industries have predominantly set the terms of the debate about intellectual property in recent years, pushing the view that almost any use of a work without permission is or should be illegal. They have lumped those actively engaged in creation -- such as fan-fiction writers, fan artists and video remixers -- together with those who slavishly copy entire films or who masquerade knock-offs as official merchandise.

This is a huge mistake. Fans who uploaded T-shirt designs to Zazzle weren't pretending to sell official Twilight products; they just wanted to share their love -- or hate -- for Bella, Jacob and Edward. And none of the actions by the parties Summit has sued have undercut box office sales -- if anything, demand for the films has increased because of the additional publicity.

Edward vs. Jacob probably isn't something the Supreme Court will weigh in on -- nominee Elena Kagan demurred last week at her hearings when Sen. Amy Klobuchar (D-Minn.) asked how she'd rule. Nonetheless, Congress and the courts should reflect on Summit's aggressive lawsuits and choose to embrace the values at the heart of artistic protection: the promotion of knowledge and learning.

Pictures, videos and slogans on T-shirts are tools of modern expression, and with a phenomenon as omnipresent as Twilight, fans should be free to engage, manipulate, remix and remake. Free speech is just too important for anything less.

christina.mulligan@yale.edu

Christina Mulligan is a visiting fellow at Yale Law School's Information Society Project.

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