Opposable Thumbs / Gaming & Entertainment

When fan art meets IP: Warhammer 40k fan film slain by copyright snafu

A Warhammer 40K fan film will have to be shelved because German copyright law …

High-quality video cameras are becoming more affordable and post-production special affects can now be done on regular PCs by skilled enthusiasts, so the potential for richer independent movies is finally being realized. But what happens when independent movie production collides with intellectual property law, particularly in the context of fan films that draw characters and major thematic elements from existing works in other mediums?

This question is at the center of a copyright kerfluffle that is currently transpiring in Germany. A massive German fan film project based on the Warhammer 40000 science fiction game may have to be shelved as the result of copyright concerns. The fan film—called Damnatus—cost just under $15,000 to make and appears to be one of the most elaborate and sophisticated fan-made movie productions ever.

Ironically, Warhammer 40000 copyright holder Games Workshop—a company that has traditionally encouraged the creative activities of Warhammer 40000 fandom—says that German IP law is the roadblock that prevents it from allowing Damnatus to reach fans.

Games Workshop is concerned that it could lose control of the Warhammer 40000 IP if it allows Damnatus to be distributed. The creators of the film have offered to assign the copyrights for the movie to Games Workshop so that the company won't have to give up any Warhammer rights in order to permit showing of the film. In a recent interview with the BBC, GW licensing head Andy Jones said that the company cannot accommodate the amateur filmmakers under those terms, because German copyright law doesn't make it possible for content creators to cede certain rights.

"This is perhaps to be regretted," Jones told the BBC. "nonetheless in the final analysis we simply have no choice but to say 'no'."

German copyright law emphasizes authorial control and doesn't permit the transfer of rights except to heirs. The closest equivalent in German copyright law is an exclusive perpetual license, which apparently isn't enough to satisfy the legal requirements of Games Workshop. This system of copyright law, which is called Urheberrecht in Germany, is very similar to the droit d'auteur system which originated in France. It is based in part on a legal philosophy which treats artistic expression as an extension of the creator's identity.

Damnatus director Huan Vu attempted to secure permission before beginning production and went forward with the project because a misunderstanding led him to believe that Games Workshop had approved the movie plan when in reality they had declined his request for permission. After additional lengthy talks with Games Workshop, Vu says he is running out of options.

This situation highlights some of the limitations of the disparate international standards for intellectual property law. Copyright extension has diminished the size of the public domain, making it more difficult for content creators to borrow from stories and concepts that have become deeply ingrained in culture. As this situation with Damnatus illustrates, such borrowing can become impossible even when the original creator wants to allow fans to creatively embellish on existing content. The world of Warhammer 40000 won't be accessible to other artists as part of the public domain until 70 years after the death of its creator—assuming, of course, that the creator actually dies and doesn't fuse with a machine in order to live forever.

These issues will have to be resolved as fan art becomes increasingly mainstream. In some regions, the practice of borrowing from existing content for amateur works is already pervasive. Consider, for instance, dojinshi manga circles (groups of self-publishing amateur comic artists) in Japan. Some prolific and well-known manga production companies started out as underground dojinshi groups, liberally mixing characters from commercial manga into their amateur works to experiment with innovative ideas and themes.

Although IP law is intended to promote creativity, there are obviously contexts in which it actively impedes progress and creative expression. As technology continues to simplify amateur content creation, Damnatus illustrates the need to ensure that anachronistic intellectual property laws don't stifle the free flow of ideas.

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