• Study looks at IP protection of internet folklore, focusing on Slender Man
  • Concludes Slender Man is in the commons, decries claims of exclusive rights
  • Demonstrates reputational risks for companies when claiming IP rights

A new academic paper studying the IP status of internet folklore argues that online community-created works are in the commons, and suggests that claims of ownership – under both copyright and trademark law – harm the public by depriving it of more creative works. The research focuses primarily on Slender Man, and predicts the release of a major Hollywood movie next year could lead to entities seeking to “exclusively own” the horror character.

The study – entitled “Beware the Slender Man: Intellectual Property and Internet Folklore” – is due to be published in the Florida Law Review later this year. Its author is Cathay Y N Smith, an assistant professor of law at the University of Montana’s Alexander Blewett III School of Law and former IP attorney at Katten Muchin Rosenman LLP. While the study ostensibly focuses on the IP protection that should, or should not, be afforded to folklore created on the internet, a majority of the paper focuses on Slender Man – a pale, tentacled, well-dressed horror character created on the Something Awful internet forum in 2009, wherein an entire mythos was subsequently created through collaborative art projects, YouTube films, e-books and podcasts.

Due to the collaborative way that the Slender Man character was created, it has been described by commentators as “a crowd-sourced monster” and the “first great myth of the web”. It is most often referred to as a ‘creepypasta’ (an internet term for short horror stories), which we wrote about last year following a bitter trademark dispute. Both Slender Man and creepypasta were notoriously cited as inspirations for a brutal stabbing in Wisconsin in 2014, which led to a statement defending the work by the character’s original creator Eric Knudsen, who posted the first images of Slender Man to the Something Awful forums. While Knudsen admits he “has not actually been behind much of the fiction and artwork inspired by it”, he proactively sought exclusive ownership (including a registered copyright). Production company Mythology Entertainment subsequently acquired the rights from Knudsen to use the characters in movies, television, publications and video games, and it has sent cease-and-desist letters to content creators of Slender Man-related movies and videogames. It was announced last year that Mythology is working with Sony on a movie based on the character due out in spring 2018.

It is in this environment that Smith decided to analyse the IP protection being claimed on Slender Man. She found a number of word and design trademark applications (both registered and awaiting examination) filed by applicants including Mythology Entertainment LLC and It Is No Dream Entertainment LLC, covering a wide variety of goods and services. These marks, she claims, are being filed “in anticipation of the movie and further capitalizing on the Slender Man lore”, suggesting production companies are “attempting to clear the way to exclusively own and use Slender Man”.

Due to the uptick in IP filings and cease-and-desist letters, Smith also discovered dozens of examples of online creators asking about the ownership of Slender Man (including on Reddit and Quora), with artists and authors seemingly nervous about sharing their work for fear of legal reprisal. She also noticed that responses to these questions had no clear answers. “Many commenters do not understand, or they disagree on, whether the name Slender Man is off-limits or whether other parties may use the name in their titles or expressive works,” she stated. “This uncertainty chills creativity, and harms the public by depriving it of more creative works.”

This, she adds, is why exclusive rights granted to community created folklore – especially those created online – can have a significantly negative effect on artistic freedom. “If a party can claim to own a trademark to Slender Man’s name or his image for broad entertainment services, no one else can call their character ‘Slender Man’ in future expressive works, nor can they use Slender Man’s image in their creations. This would effectively quash all creativity involving Slender Man. This type of ownership and exclusivity is the antithesis to the sharing and collaborative culture that spurred Slender Man’s creation and development in the first place.”

While Smith suggests that the Slender Man character (including its name and image) is in the commons, there appears to be no clear way to stop claims of exclusive ownership. Smith looked at a number of ways to prevent exploitation of internet folklore creations, including creating a sui generis system, designating community-based rights or classifying community-made creations like Slender Man as “free cultural works”. But none of these would be the “perfect fit” for the problem, the study contends. For now, then, it appears that the creators of works related to Slender Man face continued uncertainty.

It is, of course, understandable that a major company like Sony would want the security that intellectual property affords before agreeing to produce a big budget movie. At the same time, when it comes to properties that a community feels ownership over (especially a property that exists purely because of that community’s artistic contributions), companies must weigh up the reputational harm of trying to claim exclusive rights and consider the damage that can be inflicted by limiting (or appearing to limit) a community’s creative output.