Paramount has agreed to drop its lawsuit over the production of the fan fiction film, Star Trek: Axanar, which was slated to be released later this year. Axanar Productions had attracted a lot of attention after releasing a short film, “Prelude to Axanar” as a teaser for its Kickstarter and Indiegogo campaigns. “Axanar” was to be a prequel to the six television series and 12 motion pictures in the CBS and Paramount owned Star Trek franchise. Axanar’s strategy worked. The crowdfunding campaigns raised over a million dollars from the incredibly devoted Star Trek fan base.
The production was never intended to be a small one. As noted on their Indiegogo page, Axanar is a feature film, but will be broken down into four episodes, one for each of the four acts of the script, and each part expected to cost about $330,000. The cast includes big-name science-fiction actors such as Richard Hatch and Kate Vernon (“Battlestar Galactica“) and Gary Graham (“Star Trek: Enterprise”).
Hardcore Trekkies have been watching Axanar’s progress after being disappointed with the hugely successful J.J. Abrams reboots. While these latest movies have brought a new generation of fans to the Star Trek franchise, they also alienated many hardcore fans who do not like the direction that Abrams has taken with the franchise. The fan schism is not endemic to just Star Trek, but many other rebooted movie and TV franchises, including another J.J. Abrams reboot, “Star Wars: The Force Awakens.” Fan films like Axanar, give the disgruntled fans, as well as those who obsess over anything Star Trek related, new stories that also capture the essence and direction of the original series with highly improved visual effects.
Copyright owners are often unhappy about fans creating new stories with their prized intellectual property, but many times they look the other way so as not to anger their devoted fan base. CBS and Paramount have certainly been tolerant of fan films, leaving productions such as “Star Trek: Renegades,” “Star Trek Continues,” “Star Trek: Of Gods and Men,” “Star Trek: Phase II,” untouched. However, last December CBS and Paramount filed a lawsuit against Axanar Productions for copyright infringement. Although Axanar Productions claims that they had assurances by the two media giants that the film would be allowed to move forward, that is a matter of dispute.
Normally, fan films don’t have the resources to mount a legal challenge against major companies like CBS and Paramount, but Axanar Production was sitting on a lot of money, which, by the terms of the crowdfunding platforms in which they earned the money, could only be used for Axanar, so they fought back. The case would have had grave consequences for fan fiction, until, quite unexpectedly, CBS and Paramount announced that they would be dropping the suit. Surprisingly, this decision wasn’t due to CBS and Paramount feeling they couldn’t win or after a settlement agreement between the parties, but rather due to efforts by Justin Lin, director of the “Star Trek: Beyond,” the latest entry in the J.J. Abrams Star Trek franchise, slated for release in U.S. theaters on July 22nd.
Justin Lin is a huge fan of the franchise and was outraged at the legal situation. As J.J. Abrams discussed at a recent fan event at IO9: “A few months back there was a fan film, Axanar, that was getting made and there was this lawsuit that happened between the studio and these fans and Justin, I’ll tell the story because he probably wouldn’t; was sort of outraged by this as a long time fan. We started talking about it and realized this was not an appropriate way to deal with the fans. The fans should be celebrating this thing. Fans of Star Trek are part of this world. So he went to the studio and pushed them to stop this lawsuit and now, within the next few weeks, it will be announced this is going away, and that fans would be able to continue working on their project.”
Yes, it’s true. Sometimes legal issues can be resolved based on the moral good rather than greed and self-interest. Despite the good outcome for Axanar, the situation still left ripples in the fan fiction community, while also being an excellent example of the push and pull between copyright law and freedom of expression. Let’s look at how fan fiction can exist in a copyright-centric world.
The Basics of Copyright Law
Copyright law has always been a balancing act between the rights of creators and the rights of the public. On the one hand, copyright law encourages creative expression by giving creators the right to control over their creative works. On the other hand, the framers of the Constitution understood that monopolies over intellectual property could discourage other creators from using those works as a launching point for new creative work. One of the ways to strike that balance is to provide protection for the execution of creative ideas, but not the broader ideas themselves. To be protected, a creator must do more than think of a concept: they must tell a story, draw a picture, or write a song, and fix those works in a tangible medium. For example, anyone can write about a bunch of kids in a wizarding school but cannot write about one child who has a lighting scar on his head that he received after an evil magician that tried to kill him, etc. In short, specificity counts. Unfortunately, there is no bright line that will let creators know definitively that work based on someone else’s idea is unique new work with its own copyright (which is lawful) or merely a derivative of the other work (which may be infringing). In many cases, a lawsuit is a copyright holder’s only recourse in asserting their perceived rights because only the court can make the decision as to who is the true copyright holder and then enforce those rights.
At the same time, copyright law also has the potential to stifle freedom of expression, so a series of exceptions have been added over the years, known as fair use. Note that fair use is a defense against copyright infringement and as a defense, nothing can be fair use unless someone first sues for copyright infringement and then fair use is accepted as a valid defense. So, no work is can be considered fair use until a court decides.
The Copyright Act contains a concept called “fair use,” which allows the use of copyrighted works without permission of the copyright owner in certain narrow circumstances including criticism, commentary, research, scholarship, news reporting, and the like. To evaluate a fair use claim, courts consider the specific facts of the case as they relate to four factors: 1) the purpose and character of the use; 2) the nature of the copyrighted work (essentially whether it is mostly factual or more creative in nature); 3) how much of the original is taken and how prevalent it is in the new work, and 4) the economic effect on the market for original work, meaning how much money is made by the infringer and how much the sales of the original work or the copyright owner’s ability to license the work for derivative uses might suffer.
While it is not clear how much content from a franchise universe must be appropriated to be considered an infringement or what definitively constitutes fair use, it’s likely that a very high percentage of fan fiction could be the subject of a copyright infringement suit.
Why aren’t creators of fan fiction sued more often?
It’s very simple: it’s not good business, and perhaps more cynically, most creators of such works don’t have deep pockets. Those writing and consuming fan fiction are amongst the franchises’ most die-hard fans and taking action against members of a loyal fan base that isn’t harming a franchise nor generating revenue that is rightfully the copyright holders, often results in significant negative publicity. That is not to say it doesn’t happen, though: Last year we wrote about billionaire business mogul Haim Saban, owner of the Power Rangers franchise, who sued director Joseph Kahn and producer Ari Shankar for their Power Rangers fan film. However, unlike Saban’s Power Rangers, which is light an uplifting, Kahn’s Power Rangers’ film was dark and bloody, with characters that are very different from their TV counterparts. Kahn’s fan film has the Power Rangers snorting coke, firing guns, cursing, and having intense knife fights. The film also had a star-studded cast including Katee Sackhoff of “Battlestar Galactica” and James Van Der Beek. Would the transformative nature of the film lead a court to conclude it is a fair use or an infringing derivative work?
Unfortunately, the case was settled once the internet made its voice known, so we’ll never know the legal outcome.
In another fan fiction case, J.K. Rowling won a case against a fan who had spent seven years working on a Harry Potter Guidebook. With a Michigan book publisher set to start promoting and selling the book, Rowling felt she had to intervene and stop the production. Rowling said she “took no pleasure at all in bringing legal action,” but explained that “[t]he proposed book took an enormous amount of [her] work and added virtually no original commentary of its own.”
To keep the fans happy, fan fiction is tolerated as long as the work does not generate substantial revenues, including through merchandising. Most fan fiction sites adhere to this unwritten limitation, keeping fan fiction creators in line so as to not ruin it for everybody else. For example, many fan fiction sites’ Terms of Service agreements with their users contain three common elements: 1) fans agree not to profit from or sell copies of their creations; 2) creators must disclaim that their work is unofficial and is not connected with the original owner of the franchise; and 3) creators respond to requests from copyright holders to remove content. These types of contractual obligations keep most copyright holders satisfied.
Why was Axanar singled out by CBS and Paramount?
Axanar Productions claims that they had initially received permission from CBS and Paramount to produce the film. The company had followed the rules never intending to show the film commercially, and the script was true to Star Trek franchise that would not be detrimental. If true, late last year, something clearly changed. The problem for CBS and Paramount is that production on Axanar was well under way. Axanar Productions had rented a warehouse space which it turned into a sound stage, and they hired a staff, including some of the original people who had worked on earlier Start Trek films or TV series. Sets and costumes were designed, and principal photography had begun. Had the request to cease production come before the Kickstarter or just after, it’s possible that Axanar would just have ceased its efforts, but too much had happened for CBS and Paramount to pull the plug at that point without a fight. And unlike other fan films, the Axanar production was well funded.
In December 2015, CBS and Paramount filed a lawsuit seeking an injunction against Axanar in an effort to get the movie scrapped as well as seeking damages for “direct, contributory and vicarious copyright infringement.” CBS and Paramount claimed that “The Axanar Works infringe Plaintiffs’ works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes. [Axanar] have raised over $1 million so far to produce these works, including building out a studio and hiring actors, set designers, and costume designers. The Axanar works are substantially similar to and unauthorized derivative works of [Star Trek].”
CBS and Paramount also claimed that Axanar infringed characters like Starfleet Captain Richard Robau, the triangular medals worn by Starfleet officers, the Starship Enterprise, the appearance of Klingons, the name of the Klingon home planet, the element of using a “Stardate” to tell time, the logo of the United Federation of Planets, the element of phasers, the element of beaming up via transporters, the element of warp drive among others. An amended complaint in March added the pointy ears and “distinctive eyebrows” of Vulcan, the gold-shirt uniforms of Federation officers, as well as copyright in the Klingon language.
CBS and Paramount commented that “Star Trek is a treasured franchise in which CBS and Paramount continue to produce new original content for its large universe of fans . . . The producers of Axanar are making a Star Trek picture they describe themselves as a fully professional independent Star Trek film. Their activity clearly violates our ‘Star Trek’ copyrights, which, of course, we will continue to vigorously protect.”
Why the change?
Axanar was just getting too big, to the point where it had the potential to impact the franchise. For example, Axanar was supposed to be a non-profit venture, purely for entertainment, distributed freely, and not for the monetary gain of its producers, however, it was clear that they were close to their total budget necessary to complete the films, and an additional crowdfunding campaign would likely give them all the funding they needed and more. So what happens to all the extra money? Would it be used by Axanar Productions to create perhaps a full-blown production outfit to commercially compete with Paramount or CBS?
Alternatively, with such a substantial budget and based on the quality of Prelude to Axanar, Axanar Productions is capable of producing a film truly worthy of Star Trek, which could impact how the Star Trek reboots are viewed. If fans can do it better, why bother watching the Paramount production. Additionally, CBS recently announced a new Star Trek TV Series premiering in January 2017, and it’s possible CBS believed the Axanar production might have a negative impact. This is, of course, all speculation but it seems that CBS and Paramount saw risk with little upside for their companies. Thankfully for Star Trek fans, Lin had a different attitude, one that saw greater harm to the franchise by angering the fan base.
Will Lin’s pressure on CBS and Paramount carry beyond Axanar, to the other fan films currently in production? Recently, CBS requested that producer / director Tommy Kraft refrain from launching his planned crowdfunding campaign to finance “Star Trek: Federation Rising,” a planned sequel to the well-received fan film, Star Trek: Horizon. Will it also be allowed to continue? It remains to be seen. Either way, some fan fiction creators have said that the lawsuit has left a chilled environment for the Star Trek fan film community, leaving some amateur filmmakers rattled, claiming that donating money to fund a production is more of a gamble than it was before.
For now, Axanar is resuming production. The Axanar team released a statement regarding the news: “While we’re grateful to receive the public support of JJ Abrams and Justin Lin, as the lawsuit remains pending, we want to make sure we go through all the proper steps to make sure all matters are settled with CBS and Paramount. Our goal from the beginning of this legal matter has been to address the concerns of the plaintiffs in a way that still allows us to tell the story of AXANAR and meets the expectations of the over 10,000 fans who financially supported our project.” Axanar Productions has not confirmed a release date for the film yet, but we hope it’s soon.
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