Infringe Long and Prosper: Crowdfunded Star Trek Fan Film Causes Owners to Set Phasers to “Sue”
Ever since Star Trek started to boldly take audiences where none had gone before in the 1960s, Gene Roddenberry’s creation has been a source numerous spinoffs, remakes, and reboots, from official and unofficial. Dozens of TV shows (owned by CBS) and films (owned by Paramount Pictures) released over the past fifty years, and continuing with the upcoming release of Paramount’s Star Trek Beyond film this summer[1] and a CBS web series,[2] have given fans of the Star Trek franchise a fairly consistent stream of official content to consume. At the same time, online platforms have further broadened the Trekker/Trekkie universe through fan fiction outlets[3] and the release of fan films on YouTube that were typically supported at-best and ignored at-worst by the property’s owners, until recently.
In the wake of Axanar, a Star Trek fan-film based on an obscure reference in the original series’ fictional history, Paramount and CBS faced a challenging question surrounding fan-fiction. Fan films, and works of fan fiction in general (fictional works based on or using elements from an original work that are not made by the author, but by fans of the original work) engender a broad spectrum of opinions from the originators of the works on which they are based, from detached disinterest, to open support to anger, and can sometimes lead to the fans being published in their own right (Fifty Shades of Grey famously began as Twilight fan fiction).[4] While some copyright holders are tolerant of fan fiction (particularly of the noncommercial variety) and want to encourage their fans to engage with their properties, the advent of crowdfunding and crowdsourcing is drawing attention to a growing number of fan fiction projects that some argue could pose a legitimate competitive threat to the business and legal interests of the copyright holders. After Axanar’s producers crowdfunded their independent film to the tune of over $1 million, and gained the endorsement and pledged participation of some members of previous Star Trek projects,[5] Paramount and CBS sued the producers, Axanar Productions Inc., over the planned film as well as a short-film,[6] entitled Star Trek: Prelude to Axanar, which was released as a teaser to generate interest in a feature-length film.[7]
Paramount and CBS claim that the Axanar projects infringed on their copyrights to “innumerable…elements” from “the fictional Star Trek races and characters, their technology, personality traits, and even their makeup, [which] have been documented and given a historical texture …that extends far beyond the action on the screen.”[8] While it is clear who owns the Star Trek rights, the fan film producers’ assertion that their use of it is justified by the non-commercial nature of Axanar may complicate the issues before the court as to whether or not any of those rights may have been waived or what constitutes authorization to create these works.[9] Essentially, the producers contend that because CBS and Paramount have allowed and even encouraged previous fan films as long as they were non-commercial, that they were tacitly authorized to continue down this path, and furthermore, they claim to have met with CBS to make such approval explicit.[10] Past performance may not have been the best indicator of future results, as an earlier Star Trek case established that “the lack of earlier litigation against other similar works is simply irrelevant.”[11] However, the non-commercial nature of the film might help the producers in a defense that, in combination with arguing that they only copied a bare minimum amount of Star Trek material and that overall the Axanar film was “transformative,” could qualify as fair use (commercial nature and transformativeness being significant factors in fair use analysis).[12] The film’s significant budget and studio-quality production resources could problematize the question of commerciality and expand it beyond whether or not the end product sells to consumers. Luckily, those resources do not have to be depleted on legal fees, as the producers have secured pro bono representation, who has asked for specific examples of infringement beyond the “innumerable” and recently argued that blocking the film’s production constituted a prior restraint on their rights to free speech.[13] Given the importance of the creative contributions of both the owners and the fans to this community, hopefully the parties can reach an agreement and restore peace to the galaxy.[14]
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