Last week, Paramount and CBS released “guidelines” for fan films, and a lot of questions have been asked of us at OTW, including Support and Legal, as well as in other areas online, what this really means for creative fans.
The Guidelines do indeed seem limited to fan films and even from Paramount and CBS’s perspective; they don’t apply to crafts, fanvids, cosplay, fan fiction, fan games, fan art, or anything else. Of course we have no idea what Paramount and CBS’s plans are for the future, and historically Paramount has not always done the best job of understanding fan culture, but at this point there’s no indication that Paramount or CBS would have any interest in taking action against fan creations other than fan films, even though the guidelines themselves are phrased very broadly. For a long time, Paramount and CBS have stayed away from challenging most fan activities—especially noncommercial ones like the fanworks posted on the Archive of Our Own-and we have no reason to think that would change.
We should also add that the fan film guidelines that Paramount and CBS put out are not actually expressions of law. They’re not even a contract between Paramount/CBS and any fan film-makers.
The guidelines lay out “guidelines for avoiding objections,” but an objection is a very different thing from a valid legal claim. The guidelines talk about, for example, restrictions on length, title, use of clips, use of reproductions, compensation for service, fundraising, and distribution. Their language on “amateurs” doesn’t even have definitions, and if it did, the question of amateur-vs-professional status is not something the courts take into consideration when doing Fair Use analysis; two of the most high profile cases involve findings of fair use by the rap act 2 Live Crew, and Google – neither of whom would ever be considered “amateurs”.
At present, US law is much more open to fan productions than Paramount and CBS would be. As Legal Staffer Heidi explained in a recent post on the FYEAHCOPYRIGHT Tumblr, the question of whether a fan film is legal will depend mostly on copyright fair use law, and fair use law takes several factors into account. These factors include whether the new work is distributed commercially, whether it transforms the meaning or purpose of the original, how much of the original it copies, and whether it substitutes in the market for the original work. No one of these factors will answer the question completely, and in fact many courts have found fair use in cases when (for example) a work was commercially distributed or even when it copied the entire original (as long as additional content was added, and transformative). So we can envision plenty of fan films—even commercial ones—that would qualify as legally permitted fair uses that would not meet Paramount and CBS’s “guidelines”.
Therefore all the guidelines really signal is what Paramount and CBS would prefer from fan films—not what the law would allow. We are, of course, keeping an eye on this, but even if Paramount and/or CBS tried to extend guidelines to other kinds of fannish creativity, we would stand up for the authors and creators whose works we host, and we do not expect that we would be standing alone.