In late December, 2015, Paramount and CBS sued the makers of Axanar, a Star Trek fan film that is intended to be professional quality and has been funded in significant part by Kickstarter and Indiegogo crowdfunding.
The OTW has no relationship with Axanar or its makers, and we don’t know what the film will be like, so we can’t speak to the merits of this suit in particular. But we are troubled by much of Paramount’s Complaint, which we believe is based on a fundamental misunderstanding of fair use law. U.S. copyright law identifies several factors to consider in determining whether a new work based on a preexisting work is fair use, including (1) whether the new work transforms the meaning or purpose of the original, (2) whether the new work is noncommercial (that is, not made for profit), (3) how much of the original work the new work copies, and (4) whether the new work competes in the market with the original work.
Fair use favors works that are noncommercial and not sold for a profit; that are transformative, adding new meaning or messages to the original; that are limited, not copying the entirety of the original; and that do not substitute for the original work. None of these factors is absolutely necessary for fair use, but they all help, and we believe that noncommercial fan films that use discrete elements from original works and add new meaning to them are precisely the kinds of works that the law should encourage. The fact that the hosting or creation of a work may be funded by one person, or crowdfunded by many people, doesn’t make the resulting work commercial. And the fact that a fanwork is high-quality or expensive to produce does not undermine the fact that it is fair use.
We hope that copyright owners agree with us: fanworks often add to the markets for original copyrighted works, rather than competing with them. The OTW strongly believes that Paramount should be supporting the creators of noncommercial fan films, not threatening them.
For more information on the OTW’s position on copyright, fanworks, and fair use, see the “Legal” section of the OTW FAQ. OTW Legal will continue to watch the progress of this lawsuit.