The OTW Supports Fan Film Makers

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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.

2016-01-06 admin
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  1. Leslie E Owen commented: This lawsuit, as I have mentioned before, threatens all fan works. I have inside information regarding interest in the lawsuit and I also have information regarding who initiated this suit and why. Aside from being a literary agent, I am also a Star Trek writer, and represent a Star Trek writer, and we both have works here on the Archive. I am also a writer for Axanar and a donor. Furthermore, I have been writing about the Star Trek 3 story for 18 months and have a good deal of information about what's going on. Please contact me.
  2. Gene Lives commented: Everything you say is, in general, correct. I do believe that noncommercial fan works are, in general, transformative. I'm just not sure Paramount v. Axanar is a good vehicle for making your point. Axanar has two difficulties: first, persons associated with the project (including, I believe, some of the principals) alleged on several documented occasions that Axanar was expressly intended to compete with other Star Trek products, including the upcoming J.J. Abrams movie. Second, Axanar appeared -- increasingly -- to be a commercial work. First, it raised a large amount of money on Kickstarter. This itself poses difficulties, because the fair use doctrine specifies non-*commercial*, not merely non-profit. A Kickstarter, even if it does not lead to profit, is arguably commercial simply because it involves the exchange of money. Second, Axanar spent many of the funds raised from its Kickstarter not on making their film, but on establishing a movie studio ("Ares Studios") where the creators announced their intention to film both Axanar and *other for-profit projects*. This appears to be a use of CBS's I.P. to earn profits indirectly. Third, Axanar began paying its own principals a salary using money raised from the public. While CBS has long been willing to tolerate incidental payments to tertiary personnel (studio rental, the craft table, even occasionally payments to special guest cast like George Takei), once Axanar head Alec Peters began pulling down a $38,000/year salary from his "non-commercial" work, his fair use defense became sorely compromised. Fourth, most damningly, Axanar participated in all manner of other commercial activity, including, at one point, lending its I.P. (actually CBS/Paramount's I.P.!) to a company called Hansa Coffee, so that Hansa could sell Axanar/Star Trek-branded coffee to the general public, sending some of their profits (clear profits!) back to Axanar studios. All things considered, I think the only surprise here is that it took this long for CBS to bring down the hammer on Axanar; they were not operating like an aboveboard non-commercial fan film ought to. There are literally dozens of *other* Star Trek fan shows currently in production, including other mega-budget productions like Star Trek Renegades (which has raised half a million dollars) and Star Trek Continues ($350,000). But these shows have done none of these things. Therefore their defense under the fair-use principles you describe here are much, much stronger. And, notably, CBS has not sued them! For this reason, I am optimistic that CBS will indeed continue to tolerate genuinely non-commercial appropriations of their I.P., declining to put honest fair-use guidelines to the test.
  3. Gene Lives commented: Well, I SAID two difficulties, but I guess I meant four...