Over a series of articles last year we examined several issues surrounding the complicated notion of copyright and originality in the 21st century. A recent court case over a Star Trek fan film has again raised this thorny issue, asking who really owns the cultural objects we consume?
The following story is a cautionary tale of a fan film project that became too successful for its own good.
In the middle of 2014 a Star Trek fan film appeared online entitled Prelude to Axanar. This short film, creatively filmed like a History Channel mock-documentary, covered an early untold Star Trek story only briefly referenced in the original series. The expansive short cost over $100,000 generated through a successful crowdfunding campaign. Prelude to Axanar was enormously successful among the fan community, produced at a time when the official new Star Trek films weren't fulfilling all the needs of hardcore Trekkies.
Over the following year the producers of Prelude developed a feature-length follow up and generated over 1 million dollars in production funds across two crowdfunding campaigns.
This was to be the largest budgeted piece of unauthorized fan fiction ever made.
Over the years major Hollywood studios have had a love/hate relationship with fan made productions. Historically these studios have tended to turn a blind eye to many of these projects despite their potentially copyright infringing natures. There has long been an unspoken understanding that allowed fan made projects to flourish, after all, the enthusiasm of fan communities are a significant part of the value of those properties. Stifling fan activity is never a good thing.
Star Trek in particular has a long history of fan made projects, all slowly building in scale and scope. In 2006 a fan film entitled Star Trek: Of Gods and Men was produced from a donated budget of $150,000 and then in 2014, Star Trek: Renegades crowdfunded $375,000 for its production. As the fan films were getting bigger and bigger it was easy to see the studios becoming more and more nervous. The Axanar feature film was set to be larger than any previously produced fan film, yet by mid-2015, months after two very high profile and successful crowdfunding campaigns, there was no reported legal issues.
Pre-production was underway and Axanar executive producer Alec Peters wrote in August of 2015 of his confidence that project would be safe. He reiterated the long history of allowed, yet unauthorized, fan films and also discussed his unofficial meetings with CBS at a Star Trek convention.
On the morning of December 30th, 2015, as the film was about to move into production, the filmmakers received a rude shock.
The lawsuit was in.
CBS and Paramount were suing the production for copyright infringement. The scale of this fan film had seemingly crossed a line. Peters posted a frustrated official statement on the film's website expressing irritation that this lawsuit had come so late into their process. It had been a year since the initial campaigns to raise the production money. Why had they waited so long? Why hadn't they just contacted him to discuss the matters without jumping into a lawsuit?
As well as an immediate halt to production, the lawsuit was demanding damages for what was being described as "direct, contributory and vicarious copyright infringement." This was serious business and the copyright holders were not playing around but the fan community rallied and support was seemingly on the side of the fan filmmakers.
Justin Lin, the director of the latest Star Trek film stepped up to support the filmmakers, tweeting his frustration with the lawsuit. Not long after, powerhouse Hollywood writer/director/producer JJ Abrams backed Lin up, ironically while they were on the official press tour for Star Trek: Beyond.
At the time he claimed that the lawsuit would "go away" after Lin approached the studio:
"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."
Unsurprisingly, the suit did not go away and nothing was dropped.
This was to set the precedent where a big copyright holder was putting its foot down on how its properties were being repurposed by fans. While the prospective fan film was careful to avoid using a number of pre-established Star Trek characters, it was clear the film was set in a Star Trek world that utilized Vulcans, Klingons and many other details from that universe. The case would be the first to try to clearly delineate how far current copyright protections actually cover fictional universes. In a world of abstract legal definitions, this was a rare case that was to draw a definitive line over what was and wasn't fair use.
In early January of 2017 a judge ruled that not only was the Axanar feature unable to fulfill the criteria for a fair use defense, but the case was to move to a civil trial where a jury would have to decide whether the fan film was "substantially similar" enough to constitute copyright infringement.
Despite the Axanar filmmakers non-profit stance (they were to distribute the film for free), the judge found that the fan film could in fact interrupt the profit streams of original content from the copyright holder, as fans could choose that free content over the paid features.
It's rare to see a copyright case taken to this level, but it's fair to say the precedent set by the results of this suit will potentially shake up the future of all fan made fiction. While it is certainly fair for copyright holders to be protective of their properties, one has to ask what happens when the consumer loses the ability to interact with the cultural objects they are delivered?
Do we just passively receive pop culture, or in these dynamic days of digital creation, are we allowed to interact, remix and repurpose in creative ways? For good or bad, it seems a legal line in the sand is about to be clearly drawn.