Friday, May 27, 2016

Forging Fan Film Guidelines

Funny how a simple message of congratulations can turn into something worth writing about! After JJ Abrams announcement (and subsequent confirmation by CBS and Paramount) that the lawsuit would be settled amicably and Alec Peters and company would be allowed to continue producing Axanar, I shot Alec a message to congratulate him. He responded, and told me how much he appreciated reading my blog posts on the subject. I tried to get some idea of how the negotiations were going, but he obviously couldn't talk about those. However, he did tell me the following, which he is allowing me to share with you!

Based on the official statement from CBS that the network is finally going to issue fan film guidelines, Alec has put together a group of Star Trek fan film producers to discuss a guideline proposal which reflects their concerns, and the apprehension of the thousands of fans who have rallied behind fan films for decades.

Alec said he contacted almost every major fan film producer seeking suggestions on a proposed set of guidelines.  Eight of them joined a private Facebook chat group and began to discuss the proposal.  “I just felt that all the active fan films should be able to share their thoughts together in a constructive way,” he said. “Most of them don’t speak to CBS, and clearly we are communicating with them regularly, so it felt like the right thing to do."

“Unfortunately, James Cawley of Star Trek: New Voyages said no without even hearing a proposal. He was the only one who declined.  Everyone else wanted to at least see what a set of proposed guidelines would look like.” 

As a starting point, Alec created some suggested guidelines which he forwarded to Todd Haberkorn of Star Trek: Continues, John Broughton of Farragut,  John Atkin of Yorktown, Nick Cook of Intrepid, Michael King of Valiant, Scott Johnson of Starbase Studios (who produces several small Star Trek fan films), Greg Lock of Star Trek Ambush, plus an unnamed representative of Star Trek: Renegades. “Everyone I sent this to agreed to at least look at the draft, and half of them became part of the ongoing discussion.As for the guidelines themselves, "It is still very much a work in progress, but we hope that we can at least have something to send to CBS so they appreciate the concerns of the fan film makers.”, said Peters.

Apparently, Peters has been lobbying CBS for fan film guidelines for over four years. He told me about his various meetings over the years. “I first spoke with Liz Kalodner, EVP of CBS Consumer Products and the Head of Licensing, after my first trip to New Voyages back in 2010. We actually met on the Paramount lot when Liz was out for some meetings in L.A.  She’s really nice, and very sharp, obviously! She felt there was too many issues that would need to be overcome, but she was very positive about fan films in general.”

“I then spoke to John Van Citters, Head of Star Trek Licensing, who I managed the Star Trek: The Experience auction for in 2010. We had a very good working relationship. In 2013, at the Las Vegas Star Trek Convention, I met with Bill Burke, VP of CBS Consumer Products, and continued the conversation. Both gave me the same line.  CBS simply couldn’t come up with guidelines because there were too many contracts, union and guild agreements, actor contracts, etc.  It was too complicated. Bill even told me that it would take the CEOs of both CBS and Paramount sitting together in the same room, talking about Star Trek fan films, in order to get anything done.”

Then there was the well-known (and since thoroughly discussed) meeting between Alec and several CBS representatives at the Las Vegas Convention last Summer, where Alec’s auction company Propworx produced a giant Star Trek auction. “John Van Citters and Bill Burke met with me at my request. I was determined to get some guidance, but they still told me that CBS would neither tell me what I could do, or what I could not do.  They were afraid that any such guidance would potentially give up IP rights. Ironically, here we now finally doing what should have been done years ago!"

It seems pretty obvious to me that if CBS had possessed the internal will to put out guidelines back then, they would have avoided a lawsuit and saved themselves hundreds of thousands of dollars in legal fees.

As I said previously, this situation was inevitable, as fan films have increased in popularity and quality over the years. These changes have led other studios, notably Lucasfilm Ltd., to publicly support and assist fan films, even hosting them on their own websites.

And for those who might be curious as to what guidelines Mr. Peters and his group are planning to propse, here is their working draft:

1.) There must be the following disclaimer at the end of each episode, and in all promotional and marketing materials, on all fan production websites:
"Star Trek" and all related marks, logos and characters are solely owned by CBS Studios, Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-film intended for recreational use. No commercial exhibition of distribution is permitted.
2) Fan productions may not sell, or give away as perks, any item with a Star Trek mark, logos or character including, but not limited to, the words "Star Trek", the Enterprise insignia chevron, images of the USS Enterprise, or any Star Trek trademark.
3) Fan productions may take donations, but all donations must go to the production of the fan film and may not be used to pay any of the principals.
4) Fan productions may pay professional cast and crew for their time working on the production.
5) If a production uses a SAG member, he or she must become a SAG New Media Signatory.
6) Finished fan films may be no longer than 50 minutes in length (the approximate length of TOS episodes).
7) Fan film makers give to CBS an unlimited, unrestricted license to use their films, or any portion thereof, in any format CBS should deem appropriate.

Personally, I think this is a pretty good start! It will be interesting to see how much of this gets incorporated into the final guidelines. I find it strange that the Godfather of the modern fan film, James Cawley, declined to participate in this discussion. Alec has mentioned in his blog that his relationship with James has its ups and downs, so the lawsuit may have put it on the "down" side of things for Mr. Cawley. Even still, CBS will issue these guidelines regardless of his participation. One would think a man of his standing in the fan film community would want to have a say in shaping them. Then again, he shut down his Facebook page, and his website is now "under construction", so who knows what's going on with New Voyages in the first place? 

Either way, kudos to Alec and the other producers for working together to propose guidelines.  Incorporation of their efforts by CBS would certainly help guide Star Trek fan film producers, assuage concerned studio executives, and satisfy Star Trek fans who simply want more stories set in Gene Roddenberry's vast universe.

And thanks to Alec, for allowing me to share this with everyone!

Saturday, May 21, 2016

CBS/Paramount vs Axanar: The Undiscovered Country (AKA, An Open Letter To Michael Hinman)

For the last few months, I've been writing rather exclusively on the lawsuit filed against Axanar Productions by CBS and Paramount. At the end of my first post on the subject I asked the following question, "So, my question is this: at what point will the something that CBS/P want to get out of this lawsuit not be worth the public ridicule and alienation that is occurring? At what point will they realize that the victory they seek to claim may end up being Pyrrhic?"

The answer, as it turns out to be, is when the director and producer of your upcoming Trek movie tell you the suit is a really bad idea! Take a look.....

Yes, that's none other than JJ Abrams announcing at the fan event held this past evening that CBS and Paramount will be dropping the lawsuit against Alec Peters and Axanar Productions. This was further confirmed via a press release sent to various news outlets, "We're pleased to confirm we are in settlement negotiations and are also working on a set of fan film guidelines."

This pleases me to no end! Not only are they seeing the light as far as the lawsuit goes, they are also willing to design the framework in which fan films can operate with their good graces. Since I got vilified in certain quarters for advocating this very thing, I feel rather vindicated.

Obviously, I'm not the only one who's happy about this. First off, the audience definitely received the news well. There are tons of ecstatic fans on various pages around Facebook. Heck, even the puppets from the Ax'd-We-Are parody are joyous!
Seems  Adm.Sameold Tropes didn't get his uniform back....
But I am sure none of us is as pleased as the man himself, Alec Peters. Mr. Peters was in the audience at the fan event, and apparently had no idea this announcement was going to be made! I'm willing to bet that after pinching himself to make sure he wasn't dreaming, then breathing a sigh of relief after realizing he wasn't, he has yet to come down from cloud nine!

Alec got to thank his guardian angel, Justin Lin, personally
Now, to be sure, there is still work to be done. We have entered an Undiscovered Country, if you will. The actual details of the settlement still need to be hammered out, and there's always the possibility that whatever guidelines get put in place could be fairly restrictive (if they adopt a severe time limit, like the Star Wars Fan Film Awards, we may see Axanar released like Blood & Chrome was!). Even still, there couldn't have been a happier ending for those of us who are big fans of Axanar, and fan films in general.

However, there are others who aren't taking this news so well, and that brings me to the second part of my post....

Dear Michael,

I'll be up front: I don't like you one bit. Considering that you once called me a "simpleton" and that you had a "bug bite that was smarter than me" (I hope you had that bite bronzed, by the way. It has to be the smartest bug bite on record.....),  I'm sure you can understand why I might have more than a little bit of enmity towards you.

It's ironic, though, that we are both alike in one respect: we both wrote about Axanar. And we both did it for the same reason: drive traffic to our respective sites. I, however, was up front with the fact that everything I posted was strictly my opinion on the matter (I mean, hell, I call my blog "Stuff I Think About", it couldn't really be anything else!). Whereas you cloak your opinion as "reporting". Oh, I know you'll fully defend your writing to the death as such. Perhaps I'll be kind and just say that you're so used to "reporting" through the filter of your own personal opinion, that you don't even notice that you do it anymore.

I don't feel like being kind, though. I read your "Lost: Hurley's Star Wars Script" screed (or, at least, as much as I could stomach), and here is what I think: you are an incredibly sore loser. Rather than take a little time and reflect on the things you've done and written over the last five months, you've opted to double down and "be right" about the whole thing, and act insufferable in the process.

I'm not usually a person who seeks to engage in schadenfreude (God! How, I love that word, though!), but you merit a special exception. Because, you see, no matter how many "articles" you post, or how much you attempt to convince all and sundry that you "were right" about Axanar and this lawsuit, the simple fact is that I, who you consider to be an "idiot" who "doesn't know how to think", was actually right. Your first post on anything having to do with Axanar was how they were "going to ruin it for all fan films". I, on the other hand, postulated the notion that this was a potential PR disaster and advocated for fan film guidelines. Well, not to put too fine a point on it, but last night bore both those points out quite succinctly.  I sincerely hope that realization (assuming you are actually capable of enough self-awareness to have that realization) absolutely galls you.


(Pictures courtesy of Mark Largent and Alec Peters)

Thursday, May 5, 2016

An Open Letter To Vic Mignogna

Dear Vic,

I want to say that I respect the hell out of the work you and your cast and crew do in putting out Star Trek Continues. First, there is no other fan production that I know of which produces high quality episodes in the volume that Continues does. You've managed to average 2 episodes a year, where even New Voyages/Phase II has only managed 1 per year at best.

Second, you have assembled a cast that is one of the best I've seen in a fan production. Having Chris Doohan play the role originated by his father is a master stroke. Todd Haberkorn is, hands down, the best Spock out there (short of Leonard Nimoy and Zach Quinto, of course). And, I've found that if I squint just enough, I can believe that you're actually William Shatner, chewing the scenery with wild abandon! With Chuck, Grant, Kim, Wyatt, Michelle and Stephen, you have all done a wonderful job of inhabiting your characters. The fact that you've maintained a consistent cast throughout all the episodes is also really nice, so far as continuity goes.

By far, my favorite episode has to be The Fairest Of Them All. I've said before that it stands out as one of the best individual fan film episodes ever made (right up there with Of Gods And Men, Mind Sifter, The Tressaurian Intersection, the director's cut of The Holiest Thing, and Prelude To Axanar, in my mind). Of all your episodes, I find it is the one with the most rewatchability factor.

So, here's why I changed my mind about contributing to your Indiegogo campaign.

Based on what I've said above, it has nothing to do with the production itself. Rather, it has to do with certain actions you've taken and things you have said as an individual.

When your campaign kicked off, I went to the fundraising page to make a pledge. Then I read the following line: "Our producers have never drawn a salary, and they never will." Now, in and of itself, that is laudable. However, I knew that sentence had a broader meaning.

You see, by now, pretty much anyone who is remotely interested in fan films has heard about CBS & Paramount's lawsuit against Axanar Productions. I also know that this suit has caused a divide within the fandom over who's the bad guy in the suit. Further, I've known for a long time that there is no love lost between you and Alec Peters. Personally, I couldn't care less who is to blame for what in that particular relationship; that's between the two of you. What I do care about is that animosity bleeding over into your respective productions. Now, if you read any of my recent blog posts, it's pretty clear that I'm for Axanar. Indeed, I am for all fan productions. But, since I knew all of the above, I knew you had taken a side on the issue of the Axanar lawsuit.

To me it was wholly unnecessary to do that in order to make your point. Your body of work, both in quality and volume, speaks quite well to the point that the money people donate to Continues is well spent on your end. You didn't have to point out, even if subtly, the purported misdeeds of another production.

Your recent interview on the Synthaholics has further reinforced to me that I was correct in my decision. Yes, your fundraising isn't going as well as you had hoped, and I would be a fool to believe that you're lying when you say you've heard from some fans who have held off from donating due to the lawsuit and the uncertainty it creates. But laying it all at the feet of Alec Peters ignores a number of other factors, many of which were detailed quite nicely by Jonathan Lane at

To put it simply, you asked for an amount of money which was nearly double any of your previous campaign goals, and you did it on a fundraising platform which has less than half the contributor base of Kickstarter. As it stands, you've raised over $199,049, which is right in the wheelhouse of your previous fundraising totals. Unless you've quantified just how many fans told you they weren't going to donate because of the suit, and the dollar amounts they would have contributed, I highly doubt the gap between your goal and what you actually got would have been covered by them.

But you should also take into consideration that I'm probably not be the only one who feels the way I do about this. I can't quantify how many people feel the same way, or their dollar amounts either (though I'd be willing to wager that it would at least have gotten you more than a bit past the $200,000 mark), but money left on the table is money left on the table. Be aware that you left it there.

And on a more personal note, I found the way you behaved on that podcast to be distasteful. I compare it to how Tommy Kraft acted on the recent Trek Geeks podcast. Tommy is the only person who is actually collateral damage to the lawsuit, and who has had his production shut down. If he had teed off on Alec and Axanar Productions anything close as to the way you did, I wouldn't have blamed him. Instead, he was entirely calm about the whole thing, played it down the middle and, at worst, speculated on what might have drawn the lawsuit when asked to. He displayed all the grace and poise that you did not. And that is why the money that would have gone to your campaign has now gone to help fund Tommy's Project Discovery. (If you haven't done so already, I would hope that you contribute to his project. If anyone deserves all of fandom's backing now, it's Tommy.)

Finally, I have a piece of advice for you. If you are going to proclaim loudly to all and sundry that you are a fan production who "does everything right", you need to make sure you do everything right. And, as Mr. Shatner had to remind you recently, using his likeness without his permission in your fundraising efforts falls well outside of the "everything right" category. Now, perhaps it was just a mistake, but for someone who has boasted as you have, it's a foolish one, and one you made more than once.

For all it's worth, I do wish you well with Star Trek Continues. I just can't and won't contribute to your efforts to produce more episodes, unless you have a change of heart.


Wednesday, May 4, 2016

All Things Axanar

Well, it's been a little while since I've written about my favorite fan-film lawsuit, so here's a collection of things that have gone on since!

Mark Largent, creator of the animated puppet parody Stalled Trek: Amutt Time has leveled his humor and wit at the ongoing lawsuit with his latest creation, Stalled Trek: Prelude To Ax'd-We-Are. Give it a look here:

I don't know about you, but this thing had me in stitches the first time I watched it. Jonathon Lane of (who collaborated with Mr. Largent and voiced some of the characters) has a story there about how this project came about.

Now, you just had to know that at some point a lawsuit about Star Trek was going to get uber-nerdy. On April 28th, Eriq Gardner wrote a story at The Hollywood Reporter about the Language Creation Society filing of an amicus curae ("Friend Of The Court") brief supporting Axanar against CBS and Paramount's claim that they own copyright on the Klingon language (a copy of the brief is available in the article). It is well worth a read, as it posits the notion that the language itself has grown beyond the bounds of Mark Okrand's original creation for the studio and "taken on a life of its own". The author of the brief also managed to write it in a lightly humorous manner, using Klingon phrases (kindy translated in the footnotes for those who can't read Klingon script) and making references that any Trekkie would immediately recognize. I don't know how much weight Judge Klausner will give the brief, but it does provide another light-hearted moment in the ongoing lawsuit.

Last month, I got a fair amount of heat for my blog post where I advocated formalizing rules for fan films, mainly being told that such an arrangement would never happen because it might inadvertently create rights for fan films which previously belonged to CBS. Therefore, when I read Peter Decherney's article at, I felt rather vindicated. After all, here's a man who writes about Hollywood and copyright law for a living expressing a sentiment very much like I did. It's simply going to take more creative and innovative thinking than a room full of lawyers at Loeb & Loeb can generate.

(Completely Random Thought: For some reason, every time I see the name Loeb & Loeb, I think it would be the perfect name for a law firm run by Ferengi....)

Finally, Tommy Kraft, subject of my last blog post has produced a teaser video for his original Sci-Fi project, Project Discovery:

Currently, Project Discovery has raised almost $16,000 on Kickstarter. That's a healthy amount, but it's still a good ways off from the $250,000 goal. If you haven't donated yet, please click the link above and give what you can! Tommy made one hell of a fan film, and deserves both his chance to break into Hollywood, as well as all the support we can give him.

That's all for now! Be on the lookout for my next post, where I have a few words for the producer of a certain fan production.

Sunday, April 24, 2016

CBS To Star Trek Horizon: Let That Be Your Last Fan Film

You know, I really wanted to make my next post about something other than the happenings surrounding the CBS/Paramount lawsuit against Axanar (I have been musing lately on the similarities between Trekkies and Van Halen fans, for instance). However, there has been some unfortunate collateral damage to this lawsuit that I feel I must speak up about.

Just this past Febuary, an intrepid young filmmaker named Tommy Kraft released his Star Trek fan film, Star Trek: Horizon, on YouTube (the trailer is above, and here is a link to the full movie). Set in the Enterprise era of Trek lore, it tells the story about the crew of the NX-04 Discovery and their, well, discovery of an ancient weapon that the Romulans hope to use to destroy Earth. Tommy spent 4 years of his life making this movie, and managed to raise almost $23,000 to complete it. This is certainly what I would call a labor of love, not to mention one of the better fan films I have had the pleasure of viewing, and I applaud him for his efforts (as well as his parents for supporting him in the pursuit of his dreams).

Horizon has been quite a success, if YouTube views are any indication. As it stands right now, the movie has been viewed over 975,000 times in the 2 months it has been out. While initially reluctant to, Tommy was eventually persuaded by one of the actors to follow up Horizon with a sequel. On April 17th, the following post appeared on the Horizon Facebook page:

"BREAKING NEWS: Star Trek - Federation Rising, a sequel to Horizon, will begin crowdfunding on Saturday, April 23rd at 12:00am EST. The countdown begins"

Unfortunately, a mere three days after the announcement, the following was posted to the page:


Earlier today, executives from CBS reached out to me and advised me that their legal team strongly suggested that we do not move forward with plans to create a sequel to Horizon. While this is a sign of the current climate that we find ourselves in with Star Trek fan films, I want to personally thank CBS for reaching out to me, rather than including us in their ongoing lawsuit against Axanar.

It was conveyed that the reason CBS was reaching out to me was due to the legal troubles stemming from the Axanar case. Again, CBS did not have to reach out personally. The message I received felt more like they were giving me a heads up before we got too involved in another project, rather than a group of angry executives swinging a hammer.

On behalf of myself and Ryan Webber, my co-writer and co-producer on Federation Rising, we appreciate your initial support and are saddened that we cannot bring you what we believe was a fantastic feature film. However, rest assured that Ryan and I are committed to continuing our storytelling partnership with an original project. We also welcome other fan productions and fan film lovers to join us on this new venture."

Certainly, this has to be a body blow to Tommy and his writing partner Ryan Webber. However, in a classic case of making chicken salad out of chickens$%t, they have decided to move forward with this: 


From their Kickstarter page:

"Project Discovery is a feature length science fiction space epic that tells the story of a group of scientists and engineers uniting people all over the world in a common effort: taking humanity to space. The year is 2060, much of the world is caught up in unrest. Focused more on solving the problems we have on our home planet, people have given up on the notion of travel to the stars. Then, a multicultural group of scientists and engineers is able to captivate the world once again with a daunting plan: launching humanity's first faster-than-light spacecraft: The IV-202 Explorer."

This sounds like a neat idea! First off, it is a 21st century echo of what created the inspiration for the US space program (scientists and sci-fi writers used to have bull sessions post-WW2 about pushing for a "space race" with the USSR to keep the two superpowers from blowing each other to smithereens). Secondly, while I'm not saying that it has any actual connection to Star Trek, the timeframe it takes place in is around the same time of Zefram Cochrane's first test of his Warp Drive. Therefore, it seems to be like a First Contact-ish kind of story (without cyborgs from the future trying to ruin the party.....), and that is a movie I am seriously interested in watching. Being one who tries to put his money where his mouth is, I have donated to Tommy & Ryan's endeavors, and I hope all who read this do as well. Horizon showed what they are capable of as filmmakers and they deserve to have their efforts justly rewarded.

However, what they do not deserve is to be used as fodder for either side of the ongoing debate about the Axanar lawsuit. Tommy has steadfastly remained neutral on this matter, expressing only a wish that the matter be settled amicably. Tommy recently appeared on the podcast to discuss in detail the call he got from CBS, and the current scene regarding CBS' relationship to fan projects. It is vitally important to actually listen to the podcast, and hear all of Tommy's words and, more importantly, the tone of his speech when he says what he says, as those are the things that get lost in translation when someone excerpts those words and drops out context, as the Axamonitor website has done.

Here's a good example (from Axamonitor's article):

Kraft, however, rejected that notion. “I've tried from the beginning to maintain a neutral standpoint on this,” he said, “There have been a lot of productions that have raised a lot of money … and a lot of feature-length stuff, but it was something about the Axanar project in general, I believe, that caused [CBS] to have a change of opinion. … It's too coincidental that everything was hunky-dory until this one production and then all of a sudden things change.”

Now, reading that, one could get the idea that Tommy had a change of opinion regarding the Axanar lawsuit. At the very least, that's how I read it.

Now, here's the full text of what he said:

"I've tried from the beginning to maintain a neutral standpoint on this, and what the reasons might be. And all I can say, that I know for sure, is there have been a lot of productions that have raised a lot of money, and there have been productions that have raised little to no money, and there's been a lot of feature length stuff, and it was something about the Axanar project in general, I believe, that caused them [CBS] to have a change of opinion. Now, whatever that may be, people can speculate on. And there are some facts to the situation that some people know and others don't, but's too coincidental even if you don't have any facts that everything was hunky-dory until this one production and then all of a sudden things change."(emphasis added to show what was redacted)

That reads a little differently, doesn't it? Now, I can see taking out a few of the words here and there for brevity and conciseness, but Axamonitor's redaction pretty much removed all his moderation from that statement. 

Now, you may not think this is such a big deal. But today, someone posted a link to Axamonitor's article on a Star Trek page at Facebook, and it caused quite a fracas. While I'm certain the writer of Axamonitor's article thought he was just adding one more piece to his collection of "ammunition" to his case against Axanar, it had an unintended side effect. A number of people on the pro-Axanar side of things took the article at face value, and many were ready to drop their support of Tommy's project. I, however, took the extra step and listened to the podcast, and noted the discrepancy between what Axamonitor's article reported, what Tommy actually said, and the tone in which he said it. Finally, Tommy himself was brought in to the conversation and had this to say:

Tommy shouldn't have had to do this. No matter what your opinion on the Axanar lawsuit is, I think we can all agree that nixing Federation Rising is a terrible and unfortunate piece of collateral damage, that Project Discovery deserves nothing less than our full support, and that the Trek Geeks guys were correct in saying that Tommy has handled this whole situation with grace.

Note to commenters: As I have left my opinion on Axanar completely out of this particular post, I would appreciate that any comments made address the article topic and not the lawsuit.

Friday, April 8, 2016

CBS/Paramount vs. Axanar: The Fan-Film Web

Hello again, and welcome back to more of my thoughts on everybody's favorite fan film lawsuit!

Well, my last post garnered even more page views, and between my last two posts, they account for over have of the total page views I've had in the entire five years I've had this blog. Therefore, I think I'm gonna keep giving the people what they want.

First off, I want to give a shout-out to Reece Watkins for echoing my sentiments in his excellent blog post on Krypton Radio (and for having the presence of mind to use the more Trek-appropriate "Kobayashi Maru", as opposed to my rather pedestrian "Pyrrhic Victory").

Secondly, here are a couple of articles that I want to delve into a bit more. Tech Times interviewed Alec Peters and Robert Meyer Burnett of Axanar Productions, as well as Erin Ranahan of Winston & Strawn. Also, Axanar's PR Director, Mike Bawden, wrote an interesting post on Axanar's blog about the need for formal rules for fan productions.

I tend to agree with Mr. Bawden. While I don't subscribe to the populist notion that "Star Trek belongs to the fans" (at least in the legal sense), there is no denying that Star Trek has inspired abundant creativity in its fandom over the decades (if you're nice, I might recite a rather bawdy poem I wrote once called "The Final Frontier"). Modern technology has made expressing this creativity incredibly easy. Why, I could get some costumes, a green bedsheet, get some friends together, and shoot a fan film on my phone! The sheer proliferation of fan productions you can find on YouTube prove its ubiquity.

Ever since James Cawley made his first episode of New Voyages, Paramount (and now CBS) has basically looked the other way regarding fan films, as long as they gave away their product for free. On the one hand, that shows a measure of tolerance to behavior that fans would likely engage in regardless. On the other, this sort of "unspoken agreement" made, at least in part, the situation Axanar finds itself in today inevitable.

I've said before that Mr. Peters' stated goal for Axanar was to make a fan-film of a professional quality. That is quite a lofty goal, and the capital required to pull something like that off is beyond what any other fan production has raised to date. This lawsuit may very well have been brought about because Mr. Peters' ambitions for Axanar exceeded CBS/P's tolerance for the existence of fan productions. In other words, Icarus flew too close to the Sun.

But would this particular Icarus have flown so high if it knew the boundaries it had to stay in in the first place?

It's not like there's no precedence for rules and guidelines regarding fan projects. Lucasfilm holds an annual contest for Star Wars Fan Films, submissions to which are governed by rules having to do with, among other things, length and content. I'm not saying that these are particularly good rules, or that these rules should be the ones adopted by CBS/P in regards to Star Trek fan productions (five minutes is just long enough to get a Red Shirt killed....), but it does show that giving defined parameters for fans to use their intellectual property for creative expression can and does work.

I'm sure that there is some way to construct a set of formal rules, or perhaps some type of limited license, that any prospective fan production would have to formally agree to in order to proceed with the good graces of CBS/P. This may not be very remunerative for them in terms of actual money, but it would potentially buy them far more good publicity than bad.

It would also forestall the possible discovery that not all of what they claim to be covered by copyright in this lawsuit is actually so covered. As has been detailed elsewhere, there are indeed elements claimed in the amended complaint which are not covered by copyright (my personal favorite is when they claim the idea of "Science Fiction Action-Adventure" as a copyrightable element). Make no mistake, there is some peril for CBS/P here in that the courts may decide certain things that they thought they owned they don't, and that fan productions will have guidance on what they can and can't do that they no longer have complete control over.

And, ultimately, I believe that is what this lawsuit is all about. Not money, not fear of competition, but control. Here's the thing about control, though: Control is only good when it is consistent and predictable. Rules (when broadly known, easily understood, and applied constantly) bring about consistency and predictability. "We can't give you guidance because that may be construed as giving license", and "If you do something we don't like, you'll hear from our lawyers" does not.

Tuesday, March 29, 2016

“Direct Financial Benefit” and Vicarious Infringement. Or, I Don’t Think That Means What You Think It Means

Well, last week’s post brought this blog back from the dead, and did it with a bang! I had more page hits in the two weeks than I’ve had in the entirety of the blog’s history! Apparently, this got shared around Facebook rather extensively, and last week, David Post, who writes for The Volokh Conspiracy on the Washington Post website, linked to my post for his op-ed piece on the Axanar lawsuit (calling my post an excellent summary of the background)!

Since I’ve garnered so much attention, I figure it would be near criminal of me to let this blog lay fallow again. Fortunately, I have more to say, and specifically on the topic of the last post.

As I said in my last post, Mr. Peters has a number of detractors. They are the ones who go on about how Mr. Peters used the money donated for Axanar to build a “for-profit” studio, or Mr. Peters’ salary, or how he “sold coffee” to fund the production, and how all this was his way of “making money” off the IP of Star Trek. Moreover, they say this is why CBS and Paramount are suing Axanar.

For his part, Mr. Peters has said repeatedly that this lawsuit is not about money, but about allegations of copyright infringement. Presumably, he’s in a better position to know what CBS/P’s concerns than the general public is. However, there is a line in the complaint which alleges the defendants receive a “direct financial benefit”. The detractors have used that line to bolster their narrative, and call Mr. Peters a liar.

It does seem to pose an apparent paradox. How can a lawsuit not be about money when it says “direct financial benefit” right in the complaint? However, to paraphrase a line from The Princess Bride, that line doesn’t mean what they think it means.

The suit claims all the different type of copyright infringement that can be claimed, of which there are three. The first is direct infringement, which is rather self-explanatory. The other two are what are known as “secondary infringement”. It is somewhat analogous to aiding and abetting infringement. These are called contributory infringement, and vicarious infringement.

In order to claim vicarious infringement, two things must be true:
1) The person this is claimed against must have the right or ability to influence or control the actions of the infringing party.
2) The person this is claimed against must receive a direct financial benefit from the actions of the infringing party.
One example of this would be if a theater hires a band to play music, and that band plays copyrighted music they don’t have license to play. Another would be a flea market or swap meet renting space to a person who sells pirated DVDs. In either case, the venue owners would be guilty because they have control over the actions of the infringing parties, and they benefit financially from the infringing actions. For a more concrete example, this is one of the two ways Napster was found guilty of copyright infringement (contributory infringement being the other).

Now, of the three types of infringement that can be brought, only vicarious infringement carries with it the necessity of proving a financial component to it. And sure enough, if you look at the complaint, the only place that phrase occurs in the complaint is in the section which alleges vicarious infringement. Therefore, mentioning “direct financial benefit” is basically boilerplate language for making that allegation. So while the language is there (mainly because it has to be), the intent which it is a part of is to allege copyright violation. In which case, Mr. Peters is not lying when he says this suit is about copyright. Only those who practice the dark art of Pedantry could argue otherwise.

Moreover, (and this is where me being not-a-lawyer comes in) I’m at a loss to figure how that type of infringement comes into play in this particular situation. Personally, I’m inclined to go with my previous speculation that this complaint was written mainly to intimidate Axanar Productions into bending to their will.

But, most importantly, I don’t see how the paying of salaries, building out a soundstage, the amount of money donated to the production, or any of the other things the detractors bring up to say that it’s about money and Mr. Peters is a liar fits into the specific meaning of the phrase “direct financial benefit” as I’ve just outlined above. It’s really not a brush one can paint the production with.

In other words, I’m pretty sure that phrase doesn’t mean what the detractors think it means.