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.
The law allows a copyright holder to persue claims or not. They will never state rules for fan films as this will set precedent and would limit their rights to protect their IP in the future. It is not CBS/Paramounts fault for not setting out rules, how daft can you be? That's like blaming a girl for getting raped because she wore a short skirt. You don't blame the victim. You don't want to violate the rules? Fine, don't make a fan film. Write your own story.
ReplyDeleteAs for Reece's article, it was crap. For some reason he believes it is just Paramount behind the suit and not CBS, but of course both are on the suit filings. Missing something so obvious makes everything everything else he says rubbish. I suggest you read this: http://echoba.se/getting-real-axanar/ which links to this:http://axamonitor.com/doku.php?id=which_kobayashi_maru
How would it limit their rights? Are you trying to tell me that there's no way an army of lawyers could not construct a "fan-film" license that allows fan productions to produce which also allows CBS and Paramount to dictate the terms and retain overall control? To me, the concept is ridiculously easy, only the method of wording it may require expertise.
DeleteYour analogy is flawed. Considering that the lawsuit wasn't filed until a year and a half after the release of Prelude, and Mr. Peters had raised the $1.2 million and started building out the soundstage, making sets, done VFX work, etc., the closer analogy would be the woman who withdraws consent mid-coitus. A much more murky situation than then your analogy depicts.
As for Reece, I imagine he assumes so because they are the first plaintiff listed on the complaint. I personally don't know if that makes a difference or not. However, if they are the driving force, and CBS is just along for the ride, and if the Motion To Dismiss is successful in getting Paramount removed from the case, this suit may very well vanish like a fart in the wind.
P.S.: I'm glad to finally find out you're actually Sandy Greenberg, BTW.....
DeleteThere are reports that fan films have received guidelines from CBS & Paramount, which Alec refutes in my chat with him. Surely, though, even without guidelines one could make an educated guess that comments such as 'this will be a studio quality production', 'we are using professional cast and crew' and 'we need a million dollars' would be red flags. Even their own website and information had this being an independent production, rather than a fan film.
ReplyDeleteNow that they're facing legal action, they've suddenly dropped the 'Star Trek' title and they're calling themselves a fan film. Alec has thrown a rock into the pond of Star Trek fandom, and the ripples are coming to shore.
They dropped "Star Trek" from their title sometime in the latter half of 2014. That's not exactly "sudden".
DeleteAnd even assuming you're absolutely right (which I don't), the creation of a limited license which said "You can't use professionals", "you can only raise X amount", etc. would have likely avoided all this.
Oh, and if you're referring to Patty Wright's list of rules on the TrekBBS board, she is long on assertion, and very short on actual documentation of them.
DeleteApparently, Axanar read some list of rules from CBS. It's why they dropped Trek from their name in late 2014.
Delete"While CBS doesn’t embrace fan films like Lucasfilm does (Who recently revived their Star Wars Fan Film Festival), they have allowed independent Star Trek to be produced within certain guidelines for years. We try and adhere strictly to those guidelines, specifically not making a profit, not selling merchandise with CBS IP on it (Like “Star Trek” or the Enterprise of the insignia chevron) and only taking donations to fund production."
http://www.axanarproductions.com/changing-our-name-a-bit/
Jody, I would imagine he was referring to Patty Wright's write-up on TrekBBS some years back. Between his subsequent meeting with CBS officials last August, plus Ms. Wright's inability to provide documentation to back up her list,I'm guessing Mr. Peters has had cause to change his thinking on the subject.
DeletePossibly, Dave.
DeleteI just think that some who, in 2012, said "...I have had numerous discussions with CBS on fan films, and the head of licensing for Star Trek is not only a huge Star Trek fan but one of the nicest guys you will ever meet. However, CBS expects fan films to act in a manner that does not infringe CBS Intellectual Property and when one production does so, as in this case, it imperils every production" would have a great understanding of whether or not CBS actually had guidelines or not. You'd think it would have come up in conversation....
http://www.trekbbs.com/threads/official-star-trek.169732/
Here's the whole post: "It has come to my attention that "Star Trek Continues" is using the word "official" in their title on their Facebook. I have also been told that a certain individual in that production has said that they are working with CBS to get licensed.
DeleteI can tell you, being that I work with CBS on the Star Trek Archive and have been a Star Trek licensee and talk with the head of licensing for Star Trek on a regular basis, that this production has no "official" status and has had no discussions with CBS. I had a phone conversation with the head of Star Trek licensing last week on this and I am sure they will take appropriate action.
I have had numerous discussions with CBS on fan films, and the head of licensing for Star Trek is not only a huge Star Trek fan but one of the nicest guys you will ever meet. However, CBS expects fan films to act in a manner that does not infringe CBS Intellectual Property and when one production does so, as in this case, it imperils every production."
Interesting what a little context does. He's clearly talking about an specific production using the word Official in their name. That seems like a no-brainer no-no, even if one never spoke to CBS ever. Beyond that, I can only speculate. Perhaps I'm wrong about his statement in 2014 being based upon Ms. Wright's asserted rules, and instead is based upon his conversations with the head of licensing at CBS. Whatever it was based upon, it came at odds with what Mr. Peters says he was told last August. What caused there to be a change in message from CBS is up for sheer speculation.
In 2014, Alec makes references to guidelines, ones that drove his decision to drop "Star Trek" from the title of his film. Two years later, after being sued, he and his reps state there are no guidelines and there never were. Those statements don't track with each other.
DeleteYou've suggested as explanation that man who states he was in frequent conversation with the highest levels of CBS for years was mistaken up until two weeks ago. I find that explanation wanting. As you've provided no evidence in support your conjecture, we're left with statements in conflict -- and a striking conflict at that.
No, I've suggested that Mr. Peters had cause to change his thinking on what he thought were the guidelines. You have managed to dredge up what appears to be a contradictory set of quotes from Mr. Peters. I may only have supposition and conjecture, but you have no actual evidence, either. Only Mr. Peters and the people he's spoken to at CBS know what we're only guessing at here. This is simply a matter of me assuming good faith on the part of Mr. Peters, while you aren't.
DeleteAnd none of this gets around the fact that no one has been able to produce a standardized set of rules or guidelines that comes from CBS (or, at least, a set that can be documented) and is given to fan films as a matter of course. That, after all, is what I'm proposing in my article in the first place.
I have evidence of contradictory statements. Plain as day. Plain as the day that he announced the change in the project name. He referenced guidelines. He's made reference to guidelines, conversations, and instructions numerous times over what I can read. I'm not willing to grant a blanket dismissal of that as you are.
DeleteSpeaking of guidelines, you are correct. No one has produced a standardized set of guidelines. However, again, in digging through the TrekBBS forum -- fascinating board, that -- many filmmakers have discussed their interactions with CBS. There's a pretty wide agreement that some standards were offered so as to not to run afoul of CBS Legal. Those guidelines are similar to what Patty Wright articulated. They also sound pretty similar to what Alec articulated as reason for his name change. They also sound like CBS is bending over backwards to caution people they reserve the right to sue, should they deem it appropriate.
What you are proposing in your article is a licensing scheme -- Formal rules and terms and understandings are all contractual things -- something CBS (and Paramount) already have. You can find licensed material all over the place, from books to toys to video games. It's not hard to do. CBS isn't being particularly stingy with licenses.
To date, though, they haven't granted a license to make long form filmed narrative to anyone outside of a very narrow circle of companies. To date, they also refrained from suing certain other individuals, companies, or non-profits, who've gone ahead an made stuff anyway without a license. That risk is still there: no license and you can be sued.
Axanar doesn't have a license. They're getting sued.
You have evidence of an apparent (that's the important word here!) contradiction, I grant you that. Where we disagree is that you automatically jump to the conclusion that Mr. Peters is lying, or being disingenuous, whereas I see there are other possible reasons that explain this apparent contradiction. To me, the key would seem to be the meeting Mr. Peters had with CBS representatives, because that represents an apparent contradiction between what CBS told Mr. Peters, and what Mr. Peters had assumed (and apparently the majority of fan film productions from what you're saying) were the guidelines prior to the meeting. While you may assume he's lying about that meeting as well, I have no reason to make that same assumption.
DeleteAnd, yes I'm proposing a sort of limited license for fan films. CBS and Paramount obviously license all kinds of things, but to my knowledge, the specific type of license I refer to doesn't exist. My opinion is that if it did, the current situation would likely not exist.
Can you post the trek BBS guidelines? I don't go on bbs's.
DeleteI would like to see these,
It's not an apparent contradiction, Dave. It's a contradiction in statements. It's there in the equivalent of black and white.
DeleteDo I know I know exactly what it means? No. Sure, it's possible that Alec proceeded for a number of years under the mistaken notion that CBS had ever provided guidelines to people in how not to get sued, that statements of other fan filmmakers made over a number of years who mentioned being cautioned by CBS and told guidelines on how to avoid suit really had no conversations. It was all just a set-up for today. It's possible, I just don't think it's very likely.
I understand your opinion. I think your opinion is silly. CBS isn't at fault for someone else's willful action to violate the law by using something they had no right to. There would be no lawsuit if Axanar hadn't infringed CBS copyright.
batkinson001, the TrekBBS thread is open to the public. You just can't post if you aren't a member.
DeleteTake a look here:
http://www.trekbbs.com/threads/cbss-rules-of-engagement-for-star-trek-fan-films.187825/
Jody, the word apparently, for both its definitions, belongs there. Your characterization of my point is flawed, and ignores the August 2015 meeting he had with CBS. Assuming that Mr. Peters is telling the truth, he had sufficient cause to change his position. Do you think he is lying outright about what he was told in that meeting?
DeleteAs for my opinion. you are certainly free to think it is silly. Just as I'm free to think that it was silly (along with a few harsher words) when you pretended that Axanar's defense team was trying to claim things like Vulcans and Klingons as scenes a faire in their MTD.
Finally, I am not blaming anyone for anything! I'm jst saying that what I propose might have avoided the current situation.
Trekzone: Not ONE single person has produced "guidelines" they were given by CBS. That is total crap. Have you bothered to do any research on this? If you did, you would fine that no one has received anything.
ReplyDeleteAnd Axanar removed "Star Trek" from its website and title over a year ago. Not "suddenly" as you claim.
I really think you need to do some research rather than attack Axanar. Also, journalists don't comment on other people's blogs, nor take a side in a dispute. That is not journalism.
Not only did Axanar claim to be a professional indeoendent production and not a fsn film, they also started licencing tie-in products (coffee, DVDs, soundtracks, models, with plans for books and more). Does that not seem just a little bit over the line?
ReplyDeleteWell, I know how much people like to characterize the donor perks Axanar created as "items for sale". Just remember, if that is the logic you're using, then currently Star Trek Continues is selling DVDs, Blurays, T-Shirts, Autographed photos, copies of scripts and screen used props to fund their next three episodes.
DeleteAs for the coffee, I remember reading the site it was on before it got taken down. At best, I'll say it was perhaps a well-intentioned but misguided attempt by the roasters who made the coffee and Axanar to raise more funds. However, of the three blends I remember (Andorian Ice, House of Kharn, and the one with Ramirez's face on it), only one (The House Of Kharn) had potentially copyright-protected material on it, that being the what looked like the matte painting of the Klingon capital from TNG. Ramirez was a character from Prelude, and nowhere else. Plus, you can't trademark names or short phrases. So, unless CBS or Paramount owns a trademark for "Andorian", there's no joy for you there as well.
Personally, what I'd like to know is if they actually raised any money at all from the coffee.
When one of the donor perks is access to a donor store where supporters can go and buy more merchandise, you haven't blurred the line between donating and buying, you've erased it. Not to mention that there's a lot of Axanar merch being sold on ebay, and it doesn't all look like it's from donors who decided they didn't want gheir perks.
DeleteOK, so I went to ebay and searched for Axanar, and got 13 hits. 8 of them were actually donor perks, being sold by 3 discrete sellers. The rest were either old FASA products, or a wooden model that looks kinda like the Defiant that someone in the Phillipenes sells. So, yeah, I do think it is donors selling off their perks...
DeleteLLAP Axanar!
ReplyDeleteAlec Peters here.
ReplyDeleteActually we claimed to be BOTH a professional independent production AND a fan film. But why worry about facts?
Also, as Joe points out, we took "Star Trek" out of our title in 2014, not "suddenly" as Trekzone incorrectly claims.
Also, not one single person has produced any "guidelines" from CBS. That is just a myth. Which you can read about here:
http://www.axanarproductions.com/axanar-mythbusters-cbs-guidelines/
Bob Orci would tell you he helped make two Star Trek fan films.....
DeleteAlso, an argument can be made that The Force Awakens is the biggest fan film of all time.
Not an intelligent one, though, given that Disney is not a few fans in a garage.
DeleteWell,I guess it's hard for you to tell that my tongue was planted in my cheek....
DeleteOn the other hand, you're flirting a bit with pedantry with your comment.
Setting guidelines sets legal precedent that can be cited in subsequent cases, that's why it limits their rights.
ReplyDeleteMy analogy isn't flawed. You are trying to blame the victims for something the defendant did. You cannot blame CBS or Paramount one iota for Alec Peters actions.
When a person based their whole argument on a false premise the entire argument is flawed.
Why does it matter who I am? Do you have a point to make?
Sandy, that's why you make it a limited license.
DeleteAnd, yes, it is flawed, you just don't want to see it.
As for "blame", blame is responsibility on a very low order. I'm not trying to assign blame to anyone here. I'm saying that doing what I have proposed could, and most likely would, have avoided this situation altogether.
As for the name, I just like to know who I'm talking to...;-)
CBS licences books, comics, and video games. As part of that licencing process, they require licence holders to get approval before they produce content, and they can tell people, no, we don't want you to tell that story/use that character/focus on that element of the franchise/etc, and they get their input after the work's done but before it's been released. They can and have prevented licenced materials from being released, even completed material, right at the last minute.
DeleteThe fun of fanfic is that, at the price of being basically underground, unofficial, unauthorized, low profile, and unlicenced, it doesn't have to go through all those approvals. Fanfic can do stories the official stuff would and could never go near. So CBS/Paramount could say, sure, we'll licence fan films. They'll say, Show us your script. No, you can't do that one. No, you have to change that. Let's get real: the last thing they're going to is lend their imprimatur to something they have had no control over or input into. They will never let Peters finish his version of Axanar and give it a licence. They just don't work that way.
This comment has been removed by a blog administrator.
DeleteSandy, I don't really want to have to moderate comments. You're free to say anything, as long as you stay on topic. I removed your comment because someone's opinion of Mr. Peters is NOT the point of this article.
DeleteI suspect it's more about you didn't like what it said. Control the narrative. The post was as much about how they can end the suit than anything which totally relates to your post. Fine, go ahead and do a blog post on that then. I think it's really important for AxaFans to hear what a colleague of RMB has to say.
ReplyDeleteUm, that's a bit of reading comprehension fail on your part. I'm talking about how formalizing rules for fan films would avoid a situation like this in the first place.
DeleteEveryone is saying that CBS/P doesn't want to set a precedent by making a,specific list of guidelines. I bring up the elephant in the room, Lucasfilm!!! By them doing the fan film festival with written guidelines, THEY HAVE ALREADY SET A PRECEDENT FOR FAN FILMS. (CAPS for emphasis.) The precedent is already there. Now CBS/P do not have to use the same guidelines as Lucasfilm but the fact remains that there is already a precedent for written guidelines for fanfilms, But they DO NOT HAVE TO BE THE SAME GUIDELINES AS LUCASFILM!!!!(Again CAPS FOR EMPHASIS.)
DeleteVillanovatrainwreck, Lucasfilm isn't really licensing fans to go off and make films. They're holding a yearly contest, akin to the public-made Doritos Super Bowl commercials, and calling it "The Fan Film Awards." Lucasfilm doesn't actually license any rights to filmmaker. You only get to use Star Trek IP by entering their contest. And the only way to enter their contest is to give them the right to whatever -you- make from the moment you start. And once the contest is over -- about four months after it starts -- even that situation vanishes. They're very clear in the text of their agreement no rights to the Star Trek IP ever really transfer to the person entering their contest. As a legal construction, it's a fascinating read.
DeleteTo make fan-films in anything approaching what you'd like ("Star Trek Axanar") would require a far more open and expansive license -- a license to make independent "amateur" Star Trek. They're not going to do that. They already make "professional" Star Trek. And it moves a lot of branded merchandise...
Jody, I grant you that the vuidelines are limited and for a limited time. Regardless, it is still a set of guidelines no matter how you slice it. TTHD FACT THAT THE GUIDELINES EXIST AT ALL IS WHAT SETS THE PRECEDENT!!!! (CAPS for emphasis.)
DeleteJody, I grant you that the vuidelines are limited and for a limited time. Regardless, it is still a set of guidelines no matter how you slice it. TTHD FACT THAT THE GUIDELINES EXIST AT ALL IS WHAT SETS THE PRECEDENT!!!! (CAPS for emphasis.)
Delete