Thursday, March 17, 2016

Paramount/CBS vs. Axanar: Where No Fan Film Has Gone Before

I should change the title of this blog to The Blog Of Nine Lives for the amount of times I have let it lay fallow....

Anyone who knows me knows I'm a Trekkie. And if you don't know me, now you know, I'm a Trekkie. I was reared on Original Series reruns. I saw pretty much every Trek movie the weekend it came out. TNG, DS9, Voyager and even Enterprise were appointment televison (or, at least, I'd watch the tape as soon as I got home....).

There was a pretty bleak time there for lovers of Trek, from 2005, when Enterprise was cancelled, until May 2009, when the first rebooted Trek movie came out. (There are those who would say the bleak times haven't ended yet, but that's a blog for another day.....). In the interim, there has flourished what I like to call the Golden Age Of Fan Films.

Now, fan films, particularly for Star Trek, have been around almost as long as Trek itself is. But in the last dozen years there has been a veritable explosion in the creation of Star Trek fan productions. With CGI software becoming more accessible, and websites like youtube making it possible to distribute them to a wide audience, the ability to make and distribute fan films of surprisingly decent-to-good quality has grown by leaps and bounds. There are fan productions that seek to fill in the rest of the USS Enterprise's original "five year mission", such as James Cawley's Star Trek: New Voyages (the Godfather of the modern Terek Fan Production!), Vic Mignona's Star Trek Continues (their Mirror, Mirror sequel "Fairest Of Them All" is, in my opinion, the best original series fan episode made). There are others that take place in the same timeline, but on different ships, such as Starship Exeter and Starship Farragut. There are plenty more that explore the era of Then Next Generation, Deep Space 9, and Voyager. And recently, Star Trek: Horizon, which takes place during the Star Trek: Enterprise era, made its debut. I could go on and on about all the different productions out there, but that's not what I really want to talk about.

Sometime in 2012, a man named Alec Peters announced he intended to make a fan production called Axanar. Axanar is to be the story of Captain Garth of Izar (from the original series episode Whom Gods Destroy) and his actions during the Battle Of Axanar during the Four Years War with the Klingons. In announcing his project, he set the bar for himself rather high. His goal was to produce a film that had the look, feel, and quality of a Star Trek movie you or I would plunk $15 to go see at a movie theater, but do it for a small fraction of the cost of a true Hollywood production. This meant that his cast would be filled out with actual actors, and directed and produced by people who do this kind of work for a living.

The first step in this journey was to make a 20 minute short called Prelude To Axanar. Filmed as a mock-documentary with the flavor of something you might see on the History Channel (other than Ancient Aliens), this would act as a proof-of-concept that could show that Mr. Peters could pull off what he intended to do. Using the recent advent of "crowdfunding" via Kickstarter, he managed to raise $100,000 to make Prelude. Here is the result:

Prelude To Axanar

With the results in hand, he proceeded to fundraise via a Kickstarter (and later, another at Indiegogo) campaign, and managed to date to raise a staggering $1.2 million dollars! That may seem like an insane amount of money, but given the lofty goals set, that means that he is trying to make this movie for about 1% of what it cost to produce 2009's Star Trek.

Now in the process of procuring and outfitting a soundstage in which to film, and finalizing the script for shooting, Axanar Productions hit a fairly nasty speed bump. On December 30 2015, CBS (who owns the rights to Star Trek televison) and Paramount Pictures (who owns the rights to Star Trek movies) slapped Axanar Productions and Mr. Peters with a copyright infringement lawsuit.

Now, my intention is not to discuss the merits of the case. On the face of things it would appear that CBS & Paramount do own the rights to Star Trek, and, perforce, all Star Trek fan films infringe on said rights. Also, the extent of my legal expertise amounts to hours of watching Judge Wapner, Divorce Court, The Practice, some of Boston Legal, a season and a half of Better Call Saul, and whatever I can look up on Google and Wikipedia. That and about $3 will get me a latte at Starbucks. Rather, I'd like to discuss the public relations aspect of their actions.

Now, while it is true that any Star Trek fan production may potentially infringe on their intellectual property, the fact of the matter is that CBS & Paramount have looked the other way when it has come to fan productions for well over a decade. Generally, their attitude has been, "As long as you give it away for free, we'll pretend to not notice." Besides begging the question of why Axanar and not all the other productions, right off the bat this has the appearance of a David vs. Goliath situation. And almost no one roots for Goliath (well, except maybe the Philistines....).

Now, to be certain, there is something that CBS and Paramount expect to gain from taking this sort of action. So much so that they are willing to potentially alienate a portion of the Star Trek fanbase in the process. Now, if one looks around the wide, wonderful world on the Internet (Giving Stupid People A Voice Since 1993!), one can certainly find a ton of speculation on the subject. There are those who think that Axanar is somehow a threat to the upcoming Star Trek Beyond. Personally, I highly doubt that. There are still others who are actually rooting for Goliath (I guess Philistines still exist!) because, well, they think David's kind of a dick and he's running a scam to line his pockets. I doubt that even more. If salaries, "for profit studios", and coffee were really what CBS & Paramount were honked off about, they'd have put that in their complaint.

What I will speculate on is what kind of response CBS/Paramount (herein, they will be known as CBS/P, as I'm tired of typing both names out!) expected, and what actually happened.

I suspect that CBS/P expected to scare Mr. Peters and Axanar Productions with the suit into rolling over, playing dead, and begging them not to continue the suit if they promised to go away. If you read the original complaint, it smacks of someone trying to bludgeon their target into submission. Plus, the simple fact that a big studio with (presumably) millions to burn on lawyers is no match for a small production company with limited resources. They probably thought that the best they might be able to muster is a lawyer the caliber of Saul Goodman.

Well, that's not what happened. Mr. Peters managed to engage the services of Winston & Strawn on a pro bono basis. W&S has extensive experience with intellectual property law, and apparently like taking the side of David. Look around for anything on the GamesWorkshop vs. Chapterhouse lawsuit, and you'll see what I mean.

At any rate, W&S took a look at the complaint, saw how vague the infringement claims were ("thousands" of copyrights, "innumerable" violations......), and proceeded to file a motion to dismiss that said, "Hey, what exactly are we violating?", "Which one of you owns what?" and, "Um, we haven't made the movie yet. Isn't this a little premature?"

The Lawyers for CBS/P responded by filing an amended complaint, in which they list in excruciating detail all the ways they claim Axanar infringes on their copyrights. Here's a link to the amended complaint:

It's quite a lengthy list! It is a fine example of lawyers throwing in everything they can think of (I swear I saw "kitchen sink" listed somewhere.....). There's a couple problems with it, though.

1) Many of the things they try to claim are not protected like copyright. Names, short phrases and such are not copyrightable. To get a more detailed breakdown of this issue, please check out The Back 40K Blog, as they have provided a much better breakdown of the problems with some of CBS/P's claims then I ever could.

2) By throwing in so much stuff, the lawyers for CBS/P have opened up their clients to ridicule in the public media. Here's a couple of examples:
 Helpful CBS Lawyers Explain the Many, Many Ways a Star Trek Fan Film Is Ripping Them Off
Paramount Claims Crowdfunded 'Star Trek' Film Infringes Copyright to Klingon Language

But the kicker is Justin Lin, the director of the upcoming Star Trek Beyond, decided to put his two bits into the conversation!

I don't know about you, but having the director of your upcoming blockbuster Star Trek movie publicly calling your efforts to sue a fan film "ridiculous" seems to me to be not good for CBS/P. Naturally, this got even more press on the situation. More importantly, it got more people putting eyes on the Axanar Productions, their website, and their Prelude To Axanar film (the latest round of press has bumped its YouTube views over two million). The net result is there are now more eyes of the "Joe Public" variety on the situation than CBS/P expected. I'm willing to bet those eyes are more likely to root for David than they are Goliath. I'm also willing those are eyes they are counting on to watch Beyond this summer, and to pony up 5 bucks a month to watch the upcoming series on CBS All Access starting next year.

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?


  1. I think that we need to go a step further and completely do away with the legal phenomena of Copyright and Intellectual Property.

    Corporations should not have a monopoly on ideas and human creativity.

    1. Abolishment is not the answer. Perhaps the length time time may be too long, but the idea of copyright protection is not a bad one. Personally, I'd like to see some sort of modification to the law that allows for fan works to exist in some form (perhaps by clarifying precisely what "fair use" is or can be).

    2. I'm with Dave. When you actually study copyright a bit, you learn that it's not the rules that are the problem (they’re actually quite logical), but the duration and generalizing of them. The original constitutional definition of copyright was 14 years with an optional 14-year extension. You also had to register works to be copyrighted. So you didn't have to worry about using images/stories that didn't explicitly say they were protected, or which had been around long enough for the copyright to expire.

      But now everything anyone creates is automatically considered copyrighted, and the duration is life of the author plus however many years it takes to keep Mickey Mouse out of the public domain. Nothing that came out after the 1920’s has entered the public domain, and with congress always extending the terms, it never will.

      So instead of TOS, the early movies, and about half of TNG being in the public domain by now, we have the current situation of CBS/P wanting to exert protection over a version of Trek that they don’t even care much about anymore. While fans have to walk on eggshells if they want to express their creativity using the characters they love.

      CBS/P should just release TOS to the public domain voluntarily and be done with it.

    3. Wait... hold up there, pard. All of us, who create anything, are protected by those laws, too... not just big corporations.
      All of my original music compositions and mechanical recordings are protected. If you deny artists that protection... many/most simply won't publish anymore.

    4. Knower of Stuff... I am a singer songwriter and would never take issue with someone writing a new song about something I sang about... this is where it gets ridiculous! We should protect the licensing rights of specific movies and tv shows but NOT works derived from them... It is just ABSURD... It's like the recent Corporate moves to patent genes from people just because they identified them... THIS is a restriction on freedom, artistic creativity, and I think the whole "IT's MINE" garbage has gone way off the rails. We are entering a new age... the zero marginal cost economy and restricting artistic license is NOT going to prevail. There is room for all of this stuff and the greed/avarice of corporations these days is both disgusting and intolerable... it's why (to get political) Bernie is calling for a revolution and I will say this right now... Corporations have gone too far and there is something growing in this country they are NOT going to like. And it's not just in this country... Keep it up and shit's gonna start flying.

      Live long and prosper, people!

    5. Great Blog, BTW... and SandWyrm (cool meme) you are spot on! You nailed it perfectly... Viva la Axanar!

      BTW, fwiw, this is one 65 year old from day one total Trek fan who has seen EVERY corporate/fan creation and planned to sign me and the family up to the next cbs series and have eagerly awaited Paramount to do more... HOWEVER... I DO COMMIT THAT I WILL NOT watch another corporate derived TREK creation till the Axanar suit is withdrawn... I know many trekkers who feel the same way... Great way to alienate your fan base!

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    8. Most copyrights and IPs are actually owned by individuals and small companies. The legal phenomena, as you call it, of copyright and intellectual property was setup specifically to protect people's work from charlatans. We know this is true because all you need to do is look at China. That country has no copyright and IP laws of any kind which is why you see so many knockoffs all the time. A person, small business or a corporation who spends a lot of money producing something that then becomes popular has every right to protect their property. By law they have to otherwise that protection disappears.

  2. Spoken like someone who has never created anything. There is a reason our Founding Fathers, and the rest of the civilized world, have this concept. The problem in the US is that it has been extended to basically forever instead of the original much more reasonable 14-year term (with a single 14-year extension). Get rid of the Sonny Bono (aka Disney) act and this wouldn't even be a thing because all the copyrights would have long since expired.

    Drugs, with their R&D costs sometimes running into the billions of dollars, don't even get this kind of protection, nor do any other patent-protected creation.

    1. Anonymous (convenient!) Don't have a clue as to what YOU are getting at. This whole system has been perverted to maximize the EXTRACTION of money from all of us FOREVER... it is warped, out of control and inexcusable. If I want to sell my songs (I've written many), I should have the right to that but to tell someone they can't do derivative works is off the rails...The Corporate "we own everything and you just bend over and be our little extraction slaves" IS out of control. Drug companies??? You seen the profit margin? Talk about extracting from the sick, needy and taxpayers... this is Corporate malfeisance at a never before seen level. The Founding Fathers would have CALLED for another REVOLUTION if they were alive today. You sound like a corporate bot... although maybe i'm misreading whatever you're trying to say...

  3. Well... it's like this. I'm not a corporation... I'm an individual who composes, performs, and sometimes posts my creations to the net... often as demos to show other synth players what is possible with their newly aquired systems.
    I'm pretty sick & tired of discovering that someone has taken some or all of something that is mine, and used it as the foundation of something they've added to... and make money from it, without asking permission, or even giving credit.
    Because of this kind of thing, I've stopped sharring my better material online... stuff that many up and coming musicians want to hear.
    It's against the law... period. I own the copyrights to the stuff I've created... period. I have the right to determine if and how my creations are used... period. It's U.S. law, and international law, and by treaties.
    This is akin to someone seeing you using your Iphone, and just walking up and taking it.
    Now... this is different than fan films. With fan films, they're not using 'mechanical recordings'... the physical prints. They're actually creating brand new stories, and only using offshoots from original concepts of very basic ideas.
    Another difference is fan films do not gain any profit... they are labors of love, and do not take any earning potential from the copyright owners. It is also very debatable precisely WHAT is copywritten regarding Trek. By the owners NOT going after fan endeavors EVER before, with this kind of fandom openly using Trek stuff since the 1970s, it brings implied permission into the criteria. Unofficial Trek conventions have been going on nationwide, and covered by media since the early 70s.
    There's a BIG difference.


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