After Years of Encouraging Star Trek Fans, Paramount + CBS Sue Them

As reported in the December 30th, 2015 Hollywood Reporter, "For decades, Paramount and CBS have tolerated and even encouraged fans of the Star Trek franchise to use their imagination [to create fan films] at will, but on Tuesday [Dec. 29th, 2015] the entertainment companies went to their battle stations and launched a legal missile at a production company touting the first independent Star Trek film."

Here is a link to the actual complaint that Paramount and CBS filed, alleging that a proposed feature length fan film (and the short proof-of-concept film that Alec Peters has already produced - above) "infringe Plaintiffs’ works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes.”

The proposed feature length film at the center of this lawsuit, Axanar, was already at warp drive - well on its way to being the most lavishly produced of all fan-made films

According to Axanar's executive producer, Alec Peters, Axanar was ready to launch as a full length Star Trek film - indistinguishable in quality from Hollywood films. (To see just how much can be accomplished on a small budget, take a look at the 
20+ minute $80,000 pseudo-documentary above, also produced by Alec Peters, known as "Prelude to Axanar.")

The feature length Axanar clearly would not have been your typical backyard fan film - having garnered more than $1 million in crowdfunding via Kickstarter and Indiegogo.

Perhaps the scale of the budget and the support of Star Trek veterans (like George Takei) is what tipped the balance. It's simply not clear what got Paramount's lawyers aiming their starship-mounted phasers at Axanar - after years of leniency. It could be that Paramount and CBS - with Star Trek Beyond coming to theaters on July 22, 2016 and CBS developing their own new television series based on Star Trek for a January 2017 bow on their VOD CBS All Access - might be worried about the competition from what Prof. Henry Jenkins calls participatory culture.

Paradoxically, Paramount and CBS now find themselves in the unenviable position of suing their franchise's most ardent fans. Talk about a no-win Kobayashi Maru situation...

UPDATE: April 30, 2016 Attorney Mark Randazza has filed a delightful and legally relevant amicus brief, arguing that the US Constitution's intellectual property clause (Article 1 Section 8 Clause 8) cannot be used by Paramount to claim ownership of the Klingon language. Mark Randazza's point is that while Paramount Pictures may have a copyright on Star Trek, it can't have a copyright on the Klingon language: 
"This is not a case about Defendants using specific, previously used Star Trek dialogue... but rather about precluding Defendants from creating original dialogue that happens to be in the Klingon language."

UPDATE: May 22, 2016 Paramount has apparently decided to drop their legal action against the producers of Axanar. If a May 20th, 2016 post to has it right, the director of the latest Paramount Star Trek film (Star Trek Beyond, which will be released in theaters on July 22, 2016), Justin Lin, and producer J. J. Abrams were "apparently instrumental in getting Paramount and CBS to change course." Deadline quotes the following statement from Abrams: “A few months back there was a fan movie and this lawsuit that happened between the studio and these fans, and Justin was sort of outraged by this as a longtime fan. We started talking about it and realized this wasn’t an appropriate way to deal with the fans. The fans of Star Trek are part of this world. We went to the studio and pushed them to stop this lawsuit. Within a few weeks, it’ll be announced that this lawsuit is going away.”"

UPDATE: June 16th, 2016 The lawsuit between Paramount and the Axanar fan film filmmakers may not be over just yet. On May 23rd, 2016 the defendant in Paramount's copyright Star Trek fan film infringement claim, Axanar Productions, had a court deadline to file an answer to Paramount's copyright infringement claim. In that answer, which included a counterclaim seeking declaratory relief that its works are non-infringing under fair use, Axanar pointed to the tweets by J.J. Abrams' (see above) that pointed to a likely settlement by Paramount. But then, surprisingly, Paramount and CBS responded to the May 23rd counterclaim with an answer - admitting their public statements that suggested a potential cessation of conflict - but otherwise acting as though the lawsuit was still moving forward. This strategy is a bit confusing, but might be explained as follows: Apparently Paramount isn't ready to walk away from their copyright infringement lawsuit against the fan film producers just yet - perhaps hoping to exert pressure on what the Axanar filmmakers can do while simultaneously NOT acknowledging the fans' rights to fair use. What is Paramount trying to do? Perhaps they want to hold onto their Star Trek copyright while simply giving permission to these Axanar filmmakers to make a strictly limited (controlled by Paramount) type of fan film. In other words, the goal of fighting the fair use case - while letting these few fans proceed with their film, may be more about solving a temporary public relations problem than really acknowledging a shifting relationship between fans and the franchises. To kill the bad publicity being generated by Axanar, Paramount may have decided (under pressure from, Justin Lin and J. J. Abrams) to let the Axanar producers make their film - without opening the fair use door to other filmmakers.

UPDATE: June 24th, 2016 Yesterday (June 23rd, 2016), CBS and Paramount Pictures issued "Guidelines for Avoiding Objections" for fans making films based on the Star Trek canon. The "guidelines" enumerate a number of creative restrictions (e.g., fan films "must be less than 15 minutes for a single self-contained story," "creators, actors and all other participants... cannot be compensated for their services", total budget for the fan film including all platform fees cannot exceed US$ 50,000, etc.).  Aside from that laundry list of restrictions, fan films must also use "only officially licensed merchandise" as props, costumes and set pieces. Wow. This effort by the CBS and Paramount lawyers to control elements of the culture (e.g., parodies that are unquestionably legal and have been recognized as lawful, no matter what the budget or source of the costumes, for centuries) is worthy of derision. My least favorite part may be the final paragraph of the "guidelines" - where "CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion." The big media company's lawyers also made sure to include language at the end that effectively nullifies any legal protection that a fan might have earned by following all of the "guidelines": i.e., "[t]hese guidelines are not a license". If this list of items isn't a license (permission to perform particular acts) and can be revoked after I rely on it to make my fan film, then why I am wasting my time reading it? Shame on CBS and Paramount Pictures. Just so there is no doubt about my position now: I hope fans keep creating fan fiction that goes far beyond these guidelines. Apparently the only way that CBS and Paramount's dunder-headed lawyers will learn how culture and fair use work in the 21st century is if they find themselves on the losing end of a number of valid fair use cases.

UPDATE: June 26th, 2016 Now comes word that one filmmaking project based on the Star Trek storyworld is going to pivot away. Star Trek: Renegades was a fan film that promised to "Boldly going where no Trek has gone before!" Perhaps to the consternation of CBS and Paramount, Star Trek: Renegades (financed on Kickstarter and proudly based upon the Star Trek franchise) promised a "new adventure from the creators of Star Trek." That highly-provocative authorship claim (replaced in subsequent fundraising with the all caps promise of "ALL-STAR CAST OF TREK ACTORS") seems to have been based on the participation of several actors from prior CBS and Paramount iterations of Star Trek. Now, just days after the new guidelines dropped online, the renegade filmmaker/fans seem to have made a choice (the logical choice?) - still going forward but disengaging from an actual battle - announcing via their webpage that they are making the necessary changes to delete references to the canon so that their project - now entitled "The Requiem" - can be "a completely original and ongoing series." Notice: Instead of just one film, these (fully-funded?) filmmakers are making a web series that will still use the same former Star Trek actors, themes and public domain plot tropes (the space fantasy genre that has been explored in licensed Star Trek stories isn't owned by anyone - so plots where a starship captain faces an ethical dilemma, or where logic and emotion cannot be reconciled without sacrifice, or where time travel, world-ending events, or dying astronauts are featured - are still possible even without permission). Perhaps the IP lawyers advising CBS and Paramount will see the announcement by The Renegade filmmakers as a victory. But when Star Trek's most ardent fans are erasing any references to the canon while still making Star Trek-ish films - films that won't necessarily engage new fans with the Star Trek storyworld or keep the actual Star Trek universe infused with their creativity - I anticipate a net loss for the CBS and Paramount portfolio. I know many people won't agree with me (there is no shortage right now of short-sighted fear-mongerers arguing that we'll all benefit from stronger borders) and it will of course be impossible for me to prove the better result I foresaw in my parallel universe (a hypothetical alternate reality, where a different relationship with fan films had unfolded). But after CBS and Paramount take their country universe back, will the most ardent fans still want to live there?

No comments:

Randy Finch's Film Blog:

Thoughts from a film producer about making and distributing films.