To Boldly Go…Where Others Have Gone Before: The Copyright Problems of “Fan Fiction”

Stephen Carlisle January 8, 2016

On December 29, 2015, Paramount Pictures and CBS Studios filed a lawsuit against Axanar Productions, Inc. and its principal Alec Peters. ¹ The essential facts which support the complaint by Paramount are:

“Defendants have made a short film entitled Star Trek: Prelude to Axanar (“Prelude to Axanar”), and are in the process of producing a film called Axanar (the “Axanar Motion Picture”) (collectively, the “Axanar Works”). The Axanar Works infringe Plaintiffs’ works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes. The Axanar Works are intended to be professional quality productions that, by Defendants’ own admission, unabashedly take Paramount’s and CBS’s intellectual property and aim to “look and feel like a true Star Trek movie.” On information and belief, Defendants have raised over $1 million so far to produce these works, including building out a studio and hiring actors, set designers, and costume designers. The Axanar Works are substantially similar to, and unauthorized derivative works of, Plaintiffs’ Star Trek television series and movies, in contravention of the copyright laws of the United States.” ²

Axanar instead claims that it is “fan fiction.” ³ Essentially, fan fiction (FF) arises when fans of a particular movie, book or series of movies or books, create new works involving the same characters, settings and events. This is almost universally done without the express permission of the creators. ⁴ The works are inevitably self-published via the internet, using several websites devoted to fan fiction, on essentially a non-commercial basis. ⁵ The most famous example of FF is Fifty Shades of Grey, which started as a piece of FF using the characters from the Twilight series by Stephanie Meyer. ⁶ The author, E.L. James, changed the names and attributes of the characters and removed other identifying information, the result being an international best seller and later a movie version. ⁷

Predictably, the creative community is split on whether fan fiction should be encouraged, merely tolerated, or met with stiff opposition. Stephanie Meyer (Twilight) not only approves of fan fiction but runs a list of them on her website. ⁸ J.K. Rowling (Harry Potter) has been quoted as saying she is “flattered” that people want to write stories about her characters, ⁹ but in the same article, her literary agent pours cold water on the notion that FF has her complete support.

“Her concern would be to make sure that it remains a non-commercial activity to ensure fans are not exploited and it is not being published in the strict sense of traditional print publishing.” ¹⁰

“The books may be getting older, but they are still aimed at young children. If young children were to stumble on Harry Potter in an x-rated story, that would be a problem.” ¹¹

George Lucas reportedly had the same policy towards Star Wars FF, and would order the takedown of any Star Wars FF that contained pornographic or sexual scenes. ¹²

The concern about pornography in FF is not without precedent. Two subgenres of FF include the “Mary Sue” line of stories in which a female protagonist has a sexual relationship with the well-known hero of the series and “Slash” which imagines a homosexual relationship between two male characters of a series. ¹³

In the “anti FF” faction are Game of Thrones author George R.R. Martin, and Anne Rice (Interview With a Vampire).

Sometimes this is an issue of creative control. Sharon Lee (co-author of the Liaden series) put it this way on her website:

“[T]here is so little Liaden fanfic out there, though, frankly, I wish there were none. I don’t want “other people interpreting” our characters. Interpreting our characters is what Steve and I do; it’s our job. Nobody else is going to get it right.

This may sound rude and elitist, but honestly, it’s not easy for us to get it right sometimes, and we’ve been living with these characters. . .for a very long time. I created the prototypes for Val Con and Miri when I was 12 — so that’s almost 50 years together at this point, and there are still misunderstandings.

So, my position with regard to fanfic of our work? We built our universes, and our characters; they are our intellectual property; and they are not toys lying about some virtual sandbox for other kids to pick up and modify at their whim. Steve and I do not sanction fanfic written in our universes; any such work that exists, exists without our permission, and certainly without our support.” ¹⁴

For their part, the operator of FF site FanFiction.net states:

“It is our long standing policy of fanfiction.net to respect the wishes of original writers and will remove or ban fan fiction categories at their request.” ¹⁵

For others, it can be a question of being hemmed in creatively by an unauthorized piece of FF. As George R.R. Martin relates on his website, the plight encountered by another author:

“Most of us laboring in the genres of science fiction and fantasy… had a lesson in the dangers of permitting fan fiction a couple of decades back, courtesy of Marion Zimmer Bradley. MZB had been an author who not only allowed fan fiction based on her Darkover series, but actively encouraged it… even read and critiqued the stories of her fans. All was happiness and joy, until one day she encountered in one such fan story an idea similar to one she was using in her current Darkover novel-in-progress. MZB wrote to the fan, explained the situation, even offered a token payment and an acknowledgement in the book. The fan replied that she wanted full co-authorship of said book, and half the money, or she would sue. MZB scrapped the novel instead, rather than risk a lawsuit.” ¹⁶

Yes, only in the upside-down world of the internet, where every creative work is deemed up for grabs, could you find a successful writer being threatened with a copyright infringement lawsuit by the creator of an unauthorized derivative work.

Can’t happen? Sure it can.

In the 1989 case of Anderson v. Stallone ¹⁷ a writer of a “speculation script” for a proposed Rocky IV sued Sylvester Stallone for copying elements of his script in Stallone’s own script for Rocky IV. While the court did rule that the scripts were not “substantially similar,” it went even further stating:

“The Court finds that Anderson’s treatment is not entitled to copyright protection. This finding is based upon the following determinations that will be delineated further below: (a) the Rocky characters developed in Rocky I, II and III constitute expression protected by copyright independent from the story in which they are contained; (b) Anderson’s treatment appropriated these characters and created a derivative work based upon these characters without Stallone’s permission in violation of Section 106(2); (c) no part of Anderson’s treatment is entitled to copyright protection as his work is pervaded by the characters of the first three Rocky movies that are afforded copyright protection.” ¹⁸

And finally there is this concern. Again, as George R. R. Martin states:

“Myself, I think the writers who allow fan fiction are making a mistake. I am not saying here that the people who write fan fiction are evil or immoral or untrustworthy. The vast majority of them are honest and sincere and passionate about whatever work they chose to base their fictions on, and have only the best of intentions for the original author. But (1) there are always a few, in any group, who are perhaps less wonderful, and (2) this door, once opened, can be very difficult to close again.” ¹⁹

Which is precisely the problem being faced by Paramount Pictures with the Axanar project.

The proposed Axanar movie makes no bones about the fact that it is based upon elements created by others in the Star Trek universe.

“Axanar is the story of Garth of Izar, the legendary Starfleet captain who is Captain Kirk’s hero. We met Garth in the third season TOS episode Whom Gods Destroy. Kirk called Garth the role model for all future Starfleet Officers. Garth charted more planets than any other Captain and was the hero of the Battle of Axanar, the story of which is required reading at the academy. This is that story.” ²⁰

A visit to the main page of the website will lead you to animation which portray a modern version of the Enterprise and a clearly recognizable Klingon warship. ²¹

So why do they think they are able to make a $1 million movie set in the Star Trek universe using some of the Star Trek characters? Because CBS Studios was nice enough to allow others to make FF short films. As reported by the website The Wrap:

“’CBS has a long history of accepting fan films,’ [Defendant Alec] Peters said. ‘I think ‘Axanar’ has become so popular that CBS realizes that we’re just making their brand that much better.’

Previous Kickstarter- and Indiegogo-funded fan films include “Star Trek: Of Gods and Men,” which generated $150,000 in donations in 2006 and “Star Trek: Renegades,” which drew a collective $375,000 from both platforms in 2014.” ²²

Peters even contends that he got tacit approval from CBS:

“Peters said he and his team met with CBS last week but the network didn’t offer any specific guidelines concerning what his crew can and cannot do — the network simply told him that they can’t make money off the project.” ²³

CBS says otherwise.

“’CBS has not authorized, sanctioned or licensed this project in any way, and this has been communicated to those involved,’ a representative from the network told TheWrap. ‘We continue to object to professional commercial ventures trading off our property rights and are considering further options to protect these rights.’” ²⁴

And now CBS and Paramount have made good on their threats by filing a lawsuit to stop Anaxar dead in its tracks…err… space. Predictably, Peters went to social media to plead his case, and also, just as predictably, the hue and cry was “corporate greed,” “they’re not making any money,” “everyone else is doing it,” “free speech” and “fair use act.” Well, faithful readers of this blog will know that there is no “fair use act,” but let’s examine these one by one.

Corporate Greed

Well, this is half-correct. Paramount and CBS are “for profit” corporations. Their job is to earn as much profit for their shareholders as possible. If anyone is able to make a Star Trek movie, then this will have a negative impact on the earnings potential of an “official” Star Trek motion picture with a concurrent detriment to the bottom line of the corporation and its shareholders. And the suit does not say that Axanar cannot be made at all, it just cannot be made in its present form. The filmmakers are free to make any film they want, and tell the same story, just remove all the elements borrowed from the Star Trek TV series and motion pictures. This is what E.L. James did with Fifty Shades of Grey and it seemed to turn out fine for her.

They’re Not Making Any Money

This argument just doesn’t hold up. The budget for Axanar, by their own admission, is over $1 million. Somebody is getting paid with that money. Presumably, this would include the top line actors, the Director of Photography, the film editors, and the people who create the special effects. In other words, the people listed as part of the production team on their official website. ²⁵ And as “Executive Producer,” is Alec Peters getting paid? Has he written a salary for himself into the budget so he can keep body and soul together while he oversees the production of the film? If he has, then he is making money on the project. Further, if you donate to the project, you get Axanar merchandise, which includes copies of the movie on DVD, Blu-Ray or by digital download. ²⁶ How is this different from when a studio releases movies on DVD or sells related merchandise? You pay money, you get tangible goods back. This is making money on the project, regardless of whether Axanar is made available on their YouTube channel without charge. And since the movie is not complete, how are we to know there will not be advertising on the page or before the film is streamed? That would certainly be making money on the project as well.

One last point before I move on, the whole purpose of crowd-funding is that the payment is a gift, and as such is not income to the recipient. I am not a tax lawyer, but it would seem to me, that offering tangible merchandise in return for a payment, and increasing levels of merchandise for increased levels of payment, make the crowd sourced funds no longer a gift, but income on merchandise sold by the Axanar production team. As a result, they would owe tax to the IRS on that income. Remember, this is $1 million of income. It will be interesting to see if the IRS takes any action.

 Everyone Else Is Doing It

So allowing other FF to be made means that all FF should be allowed? This has never been the case, as noted above. Content creators do place restrictions on what kind of FF they will tolerate, especially when it starts to veer into the territory of pornography. Further, Axanar has a budget three to four times what was tolerated before. At some point, a line has to be drawn, and it’s the original creator that gets to draw it, not the FF creator that wants to use valuable elements without permission. The logical conclusion of this, a content creator should not allow any FF to be produced at all, lest it be seen as a tacit approval for all future FF to be produced. Is that what the FF community really wants?

Free Speech

This argument doesn’t get to first base. Again, no one is saying the Axanar movie cannot be made. The objection is to incorporating elements into the film that they did not create. People are not donating to the project because it’s an Alec Peters production. People are donating to it because it’s Star Trek. This is really the crux of the issue. Axanar is trading upon the world-wide popularity of Star Trek as a way of attracting attention and interest in their film, using elements that they did not create or have anything to do with. There have been six Star Trek television series and twelve Star Trek motion pictures, ²⁷ all presumably made and marketed at considerable expense by Paramount. Now, Axanar wants to take advantage of all this effort and expense without obtaining permission or the payment of a proper licensing fee. In short, they seek to reap where they have not sown. This is not free speech. This is taking someone else’s speech and claiming it as their own. As the Supreme Court ruled on this very point, the First Amendment “securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” ²⁸

Fair Use

Here, we have the advantage of a case on point. J.D. Salinger v. Colting ²⁹ pitted the world renowned author of The Catcher in the Rye against the author of a totally unapproved sequel to Catcher in the Rye, which was titled 60 Years Later: Coming Through the Rye. Colting, of course, claimed his unauthorized sequel was “fair use” and “transformative.” The Court cuts to the heart of the matter and offers this quote from Judge Pierre Leval’s influential article Toward a Fair Use Standard: ³⁰

“The first fair use factor calls for a careful evaluation whether the particular quotation is of the transformative type that advances knowledge and the progress of the arts or whether it merely repackages, free riding on another’s creations. If a quotation of a copyrighted matter reveals no transformative purpose, fair use should perhaps be rejected without further inquiry into other factors. Factor One is the soul of fair use. A finding of justification under this factor seems indispensable to a fair use defense.” ³¹

The Judge there ruled the sequel was not fair use, and granted a preliminary injunction. On appeal, the Second Circuit reversed on the issue of the preliminary injunction, but stated “we conclude with the District Court that Defendants are not likely to prevail in their fair use defense.” ³²

So what is the “justification” for Axanar copying various elements form Star Trek? There is no indication that Axanar is in any way, shape or form, a criticism, commentary or parody of the numerous Star Trek offerings made by Paramount. It simply takes various elements of the Star Trek canon and spins a new story around them. So what we are left with is a film that “merely repackages, free riding on another’s creations” that Judge Leval warned about.

So, all indications are that the “free speech” and “fair use” arguments that Mr. Peters and Axanar are going to put forth will be rejected at trial.

So why not do what the creators of Star Trek did? Come up with a fresh and interesting set of characters and plot elements, instead of boldly going where a lot of people have gone before.