Can ‘Axanar’ offer model for studio, fan peace?

In what once was the final frontier, the actions of some one-time loyalists started to raise huge concerns among the rulers of the Great Empire of Hollywood. They feared that rebel forces had aligned and had started to take advantage of technological advances that might threaten imperial products, trade, and treasuries. Forces amassed, threats were exchanged.

Fortunately, a battle has been averted. So now some die-hard fans of the half-century-old Star Trek franchise legally can push ahead with their scaled-back, online production of a mini-film they have dubbed Axanar, which they now can’t use to fund-raise. And for now, Hollywood will keep the peace with its throngs of ticket- and merchandise-buying aficionados, while also setting, its lawyers hope, some relatively easy-to-follow red-line legal bounds on increasingly professional, not-for-profit, crowd-sourced fan films.

The Axanar skirmish may be telling — a lot — about not only Hollywood’s unceasing struggles with change but also, perhaps, key shifts in some of its legal strategies with assaults on its intellectual property.

A different kind of fan flick

Film production company Axanar Productions recently produced and debuted a new Star Trek-based fan-fiction film on YouTube.  This was not a trailer for a typical “not-for-profit” fan work, created only to be shared among fellow “Trekkies,” then lost in space. The intention was to use this teaser to raise money for a feature-length film, whose story would be a derivative work of the official, copyrighted Star Trek canon.  Producers hoped to rely on technological advances so they could “crowd-source” the work — raising funds for it on credible, dedicated Internet sites. They found a suddenly ample budget for Axanar, amounting to at least $1 million. That also meant the feature film could tap a higher level of industry talent, pros who were getting real pay rather than rag-tag volunteers. Production values also would be much higher, as some of the crew had worked on J.J. Abrams’ most recent Hollywood produced, Star Trek blockbusters. 

The stellar ambitions of the Axanar enthusiasts caught the attention of Paramount and CBS, which sued these fans. Both sides recently asked a federal court to grant summary judgment.

U.S. District Judge R. Gary Klausner in Los Angeles dismissed both sides’ claims, and sent Paramount Pictures Corp. v. Axanar Productions Inc.  to trial, going where no defendant had gone before.  Rather than allowing themselves to be cast as the big, bad corporate villian in a David-Goliath story, Paramount and CBS settled with its insurgent aficionados but not before leaving a  comet trail of legal concerns.

How the stars might not align

To be sure, fan-created fiction, both written stories and short films, is neither new nor unique.  A quick online search shows that fans have penned or shot versions of popular or iconic works, including Game of Thrones, Star Wars, Batman, Buffy the Vampire Slayer, and even, randomly, an odd choice like the film Newsies.  With the Internet’s rise, it has become common for most television shows, movies, comic books, and fantasy novels to have their own websites, Reddit-feeds, and YouTube channels, all replete with fan-created story lines.  Major Hollywood studios, which typically held the intellectual rights to the underlying material, largely ignored these fan efforts, leaving them unchallenged with copyright infringement claims.  After all, these were fans who would then buy product, and, through their endeavors, promote the franchise.  But here, certain “fans” used the intellectual property owned by another party to raise real money for other projects or to possibly obtain more work for themselves.

In dismissing the summary judgment motions—and prior to the case settling—challenging copyright and fan-fiction legal issues clearly loomed.  Klausner—he, of the recent Led Zeppelin copyright infringement case— looked askance at the defendants aim to live long and prosper with fair-use defenses.

If this case had gone to trial, the defendants would have faced hurdles addressing a key legal question in fair use: How was the story in the Axanar Productions short film and proposed feature film different or transformative, and not just another adventure in the long-running Star Trek series of television shows and movies? Even it were a prequel, sequel, and especially as it veered toward being an equal of other of these sci-fi productions, showing the court that it was artistically unique might have become a proton torpedo to this case.

Further, Axanar would struggle with its murky but troublesome financial aims. Yes, its film would appear without commercials or advertising on YouTube, and its creators didn’t define as clearly as a nebula on a dark night how or whether they would make money of this project. But their million-buck, crowd-sourced rake of funding, and talk of other works to follow might sound to a court not like fair use but more like the creation of a fiscal franchise, right?

Outlines of the peace

Details of the settlement haven’t been fully disclosed. But on the Axanar web site and in news reports, elements of the compromise have emerged. The film can go forward, if it makes no claim to be related to the Hollywood Star Trek franchise. The work will be shorter than planned, with the few allowable segments to be no longer than 15 minutes. Neither advertising nor commercial benefit (tickets nor other fees nor charges) from this project will be acceptable.  Distribution will be constrained, likely limited to YouTube play. The settlement hews to ideas proffered last year—before the settlement, of course—by  Paramount on the Star Trek website, where it posted its own guidelines for fan-created short films.  Those common sense guidelines include prohibitions, such as, “The fan production cannot be distributed on DVD or Blu-Ray,” and, “The fan production must only be exhibited on a non-charge basis.”

Will other studios that own intellectual property and that have rabid fans—think Marvel, Star Wars, DC Comics, to name a few—follow suit with not only guidelines like these but also the strategic and tactical (legal) responses adopted by Paramount? Arguendo, they reflect in part the modern technological reality: This is an age where auteurs can write, shoot, edit, and distribute a short film equipped with little more than a smartphone and a laptop.  This is a far cry from days of yore (including mine as a film student) when filmmakers had to lug around a hefty Bolex camera, then edit by cutting celluloid in a booth, alone like a monk.

Further, by allowing fans to create easier, cheaper, short, and, perhaps, controlled productions, will the movie industry, as with brethren in the music business, build rather than tear down the significant fan enthusiasm that has made the Star Trek franchise, for example, a multibillion-dollar franchise based on box office take alone? Both Hollywood and the recording industry have gone to war with punishing infringement suits against fans for illegal downloads.  This has been much reported, and it has generated its own share of ill will. Can peace reign between fans and big makers, and is non-interference and goodwill with these alternative civilizations a goal worthy of enterprising creative explorers?