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Copyright: The Fair Use Frontier

June 22, 2016

Ever wonder what happens to your favorite characters after the movie ends?  Want to take those characters and put them in your own movie?  If you are not careful, you might find yourself and your “fan film” facing a federal lawsuit.

That is just what the creators of the Star Trek fan film Axanar found themselves up against at the end of 2015 in Paramount Pictures Corporation, et al v. Axanar Productions, Inc., et al, Case No.: 2:15-cv-09938-RGK-E, in United States District Court, Central District of California.  The case is still ongoing and offers a good starting point for discussing copyright and the doctrine of fair use.

There is no question that the plaintiffs, Paramount Pictures Corporation and CBS Studios, Inc., own the United States copyrights to Gene Roddenberry’s Star Trek and its various characters.  Under the Copyright Act of 1976, a copyright owner has the exclusive right to, among other things, prepare ‘derivative’ works based upon their copyrighted work (such as endless sequels and spin-offs).  Axanar Productions, Inc.  seeks to produce such a derivative work, specifically a prequel to the original Star Trek television series, by telling the story of one of Captain Kirk’s heroes and the Battle of Axanar, directly mentioned in an episode of the original series.  The federal complaint goes on to list detailed examples of all the infringing elements found in the fan film, including specific ships, characters, and logos.

It is unlikely that Paramount or CBS would sign over the Star Trek rights to a group of independent fan filmmakers, so is there a way that Axanar could have simply stayed off their radar?  The answer lies in the doctrine of fair use, found in Title 17 of the U.S. Code, §107.  “Fair use” aims to allow the unauthorized use of copyrighted material by looking at four factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Axanar embraces its direct connection to Star Trek and the liberal use of copyrighted Star Trek material, which places Factors 2 and 3 firmly in Paramount and CBS’s corner.  However, it is arguable that the fan film would not hurt the Star Trek brand, which has endured for fifty years, in the marketplace, so Factor 4 goes to Axanar here.  The true problem for Axanar lies in Factor 1.  Axanar Productions raised over $650,000 through online fundraising, not a crime in and of itself, but enough to draw the attention of Hollywood.  In addition, it appears Axanar Productions and its crew are going to benefit financially from the film, which goes against the idea of fan films being produced for free by, well, fans, in their spare time and not as their source of employment.  One advantage Axanar has is the fan backlash against Paramount and CBS for suing their own fans, to the point that the director of the latest official Star Trek film is calling for the lawsuit to be dropped.  As of the writing of this article, however, the lawsuit is still alive.

If you are planning to make your own fan film or other derivative work, check to see if your project qualifies as fair use of the material you intend to branch off of.  If not, you may find yourself facing the wrath of copyright.