Fanworks, Transformative Fandom, and Copyright
A Look at Axanar and the Implications of Paramount/CBS v. Axanar Productions
In a complaint filed December 29, 2015, Paramount Pictures and CBS Studios (Paramount/CBS) accused Axanar Productions of multiple counts of copyright infringement. While Axanar Productions had not expected the lawsuit, they were not wholly unready for a fight with Paramount/CBS over Axanar Productions’ forthcoming feature-length Star Trek fan film, Axanar. Alec Peters, executive producer of Axanar stated in August 2015 that he had met with representatives of CBS and felt that, like other Star Trek fan films that have not sought to profit from the Star Trek franchise, Axanar would not be legally challenged by Paramount/CBS for infringement of copyright. Following the court filing, though, Peters admitted Axanar Productions had prepared for a legal battle but planned to quickly reach a settlement that would allow his team to continue production on Axanar.
The plot of Axanar — and of Axanar Productions’ previous film, Prelude to Axanar — builds on a story introduced in the Star Trek television series episode “Whom Gods Destroy,” which aired on NBC in 1969. Paramount/CBS now owns the copyrights to the Star Trek media franchise, including all five television series and twelve feature films, but they have historically allowed fan productions to move forward, provided the production did not produce a profit. Though formal guidelines are a recent development, traditional fan guidelines prohibited selling tickets, merchandise, or copies of the film, and fans have released several previous productions online without challenge from Paramount/CBS.
Background on Axanar
The Axanar Productions’ crowdfunding campaigns at Kickstarter and Indiegogo generated a combined sum of over $1.1 million, making it hard for Peters to argue credibly that Axanar is not intended to generate a profit. The Axanar Productions annual report and FAQ state Peters received a “salary” of $38,000 for his participation as a full-time employee of Axanar Productions. Elsewhere, Axanar Productions stated they are producing the Axanar film “not-for-profit” but that they do not expect to “volunteer” their time. While Axanar Productions is correct that employees of a not-for-profit organization are allowed to draw a salary, the fact that the writers, producers, and director are being paid for their participation makes the film hard to defend as a fan effort. Axanar Productions previously stated they intend their film to be a “love letter” to Star Trek, but Peters posted they intend Axanar to be the “first fully-professional, independent Star Trek film.” Axanar is also set to include recognizable actors in addition to actors and crew who have previously worked for the Star Trek franchise, and Axanar Productions promised digital copies of the Axanar film to crowdfunding campaign backers in return for their support. This, at least, would seem unequivocally to violate the prohibition against selling copies of the film.
Despite the assurances of J.J. Abrams, the director of the 2009 and 2013 Star Trek films and producer for the forthcoming film Star Trek Beyond, distributed by copyright holder Paramount, that Paramount/CBS would be dropping the lawsuit against Axanar Productions, the parties have failed to reach an agreement. Instead, Paramount/CBS released a set of fan film guidelines on June 23, 2016. The guidelines were ostensibly created to foster fan engagement while providing a clear description of what is allowed and what is not, what will be considered infringing and what will not.
Peters had previously written he and Axanar Productions sought exactly what they have received: a set of guidelines from Paramount/CBS that made clear what would be infringing fan content and what would go unchallenged. Until June 2016, Paramount/CBS had refused to set down any rules for Star Trek fan films or fanworks, likely because doing so could be seen as providing fans with a carte blanche to create potentially infringing works. Instead, Paramount/CBS would judge each fanwork on a case-by-case basis, and recent actions against fans had been rare. Shortly after the release of the new guidelines, John Van Citters, a CBS executive, said they would not apply the guidelines retroactively, and previously released fan films do not have to worry about a Paramount/CBS witch-hunt. Several ongoing fan productions separate from Axanar Productions and which had previously been tolerated by Paramount/CBS will, however, also be affected by the new guidelines. The continuation of serialized fan films, such as the popular Star Trek New Voyages and Star Trek Continues series, is in jeopardy, since these multi-part films will be in violation of the Paramount/CBS fan film guidelines if they continue to release episodes.
That does not mean fans were working without any guidelines prior to June 2016, though. Posting in October 2012 on the Trek BBS Fan Productions message board, Patty Wright of Star Trek fan film production Star Trek: New Voyages wrote that she and James Cawley, producer and star of New Voyages, had been in contact with CBS’s legal department. Wright provided a set of guidelines intended to prevent fans working in good faith from running into trouble with the copyright holders. While her guidelines are of dubious origin, as she provided no source document from which she created the guidelines, for three years they served as best practices for fan films. Any fan films created based on the Star Trek IP would still be infringing, but fan film producers understood that abiding by the guidelines would prevent fan films from being challenged by Paramount/CBS.
This ambiguous document was not good enough for Peters, though, especially in light of Axanar Productions’ crowdfunding success. Concerned about a legal challenge from Paramount/CBS, Peters pushed for an official list of guidelines for fan films, similar to the guidelines provided by Lucasfilm for Star Wars fan films. Those Star Wars guidelines look similar to what Paramount/CBS has now put forth; the Star Trek fan film guidelines are likely more lenient in practice than those for Star Wars, considering that for a Star Wars fan film to meet the guidelines, the fan must submit the fan film to the official Star Wars fan film contest. Lucasfilm gains the rights to any fan film submitted and may reproduce the film or distribute it as the company sees fit. Even so, Peters has stated that he is unhappy with the new Star Trek fan film guidelines, and the Axanar Productions website now carries information about a planned boycott of CBS All Access, the CBS digital video subscription service.
The outcome of Paramount/CBS v. Axanar Productions has the potential to disrupt not just Star Trek fan films, but fanworks of all types and within all fandoms. The courts have notoriously applied fair use doctrine subjectively and unevenly. Fanworks that have previously flown under the radar have done so deliberately to prevent drawing negative attention from the media franchise. While it is likely that Axanar Productions will settle before going to court against Paramount/CBS, the potential for setting a legal precedent that will put fanworks at a confirmed risk is chilling.
The guidelines’ proscription against professionals working on fan films will be keenly felt, as several Star Trek main cast members have previously appeared in fan films and are currently working on other fan film productions. The producers behind Star Trek Renegades: The Requiem, a fan film series directed by Tim Russ of Star Trek: Voyager and starring Russ and fellow Trek alumni Trek Walter Koenig, Nichelle Nichols, Robert Picardo, and others, have announced that they will be removing all Star Trek intellectual property from future releases and continue as a fully independent and original digital series, a practice referred to in fandom as “filing off the serial numbers.”
The ban on long form and multi-part fan films will also present an obstacle for other long-running productions. There has already been a backlash against Axanar Productions for shining too bright a light on Star Trek fanworks. Fans have declared that Axanar Productions in general and Peters in particular have ruined the fun for everyone else. Still, many fans do see the Star Trek fan film guidelines as reasonable but blame Axanar Productions for creating the need for any guidelines in the first place. This paper will argue that whatever the outcome, the case of Axanar will set a precedent, legal or informal, for how fans navigate the waters of copyright when creating transformative works in future and for how franchises interact with their fans.
Transformative Fandom Reviewed
There has historically been an understanding in fan culture that fanworks, by their very nature, violate copyright and are, thus, illegal. This illegality has been viewed as little more than a technicality, though, at least to fans, as fans have distinguished “ethical” producers of fan content from those who act unethically. In a community populated by individuals acting in contravention of the law, self-regulated ethics stand in for legality. Fans of “ethical” fanworks often clash with those they understand as acting unethically, as they contend that unethical fans do damage to the image of the entire fandom community, particularly in the eyes of the creators and copyright holders. This can be seen in the backlash against Axanar Productions from Star Trek fans who resent the unethical — by their constructed standards — actions of Peters.
As Condry points out, fans make the argument that fanworks will help to promote the franchise. Fans take issue with unethical fanworks, though, when the existence of the fanwork may be damaging to the franchise’s brand or is a flagrant violation of copyright. In this case, critical Star Trek fans cast the crowdfunding success of Axanar Productions and the employment of professional cast and crew are cast as unethical fan practices. Fans believe that negative attention from copyright holders aimed at fanworks will cause copyright holders to stub out all fan activity wholesale, including that which fans recognize as ethical. This fear has been borne out in the punitive Star Trek fan film guidelines released by Paramount/CBS in June 2016.
The concern about attracting negative attention is tied to an understanding of tacit approval of fanworks on the part of copyright holders. As long as fanworks promote the franchise’s brand and do not infringe copyright too much, then fans feel empowered to participate in transformative fandom. Both of these conceptions of fandom, as an ethical participation in producing fanworks that support the franchise or as a deleterious practice that puts both the franchise and the reputation of fans in jeopardy, ignore the role of copyright law. When determining what is ethical and unethical fan practice, fans devote very little thought to the legality of transformative fanworks.
This rejection of black and white legality does not spring from oblivion, however. Copyright challenges have long relied on the doctrine of fair use, and the courts have traditionally upheld fair use only in cases of parody or explicit educational or journalistic use. Historically, defendants in copyright lawsuits have found it difficult to defend works as creative fair use. Court decisions about transformative works have relied on subjective aesthetic judgements of the contested works. A work may be equated to piracy in one court, while the same work is found to be sufficiently transformative to be allowed under the fair use doctrine in another court. One court may rule the value of potential sequels to an original franchise is too great to allow unauthorized transformative works, whereas another court may center its decision on whether the unlicensed transformative work is a threat to the potential revenue that may be generated by as yet unproduced licensed derivative works. It is no wonder that fans do not look to the legality of a fanwork to judge either its value or whether the producer of the fanwork is acting ethically; when the law is applied so unevenly and subjectively, the policy of remaining invisible, or at least inconspicuous, to copyright holders seems the most prudent option. Fans create a liminal space for themselves, between illegality and approval, and the rules of etiquette and appropriate behavior are administered and, when necessary, enforced by fans.
Courts frequently determine fanworks are infringing because they have “a lack of permissible purpose.” As discussed above, creative fair use is generally reserved for parody. There is little room for the production of fanworks as an earnest endeavor that does not seek to directly criticize the source material. Fans use the medium of fanworks to comment on the source material or engage critically with society in general, including sexuality, misogyny, and heterosexism, but this engagement is rarely presented as parody. Copyright law, while initially intended to foster creative expression, now values economic motivations, acting as a cudgel to stifle free expression that is transformative in nature.
Still, fans participating in online fandom have fallen back on claims of “fair use” as a defense and pointed to the fact that fanworks are generally non-commercial. The changing landscape of crowd-funding and for-profit fandom places this defense in jeopardy, though, even if not all commercial fanworks are infringing. Distributors, such as Amazon, are increasingly obtaining licenses that allow them to market and sell fanworks without violating copyright. Consequently, copyright holders may interpret the fact of commercial fanworks as an indication that works produced and distributed outside of these sanctioned outlets, even when done so without any profit made, could rival licensed fanworks, reducing their profitability. Again, fans have an opportunity to police other fans, denouncing those who participate in the commercialization of fandom as it places non-commercial fandom in jeopardy.
Because those judging the legality of fanworks are almost without question people who have no experience of the fandom, it can be hard to translate the transformative aspects of fanwork to a non-fan audience. In a 2012 action against Gianduja Kiss, a fan who creates fanvids using music and video clips from established media, representatives of the MPAA and RIAA, among others, claimed Kiss’s use of clips from James Bond films was non-transformative and served only to promote the Bond franchise. Coming from outside fandom, they did not have the context necessary to understand that Kiss was creating a work critical of the misogyny and hypermasculinity of the James Bond character. This allowed them to declare her work invalid and without meaning. Again, the critical value of the fanwork was not important, at least when judging the legality of the fanwork.
Franchise producers and media have historically devalued fanworks. Writing in 1988, Jenkins illustrates this phenomenon with the dismissal in Newsweek of Star Trek fans as “infantile” and “kooks.” Jenkins indicates that Star Trek fans were described as suffering from a Freudian mental illness and in need of intervention or at least further study. The idea that participation in fandom could be a healthy and enjoyable practice is ignored.
This conception of fans may sound outdated, but as recently 2014, Samuel Bradley in Out Magazine described fans as grasping young women creating fanworks that solely depict male characters as “lustful cock monsters.” In the same article, Benedict Cumberbatch, who plays Sherlock Holmes on the BBC alternate universe series Sherlock, describes fan creators as adolescent girls too threatened by other women to engage rationally with society. When the media characterizes fans stunted man-children or crazed teenage girls, fanworks are devalued, paradoxically protecting them from copyright challenge — as nothing produced by fans can be important enough to be infringing — while constructing them as easily challengeable — as, again, fanworks have no merit and will thus not stand up to legal challenge.
It is true that fanworks, by their very nature, are parasitic and cannot exist on their own without the support of the source franchise material. Challenging fanworks can be self-destructive for the copyright holder, however, as the people producing fanworks are also the franchise’s biggest fans. To alienate the fans who create fanworks is to alienate a swath of their audience, weakening the profitability of the franchise. It is also true, though, that the very existence of fanworks produced by unwaged labor calls the value of the waged labor used to produce licensed works into question. This speaks to the issue of legitimacy in both fan-created media and licensed media and may be a persuasive argument for finding in favor of Paramount/CBS in their suit against Axanar Productions.
The Organization for Transformative Work (OTW) was formed in 2007 to protect the legitimacy of fanworks mentioned above. Created in part in response to a mass shutdown in May 2007 of multiple user accounts on LiveJournal, a popular fandom forum, OTW seeks to preserve fan culture so that a similar loss of content and creators is not repeated in the future. This notion of fan culture as something worthy of safekeeping is itself revolutionary, as it advocates for the legitimacy and inherent worth of fanworks and fan labor, apart from the source franchise. At the same time, many fans worried that OTW, and its accompanying website archive for fanworks, would shine too bright a light on fandom. This would draw the attention of copyright holders and force their hand, provoking them to actively protect their copyright by challenging fanworks. While no reason has yet been given to explain why Axanar was challenged by Paramount/CBS when similar fan films have been ignored, it is likely that Axanar Productions’ fundraising success drew too much attention for Paramount/CBS to overlook the potential threat to the Star Trek license.
The possibility of drawing negative attention was a concern to OTW, and a central tenet of their mission statement is that they aim to defend transformative fanworks against legal challenges. OTW argues that fanworks are “legitimately creative works,” but the question posed by scholars is from where does this legitimacy stem? OTW has not always been clear about that, and it has been a cause for concern to some creators. Is the legitimacy endowed by the fact that the fanwork is a creative expression, separate from its aesthetic value, or does the legitimacy come from the fact that the fanwork, though derivative, is itself an original creative product? The answer is uncertain and clearly troubles creators.
While fandom, and not just its constituent fans, may seem young, and fans engaging with source media by creating transformative works may be assumed to be a new problem for creators, fandom has existed for over 125 years. Beginning with Arthur Conan Doyle’s A Study in Scarlet and the introduction of Sherlock Holmes and Dr. Watson, fans found published works to be a fertile ground on which to cultivate their own stories. In 1893, “The Final Problem” was published in The Strand and was intended, as indicated by the title, to be the final Sherlock Holmes story, as Doyle had tired of the popularity of his creation and wished to branch out into other types of writing. Two novels and twenty-eight additional short stories about Sherlock Holmes were to follow, however. After eight years of pressure from readers of The Strand following the fictional death of Sherlock Holmes, Doyle published The Hound of the Baskervilles, and Holmes was officially resurrected in “The Adventure of the Empty House.” Doyle had lost control of his creation; it now belonged to the fans. And his fans were all too eager to put Sherlock Holmes to work in their own stories, creating as early as 1897 what has been called the first fanfiction. Indeed, the use of the word “canon” to describe the source material for fandom sprang out of a 1911 comparison of the Sherlock Holmes stories to the Bible.
Similar to the fanfictions and pastiches that arose from the Sherlock Holmes stories in the 1890s, fan films have been around as long as there have been cameras. This was all accomplished without the aid of the Internet, but it is true that the Internet has led to a much greater proliferation of fanworks than was ever possible before. Similarly, the profusion of tools, such as digital cameras and video editing software, and the decrease in price from their commercial introduction decades ago has made it easier than ever for fans to generate works that rival the franchise source material. This has elicited a range of reactions from copyright holders, from outright hostility, to tacit approval, to embracing fans and the films they create.
Damnatus, a fan-produced film set in the universe of the tabletop game Warhammer 40,000 (W40K), is one of many fan films created for the game, but unlike other W40K-inspired fan films, Damnatus was challenged in court and banned from release, and the case against Damnatus could provide insight into the eventual fate of Axanar. Two reasons have been put forth for why Damnatus was banned while other fan films were tolerated: the high production value of Damnatus and its strict adherence to W40K canon. Similar claims have been made about Axanar, though Paramount/CBS have yet to comment on why, specifically, Axanar is being challenged and other Star Trek fan films ignored. Had Damnatus not met both criteria, high production value and adherence to canon, it likely would have been safe from claims of copyright violation.
The producers of Damnatus chose to remain well within the boundaries of the world set out in W40K, adding very little original invention to their film. Many other fan film producers had also chosen to “color within the lines” of W40K canon, but their films lacked the polish of Damnatus and had not been challenged by Games Workshop, the manufacturer and distributor of W40K. Similarly, a not-for-profit film with high production values but only passing resemblance to the canon of W40K would not have raised the ire of Games Workshop. It was when the quality of the production was paired with an utter similarity to the source material that Games Workshop saw a problem. The producers of Damnatus created a work that Games Workshop saw as potentially preventing them from capitalizing on the W40K brand in a similar way in the future, specifically by devaluing the rights to license W40K as a film franchise. Damnatus could be seen as a competitor for any future licensed W40K films, placing it squarely in the crosshairs of Games Workshop and their legal counsel.
Again, this is a good indication of what went wrong with Axanar: Peters had posted on behalf of Axanar Productions that they intend Axanar to be the “first fully-professional, independent Star Trek film.” With a recently revived film franchise and a new Star Trek television series in production, Paramount/CBS likely see Axanar Productions as a threat to future revenue.
Fans who engage in transformative fandom have always been aware that they are participating in copyright infringement. Historically, fandom has been self-policing, as fans who disregard the informal rules of fandom are denounced by the fandom community as participating in unethical fan culture. The fact that the rules of fandom are informal, though, leaves fandom in a liminal space and on uncertain ground. It is difficult to know beforehand what fanworks the copyright holder may challenge and what fanworks the copyright holder will tolerate. Fans may also question the authority of those setting forth and enforcing accepted customs in fandom. With the tacit — and sometimes full-throated — approval demonstrated by many creators and copyright holders, it may be that fans have grown complacent and no longer recognize that transformative fandom exists in a legal gray area. It may be that transformative fans are beginning to reject the notion that they owe anything to the original creators or copyright holders. Even a fan who does abide by the informal rules of fandom, such as citing the copyright holder and refraining from earning a profit from fanworks, may still find that their fanwork is challenged.
Despite a lack of official sanction from Paramount/CBS, Star Trek fandom was not without these sorts of rules for creating and distributing transformative fanworks, vague and informal though the rules were, and fans had produced Star Trek fan films for years without conflicting with Paramount/CBS. It is also true that Axanar Productions was not breaking new ground in building on a canon Star Trek storyline, raising capital through crowdfunding, or hiring Star Trek former cast and crew for their film. All of these actions had been committed by other, arguably more successful fan film productions, in some cases repeatedly. While it is possible Paramount/CBS simply seized the opportunity to make an example of Axanar Productions as the newest entry to the fan film community, it seems more likely that something particular to Axanar made the film stand out.
Whereas other films had used crowdfunding to raise tens of thousands of dollars, Axanar raised over $1.1 million. In the case of Axanar Productions, the money was raised as a cash reserve for production; accepted wisdom among Star Trek fan film producers dictated that they should only raise money to fund specific expenses with a narrow scope, such as cameras or lighting equipment. By using the Star Trek brand to accrue such a large and unprecedented sum for an undefined purpose and then draw a salary from that money, the Axanar producers presented their endeavor as a for-profit venture. Despite disclaimers that Axanar Productions will not benefit financially from the Axanar release, it is difficult to defend their actions.
Paramount/CBS heard the call for clear instructions about what would be allowed in a fan film and produced a set of guidelines that would seem both reasonable and fairly easy to abide by. The new Star Trek guidelines closely follow the Star Wars fan film guidelines, guidelines that are often cited by fans as a sensible standard by which other franchises can learn to better interact with fan creators; if anything, the Star Trek guidelines seem lenient by comparison. What seems to have displeased Peters at Axanar Productions, as well as numerous other fan film producers, is not what is allowed but what is forbidden. By creating a list of permissible methods of fan engagement, Paramount/CBS has also indicated what would not be permitted. This has alienated many fans and placed the future of several popular fan film series in jeopardy.
While Star Trek fans are closely following the legal battle between Paramount/CBS and Axanar Productions, it is worthwhile for individuals from all fandoms and for information professionals concerned with issues of copyright to stay informed, as well. Whatever the result of Paramount/CBS v. Axanar, the experience will likely set a precedent for how large media corporations deal with copyright infringement from fans. Axanar Productions and Paramount/CBS have both indicated that the case will be settled out of court, meaning that any precedent set will not be legally binding, but the outcome could set the mold for future interactions between fans and media franchises. Whether intentionally or not, Axanar Productions has shined a light on fandom, a light fans have avoided for decades. The result could be a paradigm shift in who is understood to own commercially produced shared culture and who gets to make decisions about how that shared culture is reproduced.
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. Ibid., 193–206.
. Kathryn Dunlap and Carissa Wolf, “Fans Behaving Badly: Anime Metafandom, Brutal Criticism, and the Intellectual Fan,” Mechademia (2010): 278.
. Condry, “Dark Energy,” 194–195.
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. Pamela Kalinowski, “The Fairest of Them All: The Creative Interests of Female Fan Fiction Writers and the Fair Use Doctrine,” William & Mary Journal of Women & The Law 20 (2014): 678–681.
. W. Michael Schuster, “Fair Use and Licensing of Derivative Fiction: A Discussion of Possible Latent Effects of the Commercialization of Fan Fiction,” South Texas Law Review 55 (2014): 531–537.
. Lucy Bennett, “Tracing Textual Poachers: Reflections on the development of Fan Studies and Digital Fandom,” Journal of Fandom Studies 2, no. 1 (2014): 13.
. Rebecca Tushnet, “’I’m a Lawyer, Not an Ethnographer, Jim’: Textual Poachers and Fair Use,” Journal of Fandom Studies 2, (2014): 24–25.
. Henry Jenkins III, “Star Trek Rerun, Reread, Rewritten: Fan Writing as Textual Poaching,” Critical Studies in Mass Communication 5 (1988): 85–87.
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. Jacqueline D. Lipton, “Copyright and the Commercialization of Fanfiction,” Houston Law Review 52 (2014): 430.
. Matt Hills, “Doctor Who’s Textual Commemorators: Fandom, Collective Memory and the Self-commodification of Fanfac,” Journal of Fandom Studies 2 (2014): 43–45.
. Alexis Lothian, “An Archive of One’s Own: Subcultural Creativity and the Politics of Conservation,” Transformative Works & Cultures 6 (2011).
. Monica Flegel and Jenny Roth, “Legitimacy, Validity, and Writing for Free: Fan Fiction, Gender, and the Limits of (Unpaid) Creative Labor,” Journal of Popular Culture 47 (2014): 1092–1095.
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