CBS/Paramount sues to stop Axanar

[Rincewiend]

"Hey, hey, kids! Your old pal Krusty is going to teach you five new words: unlicensed use of my image!"
— Krusty the Clown, The Simpsons ("Treehouse of Horror XIX")

 

[Michael Hinman]

We covered it; here's the YouTube video. Coverage starts about 24 minutes in (delays are due to my own technical issues).

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Thank you all again for your kind support.

And you covered it well! I really loved the point about a win for Axanar on the "waiver" issue would create this chaos of copyright holders having to police the Internet for even the smallest infractions. It's crazy!

 

[Albinator]

I think it should become a matter of policy on all crowdfunding sites to stop allowing donations to a cause once its goal has been met. If that cause should need more money, then let it start another funding plea that explains why it needs more. Of course, that the crowdfunding sites make money off a percentage of the donations creates a conflict of interest that I would think makes this unlikely. Maybe there should be a flat fee for their services.

Firmly disagree here. In a lot of the campaigns i've backed (non licensed) there are things called "stretch goals."

So, if we meet our initial goal of 10K, we'll make this thing. But if we hit $15,000, we'll add this other thing, $20,000 and we add this feature, $25K and all orders get a free bonus, and so forth.

Besides, if I want to write a comic book, and sell it via kickstarter to help raise money to pay my artist, but only need 10K-- what happens when I hit 10K, I can't let anyone else buy a copy? What if I don't have the ability to distribute to stores? Plus, those extra copies cost MORE MONEY to produce!

No, the problem is not with over-funding, it's with licensed material used without permission.

 

[JD]

I've always found the fan films using crowdfunding a little questionable, but with the kind of money it takes to make these higher profile ones, I can understand wanting to bring in more money. I don't see any need for one for fan fiction books though, if you can't sell the books then there's no need to publish them. To me, trying to publish fan fiction would be the same as trying to put a fan film on TV or in theaters. You just don't do that, you just put it up for free on the internet. Even the biggest fan films are all available for free on the internet.

 

[jespah]

And you covered it well! I really loved the point about a win for Axanar on the "waiver" issue would create this chaos of copyright holders having to police the Internet for even the smallest infractions. It's crazy!

Gracias. I suspect waiver will not win the day (even if it wins in district court, I doubt it would hold up on appeal), as the courts understandably want companies holding IP to be in the business of using that IP to earn a living, versus constantly policing unauthorized usage. Furthermore, if the IP holder is required to not only police everything out there but also continue to make use of said IP or lose it, then we are left with a cat falling/buttered toast-style paradox. I don't think the courts wish to bankrupt/unnecessarily distract from production every IP holder out there.

Crowdfunding remains rather weird in all of this. What do they get out of this case? I think the idea of them dropping (or at least really, really seriously questioning) involvement in wonky copyright is a good takeaway for them. Plus they might want to police themselves before governments and courts start doing it for them.

 

[Franklin]

Firmly disagree here. In a lot of the campaigns i've backed (non licensed) there are things called "stretch goals."

So, if we meet our initial goal of 10K, we'll make this thing. But if we hit $15,000, we'll add this other thing, $20,000 and we add this feature, $25K and all orders get a free bonus, and so forth.

Besides, if I want to write a comic book, and sell it via kickstarter to help raise money to pay my artist, but only need 10K-- what happens when I hit 10K, I can't let anyone else buy a copy? What if I don't have the ability to distribute to stores? Plus, those extra copies cost MORE MONEY to produce!

No, the problem is not with over-funding, it's with licensed material used without permission.

I defer to your expertise. I guess I'm just leery of situations where the money coming in begins to far exceed all expectations beyond the original goal and any further stretch goals. For conscientious donors, it's probably just a question of digging around a bit about the project (and people). And it cases like MST3000, where Hodgson may have simply underestimated demand for his product, I guess he shouldn't be penalized for that by being held to a ceiling that turned out to be too low. Of course, he and his people also have the integrity and experience for folks to believe that he's going to produce exactly what he promised in a timely manner and with the highest quality that the donations will allow.

 

[Professor Zoom]

Crowdfunding remains rather weird in all of this. What do they get out of this case? I think the idea of them dropping (or at least really, really seriously questioning) involvement in wonky copyright is a good takeaway for them. Plus they might want to police themselves before governments and courts start doing it for them.

I do wonder if Kickstarter and Indie Go Go are nervous in all of this. Couldn't CBS/Paramount go after them? In some ways, even more so than Peters, they profited from CBS IP. I'm sorta surprised CBS isn't going after them as well. Kickstarter has allowed non licensed material on the site, and directly profited, through fees, from it.

 

[Albinator]

I defer to your expertise. I guess I'm just leery of situations where the money coming in begins to far exceed all expectations beyond the original goal and any further stretch goals. For conscientious donors, it's probably just a question of digging around a bit about the project (and people). And it cases like MST3000, where Hodgson may have simply underestimated demand for his product, I guess he shouldn't be penalized for that by being held to a ceiling that turned out to be too low. Of course, he and his people also have the integrity and experience for folks to believe that he's going to produce exactly what he promised in a timely manner and with the highest quality that the donations will allow.

Well in normal circumstances it's profit, and that's ok. With products that use other people's copyright, it's not.

Exploding Kittens is the perfect example. I'm sure they never expected 10 Million Dollars! Let's say they expected 1 Million. The extra 9 isn't ALL profit, mind you, because those extra orders cost money to produce.

But even then, let's say it costs 2MM to produce the 500K orders. That's 8MM profit. Nothing wrong with that at all. It's their product.

Its when it's illegal use of a copyright that it's a problem. Axanar only "needed" 100K. They got more than 600. What do they do with the extra 500+? Well, they pay themselves salaries!

I really believe that's what happened. They may have thought "we don't need all of this money to make it. Why don't we pocket some of it?" Someone may have said "well, by fan-film etiquette we can't" and then the final decision was made: "well, we'll pay ourselves SALARY, and that's ok, right? We're paying Gary Graham, and the VFX team, so what's the difference?"

When it comes down to it, I think KS just needs to clamp down on projects using 3rd party copyrights. That will solve most of these problems.

 

[Albinator]

I do wonder if Kickstarter and Indie Go Go are nervous in all of this. Couldn't CBS/Paramount go after them?

I'm no lawyer, but probably not. Not any more than Youtube could for hosting fan-films or clips from movies (they make revenue from views/advertising).

In the end, they're just a platform. I suppose it could be argued that their negligence allowed it to happen... but to me it seems like a longshot. After all, CBS could have gone to Kickstarter during the campaign and had them shut it down.

Any legal eagles want to chime in?

 

[drt]

I'm no lawyer, but probably not. Not any more than Youtube could for hosting fan-films or clips from movies (they make revenue from views/advertising).

In the end, they're just a platform. I suppose it could be argued that their negligence allowed it to happen... but to me it seems like a longshot. After all, CBS could have gone to Kickstarter during the campaign and had them shut it down.

Any legal eagles want to chime in?

I'd say KS is probably OK, they could claim innocence around policing everything that's happening on their website. I think IGG would be on thinner ice if it's true they actively courted Axanar.

 

[BillJ]

I'd say KS is probably OK, they could claim innocence around policing everything that's happening on their website. I think IGG would be on thinner ice if it's true they actively courted Axanar.

Kickstarter could be on thinner ice here. Because it was still "Star Trek Axanar" then.

 

[Albinator]

The biggest issue with crowdfunding and user-generated content is manpower. KS does not have the bandwidth to review and approve every project that's created-- just as Youtube can't police every single video.

Like Youtube, Kickstarter relies on the community to be the police, hence the big green "report this project" button.

 

[Albinator]

And you covered it well! I really loved the point about a win for Axanar on the "waiver" issue would create this chaos of copyright holders having to police the Internet for even the smallest infractions. It's crazy!

That's what i've been saying for a while, and it would actually hurt other licensors, even big ones like Disney, who'd suddenly have to expend a lot of resources (time, energy, money) to police the infractions.

I almost feel like Disney and the like would push for keeping copyright as is. And when Disney is against a new take on copyright law, they usually get their way.

 

[Admiral Cain]

It's my understanding that in order to get your SAG card, you have to do paid work on a production that is covered by a SAG collective bargaining agreement.

http://www.sagaftra.org/content/steps-join

Could that have been one of the motivations to pay Alec a salary? Assuming Axanar paid Alec's SAG initiation fee (there is a line item for "Union Fees" of $3,099.00 on the Annual Report), doing paid work and being able to provide pay stubs from a qualifying production would get him his SAG card. Another "direct financial benefit", perhaps?

 

[GSchnitzer]

It's my understanding that in order to get your SAG card, you have to do paid work on a production that is covered by a SAG collective bargaining agreement.

http://www.sagaftra.org/content/steps-join

Could that have been one of the motivations to pay Alec a salary? Assuming Axanar paid Alec's SAG initiation fee (there is a line item for "Union Fees" of $3,099.00 on the Annual Report), doing paid work and being able to provide pay stubs from a qualifying production would get him his SAG card. Another "direct financial benefit", perhaps?

You do have to do sufficient hours of paid work to qualify for SAG-AFTRA membership. In the case of "New Media" (Internet, Video Games, and such) this negotiated pay could well be $0.00. (There are "scale" requirements in films and television that New Media doesn't have.).

Once you accumulate your hours and qualify for membership, there is an membership initiation fee. I suspect that this initiation fee is what this Axanar budget line item reflects.

It also occurs to me that KS could be considered one of those parties who is "profiting vicariously" from someone else's use of the Trek IP.

 

[Mudd]

Is Axanar Productions signatory to the current SAG agreement?

 

[Earthrise]

The biggest issue with crowdfunding and user-generated content is manpower. KS does not have the bandwidth to review and approve every project that's created-- just as Youtube can't police every single video.

Like Youtube, Kickstarter relies on the community to be the police, hence the big green "report this project" button.

Except that approach only works if Kickstarter and Indiegogo are willing to remove campaigns reported by the community as violating IP. Otherwise the IP owner has to keep constant watch over the sites to get campaigns pulled.

Seriously, that's my problem with these crowdfunding platforms. They don't take responsibility for anything.

Except collecting a percentage. They're good at that.

 

[Albinator]

Except that approach only works if Kickstarter and Indiegogo are willing to remove campaigns reported by the community as violating IP. Otherwise the IP owner has to keep constant watch over the sites to get campaigns pulled.

That's how Youtube works. The copyright holder has to file a takedown request.

I'm not saying the system is working-- it's not-- but just pointing out that it's the bandwidth that's the trouble. They used to require review and approval of every project, back when there weren't as many campaigns.

As long as they aren't doing that, some will get through, but a good first step would be a clear notice to all project creators that they cannot start projects using someone else's IP, unless it falls clearly under fair use.

 

[jespah]

I'm no lawyer, but probably not. Not any more than Youtube could for hosting fan-films or clips from movies (they make revenue from views/advertising).

In the end, they're just a platform. I suppose it could be argued that their negligence allowed it to happen... but to me it seems like a longshot. After all, CBS could have gone to Kickstarter during the campaign and had them shut it down.

Any legal eagles want to chime in?

They seem to be more than a platform. It's not like, say, GoDaddy hosting a website being used for illegal activities (say, the ivory trade). GoDaddy isn't any more complicit in those activities than the power company is. But IGG and KS are pulling a chunk of the crowdfunding and are directly profiting from it. Hell, that's how they make their $$ in the first place.

Two ideas re why CBS/P haven't gone after IGG and KS:

1. They're waiting on Axa to implead KS and IGG. Why? Because that sets up Axa as the party going straightaway against IGG and KS. It turns Axa and its principal into personae non grata to the crowdfunding sites. Perhaps CBS/P is trying to force the equivalent of, "You'll never crowdfund in this town again!" or
2. They haven't gotten around to it yet.

We shall see.

 

[Albinator]

They seem to be more than a platform. It's not like, say, GoDaddy hosting a website being used for illegal activities (say, the ivory trade).

While i'm sure there could be an argument against them, I don't think they're any more of a platform than say, Youtube. They simply facilitate, and are not responsible for the content created.

That said, any argument against them would likely involve the fact that they collect money from funds raised. At the same time, Youtube also collects revenue (ad-based mostly) from video content.

Again, this is a discussion for a lawyer to respond to, but my hunch is that any liability would be tough to prosecute., mostly because 99% of projects are clean and legal.

I think if anything comes of this it will be KS and other platforms re-examining how they deal with project creators and 3rd party rights. I don't think the platforms will be taken to court and/or legal restrictions levied against them.