CBS "Guidelines" Should Be Ignored - Proceed With Your Productions

[Professor Zoom]

After thorough analysis of CBS's guidelines, our local legal group has concluded that they have no legal force or standing in law. They are merely meant to intimidate the fan production community as a whole, just to preemptively deter the few that may try to intentionally profit commercially from their productions.

The biggest problem CBS has is that any attempt to halt a fan production that is not made for commercial gain is an infringement on the fans' First Amendment right to free speech. In fact, the "15 minute/two part max" section alone is a blatant assault on free-speech rights. Actually, they are admitting you have the right to express yourself, but they will decide how much expressing you can do.

What they are saying there is: "OK, you have the right to talk, but you can only talk for 15 minutes at a time, two times on the same subject, and you can never discuss that subject again." That would be laughed out of court.

It's the job of CBS's legal department to protect their intellectual property from being exploited commercially. They are paid to seek out commercial infringements on that property and deal with them, accordingly. It looks, to us, as though they thought they could quash any and all fan productions with these guidelines, and the accompanying threat to take legal action if the guidelines were not followed.

So now, the CBS lawyers don't have to do all that work of analyzing each and every production to see if they are making a profit. They can relax and take an extra long lunch break now that the "guidelines" have been sent down from the mountain with Moses.

Sorry, CBS. Your lawyers should have to actually earn their paychecks.

I wouldn't be surprised if someone sued CBS for interfering with their right to free speech.

So, go ahead. Produce your fan films. Make them as long as you want, use whatever costumes and props that you want, enlist whatever talent you want. Just don't do it to make a commercial profit. Do it because this is how you want to express yourself, and do it because it is your RIGHT!

Lol. Your lawyers don't understand cooyright law. Profit has zero to do with infringement. But, hey, you go for it.

Edited to add:
Restrictive? The guidelines? They allow you to raise 10s of thousands of dollars on someone else's IP. How entitled are you?

 

[BeatleJWOL]

I think it's still pretty understood that if you make a fan film and DON'T pull a Peters, then the rest of the details really don't matter as long as you produce something and don't raise too much money.

That's not a reflection on the guidelines being overly restrictive, or CBS infringing on anybody else's rights.

The simple fact is there's just enough fan films being made that trying to shut each and every one of them down would be a legal and logistical nightmare, with no ensured success, given all the ways with which the more complainy fanfilm types have been devising ways to get around the current guidelines.

In any case, the primary and/or most prevalent reason for the lawsuit was Alec Peters shitting the bed for all other fanfilms. Crowdfunding larger and larger amounts, and offering un-licensed rewards of such, was the start of it. The end of it was Alec coming along and declaring he was creating the fanfiction to end all fanfiction and to equal any professional work of art, and then for insult and injury, slapping a donor store up there with coffee to boot.

Yes, it's reasonably safe to assume the life of a fanfilm maker can continue as it did before the Axanar lawsuit (presuming you're not Alec Peters or any of the large fanfilms like STC, Renegades or New Voyages). That said, the fan film makers who have made a show of abiding by these new guidelines have done so because of their respect for the copyright holders having looked the other way thus far when it comes to fan-generated content, far more than many other content owners have done in the past.

So, go ahead. Produce your fan films. Make them as long as you want, use whatever costumes and props that you want, enlist whatever talent you want. Just don't do it to make a commercial profit.

That is not the point. The thing that you or any other brave soul needs to remember at this point is that being allowed to create and distribute (yes, distribute. Not make a profit from, merely distribute) a fan film and NOT get your pants sued off is a privilege, and in particular, a privilege that the guidelines provided by CBS exist to specifically enumerate. You have a line in the sand. Step across it at your own risk. Period, end of story.

 

[KennyB]

I think it's still pretty understood that if you make a fan film and DON'T pull a Peters,

Pull a Peters makes me giggle

 

[Jam3s1701]

Pull a Peters makes me giggle

I thought the term was pull a Alec lol.

As far as the guidelines being restrictive well in some aspects yes they are but they are not restrictive is you know how to make a film or I dunno not try to stroke your ego.

In the end if these guys (see blog) can make it work why can't you or anyone else...

https://trekfanproductions.com/guidelines-breakdown-part-one

 

[Prolapse To Assanar]

I never in my wildest dreams thought that it would be a dopey post like this that would compel me to rejoin TrekBBS after a 10-year hiatus, but alas, here I am.

First, it should be noted that the OP is most definitely not Alec Peters using yet another alias (Loken, Linnear, Red Omega, Matt Decker... did I leave anyone out?).

Teh gramer and teh speling are tooo godo.

Now, that doesn't mean he isn't a complete dope but he definitely ain't Alec.

I'd like to address a couple of issues, though.

1.) First, there is no "legal group," Spock boy. Who are you kidding?

If they exist, why not list these illustrious members of the bar? If they gave this advice, they should be more than happy to have their names attached to it.

Furthermore, have them cite the relevant caselaw that supports this position.

The fact is that there isn't any. Every single one of your arguments has been rejected by the federal courts... repeatedly (and in the case of fan films, those rulings have been affirmed very recently.).

2.) Commercialization of an IP isn't necessary for infringement to have occurred. It's simply one factor to consider.

Your understanding of IP law is... flawed.

3.) As others have pointed out, the first amendment very specifically protects the individual from THE GOVERNMENT infringing on rights. It doesn't stop individuals or corporations from protecting THEIR property rights.

4.) The guidelines are not restrictive and in fact, they're quite liberating.

Before the guidelines were published, any fan production at any time could be sued for infringing on the rights of CBS and Paramount.

Not any more.

Now, fan film makers can't be sued if they stay within the published guidelines.

It's called promissory estoppel. I'd tell you to ask your "legal group" what that means but since they don't exist, I'll explain it.

The guidelines basically say if you don't do "X, Y and Z" we won't litigate against you.

By creating these guidelines what the rights owners have effectively done is tie their own hands because if a production relies upon these guidelines and produces a film within them, they've done so in good faith and based on the promises made by the rights owners and if the rights owners were to then sue them anyway, they would either have their case dismissed outright or lose at trial.

The guidelines effectively act as a contract between the rights holders and producers of content that protect the producers while limiting the legal rights of the IP owners.

This situation did not exist before the guidelines.

5.) I think there needs to be a little clarity about what the guidelines actually do.

They are not rules, they are not laws, they are not mandates.

They are guidelines in which the rights owners promise not to sue productions provided that they abide by them. Nowhere in the guidelines does it state that if a production does violate them that they will automatically be sued.

And let's make no mistake about this, there is only ONE production that was ever sued and they're the reason why these guidelines were implemented to begin with.

Since the guidelines were published, Star Trek Continues has released THREE episodes, all of which violate multiple terms of the guidelines.

They have received no warnings, no cease and desist letters and (surprise!) no complaints/summons have been served on them (that means they haven't been sued).

Why do you think that is?

 

[KennyB]

I never in my wildest dreams thought that it would be a dopey post like this that would compel me to rejoin TrekBBS after a 10-year hiatus, but alas, here I am.

First, it should be noted that the OP is most definitely not Alec Peters using yet another alias (Loken, Linnear, Red Omega, Matt Decker... did I leave anyone out?).

Teh gramer and teh speling are tooo godo.

Now, that doesn't mean he isn't a complete dope but he definitely ain't Alec.

I'd like to address a couple of issues, though.

1.) First, there is no "legal group," Spock boy. Who are you kidding?

If they exist, why not list these illustrious members of the bar? If they gave this advice, they should be more than happy to have their names attached to it.

Furthermore, have them cite the relevant caselaw that supports this position.

The fact is that there isn't any. Every single one of your arguments has been rejected by the federal courts... repeatedly (and in the case of fan films, those rulings have been affirmed very recently.).

2.) Commercialization of an IP isn't necessary for infringement to have occurred. It's simply one factor to consider.

Your understanding of IP law is... flawed.

3.) As others have pointed out, the first amendment very specifically protects the individual from THE GOVERNMENT infringing on rights. It doesn't stop individuals or corporations from protecting THEIR property rights.

4.) The guidelines are not restrictive and in fact, they're quite liberating.

Before the guidelines were published, any fan production at any time could be sued for infringing on the rights of CBS and Paramount.

Not any more.

Now, fan film makers can't be sued if they stay within the published guidelines.

It's called promissory estoppel. I'd tell you to ask your "legal group" what that means but since they don't exist, I'll explain it.

The guidelines basically say if you don't do "X, Y and Z" we won't litigate against you.

By creating these guidelines what the rights owners have effectively done is tie their own hands because if a production relies upon these guidelines and produces a film within them, they've done so in good faith and based on the promises made by the rights owners and if the rights owners were to then sue them anyway, they would either have their case dismissed outright or lose at trial.

The guidelines effectively act as a contract between the rights holders and producers of content that protect the producers while limiting the legal rights of the IP owners.

This situation did not exist before the guidelines.

5.) I think there needs to be a little clarity about what the guidelines actually do.

They are not rules, they are not laws, they are not mandates.

They are guidelines in which the rights owners promise not to sue productions provided that they abide by them. Nowhere in the guidelines does it state that if a production does violate them that they will automatically be sued.

And let's make no mistake about this, there is only ONE production that was ever sued and they're the reason why these guidelines were implemented to begin with.

Since the guidelines were published, Star Trek Continues has released THREE episodes, all of which violate multiple terms of the guidelines.

They have received no warnings, no cease and desist letters and (surprise!) no complaints/summons have been served on them (that means they haven't been sued).

Why do you think that is?

Long winded "cadet" :-) Welcome back.

 

[Prolapse To Assanar]

Hey, I fugred I'd start with a bang.

 

[Prolapse To Assanar]

Dammit... I pulled a Peters.

"Figured"

 

[KennyB]

But it is Spock Guy...........Spock Boy actually does some awesome videos. SO many Spocks........:-P

 

[KennyB]

Dammit... I pulled a Peters.

"Figured"

You were in Vegas........it happens after a few drinks.

 

[Prolapse To Assanar]

But it is Spock Guy...........Spock Boy actually does some awesome videos. SO many Spocks........:-P

And of course, with my luck, there IS a Spock Boy in this group.

No offense intended Spock Boy.

 

[KennyB]

We got @Spock's Brain @Spock's Barber @SpocksOddSocks @SpockWeed @Spock Guy @spockboy ................... Big family. Now I hear he has a half sister too..............

 

[Prolapse To Assanar]

@SpockWeed sounds... intriguing.

 

[KennyB]

@SpockWeed sounds... intriguing.

I would love to try that Vulcan Kush

 

[jespah]

I read that as Vulcan knish. I then Googled that and, evidently, this might be the first mention of such a combination of terms online, evah!

You heard it here first, pie and sushi fans!

 

[Jedman67]

I read that as Vulcan knish. I then Googled that and, evidently, this might be the first mention of such a combination of terms online, evah!

You heard it here first, pie and sushi fans!

I like knishes

 

[MikeH92467]

Excellent analysis. Welcome back. I would take minor exception to your assertion that the guidelines mean people who follow them "can't" be sued. I absolutely agree that the guidelines make such a suit highly unlikely, but I don't those guidelines, which are issued by an IP holder are enough to guarantee it can't happen. I don't see how they can issue guidelines that override the law. Small point and probably moot, since if CBS/P did sue someone who could show they were following the guidelines would (in my non-lawyer-by-training opinion) the hill would be a very high one to climb and I expect that a motion for summary dismissal would be strongly considered. However, as we've seen the very threat of legal action, whether it has merit or not, can still have a distinct chilling effect since even the minimal time and effort it might take a lawyer to get such a suit dismissed could be extremely expensive for someone who isn't wealthy.

 

[Jedi_Master]

I think a better way to phrase it would be... "Those who follow the guideline most likely won't be sued."

No corporation will voluntarily give up their rights to pursue legal action.

 

[Krandor]

Excellent analysis. Welcome back. I would take minor exception to your assertion that the guidelines mean people who follow them "can't" be sued. I absolutely agree that the guidelines make such a suit highly unlikely, but I don't those guidelines, which are issued by an IP holder are enough to guarantee it can't happen. I don't see how they can issue guidelines that override the law. Small point and probably moot, since if CBS/P did sue someone who could show they were following the guidelines would (in my non-lawyer-by-training opinion) the hill would be a very high one to climb and I expect that a motion for summary dismissal would be strongly considered. However, as we've seen the very threat of legal action, whether it has merit or not, can still have a distinct chilling effect since even the minimal time and effort it might take a lawyer to get such a suit dismissed could be extremely expensive for someone who isn't wealthy.

Nothing is impossible but as you say it would be tough for them to have success in a lawsuit if somebody abided by the guidelines.

Of course most fan films even if they were following the guidelines got asked to shut down most would simply comply and do so with no need for a lawsuit in the first place. Only a douche would keep going if they knew copyright owners were unhappy with what they are doing.

 

[MikeH92467]

Only a douche would keep going if they knew copyright owners were unhappy with what they are doing.

You don't say...