There's a difference between "non-commercial" and "made no profit". No profit simply means a net loss. If it made ANY money at all, even one-tenth of a percent of the total cost, it's still a commercial product.
Fan Works, Copyright and Fair Use
- Thread starter Matthew Raymond
- Start date
Yep. People seem to feel that no net gain = no profit or nonprofit or non-commercial. Nope; it just means you've got a failing business on your hands.
IP holders are under no obligations whatsoever to allow fan works in any form.
The entertainment landscape is changing, and it has been for several years now. Knockoff works can be made with professional-quality care and equipment and distributed to large audiences. Crowdfunding allows for bigger budgets. Extras and other actors who didn't have huge roles? Those folks in particular may be tempted to do one last run as their character, and cash in on nostalgia, particularly if they are older and no one's banging on their door with offers. Hence Scott Bakula (NCIS) isn't a part of this whereas Gary Graham has been. If a lesser-known actor can keep the interest up by appearing in a fan work, they might be invited to more conventions, and have their accommodations paid for, and they might be able to charge a little more for their autographs and photo ops.
The sci fi ouevre is particularly well-suited to this because of the proliferation of fan works already and the rabidness of the fanbases. Yes, there are big-time fans of, say, Desperate Housewives, and there is fan fiction of it (see: https://www.fanfiction.net/tv/Desperate-Housewives/), but no one seems to feel the need to recreate it on a smallish screen. At least, not in the volume that people want to recreate sci fi properties. And some of that may be a cosplay/dress-up thing. After all, how do you cosplay Rex Van de Kamp? Wear a suit? Part your hair to the side? With sci fi, cosplaying is a lot more obvious and meaningful. No wonder people want to film themselves in it, and attach a plot to same.
IP holders are, as I said above, under no obligations to allow any of it. And if it gets too expensive or problematic, or they feel fans are being ripped off or that they are losing significant money (whatever anyone thinks about Axanar, CBS and Paramount were not losing big chunks of revenue, although it probably crossed their minds that it was possible), then the party will stop completely and this chapter will close.
PS Thanks for cluing me in on the topic @urbandefault
More like act 47.
I think it is also important to properly classify the value consumers of fan fiction and fan films have on the IP holders balance sheet.
In general, a person who consumes fan-made productions has already spent a great deal of funds on "official" merchandise, including physical copies of the various productions, toys, costumes, etc.
That person is also likely to spend even more funds on new products and productions, even if it is a "hate-buy" or "hate-watch" purchase.
So, from the IP holder's standpoint, the fan fiction consumer is a guaranteed customer, one for whom little effort is needed to get and hold their attention.
So, put simply there is no financial incentive in allowing a guaranteed customer free reign to make and distribute their products under specific legal protections.
Giving a fan-film maker a "license" doesn't get the IP holders MORE customers or help them generate MORE revenue. So why would an IP holder give out something like that? As a 'reward'? LOL.
In general, a person who consumes fan-made productions has already spent a great deal of funds on "official" merchandise, including physical copies of the various productions, toys, costumes, etc.
That person is also likely to spend even more funds on new products and productions, even if it is a "hate-buy" or "hate-watch" purchase.
So, from the IP holder's standpoint, the fan fiction consumer is a guaranteed customer, one for whom little effort is needed to get and hold their attention.
So, put simply there is no financial incentive in allowing a guaranteed customer free reign to make and distribute their products under specific legal protections.
Giving a fan-film maker a "license" doesn't get the IP holders MORE customers or help them generate MORE revenue. So why would an IP holder give out something like that? As a 'reward'? LOL.
they shouldn't if the product could potentially cause confusion in the marketplace. So if they were going to allow it they would need to make sure it is really a fan film and not a profession production calling itself a fan film. So it would be reasonable to expect them to identify themselves as a fan film, probably limit how much money could be raised on it, not allow people who had worked on the real product to work on the fan film since they are not fans, and to make sure it is clear they are not the real product, restrict the length to something less then the real movies and shows run (and might need to make sure no continuing stories are allowed so people can't use multi part to get around length restrictions).
That would be a prettty good start to a way to allow them to be made.
One additional point on cost/benefit - creating and funding a "fan license" program would be extremely prohibitive. Can you imagine an erstwhile VP of Fan Productions trying to justify the cost to the CFO?
"Sir, I know it will cost us several million initially for the licenses and legal fees, and at least 7 figures annually to oversee the program, but think of the message boards! They will love us!"
"Sir, I know it will cost us several million initially for the licenses and legal fees, and at least 7 figures annually to oversee the program, but think of the message boards! They will love us!"
A license won't happen not for cost but because it creates a relationship where CBS is supporting the endeavour which means CBS then has to make sure nothing that is done would or could make them look bad and the amount of oversight required would be more then most fan films would want (i.e submit your script for approval before we allow this to go forward, we must see it and approve it before it leaves, etc). To not do that risks headlines like "Offical licensed star trek film says (or does) XXXX".
Too much risk not enough upside to license productions like that.
Correct, PR costs also figure into the picture.
Krandor, it still doesn't make any sense for the IP holder, so you're just dreaming one and on. You have to accept the laws as written, work with others to write your representatives to change them (if possible), or find some other media franchise to patronize whose new official productions won't be as offensive to you as Star Trek Discovery and the recent Star Trek movies (obviously) are.
Huh? I was saying that CBS wouldn't do it and shouldn't do it. I don't think anything should be changed.
My bad, sorry.
Exactly. There are few times were I have seen the fandom universe draw someone in to the actual market, but fandom is not advertising to expand the franchise. It's just maintaining the status quo.
This this this.
We have seen, on occasion, fan productions with the balance tipped more in favor of original characters, ships, plots, planets, races than canon, but that is not what generally happens. Usually, it's 100% verisimilitude (STC), or an intent for a good chunk of verisimilitude (Axa and the like). It's the Verisimilitude Olympics. Or, as CBS itself said (JVC, IIRC), an "arms race".
Chance Encounter isn't very Trek at all, but it's an exception. In fact, the Trek parts feel tacked on and forced and, frankly, unnecessary. But I also know why those parts were added - it's because getting an audience for a 100% original work is hard, whereas getting an audience for a Star Trek fan film is easier (albeit not a walk in the park all the time).
Why won't licenses be given out?
- Licenses cost bucks! Companies pay through the nose to license the Trek merch and experiences they offer. Fan films can't afford that without (you guessed it) crowdfunding or some major investor. The IP holders kinda don't need to help out a production which could legitimately raise that kind of cabbage and create market confusion.
- Licensure creates an expectation in fans' minds as well as the general public. CBS would be forced into the position of gatekeeper/overseer. Yes, we saw Klingon breasts and simulated sex in Discovery, and there's been some swearing. But there really hasn't been much of either. CBS needs to make sure a licensed production doesn't decide to go the porn route, for example.
- Licensing such productions can create problems in IP law down the line for the IP holders. CBS doesn't want to weaken copyright law. And creating a licensing system could be something accounted for in a lawsuit (and CBS doesn't even have to be a party thereto) and harm their product. They don't want that.
- And as @Jedi_Master noted above, CBS isn't served by making message boards and Facebook groups happy, beyond producing a good product.
I've never actually counted, but most of the ones I've seen do focus on original characters, including my own. I'll grant, most of the "big" ones have used established characters, but I don't think that's the majority.
Bingo. One thing remember is when project small access, Lane asked the members to promise to subscribe to CBS all access for a month or two if CBS would change one guideline. He wanted to have something to take to CBS as a reason to make some changes. The backlash he got was much more then even I expected. The mear idea they should support CBS in anything was met with hatred and comments that they would never support CBS in anything and would give their money to fan films over all access regardless.
So you give them what they want and they still hate you. Where is the incentive?
There are reasons small access is no more.
<sends pie>
Because, according to copyright law, the actually CAN'T make fan works, and the circumstances under which copyright holders might allow such works are arbitrary and subject to change at any time because those copyright holders almost never create licenses for such purposes.
Recall that the point of copyright is to incentivize the creation of new works. It's nearly impossible for fan works to discourage release of new material in the source franchise, whereas the actions of the franchise can easily crush thousands of fan works.
It's not that I think all fan works are super great. It's that I don't want subjective judgement of quality to enter the equation.
It's my feeling that issues of this kind can be addressed both by how the exemption is defined and by existing trademark law.
You're deflecting. No existing fair use exemption becomes invalid based on how much it might cost the copyright holder in revenue. I'm not trying to prove that fan works are educational (although they can be). I'm saying that we shouldn't hold new fair use provisions to a new standard never used for the previous ones, especially one that involves money. Media companies have a long history of manipulating the books and law to make it look like didn't make money, or even lost money.
Actually, morally it was probably the best for Renegades, as they were doing stuff like selling models, et cetera. I kinda see Star Trek Renegades as being half way between STC and Axanar. Not that I hate their work. They did, after all, actually make a film that I enjoyed, and I wish them the best.
First of all, both producers of fan works and the people who consume them are members of the public, and fan works are typically released to the public, so the idea that there's no public interest is a bit bizarre. It's pretty obvious that both free expression and encouragement to publish new works are public interests that are served by a new fair use exemption. That is not to say that there isn't a certain balance that needs to be insured by drafting such an exemption in a way that would minimize harm to the original copyright holder.
I think the scenario you describe here could only happen as the result of extreme franchise neglect or abuse by the copyright holder. Fans don't abandon a franchise easily. People would probably still pay for access to the old material even if the new stuff produced by the franchise owners was horrific. This seems more like a situation where no one would want the copyright holder's new material anyways, in which case it's not competition from fan works that killed their business, but a lack of a quality product people are willing to buy.
However, let's play devil's advocate. Would it not be in the public interest to allow a far greater amount of high quality content with the same actors to be produced for far less money? I'm not endorsing the idea, but you make it actually sound pretty attractive.
There are three concerns here. Let's separate these out:
1) People are using the name of a franchise to fund projects that otherwise would struggle to find any funding.
This is a valid concern even if you take away trademark concerns, because fans may still fund a fan film even if it clearly identifies itself as a fan film and not endorsed by the owners of the franchise. However, this is a natural human behavior. Hollywood does the exact same thing: it spends huge amounts of money on established franchises that are known quantities. So the question becomes: "Do we punish fan films for human behavior?"
2) Funding of fan works is a zero-sum game that takes money away from the original franchise.
I don't really think this is true. I think you might be able to cite an anecdote like someone who gave $1,000 dollars to a fan film Kickstarter who would have spent that on a high-end prop reproduction otherwise, or something like that, but I think those cases are largely outliers. The production of fan films alone probably drive a market for franchise props, costumes, books and so forth. Fan films that reference episodes and books may drive people to the their original franchise sources. However, I think there needs to be a lot more research on this topic.
3) Fan films may be exploited for revenue in creative ways that might not involve the direct funding of the film itself. (Perks, product placement, et cetera.)
This is a major concern of mine, and I think it's essential to address this issue. (Perks tend to be a scourge for films funded under Kickstarter in general, by the way.) To be honest, I'm not entirely sure how to frame legal language in a way that would cover all possibilities. No matter what happens, to some extent the details would have to be hammered out by the courts. I do think, however, that there's a way to rein in most of that litigation, and cases would fall off as judges establish precedent.
So... "Non-commercial" is the right term to be using here? How do you define this term in a way that covers all concerns?
We've actually seen a lot of presumably legal knock-off movies lately. It would seem that films and other works that are very, very similar, but are otherwise within the limits of trademark and copyright law, actually represent a bigger threat than fan works that would be required to explicitly identify themselves as such. The non-fan works would have no restrictions or fair use limitations to avoid. So it wouldn't be the equivalent of STC that would destroy a franchise, but more something like Renegades.
I generally agree with this part.
I strongly disagree with this. I think there's definitely a point at which diehard fans will spend less on franchise content, or even boycott the franchise entirely if they feel that the franchise owners don't respect their fans. This is true even without considering fan works. If fans think that the franchise they love is apathetic or even actively hostile to them, they may decide to invest their money and attention elsewhere.
While I agree with a few points here ("make sure it is clear they are not the real product"), you're really just regurgitating the Star Trek Fan Film Guidelines, which basically defines both the term "fan" and "fan film" however it wants. It's a crap-ton of No True Scotsman, if you ask me.
Not really. If you create a single fan license you grant to everyone at the same time, it would require only slightly more effort than releasing the Guidelines. Licensing would only require significant expense if you're issuing and managing lots of separate licenses. Then again, there may be contractual concerns that would prevent any kind of licensing, which is why I'm proposing a fair use exemption instead. New franchises, however, can start from scratch with whatever licensing and business model they want.
Fan works often can't do anything but maintain the status quo for the franchise itself. Their input can't be reincorporated into the franchise proper, they have no way of knowing the future plans for the franchise, and they basically have to reverse engineer the show in order to make their own fan works. All of that makes impacting the franchise an uphill affair.
I think the idea for Chance Encounter probably was conceived as a Star Trek fan film, and you don't really have a reason to think otherwise. You're really presuming some nefarious motive to drive eyeballs to his film without any real evidence.
I suspect that if they were charging significant amounts of money for licenses, they'd just do that and not bother with content. In fact, that's an interesting business model: produce a film franchise until it gains fan traction, then license it out to a lot of different groups for a lot of money per license and subsist off of the licensing money. Not sure it's practical, but I'd love to see somebody try it.
There's already porn of Star Trek without the licensing.
I assume you're talking about some kind of copyright case where a decision by a judge weakens copyright protections. I don't see how CBS can prevent this, even if it refuses to license, because the theoretical case could simply involve some other party. Furthermore, this is pure speculation unless you have a specific legal theory in mind.
I presume you mean licensing. If I were CBS, and I were determined to do licensing, I would aggregate the cost by using the same approach for all series, using the same license in every case. It's possible that a license could reduce legal costs by making adherence to the license attractive due to its explicit protections and reducing the number of cases they have to file related to copyright infringement. I think the biggest barrier to this approach right now is that there is little experience with it in the industry.
So you relly think it would be ok for "fan film" to say bring in all the old voyaer actors, berman and bragga, and so forrth pay them salaries and make new episodes of voyager completely on their own, raise millions in crowdfunding, as long as they label it a "fan film" and now are essentially competing with Discovery and the star trek movies? That isn't how it is supposed to work.
Courts? So your in scenario where your fair use exception is in place and CBS licenses fan films, you still see CBS having to take fan films to court in order to iron out your new law and for people who break the license? That is A LOT of money you are asking CBS to spend having to defend their copyright due to your new fair use law.
What does CBS gain from having to drag more fans and fan films into court?
