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copyright_infringement [2016/02/21 02:53] – [Legal Consensus] Carlos Pedrazacopyright_infringement [2018/04/01 14:18] (current) – [Axanar's Defense] Carlos Pedraza
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 {{::copyright-battle.jpg|The Battle of Copyright. Used under Creative Commons license.}} {{::copyright-battle.jpg|The Battle of Copyright. Used under Creative Commons license.}}
 ====== Copyright Infringement ====== ====== Copyright Infringement ======
 +{{TOC}}
 +{{page>understanding}}
 +
 Depending what you read, the [[lawsuit]] that [[CBS]] and [[Paramount Pictures]] have brought against [[Axanar Productions]] is either David vs. Goliath, a battle over who gets to control Star Trek, fans trying to express their love for a treasured half-century old legend, soulless corporate greed threatened by plucky creatives or amateurs using intellectual property they don't own to finance their foothold in the film industry. Depending what you read, the [[lawsuit]] that [[CBS]] and [[Paramount Pictures]] have brought against [[Axanar Productions]] is either David vs. Goliath, a battle over who gets to control Star Trek, fans trying to express their love for a treasured half-century old legend, soulless corporate greed threatened by plucky creatives or amateurs using intellectual property they don't own to finance their foothold in the film industry.
  
-At its heart, however, this dispute rests on whether Axanar engaged in **copyright infringement** against the Star Trek works owned by CBS Studios and licensed by Paramount Pictures.+At its heart, however, this dispute rests on whether Axanar engaged in **copyright infringement** against the Star Trek works owned by CBS Studios and Paramount Pictures.
  
 ===== What is infringement? ===== ===== What is infringement? =====
 Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works.
 +
 +==== What Does Copyright Protect? ====
 +
  
 The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.
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 === Fan Films and Infringement === === Fan Films and Infringement ===
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 +//**__‘//Axanar// may be a turning point in the relationship between rights holders and fan fiction creators.’__**// //— Jonathan Bailey, Plagiarism Today//
 +</WRAP>
 +
 Intellectual property lawyer Mary Ellen Tomazic, in her blog post, "Fan Films – Breaking the Unwritten Rules and Defining Profit," describes the infringement of most fan productions as a harmless homage while highlighting the threat Axanar posed to CBS and Paramount: Intellectual property lawyer Mary Ellen Tomazic, in her blog post, "Fan Films – Breaking the Unwritten Rules and Defining Profit," describes the infringement of most fan productions as a harmless homage while highlighting the threat Axanar posed to CBS and Paramount:
  
 > Fan films use copyrighted material to pay homage to the original, and under the unwritten rules of this practice, they are not to be sold and no profit is to be made from them. ... This noncommercial but still infringing use of copyrighted works is termed “tolerated use”, and is allowed by the rights holder despite knowing someone is infringing on their work.(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law: Fan Films – Breaking the Unwritten Rules and Defining Profit, 2/11/16]])) > Fan films use copyrighted material to pay homage to the original, and under the unwritten rules of this practice, they are not to be sold and no profit is to be made from them. ... This noncommercial but still infringing use of copyrighted works is termed “tolerated use”, and is allowed by the rights holder despite knowing someone is infringing on their work.(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law: Fan Films – Breaking the Unwritten Rules and Defining Profit, 2/11/16]]))
 +
 +"Sometimes a good thing can't last," writes Jonathan Bailey in an article, "How Money and Fame Have Changed Fan Fiction," on his website, Plagiarism Today:
 +
 +> The truth is that <wrap hi>//Axanar// may be a turning point in the relationship between rightsholders and fan fiction creators</wrap>, a relationship that’s about to get a lot more complex. … The battle lines were being redrawn and the reason was because <wrap hi>the Internet was, slowly, turning fan fiction and fan art into big business.</wrap>(([[https://www.plagiarismtoday.com/2016/02/25/how-money-and-fame-have-changed-fan-fiction/|Plagiarism Today: How Money and Fame Have Changed Fan Fiction]], 2/25/16.)) <wrap lo>[emphasis added]</wrap>
  
 Fan film producers have typically and explicitly acknowledged [[CBS]] as the copyright holder of Star Trek, and that their productions continue to exist [[cbs#fan films|at the studio's largesse]]. Even Axanar's own website states this in its e-press center {!FAQ:Frequently Asked Questions}}:((Ironically, this is the //only// question that appears in the FAQ.)) Fan film producers have typically and explicitly acknowledged [[CBS]] as the copyright holder of Star Trek, and that their productions continue to exist [[cbs#fan films|at the studio's largesse]]. Even Axanar's own website states this in its e-press center {!FAQ:Frequently Asked Questions}}:((Ironically, this is the //only// question that appears in the FAQ.))
  
 > **Q.: How can Axanar Productions produce a Star Trek film without the backing of the rights holder?** \\ A.: For the past few decades, Star Trek and a few other sci-fi franchises have enjoyed a cooperative/symbiotic relationship between fan-produced productions and the owners of the intellectual property.  In general, CBS (the rights holder) allows independent Star Trek products <wrap hi>as long as the venture is non-commercial</wrap>.  That means Axanar Productions can’t charge for anything featuring the Star Trek marks or IP and the finished film can never be sold as a movie, DVD/Blu-Ray, etc.(([[http://axanar.e-presscenter.com/faqs/|Axanar e-Press Center: FAQs]])) <wrap lo>[//emphasis added//]]</wrap> > **Q.: How can Axanar Productions produce a Star Trek film without the backing of the rights holder?** \\ A.: For the past few decades, Star Trek and a few other sci-fi franchises have enjoyed a cooperative/symbiotic relationship between fan-produced productions and the owners of the intellectual property.  In general, CBS (the rights holder) allows independent Star Trek products <wrap hi>as long as the venture is non-commercial</wrap>.  That means Axanar Productions can’t charge for anything featuring the Star Trek marks or IP and the finished film can never be sold as a movie, DVD/Blu-Ray, etc.(([[http://axanar.e-presscenter.com/faqs/|Axanar e-Press Center: FAQs]])) <wrap lo>[//emphasis added//]]</wrap>
 +
 +[{{ ::plagiarism-today-axanar.jpg?300|**COMMERCIALISM HAPPENS** The Plagiarism Today blog says //Axanar// won’t be the last time a dispute over a fan creation causes confusion and anger over copyright.(([[https://www.plagiarismtoday.com/2016/02/25/how-money-and-fame-have-changed-fan-fiction/|Plagiarism Today: How Money and Fame Have Changed Fan Fiction]], 2/25/16.))}}]
 +
 +The trouble is, Bailey writes in Plagiarism Today, that fan work has inexorably become more and more commercial:
 +
 +>  The commercial/non-commercial dichotomy has slowly been breaking down for fan creations. We are in a time where fan fiction authors will recast a fan fiction work as a new story for publication, seek to sell a fan-created lexicon  or commercialize Let’s Play videos on YouTube. … <wrap hi>Increasingly, any use can become a commercial one.</wrap>(([[https://www.plagiarismtoday.com/2016/02/25/how-money-and-fame-have-changed-fan-fiction/|Plagiarism Today: How Money and Fame Have Changed Fan Fiction]], 2/25/16.)) <wrap lo>[emphasis added]</wrap>
  
 Tomazic's blog questions the way Axanar defines non-commercial: Tomazic's blog questions the way Axanar defines non-commercial:
  
 > The case revolves around what “profiting” from a fan film includes — can a filmmaker hire actors, set designers and build out a studio with crowdfunded money to make a “fan” film? Can he pay himself a salary from the funds? Paramount and CBS say no, deciding that this Axanar movie is no fan film but a competing product made from their copyrights and trademarks. The lawsuit is their way of reining in their previous tolerance of unlicensed use of their intellectual property, and protecting their legal rights under federal law.(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law: Fan Films – Breaking the Unwritten Rules and Defining Profit, 2/11/16]])) > The case revolves around what “profiting” from a fan film includes — can a filmmaker hire actors, set designers and build out a studio with crowdfunded money to make a “fan” film? Can he pay himself a salary from the funds? Paramount and CBS say no, deciding that this Axanar movie is no fan film but a competing product made from their copyrights and trademarks. The lawsuit is their way of reining in their previous tolerance of unlicensed use of their intellectual property, and protecting their legal rights under federal law.(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law: Fan Films – Breaking the Unwritten Rules and Defining Profit, 2/11/16]]))
 +
 +=== Rules for the Future? ===
  
 The eventual impact of this case, according to Tomazic, will limit what true fan productions can do in the future: The eventual impact of this case, according to Tomazic, will limit what true fan productions can do in the future:
  
 > The Axanar lawsuit should serve as a cautionary tale for all fan film makers, as it will most likely result in strongly stated and probably strict parameters being set by other rights holders for future tolerated use of their intellectual property. Peters, by going too far in making a film that was no longer a fan film but a low-budget film with paid professionals competing with Star Trek works, crossed that line. He may have made it more difficult for fans to pay homage to their favorite movies with a lovingly crafted but still unauthorized work.(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law: Fan Films – Breaking the Unwritten Rules and Defining Profit, 2/11/16]])) > The Axanar lawsuit should serve as a cautionary tale for all fan film makers, as it will most likely result in strongly stated and probably strict parameters being set by other rights holders for future tolerated use of their intellectual property. Peters, by going too far in making a film that was no longer a fan film but a low-budget film with paid professionals competing with Star Trek works, crossed that line. He may have made it more difficult for fans to pay homage to their favorite movies with a lovingly crafted but still unauthorized work.(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law: Fan Films – Breaking the Unwritten Rules and Defining Profit, 2/11/16]]))
 +
 +Indeed, Axanar producer [[Alec Peters]] had asked CBS and Paramount to more rigidly define what fan productions can and cannot do.(([[https://www.thewrap.com/how-1-1-million-star-trek-fan-movie-has-escaped-studio-shutdown-so-far/|The Wrap: How $1.1 Million ‘Star Trek’ Fan Movie Has Escaped Studio Shutdown (So Far)]], 8/25/15.)) Bailey, however, believes that is not likely to happen:
 +
 +> A fan creation [may] comply with the letter of the law but still be undesirable or even harmful to the original creation. … Rightsholders, almost universally, want flexibility when it comes to dealing with fan creations and, with that flexibility, comes uncertainty. We’re not likely to see many rightsholders laying down hard rules, save in specific areas, and that is going to create a great deal more fan-creator conflicts in the near future.(([[https://www.plagiarismtoday.com/2016/02/25/how-money-and-fame-have-changed-fan-fiction/|Plagiarism Today: How Money and Fame Have Changed Fan Fiction]], 2/25/16.))
 +
 ==== Defense ==== ==== Defense ====
 +<WRAP right round box bgviolet 50%>
 +//**__« Fair use is tricky; it is literally decided on a case-by-case basis by the courts. »__**//
 +</WRAP>
 +
 A number of limitations and exceptions exist to copyright related to a number of important considerations such as market failure, freedom of speech, education and equality of access (such as by the visually impaired). The most relevant to the [[lawsuit|Axanar case]] is the concept of fair use. A number of limitations and exceptions exist to copyright related to a number of important considerations such as market failure, freedom of speech, education and equality of access (such as by the visually impaired). The most relevant to the [[lawsuit|Axanar case]] is the concept of fair use.
  
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 It should be noted, however, that fair use is tricky; it is literally decided on a case-by-case basis by the courts on the entirety of each set of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.((Samuelson, Pamela (2009). [[http://fordhamlawreview.org/assets/pdfs/Vol_77/Samuelson2_Vol_77_Apr.pdf|"Unbundling Fair Uses" (PDF)]]. Fordham Law Review 77.)) It should be noted, however, that fair use is tricky; it is literally decided on a case-by-case basis by the courts on the entirety of each set of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.((Samuelson, Pamela (2009). [[http://fordhamlawreview.org/assets/pdfs/Vol_77/Samuelson2_Vol_77_Apr.pdf|"Unbundling Fair Uses" (PDF)]]. Fordham Law Review 77.))
 ===== Axanar's Defense ===== ===== Axanar's Defense =====
-[[Legal defense]] +<wrap lo>//See also: [[knowing_infringement|Knowing infringement?]]//</wrap> 
-stub+ 
 +[{{ :burnett-wondercon.jpg?250|**RECIPE FOR DERIVATIVE WORK?** In a podcast interview, //Axanar// director Robert Meyer Burnett spells out how broadly the production searched for elements from copyrighted Star Trek works, potentially damaging the defense that its infringement wasn't willful or knowing. [[knowing infringement|Read more »]]}}] 
 + 
 +According to its second [[motion to dismiss]] the lawsuit, Axanar's evolving defense includes a claim of fair use.  
 + 
 +{{section>motion to dismiss#fair use defense}}
  
 <WRAP round info> <WRAP round info>
-Portions of this article were adapted from the articles **[[wp>Copyright_infringement|Copyright Infringement]]**, **[[wp>Limitations_and_exceptions_to_copyright|Limitations and Exceptions to Copyright]]** and **[[wp>Fair_use|Fair Use]]**.+Portions of this article were adapted from the articles **[[wp>Copyright_infringement|Copyright Infringement]]**, **[[wp>Limitations_and_exceptions_to_copyright|Limitations and Exceptions to Copyright]]** and **[[wp>Fair_use|Fair Use]]**. {{:axamonitor-ico.gif?nolink|}}
 </WRAP> </WRAP>
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 **Keywords** **Keywords**
-{{tag>copyright lawsuit fan_films stub}}+{{tag>copyright lawsuit fan_films wrap_quote}}