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fan_films_breaking_the_unwritten_rules_and_defining_profit [2016/03/05 03:24] – [Fan Films: Breaking the Unwritten Rules and Defining Profit] adds include 'understanding' Carlos Pedrazafan_films_breaking_the_unwritten_rules_and_defining_profit [Unknown date] (current) – external edit (Unknown date) 127.0.0.1
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 On how fan films' copyright infringement is tolerated by rights holders: On how fan films' copyright infringement is tolerated by rights holders:
  
-> This <wrap hi>noncommercial but still infringing use of copyrighted works is termed “tolerated use”</wrap>, and is allowed by the rights holder despite knowing someone is infringing on their work. The understanding of fan film makers is that under these unwritten rules they cannot profit from their fan film in any way, and it must remain noncommercial (i.e., not for sale) and noncompetitive with the original work. ... It is possible that the movie and television studios have allowed fan films to this point because they were not any competition and did not make profits from the use of their copyrights, so committing serious money to sue them did not make sense. <wrap lo>[emphasis added]</wrap>(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law blog, 2/11/16]])) +> This <wrap hi>noncommercial but still infringing use of copyrighted works is termed “tolerated use”</wrap>, and is allowed by the rights holder despite knowing someone is infringing on their work. The understanding of fan film makers is that under these unwritten rules they cannot profit from their fan film in any way, and it must remain noncommercial (i.e., not for sale) and noncompetitive with the original work. ... It is possible that the movie and television studios have allowed fan films to this point because they were not any competition and did not make profits from the use of their copyrights, so committing serious money to sue them did not make sense. (([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law blog, 2/11/16]])) <wrap lo>[//emphasis added//]</wrap>
 ===== Was Axanar 'Too Good'? ===== ===== Was Axanar 'Too Good'? =====
 On why CBS and Paramount sued to stop Axanar: On why CBS and Paramount sued to stop Axanar:
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 ==== Profiting from a Fan Film? ==== ==== Profiting from a Fan Film? ====
-[{{ ::ares-studios.jpg?250|**ARES STUDIOS** is the Valencia, Calif., soundstage being retrofitted for profit by Alec Peters with funds raised by donors to the film, //Axanar//. This picture from its Indiegogo campaign features the studio name Photoshopped onto the warehouse exterior.}}]+[{{ ::ares-studios.jpg?250|**ARES STUDIOS** is the Valencia, Calif., soundstage being retrofitted by Alec Peters as a [[investor_group|rental facility]] with funds raised by donors to the film, //Axanar//. This picture from its Indiegogo campaign features the studio name Photoshopped onto the warehouse exterior.}}]
  
 On how the case revolves around the commercial activity of Axanar Productions: On how the case revolves around the commercial activity of Axanar Productions:
  
-> 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 <wrap hi>this Axanar movie is no fan film but a competing product made from their copyrights and trademarks.</wrap> 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. It is the evident hope of CBS and Paramount that the court will set a precedent on what is a fan film that can be tolerated by the rights holders, and what is straight infringement by a rival producer. <wrap lo>[emphasis added]</wrap>(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law blog, 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 <wrap hi>this Axanar movie is no fan film but a competing product made from their copyrights and trademarks.</wrap> 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. It is the evident hope of CBS and Paramount that the court will set a precedent on what is a fan film that can be tolerated by the rights holders, and what is straight infringement by a rival producer. <wrap lo>[//emphasis added//]</wrap>(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law blog, 2/11/16]]))
  
 ==== Axanar's Red Flags ==== ==== Axanar's Red Flags ====
 On what "profit" looks like for Axanar: On what "profit" looks like for Axanar:
  
-> [Peters] announced that he was building out a studio “for the production of Axanar,” but also said he wanted to use it to make other films in the future. <wrap hi>This plan added to the feeling among fans that Axanar was using another’s copyrighted work for their own profit.</wrap> The admissions by Peters, along with a [[annual report|financial report]] sent out to donors that was said to have numerous red flags indicating that he and his girlfriend may have drawn salaries from donated funds, was evidently the last straw for Paramount and CBS. <wrap lo>[emphasis added]</wrap>(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law blog, 2/11/16]]))+> [Peters] announced that he was building out a studio “for the production of Axanar,” but also said he wanted to use it to make other films in the future. <wrap hi>This plan added to the feeling among fans that Axanar was using another’s copyrighted work for their own profit.</wrap> The admissions by Peters, along with a [[annual report|financial report]] sent out to donors that was said to have numerous red flags indicating that he and his girlfriend may have drawn salaries from donated funds, was evidently the last straw for Paramount and CBS. <wrap lo>[//emphasis added//]</wrap>(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law blog, 2/11/16]]))
  
 Peters and others did draw salaries from their crowdfunding proceeds, according to Axanar's own [[annual report]]. Peters paid himself $38,000 plus more than $3,000 for his dues to the actors' union, SAG-AFTRA.((Axanar Annual Report 2015, Revised, p. 10, ({{::axanar-annual-report-v2.pdf|download here}}).)) Peters and others did draw salaries from their crowdfunding proceeds, according to Axanar's own [[annual report]]. Peters paid himself $38,000 plus more than $3,000 for his dues to the actors' union, SAG-AFTRA.((Axanar Annual Report 2015, Revised, p. 10, ({{::axanar-annual-report-v2.pdf|download here}}).))
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 Tellingly, the CBS [[summary_of_the_lawsuit|legal complaint]] does not use the word 'profit' to describe Axanar's commercial activity, instead referring to the defendants' receiving a <wrap hi>"direct financial benefit"</wrap>((Paramount v. Axanar, p. 12 ¶64 {{:startreklawsuit.pdf|}})) from its alleged infringing activities. Tellingly, the CBS [[summary_of_the_lawsuit|legal complaint]] does not use the word 'profit' to describe Axanar's commercial activity, instead referring to the defendants' receiving a <wrap hi>"direct financial benefit"</wrap>((Paramount v. Axanar, p. 12 ¶64 {{:startreklawsuit.pdf|}})) from its alleged infringing activities.
  
 +In denying the defense motion to dismiss, [[judge_r._gary_klausner|Judge Klausner]] distinguished between 'profit' as it's been justified by Peters, and direct financial benefit as defined by applicable case law:
 +
 +> Although it is unclear whether Defendants stand to earn a profit from the Axanar Works, <wrap hi>realizing a profit is irrelevant to this analysis.</wrap> The Court can easily infer that by raising $1 million to produce the Axanar Works and disseminating the Axanar Works on Youtube.com, the allegedly infringing material “acts as a ‘draw’ for customers” to watch Defendants’ films.((Civil Minutes, Judge R. Gary Klausner's Order to Denying Motion to Dismiss, p. 5 §B(2), “Vicarious Infringement: Direct Financial Benefit Allegations Made on 'Information and Belief,'” 5/9/16.)) <wrap lo>[//emphasis added//]</wrap>
 ==== Crowdfunding ==== ==== Crowdfunding ====
 Axanar's fundraising success in its multiple campaigns on Kickstarter and Indiegogo, sparked this observation about the platforms' role in suborning copyright infringement: Axanar's fundraising success in its multiple campaigns on Kickstarter and Indiegogo, sparked this observation about the platforms' role in suborning copyright infringement:
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 Whether [[lawsuit|Paramount v. Axanar]] goes all the way to a jury trial or is settled out of court (like most lawsuits), Tomazic concludes it will have far-reaching implications on future fan film productions: Whether [[lawsuit|Paramount v. Axanar]] goes all the way to a jury trial or is settled out of court (like most lawsuits), Tomazic concludes it will have far-reaching implications on future fan film productions:
  
-> 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. <wrap hi>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.</wrap> He may have made it more difficult for fans to pay homage to their favorite movies with a lovingly crafted but still unauthorized work. <wrap lo>[emphasis added]</wrap>(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law blog, 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. <wrap hi>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.</wrap> He may have made it more difficult for fans to pay homage to their favorite movies with a lovingly crafted but still unauthorized work. <wrap lo>[//emphasis added//]</wrap>(([[http://met-iplaw.com/met-iplaw2012/?p=185|Intellectual Property Law blog, 2/11/16]])) 
 + 
 +==== New Fan Film Guidelines ==== 
 + 
 +After producer J.J. Abrams and //Star Trek Beyond// director announced on May 20, 2016, that the Axanar lawsuit was "going away," CBS and Paramount issued a statement that they were in settlement negotiations and were working on drafting a set of fan film guidelines.(([[twit>adambvary/status/733886588371931140|Buzzfeed reporter Adam Vary's tweet of a statement by Paramount and CBS]], 5/20/16.)) 
 + 
 +Those guidelines were [[cbs_guidelines|released by CBS]] a month later — a restrictive set of rules changing the entire landscape of Star Trek fan films by limiting run times to a maximum of 30 minutes and continuing to allow crowdfunding within limits. 
 + 
 +Before then, Axanar producer Peters had drafted his own list of [[axanar_guidelines|proposed guidelines]] and tried to rally other fan productions around him, but the attempt failed with [[guidelines_backlash|producers disavowing]] the effort once publicly [[guidelines_timeline|revealed]] by **AxaMonitor**.
  
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