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- | ====== Shoe's on the Other Foot ====== | + | {{:: |
- | //**Axanar Claims Copyright to Goes After Fan Edit of ' | + | < |
+ | //**__Analysis__**// | ||
+ | </ | ||
+ | ====== The Shoe is on the Other Foot ====== | ||
+ | // | ||
+ | {{TOC}} | ||
+ | < | ||
+ | //**__ __**// <wrap lo>**By [[user> | ||
+ | </ | ||
+ | |||
+ | <wrap lo>// | ||
+ | |||
+ | After an anonymous fan of //Prelude to Axanar// posted [[prelude_fan_edit|his version]] of the short, unauthorized Star Trek film on February 15, 2017 — edited to tighten the story and replacing [[Alec Peters]]' | ||
+ | |||
+ | That action, normally straightforward on YouTube, instead opened up a myriad of questions surrounding the legal standing of a production that itself just avoided an infringement verdict, going on to claim copyright protection for its own unauthorized work. | ||
+ | |||
+ | ===== Settlement Terms ===== | ||
+ | |||
+ | The terms of the January 20 [[axanar settles|settlement]] between Peters and the two studios suing him for copyright infringement, | ||
+ | |||
+ | So far as the settlement terms are publicly known, granting permission was a concession that did not automatically invest //Prelude// with a copyright they could defend in court. | ||
+ | |||
+ | Indeed, Axanar agreed in the settlement to abide by the Star Trek [[cbs_guidelines|fan film guidelines]]. | ||
+ | |||
+ | < | ||
+ | // | ||
+ | </ | ||
+ | |||
+ | ==== No Copyright Registration ==== | ||
+ | |||
+ | The [[cbs guidelines|ninth guideline]] plainly states: | ||
+ | |||
+ | > " | ||
+ | |||
+ | A valid takedown notice submitted to YouTube would require to be the copyright holder of // | ||
+ | |||
+ | ===== Axanar Reaction to Fan Edit ===== | ||
+ | |||
+ | In the meantime, as the entity that originally uploaded //Prelude// to YouTube, Axanar was sufficiently empowered to issue the takedown, and took advantage of that the day //Prelude: Redux// was posted. | ||
+ | |||
+ | Following the takedown, YouTube' | ||
+ | |||
+ | <WRAP right round info 50%> | ||
+ | {{ :: | ||
+ | <wrap lo>< | ||
+ | The [[wp> | ||
+ | </ | ||
+ | |||
+ | Contacted soon after the fan edit was posted, Axanar spokesman Mike Bawden told **AxaMonitor** pursuing a fan edit would move Axanar' | ||
+ | |||
+ | > Quite honestly, I’m encouraging everyone to move along and continue with the planning required to produce the two fifteen-minute segments we’re allowed to produce to tell the story of //Axanar//, so I can’t say anyone is going to do anything about this.((Email from Mike Bawden to AxaMonitor editor Carlos Pedraza, 2/15/17.)) | ||
+ | |||
+ | Peters' | ||
+ | |||
+ | Bawden did not respond. | ||
+ | |||
+ | <wrap lo>//See also: [[prelude_fan_edit# | ||
+ | |||
+ | Since the takedown, others tried re-posting //Prelude: Redux// on YouTube. Each one received a takedown notice. The version posted by Australia' | ||
+ | |||
+ | [{{ :: | ||
+ | |||
+ | ==== History of Fan Edits ==== | ||
+ | |||
+ | Axanar, which often touts itself as a representative of fandom, appeared unaware of the long tradition of [[wp>fan edit|fan edits]] of much-loved (or maligned) films. | ||
+ | |||
+ | > Before the term "fan edit" was coined, many " | ||
+ | |||
+ | Admittedly, the legal status of fan edits is unclear under copyright law. Fan editors claim [[#fair use analysis|fair use]] (just as Axanar did to justify making //Prelude// in the first place) because a fan edit " | ||
+ | |||
+ | ===== Can Axanar Claim ' | ||
+ | |||
+ | Studios like CBS, Paramount, Lucasfilm and Disney have a clear copyright for their works. By contrast Axanar' | ||
+ | |||
+ | > Axanar does have a copyright in this film, at least in the original elements that they contributed. Even though it may be an unauthorized derivative work, the creator of the unauthorized derivative work still owns the copyright in it — even though the overall work may be infringing and he doesn' | ||
+ | |||
+ | {{ : | ||
+ | |||
+ | And while Guideline No. 9 prohibits Axanar from // | ||
+ | |||
+ | > Under the law, you can have a perfectly valid copyright without registering it. Registering it is especially problematic for the studios because not only does it put the claim of copyright on record, but it is a prerequisite to filing a copyright infringement lawsuit. | ||
+ | |||
+ | But without the registration, | ||
+ | |||
+ | ==== The Anderson Case ==== | ||
+ | |||
+ | The Anderson case was a copyright infringement lawsuit against Sylvester Stallone, MGM, and other parties over a script for Stallone' | ||
+ | |||
+ | It was strikingly clear to the Court that Anderson' | ||
+ | |||
+ | < | ||
+ | //**__« This is consequently a higher stakes game … because the rightsholder does not have a cheap and fast way to keep the video down, short of suing you. »__**// <wrap indent>// | ||
+ | </ | ||
+ | |||
+ | Stewart called // | ||
+ | |||
+ | > In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any //part// of the work in which such material has been used unlawfully.(([[https:// | ||
+ | |||
+ | The Copyright Office then goes on to note that the creation of the unauthorized derivative work may nonetheless be an infringement. | ||
+ | |||
+ | === Murky Issue === | ||
+ | |||
+ | Stewart called the protectability "a murky issue," | ||
+ | |||
+ | When based on the " | ||
+ | |||
+ | <WRAP right round info 50%> | ||
+ | < | ||
+ | // | ||
+ | </ | ||
+ | <wrap lo> | ||
+ | </ | ||
+ | |||
+ | He concluded, "The law is really, really unclear on this point." | ||
+ | |||
+ | ===== Legal Standing ===== | ||
+ | |||
+ | It is clear, however, that copyright registration is a prerequisite to defending copyrights in court. So then how could Axanar pursue a takedown to its logical conclusion — a lawsuit defending its copyright under the DMCA — if the guidelines by which Peters agreed to abide preclude registration? | ||
+ | |||
+ | ==== Challenging the Takedown ==== | ||
+ | |||
+ | If Axanar is indeed precluded from defending its copyright in court because of its settlement agreement to adhere to the guidelines, the fan editor of //Prelude// — and anyone else posting the //Redux// — has a case under the DMCA for challenging Axanar' | ||
+ | |||
+ | <WRAP rightalign> | ||
+ | {{:: | ||
+ | <wrap lo>< | ||
+ | </ | ||
+ | |||
+ | === Filing a Counter-Notice === | ||
+ | |||
+ | According to the Electronic Frontier Foundation, people who have had content taken down can submit a " | ||
+ | |||
+ | === Two-Week Ticking Clock === | ||
+ | |||
+ | The fan editor and other posters of //Prelude: Redux// told **AxaMonitor** they have filed counter-notices, | ||
+ | |||
+ | "This is consequently a higher stakes game … because the rightsholder does not have a cheap and fast way to keep the video down, short of suing you," the EFF noted. | ||
+ | ==== Can Axanar Sue? ==== | ||
+ | |||
+ | Therefore, if Guideline No. 9's prohibition against registering for copyright indeed applied to // | ||
+ | |||
+ | It remained to be seen whether CBS or Paramount planned to take any action with regard to Axanar' | ||
+ | |||
+ | <WRAP tip> | ||
+ | [{{ : | ||
+ | |||
+ | ===== Fair Use Analysis ===== | ||
+ | |||
+ | <wrap lo>As it turned out for Axanar in its lawsuit, a federal judge rejected its argument that //Prelude// made [[fair use]] of Star Trek copyrights. How well would //Prelude: Redux// fare under the same kind of analysis? The EFF sums up that analysis under the following questions, | ||
+ | **Is the video transformative? | ||
+ | The fan editor would say yes to first under the theory that his cut comments on the original work and transforms it into a new interpretation. Posted for free on YouTube, and free of any surrounding commercial endeavors based on the work — which severely weakened Axanar' | ||
+ | \\ \\ | ||
+ | **Is the video a substitute for the original? Would people still want to buy the original after seeing the video?** \\ | ||
+ | Axanar could certainly argue the intent of the fan edit is precisely to substitute for the original. But Axanar is prohibited under the settlement from ever selling copies of // | ||
+ | \\ \\ | ||
+ | **How much of the original work did the fan editor take, both quantitatively and qualitatively? | ||
+ | //Redux// would not fare so well under this examination since it uses nearly all of the original work, shaving off four minutes from // | ||
+ | \\ \\ | ||
+ | **Was the purpose of his use non-commercial, | ||
+ | Already established as non-commercial, | ||
+ | \\ \\ | ||
+ | **If the fan editor' | ||
+ | Since Axanar had already agreed never to monetize //Prelude// the film has no economic or market value likely to be affected this or any other fan edit. {{: | ||
+ | </ | ||
+ | |||
+ | <WRAP tip 75%> | ||
+ | <wrap em> | ||
+ | Discuss this article in [[face> | ||
+ | </ | ||
+ | |||
+ | ---- | ||
+ | **Keywords** {{tag> |