Axanar meets legal resistence from CBS

[Dannyalcatraz]

I happen to live about 20 minutes from one of the biggest soundsages in America.

There's a BIG difference between building movie sets and warehousing them, etc., and building a full-blown studio. In the former, you're probably renting space for storage and have booked the soundstage for a finite period of time at a set rental fee. When you're done filming or you're out of money, your out of there.

If you're actually building a studio, that's a permanent structure YOU (and whatever partners you may have) own, and can be used for projects beyond the first one. One does not typically build a studio exclusively for the purposes of filming one project, even if it to be filmed and released over several years' time.

 

[Ryujin]

This may come as a complete shock to many of you, but some of my colleagues are amoral and shady. And a spcertain subset are so smart, they stupidly think they can get away with anything,

Peters might be too smart for his own good. He might have honestly believed the vagaries he was given when he first met with CBS over the matter, prior to the initial funding efforts for "Prelude." We may never know.

I happen to live about 20 minutes from one of the biggest soundsages in America.

There's a BIG difference between building movie sets and warehousing them, etc., and building a full-blown studio. In the former, you're probably renting space for storage and have booked the soundstage for a finite period of time at a set rental fee. When you're done filming or you're out of money, your out of there.

If you're actually building a studio, that's a permanent structure YOU (and whatever partners you may have) own, and can be used for projects beyond the first one. One does not typically build a studio exclusively for the purposes of filming one project, even if it to be filmed and released over several years' time.

In the two production teams I last cited they both have warehouse-like buildings, housing Star Trek corridors, bridges, engine rooms, and bridges. I don't know the terms for "Continues", but "Axanar" has paid for the first year and security deposit on their building from the crowd-sourced funds, out of a 3 year lease (referenced in this video, at around the 3:40 mark). Yup, sounds like they plan to use it for some time to come. It's still a rental, so they'll need to pay the ongoing costs somehow. Maybe more fan films in the Star Trek universe. Maybe subletting it to other productions. Maybe bankrupted by a lawsuit and reverting to the owners.

https://www.youtube.com/watch?v=S6TXDDoADIY

 

[Umbran]

I didn't present Wheaton's piece as any sort of support for my statements.

That's good, because Mr. Wheaton's piece actively stands against the point you made.

It's there for informational purposes...

And, I'm using it for exactly that, to give perspective here.

By the information provided, a high-end fan film typically tops out at one-tenth the budget of Axanar. We should be completely unsurprised that CBS/Paramount are dealing with it differently.

n the funding angle the reason why most fan projects cost so little is that all of the labour tends to be performed volunteers, with folks taking vacation or unpaid leave to do the production. The moment that you decide to pay people even as little as minimum wage, or base scale for the specific job, costs skyrocket. Axanar, like many indie projects, pay their people. From what they're saying it sounds like they're paying scale, even to people who command a much higher rate.

Look at what you did there: "like many indie projects". But *unlike* most fan-film projects. I don't think we can actively show how Axanar is different from most fan films, but also sugest that its budget is, "the normal cost of doing business," for fan films. I think part of the point is that fan films *are not business*. A fan film should not be using the production cost model of an indie film. Axanar is looking less and less like a fan film, and more like an indie commercial project trying to use someone else's IP under the guise of a fan film.

They may have stepped over the line while blinded by enthusiasm, but like Victor Frankenstein they were so filled with what they could do, they didn't stop to consider what they *should* do. Or maybe, as Danny has suggested, their intent was a bit shadier. I couldn't say, and to a large extent I don't care. Either way, it looks like an overreach, and at this point I think they're doing the fan community a disservice by continuing to fight.

 

[Ryujin]

That's good, because Mr. Wheaton's piece actively stands against the point you made.

And, I'm using it for exactly that, to give perspective here.

By the information provided, a high-end fan film typically tops out at one-tenth the budget of Axanar. We should be completely unsurprised that CBS/Paramount are dealing with it differently.

And I'm providing it in the manner that a good news agency would; to cover all bases and avoid colouring the whole debate with my own bias.

"Star Trek Continues" funded at over $200K. They tend to be the go-to comparison.

Look at what you did there: "like many indie projects". But *unlike* most fan-film projects. I don't think we can actively show how Axanar is different from most fan films, but also sugest that its budget is, "the normal cost of doing business," for fan films. I think part of the point is that fan films *are not business*. A fan film should not be using the production cost model of an indie film. Axanar is looking less and less like a fan film, and more like an indie commercial project trying to use someone else's IP under the guise of a fan film.

They may have stepped over the line while blinded by enthusiasm, but like Victor Frankenstein they were so filled with what they could do, they didn't stop to consider what they *should* do. Or maybe, as Danny has suggested, their intent was a bit shadier. I couldn't say, and to a large extent I don't care. Either way, it looks like an overreach, and at this point I think they're doing the fan community a disservice by continuing to fight.

I did that for a very specific reason, that I hoped I had made obvious. "Most fan films" end up costing their principals tens of thousands of dollars, out of pocket. Far from being "not for profit", they are usually made at a rather large loss. A well organized indie film tries to pay its people and to operate at break even, or better. This is a better model for making a fan film, since it doesn't result in people taking out second mortgages. I didn't suggest that it was the normal cost of doing business for making fan films. I stated it's the normal cost of doing business when you're using professionals and that, even if you're only paying minimum wage or scale, the costs are significantly higher than when you're using volunteer labour.

Overreach or not, they were banking on being able to use intellectual property owned by someone else. That creates the possibility of failure, beyond the usual issues with any production. In the comments section of one of the Axanar blogs I posted the following (currently awaiting moderation):

"How do you advertise for less than zero dollars? Easy. Settle the suit against “Axanar” in the following way.

Allow production on “Axanar” to continue. Permit fulfillment of the existing promises to the backers, who funded the movie through Kickstarter and Indiegogo. Once that is complete bring the movie in-house, making it a CBS/Paramount property to satisfy copyright. Release it to the world via an on-demand site like Vimeo on Demand for a nominal charge, like $5.00 per rental. Twenty percent of generated profits would go to Axanar Productions, which was not slated to make profit at any rate, with the remaining 80% going to the IP holders. A similar deal could be worked out for DVD/Blu-Ray distribution.

Copyright is satisfied. The backers are satisfied. The production gets to see the light of day."

 

[GMforPowergamers]

at this point I think they're doing the fan community a disservice by continuing to fight.

I would respect them so much more if they appologized ninstead of doubling down...

 

[Umbran]

"Star Trek Continues" funded at over $200K. They tend to be the go-to comparison.

I think that, in figuring what the Studio's response should be, we should be looking more at the bulk of fan films, not a single other high-end example. But, still, if we do that, we are still taking about something *five times* larger than the go-to comparison.

I did that for a very specific reason, that I hoped I had made obvious. "Most fan films" end up costing their principals tens of thousands of dollars, out of pocket. Far from being "not for profit", they are usually made at a rather large loss.

Yep. Guess what, people have to pay for their own hobbies and entertainment activities!

A well organized indie film tries to pay its people and to operate at break even, or better. This is a better model for making a fan film, since it doesn't result in people taking out second mortgages.

A well-organized indie film is a commercial venture, not a hobby activity. If you want to turn your hobby activity into a commercial venture, that's fine, but then you don't get to continue to claim it is a hobby activity. Basically, if you're getting paid for it, it is no longer "fan" work. If you have customers who have paid and are waiting for product, you are in a commercial enterprise, not a fan production.

"How do you advertise for less than zero dollars? Easy. Settle the suit against “Axanar” in the following way.

Allow production on “Axanar” to continue. Permit fulfillment of the existing promises to the backers, who funded the movie through Kickstarter and Indiegogo. Once that is complete bring the movie in-house, making it a CBS/Paramount property to satisfy copyright. Release it to the world via an on-demand site like Vimeo on Demand for a nominal charge, like $5.00 per rental. Twenty percent of generated profits would go to Axanar Productions, which was not slated to make profit at any rate, with the remaining 80% going to the IP holders. A similar deal could be worked out for DVD/Blu-Ray distribution.

Copyright is satisfied. The backers are satisfied. The production gets to see the light of day."

Yes, but this also answers the question, "How do you make sure you'll have to have this concern over and over again?"

I think that Axanar, knowingly or not, took advantage of the fans and the studio's goodwill. Whether it was underhanded or thoughtless, they should not be rewarded for it. Sorry, Icarus.

 

[Janx]

thought experiment:

Let's say Danny and I (who are in the same state, though separated by a zillion miles) decide to film a Star Trek series of YouTube videos of a pair of low-rank shuttle jockeys, making runs here and there. A star trek buddy sitcom.

We do it using a third TX ENworld friend's iPhone camera and the iMovie app.

That's presumably a hobby fan film project. Any money we spend on the set (spare bedroom somewhere and trips to the park for on-planet scenes) comes from us and we're not making any money. Most likely we are clear of the wrathful eye of Paramount's lawyers with our one subscriber (Morrus, who will watch anything Star Trek related).

Now consider evolution off of that.

Morrus likes it, tells his friends, and now we have lots of views. YouTube starts to send us a monthly check for our "revenue share". Let's assume it's modest and Danny blows it on ingredients for his next fancy dinner that I wasn't invited to.

Now, are we in trouble from Paramount? We just made money off our "fan film"

Now consider that we've been using an iPhone and the shakey cam effect has got to go. We hire a cut-rate pro camera man who happens to own a 3-gen old pro video camera to do the shoot.

Are we in trouble because we employed a "professional" to help with the creation of our Fan Film?

Let's say fan response to the improved video quality was high, but we could only afford that one episode paying for it ourselves. So we start a KickStarter to raise funds for 10 episodes, shot by a professional.

Now depending on how much we raise, we consider that we can also:
rebuild the sets/green screen to be better
hire some actual actors to play other roles
hire an FX company to do a better job on the intro/outro and CGI
hire a composer to score and record an original score for our episodes
replace Danny and myself with real actors who don't stare at the camera

At some point, this obviously smells less like Danny and I doing a hobby thing, and more like Danny and I arranging the production of a better version of our fan film.

Additionally, where initially we were the fans, funding our hobby, it could be said that now the KickStarter people are fans, funding their hobby of getting a star trek fan film made.

The obvious gray area is where us hobbyists doing the work and paying for stuff shifts to other people doing the work (and getting paid), and other people (kickstarter) funding the activity.

One thing to keep in mind, is that there is likely always a grey area. In just about every hobby, you are still paying somebody for supplies, equipment, services that you yourself can't do. That doesn't detract from it still being a hobby, even though you technically didn't personally do 100% of all the activities to get to the end goal.

 

[Ryujin]

Yes, but this also answers the question, "How do you make sure you'll have to have this concern over and over again?"

I think that Axanar, knowingly or not, took advantage of the fans and the studio's goodwill. Whether it was underhanded or thoughtless, they should not be rewarded for it. Sorry, Icarus.

I'm just going to skip to the bottom because we could go back and forth on the rest for days, without convincing each other of anything. It's pointless for me to continue in that vein.

The concern is answered, "If you make it and we don't like what you've done we either own it, or sue you into the Stone Age." It enforces the IP ownership. It locks out what the producer might consider to be methods of profiting from the work in future, in violation of the IP. It does this without punishing the fans, who are a source of income for the IP holder.

Or it just goes through court, everyone is out hundreds of thousands if not millions of dollars, and "Axanar" is dead. The IP holder has every legal right to do this. It's just a very bloody way to go forward. You win the game by not playing.

 

[Ryujin]

thought experiment:

Let's say Danny and I (who are in the same state, though separated by a zillion miles) decide to film a Star Trek series of YouTube videos of a pair of low-rank shuttle jockeys, making runs here and there. A star trek buddy sitcom.

We do it using a third TX ENworld friend's iPhone camera and the iMovie app.

That's presumably a hobby fan film project. Any money we spend on the set (spare bedroom somewhere and trips to the park for on-planet scenes) comes from us and we're not making any money. Most likely we are clear of the wrathful eye of Paramount's lawyers with our one subscriber (Morrus, who will watch anything Star Trek related).

Now consider evolution off of that.

Morrus likes it, tells his friends, and now we have lots of views. YouTube starts to send us a monthly check for our "revenue share". Let's assume it's modest and Danny blows it on ingredients for his next fancy dinner that I wasn't invited to.

Now, are we in trouble from Paramount? We just made money off our "fan film"

Now consider that we've been using an iPhone and the shakey cam effect has got to go. We hire a cut-rate pro camera man who happens to own a 3-gen old pro video camera to do the shoot.

Are we in trouble because we employed a "professional" to help with the creation of our Fan Film?

Let's say fan response to the improved video quality was high, but we could only afford that one episode paying for it ourselves. So we start a KickStarter to raise funds for 10 episodes, shot by a professional.

Now depending on how much we raise, we consider that we can also:
rebuild the sets/green screen to be better
hire some actual actors to play other roles
hire an FX company to do a better job on the intro/outro and CGI
hire a composer to score and record an original score for our episodes
replace Danny and myself with real actors who don't stare at the camera

At some point, this obviously smells less like Danny and I doing a hobby thing, and more like Danny and I arranging the production of a better version of our fan film.

Additionally, where initially we were the fans, funding our hobby, it could be said that now the KickStarter people are fans, funding their hobby of getting a star trek fan film made.

The obvious gray area is where us hobbyists doing the work and paying for stuff shifts to other people doing the work (and getting paid), and other people (kickstarter) funding the activity.

One thing to keep in mind, is that there is likely always a grey area. In just about every hobby, you are still paying somebody for supplies, equipment, services that you yourself can't do. That doesn't detract from it still being a hobby, even though you technically didn't personally do 100% of all the activities to get to the end goal.

Technically speaking, CBS/Paramount could shut you down at any point in this supposition. In practice they would likely use your distribution method, Youtube, against you by filing a claim that would immediately halt monetization, with a likely eventuality that they would assume control of it and monetize it themselves. It happens and there are plenty of Youtubers who are unhappy about it, especially when their videos actually fall within "fair use" guidelines.

Another question directly related to the Axanar thing is, "What if I am actually a professional myself, who has a bunch of professional friends, and want to make a fan film?"

The IP holder has an absolute right to their IP, provided it isn't being used under "fair use" guidelines. If the IP is being used straight-up and not for parody, review, or educational purposes, then you're pretty much hosed if the take a dislike to you.

 

[Dannyalcatraz]

There are all kind of possibilities, here, and one I'd like to point out. The Verve got into a legal squabble with the Rolling Stones over sampling one of their rarer songs without credit for the making of their hit, "Bittersweet Melody". The Stones sued for IP infringement and won- they were awarded a written co-writer credit on on future releases of the song and all profits from the Verve's recording. The Stones and their record company got everything, The Verve and theirs got zip. No other singles were released from that album*, and the band broke up. Lead singer Richard Ashcroft (possibly the others as well) continued to record under different names, but never again reached the success of that single.

Similarly, Paramount could indeed settle for something as simple as they get ownership...and shelve it, never to release it. The people behind Axenar get ruined by their debt. There isn't a flood of similar overreach of crowdfunded IP infringement.

As for "punishing the fans": part of the reason IP holders are granted such an impressive array of rights is because that allows them to control how the IP is managed. While in all honesty it doesn't always work out that way in practice, IP law theoretically allows the IP owner to exercise quality control over the IP so that the fans are reassured that when they buy "______" IP, it's going to live up to certain standards.** There are no such guarantees with unauthorized fan fiction & hobby products.

At the very least, IP law guards against misleading the fans as to the nature of the product. Disney won some..."colorful"...fights against people who used Disney-esque imagery & character names to advertise and produce pornographic movies- the antithesis of their brand identity. Or, to put it another way, just because it is fan fiction doesn't automatically make it good, and, for good reasons and bad, humans improperly prejudge all kinds of things that have similarities to each other- TV shows, movies, cars, and even things like enchiladas.

IOW, if a fanfic hobby movie ISN'T good, not only is the maker of the knockoff hurt, the actual IP holder could suffer backlash from the fans. Imagine if Paramount greenlighted a script and produced a movie based on substantially the same general plotline as Axenar (assuming it got released, and panned). A certain number of fans will not see the authorized production simply based on their negative experiences with the fanfic.







* in part because that wasn't the only song with uncredited sampling or other forms of plagiarism. I personally contacted both The Verve's and another copyright holder's record company on a second one. Another song was written so as to use substantially re-record a song by Aphrodite's Child- Vangelis's original classic rock band from the 1970s- AGAIN without crediting the original songwriters. IOW, whoever was writing for The Verve wasn't exactly being original.

** George Lucas, I'm looking at you.