The following post was commissioned by a leading website in Star Trek fandom in July, but because it was never used, I've decided to pass it along to the readers of my blog to spark discussion around developments that have the potential to dramatically impact media fandom. My own post will be followed on subsequent days by a conversation with Rebecca Tushnet, a Georgetown law professor who has become one of the leading thinkers about fan cultural production and transformative use of copyrighted materials.
Thanks to Arija Liepkalnietis for producing a Latvian translation of this blog post.
This summer, just a few months before the science fiction series would celebrate its 50th anniversary of production, Paramount and CBS collectively issued a series of guidelines for Star Trek fan filmmakers, seeking to clarify where they might draw the line between fan creativity and copyright infringement and suggesting what distinctions they might make between amateur and professional work in the Star Trek universe. They begin their document by proclaiming themselves “big believers in reasonable fan fiction and fan creativity, and in particular, want amateur fan filmmakers to showcase their passion for Star Trek.”
The issuing of these guidelines for “avoiding objections” was motivated primarily by the corporations’ ongoing legal battles with the producers of one particular fan film -- Star Trek: Axanar, which had been the subject of extensive coverage for months. Star Trek: Axanar represented the culmination of trends shaping the relations between fans and producers in recent years. Axanar brought to the breaking point trends that sooner or later would have resulted in backlash from commercial rights holders. Technical advances have placed greater production capacities in the hands of everyday people, including the ability to generate digital special effects approaching industry standards. Digital distribution brought all forms of fan productions greater public visibility. Crowdfunding has allowed fans to back productions that matter to them, but in this case, that resulted here in massive amounts of money entering the system and some questionable business practices that even many other fan filmmakers found exploitative.
Let’s stipulate that CBS and Paramount have legitimate reasons to protect a top media franchise from being appropriated for commercial purposes, and we can understand why the studios felt a need to clarify where they might draw the line. That said, the new guidelines for Star Trek fan films also over-reach, going beyond what was needed to resolve ambiguities, doing damage to the fan community’s good will, and potentially violating the public’s fair use rights. While the producers insist that these guidelines apply only to fan films, they could have a chilling effect on all forms of grassroots fan culture and are apt to be mimicked by other franchise producers.
Keep in mind that fan works emerge from a place of appreciation in two senses -- they are created from a love of the original materials and they may actually increase their value in three distinct ways:
1, Fan films represent particularly active “engagement”. As I documented in Convergence Culture: Where Old and New Media Collide, the media industry has learned to value fan engagment as a social currency at a moment of increased media options and declining consumer commitment. Fans are the most loyal audience segment, they are more likely to recognize and reward sponsors, they are most apt to watch regularly watch, they are most apt to search out new and additional content, and they are most likely to promote the series to their social network. One of the first series to embrace the value of audience engagement, Star Trek’s producers have rallied their fans at crucial points in the franchise’s history, as when Gene Roddenberry worked with fans to launch the first letter writing campaign to keep the series on the air. In that sense, Star Trek was ahead of the curve in thinking about the value of audience engagement.
2 Fan films can be understood as a site of innovation. USC’s Robert Kozinets has researched the Star Trek fan film community from a marketing perspective, drawing comparison to what MIT’s Eric Von Hippel has identified as the value of “lead users” in the manufacturing sector. Lead users are early adopters who also need to adapt the product to satisfy their own particular needs; lead users innovate in ways that are low risk for the original producer but may provide a wealth of insights about market demand. At a time when Star Trek has largely been out of production, fan films have been one of many ways to keep the franchise alive (even if they reach relatively small audiences). Allowing multiple low-cost and low-risk experiments, fan films modeled multiple strategies for how to make a Star Trek series in the 21st century. And fan filmmakers, much like other lead users, may be recruited by the company, bringing their insights about different genre strategies and audience interests with them. Historically, most professional science fiction writers, editors, artists, etc. got their start within fandom and both Doctor Who and Star Wars have raided fandom aggressively seeking new talent as they rebooted their franchises. These are among the reasons why CBS and Paramount have offered a high degree of latitude to fan filmmakers in recent years, including collaborations and cooperations between cast members, technical and writing staff, and amateur producers.
None of us want to return to the early days of the web when Hollywood threatened to sue their most dedicated fans. This earlier period was especially marked by over-reach as studios claimed much more extensive rights over any and all use of their materials than they were granted within current law and fans often felt powerless to confront corporate attorneys with many more resources than they had. Over time, the creative industry came to see fan productions (again not just fan films) as creating more value than doing damage.
3 Fan cultural productions represent transformative works. Without getting too deep into the legal weeds, U.S. copyright law balances the rights of authors to profit from their creative output and the rights of the public to benefit from their fair use of those materials in order to inspire other creative production. Despite the metaphor of intellectual property, culture can not be reduced to property nor exclusively controlled by a single group or individual. Rather, cultural producers always build upon what has come before. In a world where mass culture has such a dominant role, the public has a strong interest in being able to engage with, comment upon, reference, critique and reimagine commercially produced materials.
American University’s Peter Jaszi and Patricia Aufderheide worked with a team of the country’s top legal scholars to develop some guidelines which DIY media producers can use for determining whether their remixing practices might be legally protected. They concluded that many fan productions do fall under fair use because they are transformative—they do not substitute for the original market, or simply copy, or duplicate the original. , Rather, fan films take that original material and do something different with it, including “parody, satire, criticism, commentary, admiration, celebration, mourning, etc.” In the case of Star Trek fan films, critical commentary includes advocacy for alternative perspectives (such as Hidden Frontier’s strong focus on GLBT characters given the contentious history of Star Trek’s representations of sexuality, or, for that matter, the ways Michael Dorn and other cast-members worked with the producers of Renegades to advocate for a stronger role in the future of the franchise).
The Organization for Transformative Works, a fan advocacy group, made the case to the U.S. Copyright Office, which is asked to oversee copyright policy, that fan vids (which re-edit footage from the original set to music for the purposes of promoting their interpretations of the material) should be recognized as Transformative Use; they argued that fan vidders should be exempt, alongside, for example, documentary producers or media educators, from being charged with violating the law by removing DVD copy protection software in the pursuit of their work. And the U.S. Copyright office agreed, a decision that many think indicates how courts would be apt to rule in a similar case (though, to date, there is no case law which specifically addresses the legality of fan cultural production).
Fan Vids are an interesting test case, since on the one hand, they do edit and remix existing footage (unlike most Star Trek fan films) and on the other, they often make more overt critical commentary. The prevailing ethos amongst Star Trek fan filmmakers has been focused on fan mastery as demonstrated by improving technical qualities and strong fidelity to the source material, which brings these films closer to being “derivative works” subject to greater legal restrictions. In short, the more fan films are made as calling cards for the industry, the more they undercut the case for their amateur status. And the more fan films look like “continuing adventures” rather than alternative perspectives, the harder it may be to make the case for transformative use.
So, this brings us back, at long last, to the recently released guidelines for Star Trek fan films. As the Organization for Transformative Works has argued, “all the guidelines really signal is what Paramount and CBS would prefer from fan films—not what the law would allow.” They offer fan filmmakers no protection nor do they indicate how courts might rule on individual cases. Yet they do signal what fan practices CBS and Paramount are apt to tolerate. While the guidelines begin with statements sympathetic to fan culture, they systematically reign in all forms of fan filmmaking, not simply those projects like Axanar that arguably which bleed over into the commercial sphere. Thankfully CBS and Paramount are “grandfathering” in existing fan films, because almost none of them could have been produced under these guidelines.
Some of the guidelines seem reasonable, such as a call to be even more explicit in distinguishing fan films from the official property. Fan filmmakers have historically been conscientious in signaling their unauthorized status; fans often make strong distinctions between canon (official texts) and fanon (grassroots responses). Everyone will be well served by lowering the ambiguity about what the rights holders see as commercial uses of their materials. We can debate what is or is not a reasonable policy towards the crowdfunding of production costs.
But many other provisions are apt to have a chilling effect on all forms of fan production or will if fan artists read them as superseding fair use protections. For example, a provision against the use of clips seemingly targets fanvids and restrictions on the use of recreated costumes and props have implications for the maker culture and cosplay communities. The guidelines block the collaborations between professionals and amateurs that have been a hallmark of earlier Star Trek fan films, there are restrictions on how fan films can be distributed (streaming rather than DVD) that have implications for how these materials will be archived. There are new format restrictions that mean that fans can no longer produce continuing series. Constraints on the film’s content designed to keep Star Trek “family friendly” amount to censorship over many forms of critical commentary (slash for example) that would fall squarely under transformative use.
If copyright law rests on a balancing of interests, we can all agree that current factors are out of whack. From the perspective of the rights holders, we are dealing here with a crisis in copyright as it becomes hard to distinguish amateur and commercial productions. As amateur works are reaching wider and wider audiences and impact public perceptions of their franchises, the studios may perceive them as commercial competitors. From the perspective of the public, we are dealing with there is a crisis in fair use, since forms of cultural expression commonplace in the past are now endangered by a legal culture that puts many advantages in the hands of media corporations. Under these circumstances, copyright enforcement can and does sometimes constitute a form of censorship. For a while, informal policies have created a space where Star Trek’s producers and fans could play and work together, producing films intended to pay tribute to the original, that are and valuable as forms of engagement, innovation, and transformative use. My fear is that the new guidelines back away from those collaborative practices and towards policies more antagonistic to fan participation and expression. As such, the guidelines can have a chilling effect on forms of cultural production that are a uniquely valuable aspect of contemporary culture.
To Learn More:
Henry Jenkins, “Fan Fiction as Critical Commentary” http://henryjenkins.org/2006/09/fan_fiction_as_critical_commen.html
Henry Jenkins, “Quentin Tarentino’s Star Wars?: Digital Cinema, Media Convergence, and Participatory Culture” http://web.mit.edu/21fms/People/henry3/starwars.html
Pat Aufderheide and Peter Jaszi, “Recut, Reframe, Recycle: Quoting Copyright Materials in User-Generated Video” http://archive.cmsimpact.org/sites/default/files/CSM_Recut_Reframe_Recycle_report.pdf
“OTW Secures DMCA Exemption from U.S. Copyright Office,” http://www.transformativeworks.org/otw-secures-dmca-exemption-us-copyright-office/
“OTW Legal on Paramount/CBS Fan Film ‘Guidelines’” http://www.transformativeworks.org/otw-legal-on-paramountcbs-fan-film-guidelines/
“Fan Fiction vs. Copyright -- A Q & A with Rebecca Tushnet” https://www.youtube.com/watch?v=5g4c57qf_9Q
Kozinets, Robert V. (2007), “Inno-tribes: Star Trek as Wikimedia” in Consumer Tribes, Bernard Cova, Robert V. Kozinets, and Avi Shankar, eds., Oxford and Burlington, MA: Butterworth-Heinemann, 194-211.
Erin Riley, “Fan Favorites,” Strategy + Business, http://www.strategy-business.com/article/Fan-Favorites?gko=f977d
Paula Dupont, "Fanworks, Transformative Fandom, and Copyright," https://medium.com/@heypaula/fanworks-transformative-fandom-and-copyright-9a78142020fd#.pswf3gkou