Star Trek, Axanar, and the future of fan fiction

As Blastr's Star Trek Month comes to a close, the number one thing you've seen from our contributors and in comments from our readers is that yearning and desire to be part of Star Trek. Whether it's how we connected with our friends and family, how it informed our moral compasses, or how it made us dream of other worlds far from our own, it's the creative side of fandom that Star Trek Month here at Blastr has shown again and again.

But where is fandom going? With the legal complexity of fan film projects like Axanar leading to changes in the way studios and rights holders handle copyright and fan content, what's the future for these fan projects? Will people still be free to express their fandom through stories, costumes, video, and physical content? Or is the case against Axanar a sign of things to come?

The good news is we can ask a professional, one who cares about both copyright law and Star Trek. David A. Kluft is a lawyer who deals specifically with issues of copyright, trademark, commercial disputes, issues of unfair competition, and basically every other conflict that comes to bear whenever the rights of fans to play in the worlds they love require legal resolution.

To understand the future of Star Trek fan projects, we need to talk about more than just Star Trek -- we even need to talk about fandoms outside of the realm of science fiction and fantasy. There's a history of cases that have shaped copyright law as it pertains to the works of fans for a very long time. And where the case against Axanar fits into that tapestry can only be understood by looking at the larger picture. So let's do that.

Before we talk cases, it's important to understand how fan fiction is seen through the lens of copyright law. Some of this might seem obvious, but if you're looking for a basic understanding of how the law currently functions, David has gone the extra mile to cover those bases. 

There are five layers of abstraction to keep in mind when considering a work of fan fiction from the perspective of copyright law: idea, universe, universe elements, plot and story, and the written word on the page. Let's run through these very quickly. These examples are taken from a brief written by David. If you consider yourself to be in an advanced class on this discussion, skip down to where we start talking about specific cases.

1. Idea

Example (from Hamlet): A Prince goes nuts after the King dies in suspicious circumstances

This is not copyrightable. An idea is just an idea and copyright law doesn’t care if you steal it.  That’s different from say, plagiarism, which is not part of the law at all but an academic code of ethics.

2. Universe aka the fictional world in which the idea plays out

Example: Denmark in the late middle ages.

Rarely is a universe alone copyrightable, especially if it has non-fiction elements, because it’s too close to an idea. This is especially true when the universe is an historical period (as in historical fiction).

Fictional universes (as in science fiction) are more likely to be protected in whole or part, but they must be original to be protected. For example, a universe in which planets are joined in a United Nations-like “Federation” may be purely fictional, but it has been deemed by one court as a science fiction cliché without originality and therefore unworthy of protection.

3. Universe Elements

These are what populate the universe, most notably the characters.  Elements could also include specific locations or set pieces.

Examples: Hamlet; Ophelia; Rosencrantz & Guildenstern; the rampart of Elsinore; the cast of actors who perform a play within a play, etc.

This is the level at which most fan fiction typically exists. The author of the fan fiction is taking characters from the universe and remixing them into a new plot with new dialogue and narrative.

For example, Rosencrantz & Guildenstern Are Dead by Tom Stoppard. Stoppard borrowed Shakespeare’s universe and borrowed most of the characters that populated that universe, and remixed them into a new story focusing on minor characters, with new dialogue.

Whether fan fiction is also copyright infringement simply depends on whether the elements copied are sufficiently original to be protected by copyright, whether a more than de Minimis amount of that protected material was copied, and whether or not the defense of fair use will apply.

4. Plot 

The selection and arrangement of universe elements to tell a story.

Example: Hamlet’s father dies, after which his mother remarries. He thinks he sees his father’s ghost on the ramparts of Elsinore, causing him to suspect foul play and deteriorate into madness.

This is the level at which you find most copyright infringement cases brought by writers who claim Hollywood stole their work.

5. Written word on the page 

This is the final product, in other words, the written words on the page or the actual images and sound of a movie.  If you have stolen this (whole scenes, not a catch phrases here or there), you are probably just a pirate.

With us so far? Seem pretty straight forward? 

Okay, let's murky the waters with that very popular term, "fair use." Fair use is exactly what it sounds like, examples in which copyrighted works can be used without a pre-established license or agreement. How does fair use work and where does fan fiction fit in? Let's let David explain:

"Well, fair use is an overlay to this whole thing. Fair use has four factors, including (1) the purpose and character of the use (sometimes described as whether the new work is “transformative” of the original); (2) the nature of the original work, for example, was it original and copyright protected; (3) the amount taken, and (4) whether the original’s market is being harmed. What really distinguishes fair use from infringement is purpose, the first factor. The purpose of fair use is generally critical, educational or parodic. The Wind Done Gone, a version of Gone with the Wind told from the slave’s point of view in a manner that skewers the original, is a parody and therefore a fair use. On the other hand, a gushing musical stage version of Gone with the Wind is probably not fair use, even if it borrows less (this is from a real case).  This makes things somewhat awkward for fan fiction - most fan fiction is not critical, or parodic or educational. It’s just doing new fun things with the characters it loves for the same purpose as the original - to entertain. Some will argue that fan fiction is transformative and therefore has a different purpose, because it is making something new even if not critiquing the old. Some courts agree, others don’t.  

So, if fan fiction does not qualify for fair use, what is it in the eyes of the law? Most likely it is just an unlicensed derivative, which is simply defined as “a work based upon one or more preexisting works.” As a copyright holder, you have the right to control or stop derivatives of your work, and that would include at least some fan fiction. Some believe incorrectly that the line between fan fiction and infringing derivatives is that the former is non-profit and the latter is profit.  The law really doesn’t put much weight on this distinction.  Even if you are giving your fan fiction away, you are infringing if there is a good argument that you are supplanting either sales of the original work or some untapped but likely derivative market."

Getting less simple by the moment, isn't it? Since fan fiction may or may not fall under the auspices of fair use depending on the court, figuring out the present and future of Star Trek fan work is way more challenging. The only way we can start to really get a handle on things is by looking at specific cases.

If you were skipping ahead to copyright cases as they pertain to fan ficion and other fan works, congratulations: you've arrived. Let's dig in with some of the cases David feels provide the clearest understanding of copyright as it pertains to fan fiction. Of the cases he identfiied, we're going to look at five before circling our wagons back to Axanar.

The first cases David discusses pertain not to science fiction, but do pertain perfectly to the reason that many types of fan fiction are composed. Note: details re: each case here are all written by David Kluft.

1. Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)  This is probably the single most important case about fan fiction because the work involved was so clearly fan fiction, and that is not always the case. In this case, an author wrote a sequel to The Catcher in the Rye, which told the story of what happened to Holden Caulfield decades after the events in the Salinger novel.  It had new words and a new plot, but it used the same universe and some of the same universe elements, like the characters. This case perfectly illustrates why a great deal of fan fiction will not qualify for the fair use defense in most courts: A fair use is expected to criticize, analyze or parody the original work. But much fan fiction likes to glory in and contribute to the original work. The sequel author here admired and wished to join in the work of Salinger, not to criticize or parody it. It is that very distinction that caused this court to find that the sequel was not a fair use. The Court left open the possibility that perhaps a work that did not criticize the original could be sufficiently transformative in some aspect to qualify as a fair use, and we shouldn’t doubt that this is possible - -slash fan fiction comes to mind as something that might not be directly critical of the original but has a pretty good argument for some sort of gender identity transformativeness.  However, most fan fiction authors beware -- the more you like the original, the more likely your fan fiction is infringing it.

2. Suntrust v. Houghton Mifflin, 268 F3d. 1257 (11th Cir. 2001) This was a case against the book The Wind Done Gone brought by the notoriously litigious estate of Margaret Mitchell, author of Gone with the Wind. The Wind Done Gone, like The Catcher in the Rye sequel, borrowed characters and the semi-fictional universe, and mixed them up into a new story. In fact, because that story took place during the original story, it even borrowed more than the Catcher in the Rye sequel borrowed. But this extra borrowing made no difference. The Court ruled that it was a fair use. What really mattered was the critical point of view - this was from the perspective of one of Scarlett O’Hara’s enslaved women, and was a savage rebuke of many of the assumptions of the original.  

From these first to examples, we can see a pattern developing insofar as parody impacts fair use, but is not necessarily an absolute. Now let's look at a case regarding the use of established characters and how a fan author was able to use a technicality to be able to keep on keeping on.

3. Klinger v. Conan Doyle Estate In this case, a Sherlock Holmes fan wanted to take the Holmes and Watson characters and place them in new stories. In other words, fan fiction. Here is why the case was so interesting to lawyers. Some of Conan Doyle’s Sherlock Holmes stories were pre-1923 and therefore out of copyright. Others were post-1923 and therefore in copyright. So if some stories with the characters were in the public domain, does that mean the characters themselves were in the public domain?  The Court said yes. Of course, this doesn’t mean that less abstract elements of the post-1923 stories can be copied freely (for example, plot points or characters that appear only in those later works). However, Sherlock and Watson were free to use. The case is written by the brilliant Richard Posner, the best judicial author in a 100 years (since the great Learned Hand, who wrote about a lot of the same stuff), so it is worth the read. It also references many other interesting cases on characters.

Next up, David takes a look at a case that's a little closer to what Axanar is. This also relates to Harry Potter, one of the few genre franchises that approaches the same level of popularity as Star Trek.

4. Warner Bros v. RDR is maybe the most famous case ever brought by an author against her fans, and it is sort of an example of what happens when fan work gets too big for its britches. In sum, this started as a harmless little website by a fan and ended up becoming almost part of the canon of J.K. Rowling’s universe.  However, when the superfan was about to ink a book deal, things started to go badly. The book was going to basically be an encyclopedia, each entry copying some different element from Rowling’s work, in some cases direct dialogue, in some cases plot summaries, in some cases characters, in some cases information about the Harry Potter universe. In other words, virtually everything on our abstraction scale was going to show up in that book in one way or another. Was it critical of Rowling? No, so the fair use argument was tough -- it would rely on this idea that by rearranging all of these elements the superfan was creating something new (in other words, transformative), which is a very controversial definition of fair use.  In the end, what really tipped the scales against fair use was the market factor. You see, Rowling herself had various nonfiction books within her universe, some of which she had actually printed in the real world, such as Quidditch through the Ages and Fantastic Beasts and Where to Find Them. The superfan book would compete with these, as well as an official encyclopedia Rowling claimed to be planning. Thus, depending on your definition of “transformative,” perhaps this was  legitimate fair use because its “purpose” (the first fair use factor) was transformative because it created something new.  But once it approached profitability in a market that the author of the original was in the process of exploiting, it crossed a line.  Copyright law will permit fans to do a lot of things, but it isn’t going to allow a fan to compete with Rowling herself in the Harry Potter book market.

Competition is a big issue when it comes down to the nitty gritty of copyright law, and one we'll revisit when we tackle Axanar itself. Something worth noting about books like the one described above, however, is that they can be written by fans, provided they are working with a company who has obtained the license to promote and distribute. You know those Philosophy books based on popular franchises and characters? That's a good example of licensed fan creations being legally sold.

But how about one other Star Trek copyright issue before we talk fan films and Axanar? This, again, relates to something being more of a nod to a love of, as opposed to a parody of, a franchise.

5. Paramount v. Carol Publishing, 11 F. Supp.2d 329 (1998) This involved the Joy of Trek  book, which used various elements of the Star Trek universe and plot points to explain Star Trek to non-Star Trek fans who were dating Star Trek fans. This case illustratez the line between parody and fan fiction. The book gushed with approval of the work it was talking about -- there was no criticism or parody (the Joy of Trek was perhaps a parody of sorts of the Joy of Sex, and was a satire of Trekkie culture, but it was not a parody of the actual Star Trek series).

So we've seen now how transformative and parody fan works can sometimes (but not always) fall under the auspices of fair use. And, in the case of Harry Potter, we've seen the much stronger impact that brand competition can have on fan work.

But let's talk about Axanar. We'll start with David's take and then, because I like having the last word, I'll let you know why I think the state of Star Trek is the most major factor in how Axanar will likely shake out and how much of an impact that case will have moving forward. But first, David:

"The case (Axanar) is interesting for a lot of reasons. First, when you look at the website, trailer and cast for the film, you realize that this was more than the average fan fiction -- this had the potential to look and feel like a very sophisticated continuation of the Star Trek franchise. It felt like a licensed derivative, in other words, even though it wasn’t one. Does that mean it is a threat to the market?  I don’t know. Would a fan go to see Axanar once and a canon movie once, instead of the canon movie twice? There are probably many smart theories of how it harms the Star Trek market (not to mention the trademarks, an entirely separate issue). Second, it is interesting because unlike most fan fiction and parody, it didn’t really borrow characters from the universe - or plot.  Rather, it was borrowing the more abstract elements (the universe itself, the shape of the ships, etc….). This was the basis of the motion to dismiss: Hey, we didn’t take any plot - and not really any characters - it’s just in the Star Trek Universe, and you can’t win unless you show that actual characters or plot were taken. That is actually not an accurate statement of the law, and the Axanar folks lost because Paramount was able, in its amended complaint, to provide a long list of various elements from the universe that were being copied."

Okay. So let's get really honest about Axanar and why it, as opposed to the many other well-produced Star Trek fan films was the one that tipped the scales. A lot of sites (including ours) have flirted with the idea that money was a factor here. And while, certainly, the fact that Axanar was raising money to build and rent studios that would be used for other projects could be considered morally questionable by those who donated, that doesn't mean Paramount or CBS cared much about that.

No, I think that, after reporting on Axanar for years (and linking to many other Star Trek fan films) this comes down to a matter of competition. Never before Axanar did a Star Trek fan project get such attention from fans. And, morever, never before was the phrase "the real Star Trek" used so frequently by fans to describe something that, frankly, is NOT the real Star Trek. Every article I have written on this subject has been met with comments from countless fans saying they believe Axanar is the true continuation of Trek and that they would rather contribute towards its success than ever see a Kelvin universe Trek movie again.

I don't know if you noticed, but Star Trek Beyond made over $100 million less in worldwide revenue than its predecessor, Star Trek Into Darkness. Now this was a rough summer for many franchises, but considering that Axanar was something Star Trek Beyond producer and directors J.J. Abrams and Justin Lin had to publicly address speaks to the influence Axanar was having on Paramount's branding of Star Trek.

Couple that with CBS's looming new series, Star Trek: Discovery, and the most likely truth is glaringly obvious -- Axanar was heavily impacting Star Trek's official branding. Whether that is Paramount and CBS's fault, the fans' fault, Axanar's fault, or your great aunt Petunia's fault I'll leave for you to judge. But the fact remains that this fan film was seriously occupying the space that the official films and series were meant to.

So -- what does this mean for fan fiction? Honestly, if you look at all the court cases that have come and gone already, I think the answer is "not much." Some people think Axanar ruined fan films, but I very much doubt that. Frankly, with Star Trek: Discovery on the way, CBS and Paramount were going to be clamping down on fan films for the Trek brand regardless. Both companies were always within their rights to at least attempt litigation, even against fan films that made no money at all. And so, as is so often the case with life, it's all in the timing.

But the good news is that your pet projects, brief films, stories, fan comics, slash, and all the other forms fan works usually take will almost certainly remain untouched by CBS and Paramount. Because going after everyone isn't worth their time and money. And someday, maybe not even so far from today, it won't be worth it to them to be quite so strict with fan films. The pendulum swings one way, friends, and so it must inevitably swing back in the other.

If you're like me and you caught a case of the copyright bug, David Kluft has written tons about Star Trek. I would recommend this piece, that goes over some of the weirdest, the funniest, and the most fascinating cases related to Star Trek.

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