Crowdfunding May Accept Fair Purpose Where It Has Never Gone Before

On Dec 29, 2015, Paramount Pictures together with CBS Studios project which is equally good crowdfunded together with produced past times a non-profit. The first New Voyage episode was released inwards 2004 together with the projection is silent going strong, without apparent line of piece of job organisation from CBS together with Paramount.

In an article published inwards 1997, Professor Rebecca Tushnet traces “[f]an fiction together with organized media fandom… to the minute flavor of Star Trek inwards 1967,” together with cites a much before representative of fan fiction when Lord Tennyson imagined what happened side past times side to Ulysses.

Under Section 106(2) of the Copyright Act, the copyright possessor has the exclusive correct to cook derivative works. There is no uncertainty that fan fiction is derivative work, that is, “a run based upon i or to a greater extent than preexisting works.” Is fan fiction copyright infringement?

 

Copyright Infringement

Plaintiff inwards a copyright infringement arrange must testify ownership of the copyright together with must equally good testify actual copying. Copying may hold upwards proven past times circumstantial evidence past times showing access to the protected run together with substantial similarity.

Plaintiffs claimed they ain copyrights inwards the Star Trek tv set serial together with motility pictures. However, Defendants argued that the Complaint “lump[s] both Plaintiffs together together with look to allege collective ownership of all of the Star Trek [c]opyrighted [w]orks,” fifty-fifty though Plaintiffs mention a copyright assignment from Paramount to CBS, together with “fail[ed] to specify which of those copyrights Defendants direct keep allegedly infringed.”

Defendant, of course, had access to Star Trek. But Plaintiff must equally good testify substantial similarity betwixt the master copy together with the derivative work. The Ninth Circuit uses the extrinsic/intrinsic exam created inwards the Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp. case. The extrinsic text is thence called “because it depends non on the responses of the trier of fact, but on specific criteria which tin sack hold upwards listed together with analyzed. Such criteria include the type of artwork involved, the materials used, the dependent land matter, together with the setting for the subject. Since it is an extrinsic test, analytic dissection together with skillful testimony are appropriate” (Sid & Marty Krofft at 1164).

The Complaint claims that Defendant’s curt painting present is substantially similar to the Star Trek works, listing similar characters, the utilisation of the Federation, similar costumes, sets, props, together with logos, together with farther claims that the “feel together with the mood” of Defendant’s run is similar to the master copy works.

It is interesting to regime notation that the Star Trek New Voyages projection has equally good replicated but about sets of the master copy series, such equally the transporter room, the sick bay together with the dyad of the Starship Enterprise, together with used Star Trek characters together with costumes, without having been sued for copyright infringement.

Possible Defense

Plaintiffs struggle that the Axanar curt painting present is neither a parody nor fair use. Defendants calls it a “short mockumentary.” Could the fair utilisation defence hold upwards successful? Defendants did non address the issue, argument instead that the claim is unripe.

The 4 fair utilisation factors are 1) role together with grapheme of the use, 2) nature of the copyrighted work, 3) amount together with substantiality taken, together with 4) resultant of the utilisation upon the potential market.

The role together with the grapheme of the utilisation division question includes whether the utilisation is commercial. Defendants explains on their website that Axanar is non licensed past times Paramount together with CBS, but that it is an “independent projection that uses the intellectual belongings of CBS nether the provision that Axanar is totally non-commercial. That agency nosotros tin sack never accuse for anything featuring their marks or intellectual belongings together with nosotros volition never sell the movie, DVD/Blu-ray copies, T-shirts, or anything which uses CBS owned marks or intellectual property.” In a crowdfunding pitch video , Alec Peters is heard explaining that CBS has “graciously allowed” that he together with others brand Star Trek movies equally long equally they hit non turn a profit from it, sell anything amongst ‘Star Trek’ on it, together with that they “have to observe the best even out - telling tradition of Star Trek.”

Indeed, this is what Star Trek New Voyages has been doing for years. Defendants claim inwards their Motion that Prelude to Axanar is a ‘mockumentary,’ together with indeed the video narrates the battle of Axanar using a format favored past times the History Channel, equally explained on Defendants’ site.

As for the nature of the copyrighted work, at that topographic point is picayune uncertainty that the declaration would larn inwards Plaintiff’s favor, equally the tv set serial together with the movies are highly creative. The 3rd factor, the amount taken, could hold upwards inwards Plaintiffs or Defendant’s favor. It is difficult to say without engaging inwards a consummate analysis.

As for the resultant upon the potential market, it could hold upwards argued that it is truly beneficial for Plaintiffs, non detrimental, together with thence the quaternary division could hold upwards inwards favor of Defendants. Professor Tushnet noted inwards her article on fan fiction that the corking success of the official Star Trek derivative plant co-existed amongst numerous Star Trek fan fiction, together with that this “provides strong evidence against the claim that fan fiction fills the same marketplace niche equally official fiction” (p.672). Could the same hold upwards argued for the Axanar painting present if it is e'er produced?

This Case May Very Well Stretch the Limits of Fair Use

This representative is interesting equally it shows that crowdfunded User-Generated Content could stretch the limits of fair use. It seems that CBS together with Paramount direct keep tolerated Star Trek fan fiction for years, agreement that what a copyright attorney may regard equally unauthorized derivative run is indeed valuable user-generated marketing together with promotional content.

But written fan fiction, fifty-fifty if published online, may non supercede the experience of watching a Star Trek painting present or tv set show. Crowdfunding has allowed the Axanar projection to hold upwards built equally a non-profit project, together with it would non hold upwards shown inwards painting present theaters. But it could silent compete on the marketplace amongst official Star Trek movies. Watching the Axanar curt painting present was quite entertaining, together with I hold off the futurity painting present to hold upwards equally well.

Producing such fan movies is non possible without crowdfunding. As to a greater extent than fan fiction is probable to hold upwards financed this way inwards the future, it volition hold upwards interesting to meet the resultant of this practise on fair use, although I hit promise fair utilisation volition alive long together with prosper.

Image of Star Trek figurines is courtesy of Flickr user Kevin Dooley nether a CC BY 2.0 license.

Image of Spock beingness watched is courtesy of Flickr user JD Hancock nether a CC BY 2.0 license.