I'm not sure how I missed this happening over a month ago, but it seems that CBS and Paramount have decided to sue Axanar Productions for the Star Trek: Axanar fan film they've been producing.
"The Axanar Works infringe Plaintiffs’ works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes," states the complaint.Well, yeah. Duh. We all knew that. But there's a problem for CBS/Paramount, because they've allowed a legal gray area to form around these fan productions for some time.
Can they sue Axanar for copyright infringement when they didn't go after any of the previous fan productions? A quick Wikipedia search turns up 13 other productions, some (like Phase II) with multiple full episodes produced.
- Star Trek: Of Gods and Men
- Star Trek: Renegades
- Star Trek: Antyllus
- Starship Exeter
- Starship Farragut
- Star Trek Continues
- Star Trek: Dark Armada
- Star Trek: Hidden Frontier
- Star Trek: Intrepid
- Star Trek: Odyssey
- Star Trek: Phase II (formerly known as Star Trek: New Voyages)
- Star Trek: Phoenix
- Star Trek: Progeny
While Axanar is definitely in violation of CBS/Paramount's copyright and trademarks, so are these other fan productions. And it's established precedent in copyright/trademark law that your rights are only protected if you actively defend them. Which is what prompted Games Workshop to go after "Spots The Space Marine" and Chapterhouse Studios, if you remember. Because you can't pick and choose who you want to defend your rights against. You have to shut everyone down or nobody.
The smart play would have been to publish clear fan-production guidelines (instead of verbal semi-agreements) and require a nominal $1 licensing fee and a signed contract with CBS/Paramount. But they didn't do that. Instead they ignored the fan productions until one of them got big enough to be a real worry. In that regard, GW is actually ahead, because they've published clear hobbyist rules/miniature guidelines for some time now that spell out exactly what you're allowed to do and not do with what they claim to be their IP.
So given that CBS/Paramount have never enforced their copyrights & trademarks on these other infringements, and have never issued formal guidelines or signed agreements for what fan-films may or may not do, I think they actually stand a decent chance of losing this case if Axanar Productions decides to defend, and they can get help from someone like the Electronic Frontier Foundation (who famously defended Chapterhouse Studios). The EFF has certain political goals, and widening "fair use" rights in the face of de-facto perma-copyright might well be right up their alley.
Now, did Axanar Productions overstep? Did they taunt CBS/Paramount about how their film would be better than the official Trek movies and upcoming TV show? Yep. They also bragged about how they would use some of the monies raised to set up a permanent studio for use by other productions. They also paid salaries and wages to producers, crew, and actors.
But "profiting" from infringement is not a cut and dry consideration when it comes to copyright law. It's just one consideration of many. And who's to say whether a studio originally set up to produce a fan film must be torn down afterward? Or whether the computers and film equipment bought with production money can be kept afterward? Or whether it's just the production company or the people that work for it that must not profit from the infringement as a consideration towards fair use?
Those are some very decent questions that deserve some legally-binding answers.
Personally, I would like to see a precedent set that widens and formalizes "fair use" rights in the context of non-profit works that use protected IP. If copyright is going to last effectively forever (by being extended every time Mickey Mouse would become public-domain), then we need to lessen the stranglehold that it places on our culture by at least allowing independent non-profit expressions of works that have become as deeply ingrained in our culture as Star Trek has.
I'll close with some nice video from the Axanar production:
Note that the first video I linked quickly got switched to 'private'. We'll see how long this link lasts. :)