Fan Fiction Features: The Film Industry’s Final Frontier?

For most creators, gaining adoring fans is one of their chief goals. Perhaps the most adoring fans are those who are so inspired by creators’ works, that they attempt to continue the storylines through fan fiction.

Merriam-Webster’s online dictionary characterizes fan fiction as fan-written stories involving popular characters, often posted online, but fan fiction predates the Internet. Just one year after the 1966 television debut of popular science fiction series Star Trek, fans began producing fanzines, which included fan-generated storylines and artwork. Through fanzines and newsletters, “Trekkies” across the globe could communicate and share their love of the series.

While fan fiction is not a new phenomenon, enterprising consumers turned creators in today’s hyper-technological and hyper-social world have raised the stakes when it comes to fan fiction’s reach. Several websites are devoted to hosting such content. In some instances, fan fiction has become so popular, that it has spawned new creative series. The erotic Fifty Shades of Grey series has its roots in fan fiction, based on the young adult, vampire-themed Twilight series. Fifty Shades author E.L. James, originally posted Twilight-inspired content on FanFiction.net under the title Master of the Universe. James’ content even referenced Twilight characters and storylines, while incorporating erotic themes. After gaining significant traction and popularity, James stripped away Twilight elements, rebranded the series as Fifty Shades, and repackaged the content for e-book and hardcopy publishing. Over 125 million books in the trilogy have been sold. The first film based on the series grossed nearly $571 million.

Live and Let Live

While creators have largely taken a laissez faire stance, that does not mean fan fiction is without copyright implications.

The Copyright Act grants exclusive rights to authors to create derivative works, works based on preexisting works—books, movies, plays, etc.—that have been recast, transformed, or adapted. Some argue fan fiction constitutes an unauthorized derivative work. Others argue fan fiction is permissible fair use.

Independent film company, Axanar Productions is part of the latter group. Axanar is the brainchild of Trekkies who came together to produce professional-quality films based on Star Trek.

Axanar describes itself as “a fan-supported, not-for-profit endeavor,” and one of the resources it has used is crowd-funding. Axanar raised over $730,000 from two Kickstarter campaigns in 2014. It used part of those funds to produce Prelude to Axanar, a short mockumentary following a storyline from the original Star Trek series, and uploaded the film to YouTube. The remaining funds were used to rent and renovate a facility into a soundstage, Ares Studios, its base of operations for shooting Axanar, a feature-length fan fiction film.

In a third campaign via Indiegogo in July 2015, the company raised $574,434 to fund part of its production. The Axanar plot is a prequel, set 21 years before the events in the original series episode “Where no Man Has Gone Before.

In its Indiegogo pitch video, Alec Peters, the project’s creator and executive producer, describes Axanar as “the first independent Star Trek film.” Peters explains that while CBS owns the rights to Star Trek, the company “graciously” allows Axanar Productions and others to make Star Trek films as long as they do not profit from these productions.

CBS and Paramount Pictures say otherwise. The companies filed a federal lawsuit against Peters and Axanar in the Central District of California, on December 29, 2015, alleging copyright infringement from the defendants’ unauthorized derivative works.

The complaint alleges the films use “innumerable copyrighted elements” from the series, including “settings, characters, species, and themes,” and that even Axanar concedes it is not licensed by either CBS or Paramount. The plaintiffs seek statutory damages for willful infringement, which amounts up to $150,000 for each act of infringement.

In its motion to dismiss filed February 22, 2016, Axanar contends the plaintiffs have failed to satisfy minimum pleadings requirements by not specifying which copyrights have been infringed and which entity has an interest in those particular copyrights. Axanar also argues the lawsuit is premature as to its feature film, because it has not been completed. As for the mockumentary, Prelude to Axanar, the production company contends it would be able to demonstrate lack of substantial similarity, fair use, and de minimis use. Axanar emphasizes the plaintiffs did not allege that the defendants plan to profit from the feature film, nor did they allege they were harmed by the mockumentary, which never turned a profit.

It is only a matter of time before the parties boldly go into court to determine whether the Axanar project will be short-lived or prosper.

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