(800) 594-4480

Keep it Legal Blog

Comic-Con Preview – Fan Films and Fair Use

This is a preview of the presentation I’ll be giving at this week’s San Diego Comic-Con. If you’re attending Comic-Con, feel free to join us at Comic Book Law School 303: What Comes Next, Saturday, 7/23/16, 10:30a.m. – 12:00p.m., Room: 30CDE. You will need a Comic-Con pass to attend the panel.

A “fan film” is a movie made by fans of an existing entertainment property. Fan films go back to at least the 1920s, when there was a fan film made based on the Our Gang property called “Anderson’s Own Gang.” But fan films have grown more numerous and sophisticated in recent years, thanks to the easy availability of filmmaking equipment, from iPhones to professional level cameras, along with the explosion of homemade films driven by YouTube.

The subject of fan films recently became big news thanks to Star Trek. A group of Trek fans have been working to create an unauthorized prequel film to be titled Axanar. Paramount, the owner of the official Star Trek franchise (along with CBS), filed a lawsuit alleging copyright infringement. Click here to read my February 2016 blog post about the Axanar case.

The Axanar producers tried a few novel arguments, including one that claimed that they were unable to determine exactly which copyrights they may have infringed. Paramount had claimed that the producers had infringed “thousands” of copyrights. The producers were essentially challenging Paramount to explain how the whole messy Star Trek universe ties together. Fans of Star Trek know that 50 years worth of TV shows, movies, books, comics, and other media don’t necessarily fit neatly into a clear fictional timeline.

But of course, that’s not really the point. Based on a review of the Axanar prelude film, conveniently titled Prelude to Axanar, it’s clear that the costumes, sets, makeup, and spaceship design were all intended to suggest that they’re part of the Star Trek universe.

A basic understanding of copyright law suggests that you can have an effectively unlimited number of “derivative works” that all flow from one original work. The original work may be, for example, the script for the original Star Trek pilot episode. The subsequent pilot, and every work of media that followed thereafter, are all derivative works.

An interesting side issue in this case arose when the Language Creation Society filed an amicus brief claiming that the Klingon language is not protected by copyright.

There was a lot of publicity about this case, most of which was negative for Paramount. J.J. Abrams announced that Paramount and CBS had agreed to drop the Axanar case and issue fan film guidelines. Those guidelines can be read here.

The 8 point guidelines include several rules that are fairly restrictive. These include:

The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.

The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.

The rules also state that fan productions must be non-commercial and can’t be distributed on physical media such as DVDs, and must be family-friendly.

Axanar would not satisfy these rules. It was intended to be a feature-length film with several professional actors. The producers have indicated that their plans are moving forward, so the lawsuit is ongoing.

It will be interesting to see if the Star Trek rules become a sort of industry standard, or if every entertainment property develops its own set of fan film policies. It may all depend on whether the Axanar case goes against Paramount (in the courts of law and public opinion).

If you’re looking to make fan films, start by researching whether the owner of the underlying property has an official policy out there. Not all properties are equal. For example, Star Wars has had an official fan film award dating back to 2002.

If the property you want to use doesn’t have official guidelines, or if you don’t want to follow those guidelines, it’s time to brush up on fair use law as it pertains to both copyright and trademarks.

Click here for an intro to U.S. copyright fair use

Always be careful to make it clear that this is not an officially licensed film. And beware…fair use is a complicated area of law, and there is a lot of misleading information available online. So you may want to consult an attorney before you get yourself into trouble.


Want to receive all the latest updates? Contact me today

Click Here

Receive updates from the Keep it Legal blog

I’m glad you enjoy the blog, and I’d love to keep you updated with all the latest legal tips and business law strategy news.

Enter your name and email below, and we’ll be in touch!

« More About Fan Films: Futurama What Does Brexit Mean for Trademarks? »