Fan fiction is fiction created by fans of another work, about characters or settings from that work. For example, a fan of the Harry Potter series might write a short story based on the
Harry Potter character but with a whole new plot.
Fan films are, as you might imagine, the same concept applied to film.
Often, the creators of the original work view fan-created work as a compliment and support it, at least in theory. They may be upset by particular versions, for example, those that are sexually explicit when the underlying work is for children.
Other times, the original creators strictly enforce their intellectual property rights. In that situation, the person who developed the fan work might argue that it is a “fair use,” not an infringement.
The problem with relying on the fair use laws is that, in many cases, it’s not easy to determine whether a particular use is a fair one.
The term “fair use” isn’t even defined by the copyright statute. Rather, the statute says that in order to determine whether copying is a fair use, at least the following four factors must be considered:
1. The nature of the original work;
2. The nature and purpose of the use, including whether it is for commercial use or for nonprofit educational purposes and whether the use is “transformative” (adding something new);
3. The amount and substantiality of the portion used in relation to the original work as a whole; and
4. The effect the copying would have on the market for, or value of, the original work.
As you can see, there are no “bright line” rules defining fair use. Rather, a court must weigh various factors on a case-by-case basis.
A recent case involved Star Trek fan films Prelude to Axanar and Axanar. Earlier this year, Axanar Productions, creator of the films, reached a settlement with CBS and Paramount Pictures over copyright infringement claims.
After the success of its short film Prelude to Axanar, Axanar Productions raised more than a million dollars through crowdfunding to fund the feature length film, which is a prequel to the original Star Trek series
CBS and Paramount filed a lawsuit against Axanar Productions, claiming the films infringe their rights in the Klingon language and numerous elements of Star Trek, including its settings, species, characters, and themes.
After a judge ruled that the Axanar films have “objective substantial similarity” to the Star Trek works, the parties settled their dispute.
As part of the settlement, Axanar Productions publicly acknowledged that the films it created were not approved by Paramount or CBS.
CBS and Paramount have agreed to allow Axanar to distribute Prelude to Axanar on YouTube and to release two new 15-minute movies on YouTube, instead of the planned full-length film. All of the films must appear without ads.
To help avoid similar problems in the future, CBS and Paramount have released guidelines that are intended to protect their intellectual property rights while encouraging fan films.
Among other things, the guidelines prohibit use of “Star Trek” in the title and limit the length of fan films to 15 minutes for a single story or no more than two segments, not to exceed 30 minutes total.
Please feel free to contact us if you have any questions about protecting your intellectual property or creating fan fiction/films.
