— Jessica Gutierrez Alm, Attorney

Fanfiction refers to the art of creating fiction using another author’s characters or universe.  I was first introduced to the concept in high school, when a friend began writing Harry Potter fanfiction.  (Side note: this is not one of those situations where the “friend” is actually me.)  My friend used the same well-known characters—Harry, Hermione, Ron, etc.—and details of the world created by J.K. Rowling, including Hogwarts, muggles, the Ministry of Magic, and Diagon Alley, to create an otherwise original plot.

Fanfiction is typically shared among fellow enthusiasts, and rarely results in publication, movie deals, or notable profits.  For this reason, intellectual property rights are often not enforced against fanfiction creators, which has led many to mistakenly believe that fanfiction is a categorically protected use.

While IP rights holders typically tolerate—and even encourage—fanfiction, one recent fan-sourced plotline caught the attention of CBS and Paramount.  In 2014, Axanar Productions launched a crowdfunding campaign to produce a “feature-quality Star Trek film,” entitled “Axanar.”  The campaign raised over $1 million through combined Kickstarter and Indiegogo campaigns.  To promote the campaign, Axanar Productions released a 20-minute preview entitled “Prelude to Axanar.”  And it’s awesome.

Whether it was the impressive production value, the appearance of actor Richard Hatch from Battlestar Galactica, or the overwhelmingly successful crowdfunding campaign, Axanar Productions caught the attention of the makers of Star Trek.

In late 2015, CBS and Paramount sued Axanar Productions for copyright infringement.  The amended complaint, summarized here by Ars Technica, alleges 57 instances of copyright infringement divided into categories, including characters, races, costumes, settings, logos, plot points, dialogue, and theme.  It’s pretty clear that both the Prelude to Axanar, and the planned Axanar film, are intentionally based on the Star Trek universe and incorporate at least some copyrightable Star Trek elements.

Axanar takes place 20 years prior to the start of the Star Trek Original Series (i.e., the William Shatner series).  At least one episode of the Original Series includes characters discussing the “Battle of Axanar,” in which Garth of Izar was a heroic victor.  According to the Kickstarter campaign, “Axanar tells the story of Garth and his crew during the Four Years War, the war with the Klingon Empire that almost tore the Federation apart.  Garth’s victory at Axanar solidified the Federation and allowed it to become the entity we know in Kirk’s time.”  The preview, Prelude to Axanar, is a documentary-style telling of the Axanar battle by the characters themselves, including Garth of Izar.

Axanar Productions appears to be relying primarily on a defense of fair use.  The fair use defense considers four factors in determining whether a work that technically infringes a copyright is excused nonetheless.  The factors include: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the copyrighted work used; and (4) the effect of the use on the potential market for the copyrighted work.  Some recognized forms of fair use are parody, criticism, and journalism.  While perhaps not a parody or criticism, fanfiction does seem potentially defensible under fair use, due at least to the transformative nature of the work.  That is, Axanar Productions does not seek to supplant the existing Star Trek films, books or television series, but rather to create an entirely new work with their own creative process.

A California federal district court disagreed with Axanar Productions’s fair use defense.  Ruling on motions for summary judgment earlier this month, a federal judge concluded that Axanar and Prelude to Axanar are not protected under fair use.  The court found all factors of the fair use analysis weighed in favor of CBS and Paramount.  Regarding the effect on the plaintiffs’ market, the court held that the Axanar films take the place of stories that the plaintiffs might want to create in the future or might want to license.  As David Post Points out in the Volokh Conspiracy, this results in somewhat circular reasoning—albeit reasoning supported by precedent.  Because others would be willing to pay a licensing fee to make these works, they’re not fair use.  But suggesting that others would be willing to pay a licensing fee presumes that the works are not fair use to begin with.  The case is set to begin trial on January 31st to decide the issues of “substantial similarity” between the works and willful infringement.

What do you think? Is fanfiction permissible fair use?  Should it be?  Is this another situation where a culture of information sharing and technology is at odds with antiquated IP laws?  (See Napster.)  Does it depend on profit?  (Axanar Productions maintains that it is a nonprofit organization.)  Does it depend on the funding and/or sophistication of the infringer?  And in that vein, who qualifies as a “fan?”  If Disney were to create Axanar, would that be fair use?

Notably, CBS and Paramount recently released some “Fan Films” guidelines, promising not to enforce their IP if their very specific guidelines are followed.