The LIEF Erikson

Tuesday, February 07, 2006

Kirok's View: Copyright

Professionally produced entertainment is an expensive business, there is no denying it. Paramount have invested a considerable amount of their stockholders money in the Star Trek TV series and movies and as a corporate entity they have a legal and ethical responsibility to strive to return the maximum profit for that investment.

Sometimes we loose sight of the scope of the cash outlay involved, until we read estimates of $3 million per episode for Enterprise! How could it possibly cost so much? The simple fact of the matter is that it takes money to produce quality TV & movie productions, lots and lots of money. Somebody has to pay the salaries of the actors, directors and film crew, pay for the materials to create the sets and maintain the special effects and wardrobe departments, pay the licensing fees, insurance premiums and completion bonds.

Paramount, or to be more precise Viacom which is the parent company, has at different times aggressively defended their copyrights or taken a lenient view towards fan productions.

For example, in 1996, Viacom went on the attack, sending out a wave of cease-and-desist letters to webmasters of Star Trek fan sites which had copyrighted film clips, sounds, or insignias. Under threat of legal action, many Trekkers shut down, leaving behind scanned copies of letters sent by Viacom. Shortly afterwards Paramount, a division of Viacom and owner of all things Star Trek, launched a Web site you had to subscribe to, Star Trek: Continuum, on July 10. It is surmised that this was to prepare the public for their next film, Star Trek: First Contact. A similar crop of C&D's in 1997 seemed to signal that Viacom was targeting sites that "are selling ads, collecting fees, selling illegal merchandise or posting copyrighted materials" according to the then president of Paramount Digital Entertainment David Wertheimer.

Viacom's actions have not been without their detractors though. Willard Uncapher saw it as flawed marketing and a poor appreciation of the realities and possibilities of the internet. In an article in Wired News, Jennifer Granick, a San Francisco criminal lawyer who went on to champion cyber rights, felt that the unofficial sites should be covered by the "fair use'' doctrine in U.S. copyright law. In a 1998 article Howard Besser, an Assoc. Professor at UCLA saw it as an example of "the content industry … exploiting concerns over digitisation and attempting to reshape the law by strengthening protection for copyrightsholders and weakening public rights to access and use material."

The more astute amongst my readers who check sources (always a good idea!) will perhaps have noticed that all this refers to fan fiction. "FanFic" has born the brunt of the debate about balancing the copyright owner's legal rights against the fan's use of that material in their works. This forms a precedent on which the relationship between Viacom and all fan production groups can be built. In legal terms there is no basic difference between someone who uses Viacom copyrighted material, say the design of a phaser, to make a card model of it, use the name in a fan fiction or show it in a fan film. The only difference is a matter of scale. Paramount is not the heartless demon that some paint it to be!

Paramount's official stance seems to be that they have not heard of any fan films when asked, turning Nelson's classic blind eye to the problem. There have only been a few substantiated cases where Viacom has clashed with a fan film. Robbie Amper's first two episodes of "Starship Highlander" are no longer available through legitimate channels because of this and even Star Trek: New Voyages got a C&D once. However you will note that in both cases negotiation and compromise made it possible for the fan groups to continue! Paramount is not the heartless demon that some would paint it as.

There has been no official statement that fan film producers can use to show that they have any legitimate right to use Paramount's copyrights. There has been an unsubstantiated mention of a press release from Viacom regarding fan films earlier this year but this has never been verified. Basically producers have followed a self-imposed code of conduct that has become a defacto standard.

  • Thou shalt not accept any money in case it is construed as an attempt to make a profit
  • Thou shalt acknowledge that Viacom holds the copyrights to all things Star Trek.
  • Thy film should be available for free and not performed in public for profit

The professional media establishment is far more interested in stamping out copyright piracy - the exact copying and distribution of professionally produced films and TV series. Make no bones about it, buying or downloading bootleg movies or TV episodes is theft and it is a major cause of loss of revenue for the studios. It is a multi-million dollar "cottage-industry" and anyone who knowingly supports it is not a Trek fan they're just a damn fool! The simple fact of the matter is that the more profit Paramount make from Trek, the more chance there is that they will make more series and movies.

However what we are talking about here is not video piracy. Fan films are a type of unauthorised "derivative work", they are productions that use Trek designs and lore as a jumping off point or a framework for entirely new and original tales. Fan producers freely acknowledge that the trademarks and copyrights that they mention in their works belong to Paramount and because of this they make no attempt to profit from their work. Currently fan films are walking a tightrope between their oft-stated knowledge and respect for Viacom's status as the copyright owner and their desire to use those copyrighted materials in their films. There is considerable conjecture as to the future of fan movies. Pessimists expect the worst: that Paramount will exercise "the letter of the law" as regards to copyright and serve Cease and Desist orders on all fan productions. Optimists believe that, as long as they continue to play by the rules, there is no reason for Paramount not to continue to tolerate them.

To me, the overriding question when considering Paramounts response and relationship to the growing number of fan productions should be - Is this a legal problem or a commercial problem? I mean, are they compelled by law to take a certain course of action or can they respond in a manner that best suits their commercial needs. To put it bluntly: are the lawyers in charge or are the managers?

Let's view this as an ethical question. What is the purpose of the copyright laws? To assert the rights of ownership by the professional producers - Paramount - over their works: the characters, designs, scripts, music … etc. These rights of ownership usually mean getting a fair monetary return by the producers and distributors for their investment but it can also include the rights of the creators (scriptwriters, composers etc) to be identified as the authors of their work. This protects against plagiarism and assumes that they should have a certain creative control over the use that others might make of their work. The threat of litigation is the force that the law uses to enforce the owner's rights when they are compromised.

Fan film producers have no problem with any of this. They acknowledge the commercial right of ownership that Paramount has and there is no attempt to divert any money away from them. From an artistic standpoint, they not only acknowledge the work of the writers and directors, they venerate them! Remember we are talking about fans here! Where is the need for punitive action here?

I would go so far as to say that fan productions are doing the opposite. My contention is that they are maintaining Paramount's revenue by keeping interest alive in the Trek franchise. In fact they are doing even more - they are an active force for increasing Paramount's revenue on the general and the specific level. Consider …

  • An older fan is consumed with nostalgia for the Trek movie era after watching a fan film. He is likely to rent or buy one of the new digitally enhanced DVDs. A profit for Viacom.
  • A teenage fan sees a machinima made from "ST: Elite Force II", he buys a copy to try out one of the fan-made Mods that are maintaining if not extending the genre's foothold in the gaming world. When the new Star Trek Online game starts he is likely to be one of the first to try it. A profit for the licensee and Viacom.
  • A kid makes a card model of a phaser and wants the costume to go with it, his Mum might be a good enough seamstress to make one but she is more likely to buy one. A profit for the licensee and Viacom.
  • Once our kid and his friends get involved on their role-play they want more and better props, they could make them but they are more likely to buy them. A profit for the licensee and Viacom.
  • If those kids knew that there was a thriving fan film culture out there for them to show any videos that they might make, they are more likely to invest more money in costumes and props. This is exactly what is happening with Star Wars right now! This is exactly what Robert Mueller and his friends on "Star Trek: Mystery Area" are doing.

Look at it the other way around - is a viewer likely to watch a fan film and say: "I don't need to rent or buy any more Star Trek on DVD. This is good enough for me"? I have the greatest respect for fan films and their creators but let's get real about this! Fan films might achieve a "resonance" of the greatness of the original Star Trek TV episodes or movies but they can never be more than an "echo" of the original "chord". Aspects of a fan film can surpass the original. A mainstream production company could probably never take Hidden Frontier's bold stance on gays in Trek and the production values of Exeter and New Voyages are equal to if not better than the original seasons.

The question is: will this situation, continue? Could Viacom be a sleeping giant who might awaken and destroy the fan films? I asked this question of Jack Marshal, at that time an Executive Producer of New Voyages, in an interview for Starfleet International's "Communique" last June.

I suppose they could, but why would they? Believe it or not, Paramount is very aware of it's Trek fanbase and the last thing they want to do is have another web crusade like they did in the 90's where they shut people's websites down and alienated the fans. We've had some preliminary talks with them regarding licensing and before that had been in constant contact with Viacom's legal epartment and know that if we follow the groundwork they've laid for us, we'll be ok. … our success has been a double edged sword. But a danger of getting shut down? I think it's nil as long as we follow the guidelines they've set out for us.
Its the old "Golden Rule" - Respect: You get what you give. You respect Viacom's commercial need to make a profit from their merchandise and intellectual properties and they will respect the fan production groups right to exist. If one side or the other breaks the gentlemen's agreement that exists then they will loose the respect of the other parties, the balance will be lost and we all loose.


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