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.

~(>!<)~ Notable Fan Films?

Wikipedia is an internet phenomenon. The idea is that it is an encyclopedia written, not by experts, but by ordinary folk such as you or I. The very name says it all: "What I Know Is". It is meant to be an accumulation of the personal knowledge and experience of a wide range of individuals. It is "peer reviewed" in that the equals of the author judge it for accuracy. Unfortunately, like the horse designed by a committee, it does not always end up looking like our original idea.

Over the past months I've been involved in an attempt to compile an encyclopedic article on the Star Trek fan film scene. My original idea was to make it comprehensive and all inclusive, from the largest and most complex projects to the smallest concept groups. Others have a different idea, that it should be a summary article that includes only the most notable productions. This sounds simple enough, but you are faced with a knotty decision: What do you put in and leave out? What are your criteria for selection?

Even Wikipedia is open to interpretation as regards to what should and should not be allowed in. Wikipedia has seemingly given up on trying to define what it is but has (quite reasonably) an extensive list of things that it is not. On the one hand they say that it is not a paper encyclopedia and thus has no limit to the number or (within reason) size of articles, then on the other hand they make an issue of notability.

I have a definate problem with the idea of using the concept of notability to say what stays and what goes, not least of which is the fact that "notability is not formal policy (and indeed the whole concept of notability is contentious)". What is more, the definition of notability is so subjective that it is virtually impossible for personal bias not to play a part. The only objective, quantifiable criteria that have been suggested are Google hits and IMDB moviemeter ratings, both of which measure popularity rather than notability.

Popularity, even critical acclaim, should not be the only criteria for notability. Read any hundred word summary of Star Trek and the odds are it will mention the fact that it had the first interracial kiss on TV. Yet how many would be able to give you the name of the episode? It is by no means the most popular episode, any number have been given that accolade although I reckon it must be a toss-up between "The Naked Time" and "The Trouble with Tribbles". If we were to choose the most popular by critical acclaim, it would probably have to be "The City At the Edge Of Tomorrow" which was awarded the 1968 Hugo Award for Best Dramatic Presentation.

Even if we accept Google and IMDB as a ratings system (more, much more, on this later), the values you end up with are comparative rather than absolute. I mean how many Google hits makes a production "notable" or a "major project"? To illustrate, the productions which have been culled from the article so far fall into the following broad groupings…

• A few entries were for fan films that could not be found mentioned anywhere else on the internet. Anything listed needs to be independently verified otherwise there is a possibility of inaccuracy - accidental or on purpose! [cough:entfan!:cough]
  
• A second group encompasses the "Concept groups" who might only be as far as getting a script together and investigating resources - not seriously in pre-production, even though they may be seriously working towards starting production.
  
• Pre-production groups, which have not started filming yet but are in the process of actively preparing resources for production are constantly described as "vaporware", even though they might be auditioning cast, building props, creating cgi, even filming trailers.
  
• Most contentious of all are the fan film productions which are simply not popular because they are not well known. They might only mentioned on a single web page that has no free download link. This group includes mentions of fan films produced long ago in VHS that are not available in electronic form and might not be available at all now. The very existence of some of them has been doubted because they are not mentioned on the internet. Much as I love my 'net it is not the only repository of knowledge on the planet!
  

The first group is against Wikipedia rules and I have no problem with their being dropped. The others represent different stages of development of a fan film. In biological terms, it is easy to say when the pupae become the caterpillar, the caterpillar a larvae and the larvae a butterfly. The different stages of a fan film are much harder to define. I have used the following categories…

• Concept group - Investigating possibilities but no major commitment of resources or money.
  
• Pre-production - A group that shows an investment by casting, building, learning and testing.
  
• Post production - A group that has started or finished filming and is preparing the raw materials for final presentation.
  
• Fan film - A group that has a finished production available to the public.
  

I can understand dropping the concept groups from the Wikipedia article. They haven't committed themselves to production yet and it is the production of Trek fan films which is the subject of the article. I might even be able to understand dropping pre-production groups if the size of the article were an issue, however it's not. It has been said that Wikipedia is not a crystal ball, meaning that it should not be used to write about future happenings, in this case productions. This is the one and only concrete claim I can see that can be levelled at pre-production groups that is defensible.

The way I see it, this article is meant to be about fan films of the Trek genre which do not spring fully formed into the world like Venus on the half-shell! They are progressively built works that demand a massive investment of infrastructure and time - anything from months to 6 years! The fanchises that they build up along the way are a work in themselves which can include podcasts, trailers, webcomics, convention appearances and a massive web of inter-relationships, sharing personnel, props and experience.

Fan films are not a commodity like a loaf of bread that you pick up at the shops. They are a major investment of the lifeforces of the hundreds of people involved and to say that they have no place in Wikipedia is to say that Wikipedia is focussed only on commodities and not the social and cultural forces that have created them. Cut out the pre-production groups and you ignore a field of endeavour that is becoming a potent force in the fan world.

In my opinion this represents a departure from the whole principle that Star Trek fan films have been built on - films produced by fans for their own enjoyment and the enjoyment of their friends. Certainly everyone takes pride in their work and tries to create something to the very best of their abilities whether they are in front of the camera or behind it. However there has always been an element of respect on the Trek fan film forums whereby groups are non-competitive and supportive, rather than elitist and exclusive. Perhaps this hearkens back to Roddenberry's principle that Starfleet and the UFP are built on community or group efforts, cooperation rather than confrontation?

Indeed, my initial impulse is to stand toe to toe and argue that this fan film is more worthy of inclusion than that one is. However this leads to an insidious downward spiral because to show that one is better, I have to imply that the other is worse, that there is something lacking in it. I must make a subjective value judgement and if I win my case, although one group wins, another looses. I have chosen not to play this game for I feel that this leads, not to an equitable grouping, but to elitism.

By far the most distasteful aspect of this whole deal for me is the idea that notability is a popularity contest that is graded by using a rating system - Google & IMDB - and anything that is not notable is not worthy of inclusion. When did we start having an entrance exam for inclusion in the Trek fan film community? The next thing we'll be getting will be a scoreboard, grading fan films by their popularity.

For God's sake people, don't do this to us! We've just lost "Star Trek: Enterprise" and all professional Trek production has been put on hold because it didn't rate highly enough. Now you want to do the same thing to fan films? Are you nuts?

Who gives a dead dingoes donger about ratings?

I thought Trek fan films were supposed to be a free expression of our fandom. So you like The Original Series? You want to see more and you have a group of like-minded friends? Go for it! Do it! You will have to search for the talents and develop the skills needed to make a film production - if you believe in your production enough to put your hard-earned cash on the line, I'm assuming you will want to make the effort to make it the best film you can. Beyond that, its nice to get accolades, perhaps you might want to show it at cons or in film festivals, perhaps you might do it again, but are you really worried if it isn't popular? You're doing it for yourself and those who enjoy TOS, if it doesn't come up to scratch on some ratings board outside TOS fans, Google, IMDB or Neillson, should you be bothered?
Mark my words, we're not talking about constructive criticism which is offered to improve your work here, we are talking about a ratings system that is trying to deny your work's existence as a Trek fan film!

Up to now the Trek fan film community has been supportive and non-judgemental. Smaller groups, some not even having their own website at times, have been welcomed onto the forums of the larger, more well established and respected groups - one of the top three of which I might point out is Exeter's "Subspace Forum" which was not deemed as notable as " Star Trek: The Pepsi Generation". Shouldn't Wikipedia reflect that? Isn't an encyclopedia supposed to reflect reality rather than change it? Why would any one want to change it?

I can only give you my opinion based upon what I have seen in my short time as a Trek fan production observer. It is up to you, the Trek fans and film-makers and, to a wider extent, SciFi fans in general to make your own decisions.

If Wikipedia is meant to be a reflection of reality, if it is going to be a true, authoritative work on the subject, it's going to have to report on all productions regardless of size or quality. I'm not suggesting equal mention for all, some need only be a linked name, but their position in the broad scheme of things needs to be acknowledged otherwise readers will get an unbalanced view of the field. When did we start making value judgements about which productions were "notable" enough to be called fan films?

I've got a bad feeling about this.