Axanar, CBS, and Intellectual Property: My View

Unless you've been living under a metaphorical rock – or don't care at all about IP issues, which is admittedly a fairly large number of people – you've probably heard of the Axanar-CBS lawsuit. Axanar is the title of a fan-produced Star Trek-based film, intended to show a portion of the TOS (The Original Series) universe history which was only alluded to in the actual series – the Battle of Axanar. The team producing Axanar had produced an extremely high-quality short as a sort of proof-of-concept, titled Prelude to Axanar. A Kickstarter for the production raised well over $600,000, and other sources of support brought the total to over a million dollars. The team selected cast members and created a script.

And then Paramount and CBS brought suit against them, alleging numerous intentional IP infringement violations.

Many of the articles produced by those supporting the Axanar crew tapdance around the allegations, or single out a few that actually have questionable elements (e.g., the Klingon language). There really isn't any doubt that Axanar infringes. They have repeatedly used "Star Trek" in their literature. They have used "Garth of Izar", who is a recognized character from a TOS episode, as well as "Axanar" itself which was mentioned. They presumably will have recognizable technology of the Trekverse in their production. The appearance of alien species such as Klingons is recognizably the same as that of the Trekverse. And so on and so forth.

The main defense of Axanar, in reality, isn't going to come from saying "We weren't infringing", because they manifestly are. It will have to come from pointing to numerous other fan productions which have not been given C&D letters or otherwise prosecuted.

This is actually a fairly strong argument when dealing with trademark, because in the US, there is still a large element of "you must prosecute any infringement you are aware of" in the law. Copyright no longer has that element, now that the US is signatory to the Berne convention. You can choose to sue, or not sue, infringers of copyright based on whether you consider it worthwhile to do so.

Axanar's problem is that it finally crossed a threshold of size and visibility, and according to some sources started paying people as professionals. This strongly argues for considering the production a professional one – and if your production is professional, it must meet the requirements for professional production that include "make sure you're licensed to produce this thing".

Many fan arguments seem, unfortunately, to echo a sort of entitlement- based logic: "We're the ones you make money from, so we actually own everything and can do anything we want with your stuff!". First of all, the "we're the ones you make money from" isn't precisely true, especially when discussing the hardcore fans that do things like produce fan-videos and large-scale fanfiction in general. That group makes up a very small fraction of the actual audience, especially the modern audience. I would be surprised if more than 5% of the overall Star Trek audience indulges in "fanac" of any significant sort more than very occasionally. While many of those will have a larger economic impact than the casual viewer (they'll buy more of the spinoff merchandise), not as much as one might think; plenty of those who don't do fan fiction, video, or art are still going to buy Trek figures, give books or posters to their kids, and so on.

So while it is true that the hardcore fans have some economic investment/influence on Trek as an industry, they do not have anything like the majority of that influence. The majority of people likely to view a new Star Trek movie, or TV show, aren't hardcore fans, and in fact that's not what Paramount/CBS is interested in, unless the "hardcore fans" numbered in the hundreds of millions. They want the broad audience. Thus alienating some relatively small number of hardcore fans in order to maintain control of their own – exceedingly valuable, in the multibillion-dollar range – intellectual property is a no-brainer.

Moreover, I don't really think fans taking that type of position are thinking it through consistently. Many of those who take that position would be incensed – to put it mildly – if their fanfics were plagiarized and used without their permission. There's a lot of history of bad blood, often with astoundingly vicious elements, between fanfic producers and those they accuse of having stolen parts of their work. So morally, it would seem that many such fans would have to agree that just taking stuff from someone else's written or filmed material is wrong.

And yet… they have a much stronger point than they think in the true historical perspective. Their problem is that current law, and corporate behavior, makes the real argument very hard to make.

I published a novel titled Polychrome. This book draws on a strong, and very well-established, universe created by one man, L. Frank Baum, in his fourteen Oz novels, starting with the classic The Wonderful Wizard of Oz. Yet I didn't have to go asking around for Baum's estate or heirs to see if this would get me in trouble. Why?

Because those early Oz works are in what is called the public domain. They have passed from being copyrighted and trademarked works and become part of our entire cultural heritage, free for us to draw upon just as is The Journey to the West, the Odyssey, or The Epic of Gilgamesh.

Before the concept of copyright really took hold, someone might get credited with the writing of some particular work, but there was nothing whatsoever preventing someone else in a distant market (back in the day, of course, "distant market" could be a few hundred miles or even less) procuring a copy of that person's work and then publishing it in their own edition, or even claiming to be the author themselves.

Eventually, a lot of people decided that the problem with this was that it discouraged creative people from continuing to create new stuff in two ways: first, they could end up seeing their work being credited to someone else entirely; and second, even if the credit was still theirs, often the money was going to a publisher who had no obligation to give them a cut. Similar problems existed in the technical field, where someone could invent a new awesome invention and find someone else producing it and taking the credit.

So it seemed reasonable to create some kind of rules that said "if Joe Smith creates a cool new artwork (including written) or invention, Joe Smith has the legal right to get the credit for this creation, and some amount of profit from any production of this new creation".

However, as the concept was refined, people also recognized that – just like anything else in a society – artworks and inventions are not produced in a vacuum. In the words of Sir Isaac Newton, "If I have seen further, it is by standing on the shoulders of giants". Polychrome could not have been written without L. Frank Baum's Oz books. Baum's Oz novels could not have been written without a huge amount of background in various faerie traditions as well as social constructs of his day. Uncountable plays and novels would never have been written without the background of Shakespeare. A huge number of novels and television shows of many types would never have existed without A Journey to the West.

Because of this, when copyright and patent laws were formed, they also incorporated the idea of a finite duration (trademark is a different beast and I'll talk about that later).

For creative works (copyright), the original U.S. term was 28 years (14, renewable for 14), or almost exactly one generation. Thus, someone who grew up with some new, awesome work of art or literature to inspire them could then, as a full adult, build upon that work – or present a counter-work – without fear of reprisal. The work in question would have become part of the cultural heritage of that generation, and could be then built upon in turn, to produce more cultural heritage.

This also meant that the cultural heritage available in the public domain stayed at least relatively current. You could make comments on the heritage of your parents' generation directly, without concern of legal constraints.

For technical inventions (patents), the term in the USA varies from 14 to 20 years (most patents were 17 years before 1995, design patents were 14, and after 1995 20 years). Again, this allowed a technical innovation to benefit its creator(s) for a substantial amount of time, but then eventually released it to the public domain to allow others to build upon and extend this work.

The other point of these mechanisms was to encourage the creative to continue to create. Sure, once in a while someone would have such a titanic hit that they'd be able to retire on those proceeds, but in general if you wanted to keep yourself provided for in the long term, you'd want to put out something of significant value every few years, so that the 28-year threshold (or 20-year threshold for patent) was always well ahead of you for at least some works.

In general this tended to assume that people were the originators of ideas – which is, in essence, still true. However, companies began to be able to hold patents and copyrights, and unlike human beings companies have no fixed finite lifespan – and have inherent motivations to maintain all value possible in all properties.

For technological innovation this competitive nature did not cause much overt change in the law, because while it might be in the interest of Company X to keep a technological trick Y out of the hands of competitors, that trick might well (A) become outmoded and no longer useful, and (B) Company X also has a strong motive to want to see Company Z's innovations become widely available. So the majority of the corporate influence on patent has been to try to make it possible to patent more and more narrow and/or esoteric variations on some idea, so that they can in effect extend patent duration without actually changing the law.

As one example of this, the formula for the standard albuterol inhaler (an asthma rescue inhaler) became public domain and generic versions were being manufactured; at about that time, however, fluorocarbon propellants were being outlawed. The companies involved then got a new patent for the inhalers based pretty much solely on replacing fluorocarbon propellants with something else, even though the active ingredient and most other aspects were not changed.

However, the constraints that mostly kept the law intact for the technological patent did not apply for fiction and artistic work, in general. Shakespeare is still read and presented today; The Lord of the Rings hasn't stopped being a valuable property; and so on. Creative works offer a potential of an almost undying value. Thus, maintaining/extending copyright on a work is a very strong motivation for any corporate owner.

Copyright in the USA is now either life+70 years (for works attributed to an individual, like my own) or 95 years (for works-for-hire attributed/owned by a corporate entity). Assuming even an average age-after-creation of 35 years for an author or artist, this makes both exceed three generations – assuming that no further extensions are forthcoming, and there are strong motivations for companies to continue to push this.

While I don't think most people are conscious of the effect this has had on our cultural heritage, I think there is a subconscious recognition that we have been fundamentally deprived of our right to comment on, extend upon, and work with the formative material of preceding generations. If the original U.S. copyright law had remained intact, here are some of the significant SF/F genre works which would now be in the public domain:

• The Lord of the Rings/The Hobbit (would have entered in 1972 and 1965, respectively)
• The entire works of Robert Anson Heinlein (aside from posthumous publications; the most recent of his produced-while-alive works, To Sail Beyond the Sunset, would have come into the public domain in 2015)
• Star Trek, the Original Series, the Animated Series, all the movies from 1 through 5, and even the first few episodes of The Next Generation
• All three of the original Star Wars trilogy (Star Wars, The Empire Strikes Back, and Return of the Jedi)
• Most of the works of the Golden and Silver Age authors
• The Six Million Dollar Man
• 2001: A Space Odyssey

These – and thousands of other works – would have been available for us to build upon. While, again, most people are not consciously thinking of this, I think those who read, write, and watch creative works with any serious focus are, at least on some level, aware of all the times that an author, producer, etc., is referring to or building upon something that was important to them in their childhood. This influence becomes more and more obvious as one looks at older and older works, since the expansion of the term of copyright was a slow but fairly steady process (from 14+14, to 28+14, to 28+28, and eventually to the current state of affairs).

I am strongly of opinion that this subconscious understanding underlies a LOT of the general "we should have the RIGHT to play with this stuff!" reaction of fans. Somewhere, deep below most people's ability to consciously articulate it, many of us know that we should be able to perform direct critiques, homages, extensions, or deconstructions of the works that influenced us a generation ago.

Admittedly even the "generation" is a fairly large limitation compared to the original state of affairs, where you could have done your fanfic before the ink was dry on the original, but I don't think most people would contend that there should be no form of copyright, either.

While becoming signatory to the Berne convention in 1988 was what triggered the really long durations of copyright, the Berne convention and associated law did have one very salutary effect: it explicitly recognized that it was the act of creation that produced the copyright. Your work was protected by copyright in the moment you produced it; there was no need or requirement to register the copyright of the work.

So, to return to Axanar, I am in emotional sympathy with the producers and their supporters. Star Trek: The Original Series should have gone into the public domain no less than about two decades ago (1969+28 years = 1997). They should, by reasonable standards, have been more than legally able to carry out their fan work without any fear of reprisal, and even sell it if they so chose. Instead, because copyright has been vastly extended, they can't even think about doing that until 2064, when not merely the original generation of Trek fans, but the next generation after them, will have mostly died off and the relevance of Star Trek's original series to the culture will likely be rather less than that of the average 1921 silent movie to today.

Legally, unfortunately… they're really in it deep. Not only are they specifically using known elements of ST:TOS such as Garth and the unmistakable and unique Trek starships, they are also butting their heads against the massively powerful wall called trademark.

In its simplest form, a trademark is a symbol – a word, a phrase, or a visible icon – that identifies the source of some product or service. In this case, the phrase Star Trek®, capitalized and referring to a science-fiction property, is a mark specifically denoting the franchise of science-fiction properties that include the adventures of Captain Kirk and crew, Captain Jean-Luc Piccard, and so on, whether in video, audio, or written form.

I'm not absolutely certain that Paramount registered a trademark on "Garth of Izar" before Axanar, but other elements are undoubtedly trademarked – not just Star Trek itself, but also Klingon, phaser, and a host of other words, names, and terms.

On this basis alone, Axanar is in inarguable violation of trademark. However, trademark protection can be diluted by failure to enforce, and there are a large number of fanworks (numbering many thousands if not hundreds of thousands) that have never been prosecuted. Axanar's sin in this case is in becoming so frickin' visible that neither Paramount nor CBS could continue to ignore it.

I admit that I am not completely comfortable with the way in which trademark has slowly developed into something that often grants many protections of or even beyond copyright. By trademarking, for instance, every significant character of a work, an entity can make it almost impossible to even write about their work without infringement. Michael Buffer has made an extremely lucrative business out of trademarking a fairly simple and obvious fighting phrase, to the point that he has filed C&D against people using variations of the phrase.

In my view, trademark should be something with a very limited application – a literal mark of a business that shows "it's THIS company, not THAT one" or a very particular product. In that sense, I think the phrase Star Trek® is a perfectly reasonable trademark, but much less so "phaser" or "Klingon" in general.

From the preceding, one can probably deduce that I also strongly favor a return to copyright terms on the same level as the original U.S. terms, though I think I'd just make it a flat 28-year term. This is a pretty darn good amount of time to make some money from your work, and yet short enough to provide the impetus to produce more that copyright was intended for, while also allowing future generations to build upon that work.

It is my intention to release my own works (that I hold copyright to) into the public domain as each of them reaches that mark. If the law will not follow suit, I at least hope that some other creators of art and literature will. We all build upon the works of those who came before us; I think it's part of our responsibility as creators to make sure that our works are there for our successors to build upon as well.