Axanar Supporters’ Report Critiques Fan Film Guidelines

A group calling for a partial boycott of Star Trek: Discovery has submitted a report to CBS criticizing its fan film guidelines and calling for the studio to make specific changes.

The report, authored by fan film blogger and Axanar surrogate Jonathan Lane, is titled, “Star Trek Fan Film Guidelines: Focus Group Report, prepared for CBS and Paramount, submitted by organized fans, August 2016.” Its executive summary describes the group’s aim this way:

This group formed with the intention of seeking compromises, accepting these guidelines as a solid foundation and a positive move by the studios that may have simply reached a little too far.¹⁾

CBS issued guidelines for fan films in June 2016 that assured producers the studio would not pursue legal action as it has with Axanar, against productions that adhered to the guidelines.

According to Lane, the report is the focus of what he hoped would be a letter-writing campaign to CBS officials urging them to change the guidelines:

Fans are invited to download and print this 37-page Focus Group Report and mail it to the CBS and Paramount executives listed below. An optional Cover Letter has also been provided for fans to include if they wish. The hope is that dozens or potentially hundreds of these reports will be mailed so that maybe, just maybe, the executives don’t throw them all in the trash and instead actually read a copy. That is our ultimate goal: to have these recommendations seen, read, considered, and hopefully acted upon rather than simply being ignored.²⁾

ALREADY PROFITABLE CBS’ announcement the as-yet-unproduced Discovery is already profitable concerned some in the Facebook group calling for a partial boycott of the new Star Trek show.

Lane admits the campaign is something of a stunt. “Of course it is,” he said. “So was the original letter-writing campaign 48 years ago,”³⁾ referring to the effort led by Star Trek fan Bjo Trimble that saved the original series from earlier cancellation. Lane adds:

While we might not get a hundred thousand people to all print 37 pages and mail an 8-ounce packet to the studios, what we lack in quantity, we can make up for in dedication and passion!⁴⁾

Lane urged letter-writers to mail the packages before Star Trek’s 50th anniversary on September 8, 2016, so “with luck, we’ll get some coverage in the media … and if that happens, hopefully the studios will give us their attention.”⁵⁾

Though described as a focus group report, the document is more accurately a summation of a variety of surveys conducted on the Facebook page of Project Small Access, a group led by active Axanar supporters.

The report states its results came from the responses of 1,200 self-selected Star Trek fans. Among its findings:

• NO OBJECTIONS Nearly half the guidelines were considered by respondents as “fair and acceptable.”⁶⁾
• CONFUSING, VAGUE Another quarter of the guidelines were “determined to be either somewhat confusing or not specific enough.”⁷⁾
• SUGGESTED REVISIONS The group proposed revisions to clarify several guidelines, “protecting both the studios’ interests while also allowing fans more peace of mind in conforming their projects to those guidelines.”⁸⁾
• ‘PASSIONATE RESISTANCE’ Respondents objected to several guidelines “that drew passionate resistance” but attempted “to try to find common ground and compromise.”⁹⁾, adding:

For the most controversial guidelines, the group can only share the depth of our concerns and hope that CBS and Paramount might respect our perspective on these matters in the hope there might be a middle ground where some of the most restrictive of the guidelines might be loosened—if only just a little. In this way, the studios can reach out to the fan community with a message of cooperation and back-and-forth constructive communication.¹⁰⁾

Among the most objected-to guidelines were those:

• Restricting films’ run times and prohibiting series beyond two episodes, instead requesting that ongoing series be allowed, with run times of at least 30 minutes per episode.
• Prohibiting film industry professionals — particularly those who had previously worked on an official Star Trek production — from participating in a fan production, claiming the restriction is unenforceable under California law.
• Limiting crowdfunding to only $50,000 per 15-minute episode (up to maximum of two episodes), instead asking for a $150,000 limit.

The collapsed headings below open to an examination of each guideline, the report’s specific recommendations and AxaMonitor‘s analysis of those recommendations.

Guideline 1: Run Time Limits, No Series

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The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.

'Deeply Concerned'

This guideline “seemed to eliminate the possibility of a fan ‘series’ entirely,” with productions having to “abandon completely” the sets, costumes, characters in which the production had invested. Respondents believed this guideline needlessly stifled fan producers’ creativity. “Loosening one or more of these three restrictions would go a long way toward easing fan frustration with … these guidelines,” the report concluded. It recommended extending run times to as much as 45 minutes, while possibly restricting the number of releases allowed by a series in a year.¹¹⁾

ANALYSIS The report appears to adopt a far more restrictive interpretation of Guideline #1 than is actually stated in the text, possibly to make the appeal more sympathetic. While the guidelines do appear to discourage branded series, the guideline says nothing about re-use of sets, costumes, characters or other aspects of production. The guidelines are intended to draw a line between professional and non-commercial works, according to CBS Vice President John Van Citters. Long-form stories is “what we [the studios] do,” he said.¹²⁾ Apart from the clearly stated limits, this guideline is arguably looser than it is portrayed by the report.

The plea to extend run times runs counter to CBS’ clear priority of carving out short-form stories for fan films, and the report does little to justify the request, other than to state fans really want it. Respondents’ various proposed restrictions on number and length of releases would create a clear need for the kind of policing Van Citters said CBS is not interested in.

Guideline 2: Restrictions in Titles and Marketing

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The title of the fan production or any parts cannot include the name “Star Trek.” However, the title must contain a subtitle with the phrase: “A Star Trek Fan Production” in plain typeface. The fan production cannot use the term “official” in either its title or subtitle or in any marketing, promotions or social media for the fan production.

'Acceptable'

Respondents indicated they found this guideline acceptable.

Guideline 3: 'Must be Original'

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The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. If non-Star Trek third-party content is used, all necessary permissions for any third party content should be obtained in writing.

'Somewhat Confusing'

Respondents found acceptable the second sentence regarding obtaining permission for the use of third-party content (i.e., not owned or controlled by CBS or Paramount), such as music, which is licensed through organizations other than the studios.

However, respondents asked CBS for clarification about whether the first sentence prevented fan productions from using established alien races and planets from Star Trek, starships, characters, storylines in officially licensed Star Trek products aside from the TV series and films.

ANALYSIS The report chooses an interpretation of the first sentence that is more restrictive than intended by the guidelines. The entire point of the guidelines, according to Van Citters, was to offer unfettered use of a major piece of its intellectual property with just guidelines rather than rules.¹³⁾

If CBS intended such a restrictive interpretation, Van Citters would have been more clear; instead he suggested CBS is not interested in any kind of formal enforcement efforts, stating that the studio doesn’t plan to review scripts, casting or other creative choices, including finished films. “We’re not looking to micromanage your production,” he said.¹⁴⁾

Guideline 4: No Bootleg Merchandise

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If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products.

'Somewhat Confusing'

After initially assuming the purpose of this guideline was to force productions to purchase expensive uniforms, accessories and other items, rather than allowing fans to construct their own, Van Citters’ explanation in the Engage podcast made the guideline more palatable to respondents. Even so, the report recommended this revision:

A fan production is welcome to create their own Star Trek uniforms, accessories, and props from scratch and even pay to have these items custom made. However, if such items are purchased from a commercial manufacturer or seller, such items must be official merchandise and not bootleg items or imitations of such commercially available products.

ANALYSIS While the report seems to indicate general acceptability of this guideline once it was clarified by Van Citters, the proposed revision creates a potential problem by allowing productions to pay to have items custom made. Isn’t paying someone to create such products when that person has no license the same thing as buying bootleg merchandise? While Van Citters’ clarification allows production to construct their own items, it remains unclear how CBS would enforce this principle with its planned “no micromanagement” approach.

Guideline 5: No Professionals

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The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.

'Unenforceable'

Respondents concluded this guideline is unenforceable under Section 16600 of the California Business and Professions Code, which states: “Every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

Doctor McCoy’s famous line from Star Trek III: The Search for Spock.

The report also posited situations in which this restriction could place participants at physical risk, such as being prohibited from hiring a stunt coordinator to prevent injury on set, or hiring a professional electrician to safely wire a set to prevent a fire. The report goes so far as to suggest this prohibition would create legal liability for CBS.

Finally, the report claims CBS’ intention for this guideline to “level the playing field” for smaller fan productions was not born from complaints by smaller productions; “Guideline #5 is seeking to fix a problem that does not exist,” the report asserted.¹⁵⁾

ANALYSIS The report argues the guidelines are a contract, but cites no case law to support its conclusion that this term in the guidelines is a restrictive covenant subject to being ruled unenforceable. The guidelines are not like a traditional agreement not to compete, solicit customers or hire specific employees, because if the fan film violated this guideline, CBS would not sue on the grounds that such a covenant had been breached. Instead, the studio would sue on an entirely different claim of copyright infringement. Also, that California statute does not likely extend to activities that violate the law — in this case, copyright.

The idea that CBS would expend the resources necessary to police the guidelines in such a way as to discourage prudent, safety-related efforts requires a more restrictive interpretation of this guideline than offered by Van Citters. The frankly macabre death scenarios painted in the report appear to be more of an attempt to seek elimination of an unpopular guideline than a realistic portrayal of how the guidelines would actually be enforced.

Finally, the “level playing field” problem the report claims does not exist for smaller fan productions is an assertion made without evidence or citations from those productions. Indeed, the report’s critique completely ignores that the studios’ primary concern was not lifting up smaller productions but rather restricting the growth of increasingly professional so-called “fan” films that had spiraled into what Van Citters called something “larger and larger,” that had become “something of an arms race about how many Hollywood names could be attached. … That’s not really in the spirit of fan fiction.”¹⁶⁾

Guideline 6: Non-Commercial Productions

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The fan production must be non-commercial:

• 6a. CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease.
• 6b. The fan production must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue.
• 6c. The fan production cannot be distributed in a physical format such as DVD or Blu-ray.
• 6d. The fan production cannot be used to derive advertising revenue including, but not limited to, through for example, the use of pre or post-roll advertising, click-through advertising banners, that is associated with the fan production.
• 6e. No unlicensed Star Trek-related or fan production-related merchandise or services can be offered for sale or given away as premiums, perks or rewards or in connection with the fan production fundraising.
• 6f. The fan production cannot derive revenue by selling or licensing fan-created production sets, props or costumes.

6a: Limited Crowdfunding

Respondents found this limitation the most controversial after Guidelines #1 and #5. They were puzzled by the restriction on crowdfunding but not on private, direct funding from, say, “a rich Uncle Alfred,”¹⁷⁾ allowing for the possibility of a multimillion-dollar fan film, so long as the crowdfunding portion of its financing was limited to $50,000 for each of the two allowable 15-minute episodes. Instead, a sizable majority of respondents called for raising the crowdfunding cap to $500,000, along with increasing the run time limit to 30 or 45 minutes per episode.

ANALYSIS The results for this guideline seem to completely ignore CBS’ clear intention to limit the scope of fan productions, failing to provide a rationale for limitless crowdfunding other than respondents’ outrage. Unbelievably, the majority of those favoring a cap over $500,000 wanted a limit of at least $2 million — incidentally, Axanar’s eventual fundraising goal. In fact, CBS’ $50,000 per 15-minutes limitation (a total of $100,000 for the 30 minutes of two episodes) is comparatively generous, given that was the approximate budget of Prelude to Axanar, the most expensive fan film on a per-minute basis.

6b: No Charging for Fan Films (Online Only)

'Acceptable'

Respondents judged this guideline “fair and reasonable.”

6c: No Physical Media

Respondents admitted that physical media (i.e., DVDs and Blu-rays) given as perks in exchange for crowdfunding donation “would be the equivalent of selling and distributing the film,” other than the free online streaming stipulated in Guideline #6b. But they also found this guideline precluded reasonable needs for physical media not sold by the production, including submitting the film to a festival or competition, giving DVDs to cast and crew, using a copy as a professional reel by fan filmmakers seeking jobs, having a backup physical copy for exhibiting at sites without sufficient Internet streaming capabilities. The report proposed the following revised language:

The fan production cannot be distributed in a physical format such as DVD or Blu-ray in any way that involves the exchange of money, either for direct sale, a perk offered in exchange for a donation, or someone simply paying the cost of the blank media and shipping. Physical copies of the fan production can only be created for single- use activities, such as contest entries, and cannot be distributed in mass quantities (even for free) except to individuals who worked directly on the production.¹⁸⁾

ANALYSIS This appears to be another case where respondents chose the most confining interpretation of the guideline, possibly another bid for sympathy. The restriction against distribution is clearly meant to address wide dissemination of physical media containing the fan film. The examples raised by the report fall outside the notion of wide dissemination, particularly given CBS’ intention to not actively police adherence to guidelines unless productions’ activities are very clearly commercial in nature, which is the reason for which the guidelines were created.¹⁹⁾

6d: No Advertising-Based Revenue

'Acceptable'

Respondents found this guideline fair and reasonable.

6e: No Merchandising

Respondents were puzzled by Van Citters’ claim people donated to crowdfunding campaigns primarily to get physical perks, and the report offered the attitude of the majority of its self-selected sample of 167 people as proof that Van Citters’ assertion was not accurate. The report suggested removing the restriction against “fan production-related merchandise” from this guideline, thereby allowing productions to realize revenue from sale of their own products so long as the words “Star Trek” did not appear on them.

ANALYSIS By focusing on perks and crowdfunding only, the report again misses the entire reason why the guidelines were created. Van Citters of CBS explained:

For many years we used a simple guideline, CBS and Paramount in cooperation on this, which is, a Star Trek fan film is a fan creation that is non-commercial. Well, we thought this was simple enough, and helped filmmakers understand the separation we need to keep between professional content and fan films. It’s become increasingly clear not everyone is clear where that line is.²⁰⁾

It seems a simple precept that CBS wants fan productions in no way to receive direct financial benefits from commercial activities arising out of the use of the studios’ intellectual property, and not just specific trademarks. The sale of fan production-related merchandise is a viable revenue stream only because of the production’s association with Star Trek.

Instead, by focusing solely on the studios’ trademarks and protection of their licensees’ products, the report rather proves Van Citters’ contention that some productions remain unclear about the line separating commercial activity from non-commercial. For example, merchandise revenue streams created by Axanar’s association with Star Trek’s copyrights, not just its trademarks, is likely one of the causes of action behind its copyright infringement lawsuit. The revised guideline proposed by the report would protect those revenue streams, which mirrors the guidelines Axanar producer Alec Peters tried and failed to rally fan productions around, and which they roundly disavowed.

6f: No Sales of Sets, Props or Costumes

'Acceptable'

Respondents found this guideline fair and reasonable.

Guideline 7: Family Friendly

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The fan production must be family friendly and suitable for public presentation. Videos must not include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content. The content of the fan production cannot violate any individual’s right of privacy.

'Stifles Drama'

Respondents initially bristled at a guideline they believed “seems to stifle all potential for drama and creativity.”²¹⁾. Clarification by Van Citters allayed those first fears, but the report still asked for a revision:

The fan production must be family friendly and suitable for public presentation. Although fan productions may depict a limited amount of profanity, obscenity, drugs, alcohol, tobacco, or harmful/illegal activity, any such depiction must occur in a manner that is respectful of and consistent with how similar material has been historically displayed in the Star Trek franchise. CBS/Paramount reserves the right to determine what is considered respectful and consistent with the franchise in this context. Fan productions may not include any material that is pornographic (containing nudity or sexually explicit content), fraudulent, defamatory, libelous, disparaging, threatening, hateful, or that could appreciatively damage the integrity and reputation of the Star Trek brand or any of its established characters. The content of the fan production cannot violate any individual’s right of privacy.

ANALYSIS This revision doesn’t seem to ask for more than CBS intended, as stated by Van Citters. Given CBS’ stated intention to deal with fan productions only when warranted by blatant circumstances, this may not be a difference that makes a difference. CBS only wants to intervene when a fan production treats its intellectual property in such a way that damages its public image.

Guideline 8: Disclaimer

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The fan production must display the following disclaimer in the on-screen credits of the fan productions and on any marketing material including the fan production website or page hosting the fan production:

Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use. No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.

'Acceptable'

Respondents found this guideline acceptable.

Guideline 9: No Copyright or Trademark for Production

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Creators of fan productions must not seek to register their works, nor any elements of the works, under copyright or trademark law.

'Acceptable'

Respondents found this guideline acceptable.

Guideline 10: No Implied Association

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Fan productions cannot create or imply any association or endorsement by CBS or Paramount Pictures.

'Acceptable'

Respondents expressed near-universal acceptance of this guideline.

What is Its Connection to Axanar?

Axanar official Mike Bawden

Officially, Axanar Productions, which is being sued by CBS and Paramount for copyright infringement is not a backer or sponsor of Project Small Access, with organizer Jonathan Lane claiming “the Small Access campaign is completely independent from anything Axanar” — on the regular blog Lane writes on Axanar’s website, which also hosts the downloadable PDF of the report.

And the administrators of the project’s Facebook group include Lane, pro-Axanar blogger Dave Heagney Jr. and Axanar’s official spokesman Mike Bawden. The group has 1,253 members.²²⁾

Project Small Access is a group organized by leading Axanar supporters to protest CBS’ fan films guidelines by calling for a partial boycott of its new television series, Star Trek: Discovery, which will be broadcast on CBS’ online streaming service, CBS All Access. The boycott’s name is, of course, a play on the name of the network service.

The project was created by blogger Jonathan Lane on Axanar Productions’ fan film blog, “Fan Film Friday.” The group uses its Project Small Access Facebook group page to conduct its business.

The project was created to register some fans’ protest of the guidelines, reducing the network’s income by watching the new series in small groups, rather than through individual subscriptions.

However, CBS’ announcement that Star Trek: Discovery was already profitable without a single frame filmed, thanks to international licensing,²³⁾ frustrated more than one Small Access member.

Lane encouraged the group to focus efforts on gathering fan feedback to the guidelines and working to find compromise with the studios. The surveys took place over several weeks in summer 2016.

STRANGE NEW WORLDS The report cites this Pocket Books series of fan-submitted fiction as an example CBS should follow with fan films, even though licensed work is subject to restrictive policies enforced by the studio.

In the report’s conclusions, Lane strove to make the case that some movement by the studios toward loosening up the guidelines would win back fans distracted and distressed by the Axanar lawsuit, which he suggested hurt Star Trek Beyond‘s box office:

The recent actions taken by both CBS and Paramount regarding fan films have turned a tailwind into a headwind. Fans who could have been dancing in the streets in their Starfleet uniforms and Klingon make-up instead were sitting at their computers typing up incensed blogs and arguing with each other on Facebook. … [When] young people saw news stories about studio lawsuits against the fans and restrictive new guidelines being imposed, they likely had second thoughts about jumping onto the warp-powered bandwagon.²⁴⁾

Lane submitted no evidence, however, to back up his speculation in this part of the report, but said, “Having many Star Trek fans feeling frustrated and miserable certainly didn’t help boost revenue. In business parlance, the current mood of Star Trek fandom would be considered a ‘headwind.’”²⁵⁾

The report concludes with the often-heard proposal that CBS should allow fan films to earn revenue they would share with the studio: “Fan productions could, relatively easily, be turned into a source of millions of dollars of positive revenue … at a cost of the fraction of a single employee’s salary.”²⁶⁾

The report, however, included no evidence to back up this kind of business plan. Even so, it went on to cite as an example Pocket Books’ “Strange New Worlds” project, which has published fan-submitted work as a book under the publisher’s banner, even though that effort isn’t a direct parallel to fan films. Pocket Books’ Star Trek titles are licensed, and therefore subject to the studios’ stringent restrictions regarding what can and cannot be published, which also apply to fan-submitted fiction.

Moreover, according to Axanar producer Alec Peters, CBS and Paramount exhibited no desire to accept such “money-making solutions” in their lawsuit‘s ongoing settlement talks.

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