Fansplaining: Lawsuit at Axanar

From Fanlore
Jump to navigation Jump to search
Podcast Episode
Prev Episode · Episode #25 · Next Episode
Episode Title: Fansplaining: Lawsuit at Axanar
Length: 1:07:46
Featured: Sarah Jeong
Date: June 29, 2016
Fandom: Star Trek
External Links: Episode at

Click here for related articles on Fanlore.

Lawsuit at Axanar is a podcast by Flourish Klink and Elizabeth Minkel.

For others in the series, see Fansplaining.


"Elizabeth and Flourish talk to Sarah Jeong, a lawyer and journalist who is currently a contributing editor at VICE Motherboard, about Paramount and CBS’s lawsuit against the Star Trek fan film Axanar. They also cover the new fan film guidelines have been issued in the wake of the lawsuit, and return to the question of whether “affirmative,” “curatorial,” and “transformative” are good categories to use when discussing fandom."


Topics Discussed

  • Whether Transformational Fandom, Affirmational Fandom, and Curative Fandom are good categories to use when discussing fandom
  • Axanar and the lawsuit / settlement around the fan film
  • Fair Use and copyright - what can or cannot be copyrighted
  • The power of fandoms in relation to the copyright owners - fans making a franchise what it is
  • Klingon as a language and conlangs being compared to open programming languages \
  • Fan Films
  • CBS and Paramount’s Guidelines for Avoiding Objections


FK: So today we’re gonna be talking to Sarah Jeong, who is a lawyer and a journalist who writes on VICE. I mean not on vice like prostitution, on VICE like Vice Media, about digital law.

ELM: Motherboard, right?

FK: Yes. And Sarah’s really cool and she’s going to be helping us understand what’s going on with this case that’s in the title of the episode, about the fan film Axanar, which is a Star Trek fan film which is getting sued by CBS and Paramount.

ELM: So. I initially said, when we were discussing this, that I think the activities we think of as “curatorial” or “affirmational” as well as the ones we think of as “transformational” are a fraction of, if you have a broad umbrella of fannish activity. Just go on Twitter during The Bachelor if we're talking reality TV. Or not even! Go on Twitter during Game of Thrones. You’ll see a lot of people who, I couldn’t call tweeting about something affirmational fandom.

When I think about affirmational fandom I think about collecting, I think of cataloging in wikis, I think of people debating in forums and using evidence and their knowledge. It’s about curating the knowledge yourself and then laying that out. And I don’t think that collectively watching a show and making jokes about it with people, that feels different to me. I don’t know. What do you think?

FK: Hm. Well, I think it’s funny because I was gonna come at this from the other side, which is to say I think that although we like to talk about certain activities as being curatorial and affirmational and others as being transformational, I think that where we go wrong is when we start talking about people as purely affirmational or transformational fans. Because, I mean, I actually do think that probably there are people who are showing elements of curatorial or affirmational vs. transformational ideas when they talk on Twitter. Some people make jokes that are crossing, you know, I saw a horrible meme that turned Hillary Clinton into Dany, Khaleesi. It was a terrible meme, it made me sad even though I love Hillary, please don’t ever show it to me again. But. To me that was “Oh, that’s interesting, that’s sort of on the transformational side.” They’re bringing this into conversation, whatever. There’s other people who start arguing about fan theories, arguing about who’s Rey’s father in Star Wars. And I see those thing as being on, those are totally normal things that people do that don't involve wikis or cataloging or fanfiction or anything. I see those as being on an affirmational–transformational kind of a spectrum.

FK: ...My attitude towards this is definitely, I think people do things that are more affirmational and transformational at different points and I think that can even get down into very small details of the way you’re interacting with or thinking about a thing you like, but I think most people have both in them. And so I don’t, I think that it’s useful to think about, in a broad sense I think it’s useful to think about these categories, but in a specific granular individual fan sense, I think it gets a little weird.

ELM: Yeah, but it is undeniable that transformative practices are mostly done by people who are non-men.

FK: I agree, and I think that actually there’s a lot—affirmational and curatorial practices are a little less purely male.

ELM: Yeah I think so too. But I think it is simplistic to be like “Men like wikis and women like fanfiction,” but the gendered elements of particularly transformational fandom are pretty important.

SJ: So there was this Kickstarter for a fan film, and it’s a Star Trek fan film, and I believe it was called—is it The Battle of Axanar? But it takes place 20 years before the earliest event in the Star Trek canon. It fleshes out a reference made in one of the episodes to something that Captain Kirk says. So none of the characters in the original Star Trek are present in this film. There’s no part of the script that’s taken from, that's actually verbatim taken from any of the previous scripts. It’s not a mashup of bits and pieces from the Star Trek canon either. It’s fanfiction. And it’s fanfiction that’s not even using any of the Star Trek characters! That’s what really interesting. It takes place in the Star Trek universe and you can’t even make a claim that they're copying the characters.

FK: As compared to other Star Trek fan films that have been very successful on Kickstarter even recently that very closely mimic, like, there’s one right now that’s mimicking the Original Series that has the actor that played Scotty’s son plays Scotty in it; it has Grant what’s-his-name from Mythbusters…

SJ: Yeah, so that’s a little different! And this is pretty far removed. The other thing that’s kind of cool about this case is that they have a trailer film up and it looks really good. And one of the reasons why it looks so good, this is what they said on their Kickstarter, the people doing photography and showrunning this, some of them worked on the set for actual Star Trek. So it looks really good and they got like a million dollars through Kickstarter, so now we're talking that they’re competitive with the actual Star Trek franchise. This is a fan film, but it’s industry competitive. That’s weird!

SJ: ...I think it’s just that this got the attention of the rights-holders a little more. This is just—a million dollars on Kickstarter is a little scarier, maybe. That might be more it.

ELM: But this is the question. You're saying that one is mimicking the original 60s show. I guess I still am fuzzy about a lot of fair use and what’s transformative and what’s allowed, but coming from the book world, there’s plagiarism obviously, and then there’s these ideas of intellectual plagiarism, idea-stealing, which is complicated. So I’m wondering how that all breaks down, if it’s really complex and not easy to give a pithy answer to.

SJ: It’s the latter.

ELM: [laughs] OK!

SJ: This isn’t to say that fair use is indeterminate, but it’s a little complicated. I’m not gonna just throw my hands up and say “Oh, we can never tell what fair use is!” Because there’s actual case law, there’s an actual doctrine, but it is complicated and it’s not at all the same as plagiarism.

Stealing ideas, or stealing someone's work, that's plagiarism, right? That’s not a thing you should do, but that’s not necessarily copyright infringement. For example, you could rip off original reporting or someone’s work in historical archives, and that’s because those are all facts, that’s not copyright infringement because copyright doesn’t extend to facts. And similarly, copyright doesn’t extend to ideas, so it’s…you could for instance infringe on the plot of a novel, but that would be different from saying you’ve stolen someone’s idea. If you steal an idea that’s not copyright infringement because ideas aren’t copyrightable.

ELM: OK, this is tricky and I have no idea how any of this comes out in practice. If it really does vary then it’s hard to say, right? But it just feels like the people who have the power and have the copyrighted works and all the money are going to have the upper hand here because their versions of these stories are the most visible and they occupy the most prominent place in the culture. Is that, do you think that’s true?

SJ: Well, it depends on what you mean by power. Generally, the people who have the most money are at an advantage in the legal system. So there is that. But at the same time, especially in the Star Trek case, fans have a lot of power. Think about what Star Trek is. Honestly, Star Trek isn’t even that good! [laughs]


SJ: No, let's be honest! Star Trek matters, and Star Trek is powerful and Star Trek is a big deal because of the fans. Fandom is what makes Star Trek a phenomenon. Fandom is what keeps it going even after all of these years. It’s what keeps it relevant. You piss off the fans and what do you have? So the thing about the Klingon language, the studios have claimed copyright in the Klingon language. And that’s not a thing you can do. But that’s interesting because Klingon is spoken by a lot of people all over the world. It’s a very popular constructed language, there’s at least one person who taught their child to speak Klingon from birth. Think about how powerful that is! That is such an amazing phenomenon, and that’s only possible with fandom. Here fandom has taken these things that have been created by people and have taken them to heights that they couldn’t have gotten to without fandom.

Star Trek wouldn’t be Star Trek without the fans; Klingon wouldn’t be Klingon without the fans. The Starfleet uniforms would not be Starfleet uniforms without the fans. All these things have the meaning, the power, even sort of the economic backing that they have because of fandom. And I think, you know, that’s what's interesting about Axanar. Sure, in a way it’s a showdown between the little guys and the big guys, but at the same time it’s like, what imbues this entire universe with meaning and power are the fans that are creating this fan film.

FK: All right, so true confessions time: it’s been a little while since we recorded with Sarah, and now we’re recording our thoughts on that. That was a weird construction.

ELM: That was not the confession. The confession is…OK, yeah, that’s part of it, it’s been a little while, a couple days. But the reason we have to disclose that is since we’ve talked to her, something has happened.

FK: Developments!

ELM: Yeah.

FK: So as we discussed, for awhile it was looking like the two parties in the lawsuit might settle and there was going to be a set of rules for fan productions that CBS and Paramount were going to put out. This then, as we talked to Sarah about, this kind of disintegrated with a new set of countersuits. But, here’s the new development, CBS and Paramount put out the rules for fan productions anyway. They’re called “CBS and Paramount’s Guidelines for Avoiding Objections,” and they’re a doozy. Some of them are reasonable and some of them are not.