FanFiction and the Case for Axanar | Vol. 3 / No. 10.2

So CBS and Paramount, the rightsholders for the Star Trek franchise, are suing Axanar Productions and the people behind it for copyright infringement. Aside from the absolute PR disaster factor — the one that makes this move a little like sawing off your foot for it having the temerity to stub your toe for you — there’s another good reason why I can’t recommend strongly enough that CBS and Paramount back the hell down.

Suing your fans isn’t what copyright is for.

But I’ve had this discussion a few times, and not a lot of people seem to understand why I disagree with the whole copyright extension and expansion thing America’s been up to for a while now. So I thought I’d take a minute, since it’s currently trending, to explain my thoughts.

Intellectual “property” is a terrible name for it. Property is something you can steal or give or own, and the laws we have to protect that are based on the idea that if you take a piece of property away from me, I no longer have it. Anyone who’s ever had their laptop stolen knows they’ve lost something tangible; everyone who’s ever made a mixtape (mix-CD.. mix… thumbdrive?) for a friend knows they haven’t. But wait, I hear you saying, that copying represents a lost sale! The original creators are suffering! Well, I can’t say they aren’t, but it’s probably mitigated by the fact that when you let someone listen to your music and they like it, they’re a lot more likely to become a fan — thereby leading to greater future sales and (more importantly) shows. I’m not saying you should pirate things. I really think you should support the artists whose work you want to hear/see/read. Financially support. But what I’m saying is that there’s a lot more complexity with non-tangibles than “you wouldn’t download a car.” (Because hell yeah you would).

Copyright isn’t about property, it’s about the right (I know) to copy. Ever since the Statute of Anne back in 1709, we’ve had copyright laws in the west to prevent people printing books that weren’t theirs. It makes a kind of sense: if you were investing in the technology to produce a book, investing in the author to create the work, and investing the time and money to produce and sell the work — at their times all significant financial outlays — then maybe a little monopoly in your favour was a good thing. If creators were the only people who could authorize the production of their work, it would make the production of that work more profitable and keep the economic gears turning. It provides an incentive to produce more work, which is fundamentally good for society. That’s the basic math: more cultural works = societal good. That’s the point of copyright.

But we don’t like monopolies as a society. Economists will tell you that monopolies are very usually bad for economies. And that’s true for economies of ideas as well. If you want a great recent example, take a look at what happens when someone gets the monopoly to produce a lifesaving drug. Martin Shkreli, may you rest in pieces. Monopolies raise prices and stifle the production of derivative work. And derivative work is where it’s at.

Everything, and I mean everything, is a derivative work. Modern pop is just remix after remix (only sometimes admitting the fact). Hell, Shakespeare’s Troilus and Cressida is just Trojan fan-fiction. Because the things we create aren’t made in a vacuum: every time you come up with an idea, you’re having it because of the things you’ve seen, the things you’ve read, and the things you’ve heard. Sometimes it’s just more explicit, that’s all.

All of which is coming around to why I think copyright shouldn’t apply in certain cases. From what I’ve seen of Axanar, I don’t think it should apply there either.

Copyright isn’t about stealing ideas, but about temporarily protecting very specific economies for the betterment of society. The question we should be asking is not “whose property is Star Trek?” but “will the ‘rights holders’ continue to make Star Trek without protection?”

[As a side note, I have to use the term ‘rights holders’ because Gene Roddenberry, the creator of Star Trek, is long since passed away, and at this point we’re literally dealing with corporate stakeholders rather than original creators. Literally every Star Trek story told since Roddenberry died is fan fiction. “Official” fan faction happens to be made by fans who work for CBS and Paramount. “Unofficial” fan fiction is made by others.]

The answer to the second question lies, as you can almost certainly guess, in profit margins. CBS and Paramount will not make more Star Trek, will not tell more Star Trek stories, if nobody will pay them to do it. So, will the production of Axanar stop people paying them enough to make that worthwhile?

I’d argue no. The fact of the matter is that Axanar exists because the Star Trek this group of fans grew up with stopped existing a long time ago. We went ten years without any Trek on TV, but it’s longer than that if you thought Enterprise was the breaking point. The movies CBS and Paramount are producing are so far from original “canon” (we’ll talk about that word another time) that fans have literally dubbed the whole universe they take place in as a different one: the “Abramsverse” (after their director). These people are not great fans of the new Star Trek, and providing content for them is not taking away from its audience.

Also: more content does not always mean less profit. Axanar fans who also like the “Abramsverse” Trek will not avoid seeing the movies or watching the (eventual) CBS Trek because they saw Axanar. There isn’t anywhere near enough Trek to imply an opportunity cost to Axanar’s production. If the copyrights were fully lifted and everyone and their dog made a Star Trek film (that could afford to) I’d actually argue that there still wouldn’t be enough Trek to fulfill demand and thereby start affecting profits, but that’s not even what we’re talking about.

Because this is a fan film. Axanar raised a million dollars, yes. But not for profit. Not to sell Axanar to the highest bidder. They raised the money to pay professionals to help them make it, and that’s a big difference. Allowing Axanar to be produced — even with fantastic production values — won’t harm the economy of Star Trek because it’s not for sale. If NBC wanted to make a Star Trek series and the law allowed it, maybe (maybe) it’d be a different story (though I’d argue that given how very dead the author is, a free market would make for more and better Trek products and thereby be to the benefit of the consumer). Maybe that would make it less likely for anyone to make Trek because it wouldn’t reap such large rewards, the pie being divided and all. Maybe. But that’s why copyright exists: to prevent that. Not to prevent fan films like Axanar.

None of what I’ve written, of course, has any bearing on the eventual court cases. Those will come down to money, lawyers, and the minutiae of “fair use” interpretation. I’m hoping that lawyers will line up to defend Axanar pro bono like they’re hoping, but I guess we’ll see.

A perfectly acceptable compromise would be for CBS and Paramount to allow it to continue, but with (a) some kind of involvement and (b) a proviso that any profits should go to some defined charity. But why compromise when you can throw millions of dollars at lawyers and alienate tens of thousands of potential fans?

Anyhow, now you know my thoughts on the matter. United we stand, and all that.

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Richard Ford Burley is a writer and doctoral candidate at Boston College, as well as an editor at Ledger, the first academic journal devoted to Bitcoin and other cryptocurrencies. In his spare time he writes about science, skepticism, feminism, and futurism here at This Week In Tomorrow.