Play the video. Then we’ll talk.
That’s the very image that pops into my head whenever the subject of intellectual property rights comes up. It doesn’t matter whether it’s my issue or someone else’s. It doesn’t matter whether it’s infringement, plagiarism, piracy or outright theft. Doesn’t matter if it’s copyright, trademark or patents. Foreign or domestic. High tech or so stupidly simple that everyone ought to have thought of it by now but no one did.
I worked for eleven years handling intellectual property (mostly patents and trademarks) for an R&D firm. I’ve successfully applied for both my own and for other’s trademarks and patents. (And was denied, which is when you learn the most.) I’ve successfully used design patents as substitutes for utility patents (a unique circumstance unlikely to be repeated). Suffice to say that I have successfully used IP in innovative and creative ways.
I used what I learned to apply for patents, to anticipate where competitors might be going so I could file provisional patents that covered the same territory and to find prior art (inventions) that undermined competitor holdings.
I was always and still am conflicted over this.
Obtaining patents and defending them, contesting the territory claimed by others, paid my salary. Fortunately (for me) the company I worked for had an ethic that stated that what we worked on had to be real – not vapor. The patent had to be legitimate, and we didn’t play games trying to ignore prior art. On the other hand, if we found a hole in someone else’s design, we drove a Mack truck through it. As both a claimant and a defender, I’ve had to work on both sides of IP rights issues.
I’ve not really worked in that field for many years, so I can’t say if things are still the same, but back then, it was the Wild, Wild West with a land grab thrown in. The sheriff was asleep and the territorial governor was probably friends with that guy who’s been claim jumping. (Think Blazing Saddles without Cleavon Little mashed up with Unforgiven.)
Which is a round about way of saying that I know a little bit about IP and it gives me a certain perspective on the Paramount vs Axanar thing that’s probably different from most.
The one thing that I don’t see much talk about is the very basic nature of IP at its root. When you get a copyright or a trademark or a patent, you aren’t getting the right “to do something”, you are actually getting the right to “prevent others from doing something”.
Doc Brown invents Mr. Fusion – unlimited power from garbage – obtains patents and then does nothing with it. What’s more, if someone says “screw you, Doc Brown, I’m building one for myself”, Doc Brown can use the force of the Federal Government to stop it. (Assuming the government doesn’t just simply take the patents from Brown. Which is a whole different story but does nicely illustrate another important lesson about IP: it is very quirky and very precedent-bound.)
The moment you write a story, it’s copyrighted to you. Even if it is the equivalent of Python’s “killing joke” and giving it to the poor bloody infantry would help win the war, you can stick it in your desk drawer and never let anyone use it for anything.
This I believe is a very important point regarding P vs A. Paramount owns the copyrights. If they don’t want anyone to use them, they can say “don’t use them” and enforce it. Further, because we’re talking copyright, the fact that others have been “allowed” to use that IP previously doesn’t really bear on the matter. (Trademarks and patents need defending. Copyrights are issued for a term.)
(Whether or not there has been rampant use, approved or otherwise, can affect a lawsuit in several different ways, but not the basic claim.)
So if Paramount wants to say to Axanar – nope, you can’t do that with our property – they can, whether or not they say the same thing to other Trek fan productions.
Some have raised the partial defense that Axanar hasn’t actually produced anything, so there can be no claim of copyright infringement. But there’s Prelude to Axanar, which is billed as the test-and-teaser for Axanar and that film certainly uses copyrighted items that are mentioned in the suit.
But suppose that the court ends up ruling that Axanar doesn’t exist yet and the infringement claims can’t be made. What then? Paramount waits until the film is produced and then they start all over again. Because they do own the copyrights.
The other side of this coin is – you want your fans to be cozy with you. Your fans give you money. Your fans provide free publicity (sometimes of a questionable nature). Fan productions (good ones) build your audience and maintain interest. They breed actors and writers and directors and set designers and make-up artists and cinematographers and….some of whom will undoubtedly transition into the professional ranks. (Some of our greatest directors these days made super 8 “fan films”, but there was no internet, so hardly anyone ever saw or knew about them.)
Delicately, you want your fans to let you know when you are getting it right and when you are getting it wrong. And if you’re smart, you figure out a way to successfully gauge that response and you use it. If you manage that most of the time, everything is almost always bigger and better and more successful than the last time.
I hear some say “the fans own it!”. Well yes and well no. The fans only own their collective response, but they can make no claim to the property itself. Suppose this P vs A thing totally blows up into open warfare and every Trekker and Trekkie on the entire planet refuses to have anything to do with Star Trek anymore. (Images of mass DVD burnings and the defenestration of action figures.) Paramount* could still create, produce and distribute anything Star Trek they wanted to (and shut down any and every other expression of Trek that isn’t approved), for as long as they wanted to spend the money. Maybe they’ll mine the Chinese audience for several years (decades). Maybe they’ll change the presentation and pick up a whole new audience of fans (Star Trek: Romance).
A few years back, Disney gutted their expanded universe for Star Wars. Part of the reason, I am sure, was to re-exert control over their property. In many respects it was a good way to create a dividing line between things that fans might be allowed to play with and things they weren’t to touch. Individual fans were upset over various decisions made, but it is pretty obvious that the collective response was of acceptance.
Years before that, King Features said “No” when Lucas wanted to play with Flash Gordon. Now how interesting is that? The reason there is a Star Wars expanded universe is because someone exercised their right to control intellectual property.
Maybe if Paramount says “no”, some entirely new blockbuster space opera universe will be created from frustration and anger and entitlement. And then whoever creates that universe will get to say “no” when it’s their own turn in the barrel.
*See this article for an explanation of who actually owns what pieces of Star Trek