I’m frequently
asked about fan-created works. I’ve written about my thoughts on the matter
previously here, and generally, my thoughts on the matter remain the same: if
you don’t own the rights to the characters you are drawing, you are probably in
violation of someone’s intellectual property rights. Recently, rulings have
been made in two cases involving works akin to fan art that will perhaps
provide some guidance.
First,
we have the Axanar case. I previously
wrote about the Axanar case when
Paramount and CBS released their fan art guidelines. Briefly, Axanar
Productions was attempting to create a feature-length film based around a
character who appeared in an episode of the original Star Trek series, Garth of Izard. Axanar raised over $1 million on
Kickstarter to fund its production and was planning on hiring people who had
worked on Star Trek productions in the past. In 2015, Paramount/CBS sued for
copyright infringement. In January, the judge hearing the case ruled Axanar was
not entitled to a fair use defense in its work, and the case was settled
shortly after. For more information, see the Hollywood Reporter coverage.
Our
second case also involves Star Trek, but in this case, a different rights-holder
is suing. ComicMix, LLC started a Kickstarter campaign to fund a mashup of Dr.
Seuss’ Oh, the Places You’ll Go! and
Star Trek called Oh, the Places You’ll
Boldly Go![1] It
did not have permission from Paramount/CBS or from Seuss Enterprises.[2] Seuss
Enterprises sued ComicMix for copyright and trademark infringement.[3] In
addressing ComicMix’s Motion to Dismiss, the court weighed the four factors of
fair use and found it evenly weighted between the two parties.[4] As
such, it could not dismiss the case. Additionally, the court found the ComicMix
work was not a parody.[5]
The work used Go!’s style and format
to tell stories from the Star Trek
canon.[6]
However, the court did find the work transformative because it creates a
completely new work from the two source worlds.[7]
The court also dismissed the trademark claims.[8]
Initially,
these two cases might seem at odds with each other, but they can easily be
reconciled. They also shed light on questions surrounding fan art. The Axanar case involved a work heavily
reliant on the Star Trek universe to
tell its story. Since it sought to develop a character and story line first
mentioned in the original Star Trek series,
it is easy to clarify it as a derivative work. It primarily used
Paramount/CBS’ intellectual property to create a new work. However, the ComicMix case involved a mash-up. As the
court points out, it blends two different intellectual properties together to
create a new work. [9] The
court recognized mash-up works as an emerging culture and did not want to
categorically eliminate this form of art.[10] Whether
or not a mash-up work qualifies as a fair use will be a case-by-case
determination, and in the ComicMix
case, it is still to be determined whether Oh,
the Places You’ll Boldly Go! will qualify as a fair use.[11]
As
I mentioned in the beginning, if you don’t own the rights to the intellectual
property you’re using in your fan-created work, you could be infringing on
someone’s rights. Even though you might believe your work qualifies as fair
use, it’s likely you will have to go to court to assert your fair use defense.
As both of these cases illustrate, courts determine fair use on a case-by-case
basis, and you can easily find yourself on the wrong side of a copyright
infringement claim. Especially since
there is not a clear line demarcating the point of infringement. If you are
creating a piece of work using someone else’s intellectual property, tread carefully.
[1] Dr.
Seuss Enters., L.P. v. ComicMix, LLC, No. 16cv2779-JLS, at page 2 (S.D. Cal.
2017).
[2] See Cullins, Ashley, Dr. Seuess
Enterprises Takes Another Shot at Vaporizing ‘Star Trek’ Parody Book, July 3,
2017, HollywoodReporter.com, http://www.hollywoodreporter.com/thr-esq/dr-seuss-enterprises-takes-shot-at-vaporizing-star-trek-parody-book-1016754
(last visited July 28, 2017).
[3]Id. at page 3.
[4] Id. at page 13.
[5] Id. at page 8.
[6] Id.
[7] Id.
[8] Id. at page 20.
[9] Id. at pages 8, 12.
[10] Id. at 12.
[11] See Cullins, Ashley, Dr. Seuess
Enterprises Takes Another Shot at Vaporizing ‘Star Trek’ Parody Book, July 3,
2017, HollywoodReporter.com, http://www.hollywoodreporter.com/thr-esq/dr-seuss-enterprises-takes-shot-at-vaporizing-star-trek-parody-book-1016754
(last visited July 28, 2017).
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