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Fan Creations: What's the Right Balance?


I’d like to comment on a couple of similar yet very different situations currently unfolding, one involving the Star Trek media franchise, and the other concerning the indie video game Undertale.

One might not expect them to have much in common–one is owned by media giants CBS and Paramount, the other is almost entirely the sole creation of one man, Toby Fox.

So, what do they have in common?

Right now, both are in the midst of major actions against copyright infringement.

In the case of Star Trek, CBS has brought a lawsuit against a prominent fan film currently in development, called _Axanar. _Slashfilm has more details:

A project called **_Axanar_** has raised over $1 million in crowdfunding by way of Kickstarter and Indigogo, and producer **Alec Peters** has his sights set on making a studio-quality _Star Trek_ fan film. But CBS and Paramount have now filed a lawsuit to stop the production of this film, claiming it violates the rights of their intellectual property. ... It seems to be the scale of the project that has CBS and Paramount concerned about their rights, as _Axanar_ is essentially going where no _Star Trek_ fan film has gone before. After all, the pitch to get money for the project said that _Axanar_ will have industry professionals working on the production, some of whom have even worked on official _Star Trek_ projects. ... What’s strange about this lawsuit is that Peters already met with CBS to make sure he wouldn’t be infringing upon their rights. Back in August, just after the project met its crowdfunding goal, Peters explained to [The Wrap]( that he met with CBS, but they didn’t offer much in the way of proper guidance as far as how to avoid a lawsuit. All the network said was that they couldn’t make any money off the project.

The article goes on to express some puzzlement at CBS’ behavior, but it’s honestly not that hard to understand. CBS has been willing to tolerate fan films–which, make no mistake, are copyright infringement by definition–so long as they are relatively low-budget enterprises in which no one is turning a profit. After all, as the rights holders, only CBS and Paramount (and their official licensees) have the legal right to profit from Star Trek. One could, of course, argue against the existence of copyrights in their current form. I, myself, am not enamored with the existing copyright system. But from a legal standpoint, CBS has a very clear-cut case, and was probably moved to action by producer Alec Peters clearly taking in large sums of money specifically to fund a Star Trek production, paying himself a salary and building an independent film studio in the process. This is far, far beyond the scope of what are commonly understood to be fan productions–Axanar is well outside the labor-of-love-with-garage-built-sets that has characterized fan productions in the past.

All that said, considering CBS’ legal standing, I don’t believe they have been unreasonable in their approach to fan productions. To my knowledge, this is the only one they have bothered to pursue, and there are many others out there to go after, should CBS so choose. It seems likely that the sheer scale of Peters’ project, and his publicizing of the project as being a “professional” production, are what have landed him in hot water.

So, what about Undertale? If you’ve never heard of it, a little explanation is in order.

It’s a role-playing video game with a retro visual quality, a non-traditional combat system (to say more would spoil it), and perhaps most importantly, an unconventional and engaging narrative that has brought it enduring popularity and a rabid fan base. Creator Toby Fox has reportedly made over $4 million from sales on the Steam platform alone–not bad for an independent, one-man production!

Fox has stated on the game’s official blog where he stands with regard to fan art, merchandise, and the like:

Hey guys and gals, I’ve been working on getting UNDERTALE merchandise created with the great guys and gals over at Fangamer. In the meantime, could you guys and gals (and guys) NOT sell unofficial UNDERTALE merch? For the record, I’m OK with one-off commissions (such as the clay models, that felt toriel plush, a drawing of a skeleton you paid someone to do, etc.) but when products show up mass produced at a con or on a website, then we’re going to have a problem. Thanks guys and gals.

True to his word, he has begun to invoke DMCA takedown requests on sites selling Undertale prints.

In effect, Fox’s position is designed to have same general impact as CBS’ approach to fan productions: unlicensed, unofficial merchandise created by fans is fine as long as there’s no potential for making significant amounts of money. No one is going to get rich making one-off plushes and commissioned drawings. But mass-produced toys and art prints? Those take a one-time investment of effort, and thereafter can produce any amount of revenue. To me, at least, it’s understandable and strikes me as reasonable to set this kind of standard.

Both of these situations have made me think about the concept of fan productions in general. For any media property with any amount of popularity, there’s fan fiction, fan art, fan videos, and so forth. If you are the owner of a popular creation, it makes sense that you would want to monetize it through merchandising (although not all choose to, of course). And in such a case, it isn’t very smart to have to compete with yourself, and in fact, this is precisely what copyright laws are for: to allow creators to profit from their work and anything based on it without having to worry about others simply copying it or making their own versions to sell.

In the case of an entity like CBS, it’s a common sentiment that a faceless corporation isn’t being harmed by a little infringement–indeed, CBS’ own actions have indicated they feel more or less the same way, by choosing to go after Axanar instead of other, smaller productions that aren’t taking in millions of dollars. But with Undertale, I get the impression that some fans have decided Toby Fox has made “enough” money, and it’s unfair of him to not allow virtually unlimited unofficial merchandising by fans.

The thing is, once you’ve started making unofficial merchandise with the intention of selling it in large quantities (or at least making a lot of money from it), you’re no longer engaged in what could reasonably be described as “fan activity.” You’ve graduated into knockoffs, and I don’t find it unreasonable for an owner to go after and quash that.

Still, such unilateral behavior can be alienating to fans, and my personal approach (were I in such a position) would be to allow unlicensed works for profit in exchange for a reasonable royalty on all sales. This allows fans to create and sell their work–after all, many do put many hours of work into their fan productions, and that is certainly something that should be valued and appreciated–and it also ensures the original creator sees some of that income, too, so they aren’t left in a position where they must both rely on official merchandise (which may not sell well, for a variety of reasons) and simultaneously crushing unofficial creations.

Of course, those are just my thoughts, and the law is quite clear that one doesn’t have to allow unofficial productions _at all_ (except insofar as Fair Use terms permit). As online storefronts and fandom conventions become an ever more important part of fan activities, though, both copyright owners and fans will have to contend with this tension between nurturing and respecting a fan base, and avoiding letting it run wild making money from unlicensed creations–money that the copyright owner has a legal entitlement to, but for the sake of pragmatism may need to turn a blind eye or settle for a portion of it.