Last year, Justin Lin and J.J. Abrams both went on record as being supportive of Star Trek fan films and that the fans should be encouraged to make them. A month later, CBS and Paramount issued a set of fan film guidelines that shocked many fans and angered others with their restrictions on length, shutdown of continuing fan series, and moratorium on participation by anyone who had previously worked on any studio-authorized Star Trek project…from movie and TV series to video games and even package design.
On the one hand, it was nice to finally have a set of guidelines that clearly defined what the fans would be allowed to produce without the fear of getting sued. On the other hand, a good number of fans familiar with fan productions felt that certain of the guidelines (like the ones I just listed) had overshot the mark, landing in a place of being too constraining and unnecessarily Draconian.
However, unlike a year ago when big names like Abrams and Lin spoke out on the fan film issue, no major names in the world of Star Trek have commented on the new guidelines other than John Van Citters (who was one of the people responsible for writing them).
But now that has changed, as I was able to interview Star Trek: Deep Space Nine Executive Producer STEVEN IRA BEHR and ask him directly, on the record, how he felt about the guidelines. Granted, I don’t expect Ira to rush out and rally for the guidelines to be revised and loosened. But I was curious if we fans who feel so negatively toward some of these guidelines are justified in feeling that way or not. Would Ira agree with us….or would he think that we’re just being petulant (or crazy!) to have any problems with these reasonable studio rules? You can find out below…
And for anyone curious how a small-time blogger managed to score an interview with Ira Behr and get him to speak on the record, I donated to the Indiegogo campaign for his Deep Space Nine documentary “What We Left Behind,” which blew through its initial $150,000 goal to reach nearly $650,000! (Click on the above link to learn more about this exciting project.)
The perk I donated for was a 10-minute call with Ira Behr where I could ask him anything. I cleared with his assistant beforehand that I’d be able to record the call and post it on my blog site, and last week, we spoke for more than 15 minutes. It was a really great conversation.
And here’s what we talked about…
You forgot to mention that CBS by banning certain actors from employment and banning all actors from being paid with the threat of a lawsuit means that CBS is in direct violation of California employment laws. What would his opinion have been if you pointed that fact out?
I only had 10 minutes with him (although it stretched to 15). I didn’t want to waste any time explaining California employment law. 🙂
Can someone please post the complete text of this law (if it is not too long), because I have a feeling that it doesn’t say what some people seem to think it says.
California Business and Professions Code, Section 16600
“…every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”
Guideline #5 says that participants in fan films “…cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.”
Technically, if the guidelines are interpreted as an assumed contract–which is essentially their practical function (even if they carry a disclaimer) because they say that if you follow these guidelines (a condition to be met by one party) then you will not be sued for infringement (an agreement by the copyright holder to take no legal action)– then Guideline #5 becomes unenforceable under California Business and Professions Code, Section 16600 because it attempts to keep certain persons from engaging in a lawful profession or trade (acting, writing, directing, VFX, sound design, music composition, editing, etc.–all lawful professions).
“every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”
Acting in a film that’s using some one else’s intellectual property, copyrights or trade marks probably wouldn’t be a lawful profession.
I’d like professionals to be able to be in fan films but I wish people would stop trying to say that this guideline is breaking a law, it might be a dick move, but it doesn’t break the law.
Remember, the guidelines say that, if you follow them all, then you will NOT be sued for infringement…which supports the argument that said fan film would not be considered a violation of the studio’s copyright (or else they would sue). So, if Guideline #5 were determined by a court to be null and void but the rest of the guidelines were followed, then the fan production is not infringement and, therefore, participating in it would then be considered wholly lawful.
And I should mention, the guideline itself breaks no law. People trying to sound angry and tough phrase it that way, but it’s inaccurate. There is simply a legal code on the books in this state that says a contract that contains a clause such as Guideline #5 would be considered null and void in regards to that one specific clause. Guideline #5 is not “against the law.” It is simply unenforceable in California if a lawsuit against a fan film can be legally determined to be a breach of contract case and not copyright infringement.
Thanks, Jonathan.
Okay, I get where this code is coming from. It is obviously an attempt circumvent “non-competition” clauses of employee contracts. You can find them everywhere. Even as a lowly copier repairman back in the day, I had to sign a contract that said if I ever left the company, for whatever reason, I wouldn’t go to work for our competition for a certain specified period after I left.
I was concerned that people were trying to say that if an actor or other trade professional chose to donate their times and talents to a fan film production (assuming they were never associated with the Star Trek franchise previously) that the code would prevent that as well.
Can it really be an “assumed contract” if only one side agrees to it?
Does only one side agree to it, though? The studios agree to their side: do these 10 things and we won’t sue you. The fan production agrees to their side: okay, we won’t do these 10 things. That’s an agreement and, even though unsigned by either party, it still serves in the function of an implied contract. The guidelines include a disclaimer at the end that says, “These guidelines are not a license and do not constitute approval or authorization of any fan productions or a waiver of any rights that CBS or Paramount Pictures may have with respect to fan fiction created outside of these guidelines.” But that still doesn’t preclude them being interpreted by a court as an implied contract.
And if that is what they are, then it California, at least, any clause in that contract that restrains an individual from working, and Guideline #5 does that, is null and void. BUT!!! That does depend on the court first ruling that the guidelines are, in fact, an implied contract…and that is, by far, not a slam dunk.
OK first off you’re reading it wrong and taking it out of context to fit your point of view, which is essentially that the guidelines are illegal. (Based on what I have seen you post here and in other forums)
Let’s start here: “…every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”
Let’s define Contract:
1
a : a binding agreement between two or more persons or parties; especially : one legally enforceable If he breaks the contract, he’ll be sued.
b : a business arrangement for the supply of goods or services at a fixed price make parts on contract
Now we need to Define Guideline:
NOUN
A general rule, principle, or piece of advice.
‘the organization has issued guidelines for people working with prisoners’
As WE can see they are two distinctly different things. One is legally binding the other is not, unless certain conditions are met.
Then and only then can they be compared in an abstract form.
As far as Number 5 goes it is incorrect to state: “becomes unenforceable under California Business and Professions Code, Section 16600 because it attempts to keep certain persons from engaging in a lawful profession or trade (acting, writing, directing, VFX, sound design, music composition, editing, etc.–all lawful professions).”
Your assumption is that they are breaking the law with number 5. You have failed to take into account any previous contract they currently or were bound to in the past.
You also fail to see that the value of said IP could be put at risk if they let outsiders have access to information they want kept private.
Not trying to be snarky, but how many fan films are actually made in California? I’m asking because I really have not idea. And from what I understand other states to have the non compete law and are not bound by CA law. And of those Fan Films that are not produced in CA how many can afford to pack up and move to CA just to get around hiring Trek alumni?
Both CBS and Paramount are based in the state of California and subject to its laws. CBS also has a corporate presence in New York, but Paramount does not. In order to sue jointly, they would likely file within California…not, say, Georgia or Arkansas or Pennsylvania or Florida…where neither has a corporate base.
Of course, many dominoes still need to fall in the right way for this scenario to come to pass:
1) CBS and Paramount have to decide to actually sue a fan production again (they didn’t exactly enjoy the experience the last time and have little to show for their money and efforts).
2) The fan producer(s) have to lawyer up. There’s no guarantee they won’t just roll over and surrender immediately.
3) The defense team has to convince the court that the guidelines serve the function of an implied contract.
4) The court must then agree that this is not a copyright infringement case (which is federal and handled by the Ninth Circuit) and instead a breach of contract case that can be remanded to a state court.
If it gets past the fourth step, then the fan production has to be certain that the ONLY guideline they violated was #5. If they violated ANY other guideline, even slightly, then the fan production is in breach and, by the stipulations of the “agreement,” the studio(s) can sue for copyright infringement, and we’re right back in federal court again.
“Both CBS and Paramount are based in the state of California and subject to its laws.”
Actually, nope, CBS and Paramount are based in Delaware….
The executives are mainly in CA and NYC. There’s no way they would file in Delaware and require everyone to fly there.
Let me see:
“Both CBS and Paramount are based in the state of California and subject to its laws. CBS also has a corporate presence in New York, but Paramount does not. In order to sue jointly, they would likely file within California…not, say, Georgia or Arkansas or Pennsylvania or Florida…where neither has a corporate base.”
They don’t have to have a corporate base, just corporate offices for CBS it’s NYC for Paramount it’s Burbank, CA
So with that established we know it was Paramount that brought the Axanar Lawsuit. Since CBS is the parent company they had to file as well.
“Of course, many dominoes still need to fall in the right way for this scenario to come to pass:
1) CBS and Paramount have to decide to actually sue a fan production again (they didn’t exactly enjoy the experience the last time and have little to show for their money and efforts).”
Actually it probably cost the studios considerably less money than your making it out as. It’s not like this was a rare occurrence, they deal with cases of this nature on a daily basis. It probably cost the studios less than 1.5 million. Then again Axanar got the welfare attorneys…
“2) The fan producer(s) have to lawyer up. There’s no guarantee they won’t just roll over and surrender immediately.”
No one would expect them to, yet once the evidence was out and the defendant was caught lying to the courts it’s only obvious the smart thing to do is settle.
“3) The defense team has to convince the court that the guidelines serve the function of an implied contract.”
As I’ve stated in a previous post, it’s not a contract. It is a guide or walk way to ensure there are no problems.
“4) The court must then agree that this is not a copyright infringement case (which is federal and handled by the Ninth Circuit) and instead a breach of contract case that can be remanded to a state court.”
Yet if it looks like, walks like and talks like Star Trek… Then there is an infringement case.
“If it gets past the fourth step, then the fan production has to be certain that the ONLY guideline they violated was #5. If they violated ANY other guideline, even slightly, then the fan production is in breach and, by the stipulations of the “agreement,” the studio(s) can sue for copyright infringement, and we’re right back in federal court again.”
No, that’s not how it works. It can fall any number of ways. EVEN IF the fan film doesn’t violate the guidelines the studios can still sue because IP law in the United States says that they can choose to sue or not to sue whom ever they see fit.
It’s quite clear that since only one fan film has ever been sued and that was basically because the fan producer was openly bragging and insulting the studios, not to mention making money off of their IP
Can any one here try to understand me right here and now That you are telling everyone the WRONG thing here on the fan film rules. Why DON’T YOU just better read the full rules to everyone who read the same rules for tv and the movies. They need to go by to it is not for fan films. It is a bunch of junk rules. It DON’T have not a thing to do for the internet services and do to cbs and paramount studio is not telling everyone here the truth about this subject of star trek films for the internet only. They are telling everyone not to use no part of star trek films for the internet. But you all should know that star trek is for everyone. Cbs DON’T have no right’s takeing it away from the fans like me or like you. I will fight my way and i have many person and people who are are in the same boat when it comes to star trek films for the internet only. So in part i will never use no part of the rules that cbs or Parmount stuido put’s out.
Just a reminder to folks, this Kenny Smith is not the same guy who is creating “First Frontier.”
He sounds more like the “Time Cube” guy…
First it was established that CBS odds Star Trek and they cad do what ever they want with it, even if it put it on a shelf and gather dust, they can pull it from every streaming service and show it only on theirs if they want.
Fans do not own it period, that they allow Fan Films to still be made is a bonus that pros should be thankful for.
WHAT??????
What are you saying man?
First, I appreciate the interview. For me it highlighted the difference between the creative side and the bureaucratic side of the studio houses.
I was particularly caught about his desire to show all of the creative process for “Season 8, episode 1”. I’ve seen edited reality shows of various kinds and wondered what REALLY went on. Besides the fan interest in seeing the creative process, such a “show it all” video would be really valuable to people interested in that kind of career. It’s good to know what you’re getting in to.
Yeah, I would totally watch every minute of that meeting! 🙂
Spectacular! I thought he might try to take a hard position or dodge the questions.. but he really waded into them, and made thoughtful rational conversation about them. He’s also got a sharp mind that evolves.
The comment about Bajor and the Federation, and what he thought about fan fiction resolving that, was an opinion, but a very good one and very valid.
I especially like what he said about Bill expanding his perceptions about Star Trek and launching him down his DS9 documentary path.
The questions you asked about the docs planned distribution path, were exactly the kinds of things I would have asked.
It was a comprehensive and thoroughly “deep” conversation in a very tight timeline.. not a seond was wasted.
Thanks for that, very clever wrangling the interview too!
Thanks, John. (Man, it feels so nice not to be publicly flogged every so often!) 😉
It was interesting just wish it was longer.
Really good interview with Ira Steven Behr – I really appreciated his viewpoints on the Fan Film Guidelines, and I totally agree with his opinions, as well… P 🙂
Hi, Mr. Lane
I enjoyed the interview; the part about his documentary, the part about his time working on ST, as well as the part about the guidelines.
Am I to understand Mr. Behr is, or is wanting to, start making DS9 again??? That would be interesting.
I found it fascinating that, was it he crowdfunding for $100K?, but got $600K? Now see, I find that interesting when he was saying that that unexpected massive overfund fundamentally changed the metric in terms of how he was previously thinking about it. And what he can now do. So now the completion is being moved forward so he can get all these newly affordable things incorporated into the original plan.
I thought that a terrific point that actually highlights one of contentious points we questioning donors have had with the movie fan film when we saw the dates keep getting pushed forward (or is it back). He made your point and gave me some insight. Cool.
I was interested in his point on the guidelines about using previous ST employed persons on fan films. But I hadn’t considered 15 minute non-serialized fan films with previous ST employees choosing to practice their craft on a fan film that won’t be paying anybody including them? Well, that does sound like a ‘Fan’ film to ‘me’. Cool.
Also, I was interested in how he reiterated ST is filled and bouncing off rules, fighting with rules, rules rules rules. 🙂 He said “And you know what? Who knows and who cares and we tried to do a good show”.
Oh. And that a fan author took license with the Bajor story, making it part of the Federation, and it P. him off because the whole point of the series was that Bajor ‘Not’ become part of the Federation. I could see how a produced series/movie could have real issues with me changing their story.
I was extremely cognizant and very much appreciated that your wording when using ‘fans’ was qualified with ‘some’ or ‘lots’ rather than stating it as though all fans were in on this and all thinking the same. I so very much appreciated you for not speaking for all fans, and in particular ‘this’ fan. 😆 Cool!!
And you impressed me when Mr. Behr said he knew fan films existed but didn’t know any and had never watched one so his opinion didn’t matter to a hill of beans. And you stepped right in and said “Your opinion matters because you’re a person with an opinion.”
When I heard you say that I physically raised my hand in salute to you 🙂 being that’s point of contention lots of us face; ‘you’re not connected to the production, you didn’t donate, you didn’t donate enough, you don’t contribute in any way, you haven’t done anything in your life, so you don’t deserve or have the right to have an opinion on it’. Thanks for that, Mr. Lane. Very much.
I wish him well in his endeavors and thank you bunches for the Interview!
All excellent insights, TYGR…especially this one you made:
“Now see, I find that interesting when he was saying that that unexpected massive overfund fundamentally changed the metric in terms of how he was previously thinking about it. And what he can now do. So now the completion is being moved forward so he can get all these newly affordable things incorporated into the original plan.”
Folks tend to fault Alec Peters for expanding the scope of Axanar as the money began rolling in. But in fact, the additional funding was simply opening up new opportunities to make an ever-more ambitious fan film. At the time, it wasn’t considered “too” ambitious. There was enough money to afford to build a soundstage to construct the sets and shoot on, and enough to film the first 30 minutes. It was assumed that enough additional could be raised to shoot another 30 minutes the following year and 30 minutes more the year after. At the time, this seemed a reasonable plan…as no one expected a full-on lawsuit, and Axanar crowd-funding campaigns were still taking in mid six-figures. And had that money dried up, the second two parts might have become just one part…or less ambitious parts.
Right now, there’s no one who can say that Ira Behr and his team are making the right or wrong decision in how to spend their $650K. In another year or two, with 20/20 hindsight, maybe folks will be able to say, “Man, Ira, you shouldn’t have done that and shoulda done this instead.” But right now, no one can say anything, and the production team just needs to be left to navigate their own path.
Is he Ira Steven Behr or Steven Ira Behr? Your article and headline have a different name than the one on the picture.
D’OH! I read over the text two or three times trying to catch typos, but I seldom check the headline!!!! Thanks for catching that–I’ve now fixed it. It’s IRA STEVEN BEHR.
That is a bit of a stretch of the imagination. Say the fan film is in VA CBS would bring suit in VA not in CA. Where VA isn’t bound be CA laws. Because the 16600 code you quote isn’t Federal law.
As I said to another comment poster, CBS and Paramount wouldn’t file suit in a place where their executives and lawyers would have to fly back and forth to. That’s throwing away a LOT of money on travel!
If CBS files suit in VA in response to the fan film violating guideline number 5 then what would stop the film maker from filing suit in California challenging the legality of the guidelines? If CBS did file suit in VA and film maker filed suit in Caliornia it would become a nightmare for the CBS legal team to try to defend their guidelines in one court while trying to sue someone for violating the guidelines in another.
Well, first of all, either side can simply file for a change of venue without having to file a completely different lawsuit. But let me get to the second-of-all…
CBS/P will never ever be suing a fan film for “violating guideline #5.” They will be suing the production for “copyright infringement,” just as they did with Axanar. Violating the guidelines will simply be a trigger, but it’s not a cause of action in and of itself.
Infringement of copyright is a federal complaint, and the vast majority of such cases are handled in either the Ninth Circuit (California) or the Second Circuit (New York). This is because the vast majority of copyright holders are usually based in California (film and television) and New York (books and music). Even if a song were recorded in, say, Detroit or Nashville, the record labels are likely in NYC or LA. As such, those two federal courts are most familiar with and well-versed in copyright law.
And in a federal copyright action, state law would be superseded. In other words, California’s Business and Professions Code Section 16600 would have absolutely no bearing on a copyright infringement lawsuit. Unless…
If it could be argued in pre-trial motions that the guidelines that triggered the lawsuit were an implied contract, then there’s a possible legal conclusion that the guidelines represent a “soft license” for a fan film to use CBS’s intellectual property as long as the guidelines are all followed. Perhaps CBS isn’t thinking that way, but the law must also take into account the interpretation of the message by those acting upon it.
Now, it any guideline other than #5 is violated (for example, the production forgot to include “A Star Trek Fan Film” under the title or went over the 15-minute limit), then game over. The contract was breached, and the infringement lawsuit can go on as filed. But if ONLY guideline #5 were violated (keeping in mind this is ALL hypothetical), then the defense can argue that the contract was adhered to by the fan production with the one exception of a clause void within the state of California where the plaintiffs have a business presence–yes, that’s important to a judge–and therefore, the contract has not been breached. As such, CBS and Paramount must honor their part of the agreement NOT to sue if all of the guidelines (that are valid and not void) are followed.
But hey, this is all VERY conjectural. I doubt there’s even gonna be a fan film that follows EVERY guideline EXCEPT number five. (That said, I did hear about just such a project earlier this past week, but it’s only in the VERY early planning stages. It it does ever get made, though, it’ll give Prelude a run for its money.)
The only reason CBS and Paramount filed in CA when they sued Axanar is because that is where Axanar and Alec Peters were located. And why on Earth would they file suit against a fan film in a CA when said fan film was located in another the state. A stated that does not recgonize Code 16600 nor is it bound by the Codes of CA? No I have to disagree with your logic on this one Corproations like CBS and Paramount have firms on retainer and corporate jets and quite frankly it is in their interest to spend a few million to protect an IP that is worth a few billion. They don’t need pro bono attorneys they got this covered.
Corporate jets. Love it! 🙂
Since Their corporate offices are in California they are subject to California laws including contract and employment laws. I think it may be frowned on to file a lawsuit in another state in an attempt to circumvent state law.
Rekha Sharma just guested in Star Trek Continues #8 and will be in Discovery.
Thoughts on the guidelines now?
Unchanged. I doubt her hiring had anything to do with Star Trek Continues being on her reel. I think it’s just a coincidence.
On that concept that the guidelines are a type of contract, I say “BOLLOCKS TO THE LOT OF THEM”.
It is a contract I refuse to sign.
(Sorry, I am still very annoyed by the whole lawsuit and guidelines cluster frak)
I will stop here before I rant further.
You don’t have to sign it, James. It’s an IMPLIED contact. 🙂
I doubt the average fan film co could afford to do much of anything in CA it’s expensive here.
“Star Trek: Hidden Frontier” was filmed in Pasadena for ten years. I know–I worked on it. 🙂
Actually Brenda,
It’s not very expensive here in CA if you take the time to find a proper location that’s affordable. There are many more cost effective resources here than in most states if one takes the time to look.
Corporate offices are in NY I believe the corporation is registered in Delaware.
You’re just not gonna let this go, are ya? Fine, most lawsuits are filed in Delaware and Nevada because most companies are incorporated in one of those two states. The courts in Delaware are overflowing and all other courtrooms in other states are empty because no one ever files suit there…only in Delaware. Even the Axanar case was really filed in Delaware and not California.
Are you happy now, Brenda?
That’s one how many fan films are there that aren’t?