When it comes to Star Wars, both Lucasfilm and Disney have shown themselves to be perfectly insane when it comes to IP protectionism. Examples of this are legion, and neither company has come out of them with a stellar or fan-friendly image, generally speaking. That is probably why when Toos, the guy behind the quite popular Star Wars Theory YouTube channel, decided to put out a Darth Vader fan-film, he went out of his way to attempt to follow all the rules.
When he first began to make the Vader film, he contacted Lucasfilm who gave him their blessing to make it, as long as he made it without crowd funding and left the video un-monetized, meaning that no ads would run on it, hence there would be no revenue to collect from it.
These rules themselves don't make it easy for fan-films like this to exist. The production costs for Toos' film ran in the six-figures. Without the ability to run ads on the film himself, or crowd-fund the production costs, Lucasfilm's rules almost feel like a test of Toos' personal fandom. If so, it was a test he passed with flying colors, having completed the film and releasing it in January. It has been viewed over seven million times at this point.
Which probably makes it really annoying that Disney claimed the video on YouTube due to the inclusion of a short cover of the Imperial March being in the film and then subsequently decided to layer its own advertising all over the video.
Earlier this week, Theory posted a video saying that Disney and their partner company Warner Chappell had claimed that because the custom score used in the film used a rendition of the Imperial March score, then it was in violation of their copyright policy. They used this copyright to claim that the entire film was now their intellectual property and were now going to run ads on it and collect the revenue themselves.
Now, Toos could have appealed the claim, of course, which would have kicked off a claim/counter-claim routine that perhaps would have ended in a federal court filing. Given the money Toos already sunk into all of this, he produced a video instead saying he was just going to lay low on the whole ordeal.
Which is when, somewhat unexpectedly, Lucasfilm decided to get involved.
Yesterday, on January 16, Star Wars Theory posted another update video on his channel regarding Disney’s copyright claim, but this time it was good news. According to him, after a backlash from Star Wars fans, Lucasfilm stepped in and told Disney that Theory made the film under a certain set of rules and that they needed to release the copyright claim that they placed on the Vader fan film.
Which, yes, brings all of this back to where it was before Disney decided to claim the entire work of a fan-film over one of the most recognizable and widely available songs in any musical score on the planet. And this was, by the way, after Disney initially refused to back down at the request of Toos.
So...welcome to the light side of the force, Lucasfilm?
Being fully immersed in an era of copyright protectionism, it seems that we've become numb to the effects of it in many ways. One of those effects is how fans who create content around their favorite franchises are treated. The basic policy of the entertainment industry towards fan-films and similar creations appears to be that they can either bully those projects out of existence, sue them out of existence, or do one or the other even after confusingly giving tacit approval for such projects. Those are the options in full, as far as most entertainment companies are concerned, while the public looks at those actions and shrugs their collective shoulders. You'll even occasionally hear noises such as, "Well, what did these fans expect?" All this, keep in mind, for the crime of trying to express fandom, and free advertising for the franchise they love.
Well, if you're Games Workshop, the company behind the Warhammer 40k franchise, you react to a dedicated fan who has created great fan-films by hiring him to do his thing professionally.
Richard Boylan wowed us with both Helsreach and Guardsman, short, gripping takes on different pockets of the Warhammer 40,000 universe in both animation and live-action. And it turns out he wowed Games Workshop itself, too, because he’s now helping the company make an official Warhammer animated series.
GW has now unveiled Angels of Death, a new animated series set to release from Boylan and his team in 2019.
It's frankly sad how few media companies take this route, which sure appears to be the optimal one. This is all essentially a combination of encouraging fans to produce otherwise free promotional material for the Warhammer franchise, showing that those efforts might actually be rewarded with paid work if they're good enough, and garnering the kind of positive PR messaging that can only be cultivated organically. Meanwhile, Games Workshop isn't harmed in any way, and in fact continues to benefit. And it gets a great marketing campaign for the film, given that it's produced by a fan, for fans.
It’s cool to see Games Workshop branching out the Warhammer brand like this again—it has tried animated movies in the past, but they’ve been a bit lowkey. Hopefully, by reaching out to Boylan, who’s already proved that he can do great things with animation on a fan’s budget of...well, personal passion, something really cool can come out of Angels of Deathgetting the proper GW seal of approval.
What needs to happen is for this kind of response to become SOP, rather than some weird outlier. If more entertainment companies embraced their biggest fans, rather than trying to bully and sue them, the world would be a more entertaining place.
We've been covering the still going lawsuit by CBS and Paramount against Axanar Productions for making a crowdfunded fan film that they claim is infringing because it's looking pretty good. Things got a little weird last month when the producer of the latest Star Trek film, JJ Abrams, and its director, Justin Lin, basically leaked a bit of news saying that after they had gone to Paramount, the studio was going to end the lawsuit. At the time, Paramount said that it was in "settlement discussions" and that it was "also working on a set of fan film guidelines."
We pointed out that we were concerned about what those guidelines might entail, and worried that they would undermine fair use. In the meantime, as settlement talks continued, the case moved forward. I'm still a little surprised that the two sides didn't ask the court for more time to continue settlement talks, as that's not that uncommon, and it's something that a judge often is willing to grant if it looks like the two sides in a dispute can come to an agreement. But, without that, the case has continued to move forward with ongoing filings from each side.
In the meantime, however, the StarTrek.com website, run by CBS and Paramount, has now posted those "fan film guidelines" and they are absolutely ridiculous. The Axanar team sums it up nicely by saying that:
The CBS "Guidelines" for Fan Films basically make it impossible for fan films to continue as they have.
The first item, for example, completely rules out Axanar's plan for a feature length fan film:
The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.
And there's another one that's clearly targeted at Axanar:
The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.
I don't quite see how or where that fits into fair use's rules...
Another one clearly targeted at Axanar -- which raised over a million dollars in Kickstarter and IndieGoGo crowdfunding campaigns:
CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease.
That seems rather limiting.
Some of the other terms are more reasonable, but it seems clear that these guidelines are pretty specifically designed to cut off an Axanar style fan film, and seem to be trying to cut off a lot more than fair use almost certainly allows. While for the sake of the folks working on Axanar, I still hope that this settles amicably, it might be a lot nicer to have Axanar be able to win a fair use claim in court over this.
Over the weekend, the internet blew up over the story that Paramount and CBS were going to drop their silly lawsuit over a professional looking Star Trek fan film. The news was "broken" by the producer of the next official Star Trek film, JJ Abrams, sitting alongside the director of that film, Justin Lin, at a Star Trek fan event. Lin had previously expressed support for the fan film on Twitter, and Abrams claimed that Lin urged Paramount to settle, and that "within a few weeks" there would be an announcement that the case had been settled.
Of course, between now and "within a few weeks," the case is still going on... and the folks behind the fan film, called Axanar, had to file their reply to the amended complaint. And they have. And, as per usual with these things, it goes through and rebuts various claims and then tosses in a bunch of counterclaims. Normally we'd go through and analyze the more interesting/important claims, but given that there's still a pretty good chance the whole case is going away shortly, we'll skip all that and jump to the part where Axanar's lawyers point to the JJ Abrams/Justin Lin statements and basically throw their hands in the air and say "we don't know what to do about this." After highlighting both of their comments, as well as the quote from Paramount "confirming" the settlement talks, the filing notes:
Nevertheless, despite these public comments, the present action remains pending, and Defendants are currently left with uncertainty as to how Axanar may proceed with its film to fulfill the wishes of thousands of fans who have contributed.
Given that pretty much everyone has admitted that there are settlement talks that are far along, it seems like the court should put the case on hold to see how those pan out. It's fairly common to see courts give parties extra time to settle such disputes out of court, and here's a case where that extra time clearly makes a lot of sense.
It still seems likely that the case will settle soon. I've seen some (fairly ignorant) commentary online arguing that because Axanar has filed counterclaims, the case must now move forward, but that's wrong. People are confusing the fact that the parties can settle the case outside of court with the issue of whether or not Paramount can just drop the case. From the statements everyone made, it's quite clear that they were discussing settlements, not Paramount universally backing away. A Star Trek "rumors" site claims that people at CBS are upset about the counterclaims and may continue the case even if Paramount settles (remember, Paramount and CBS co-own the various Star Trek IP). That report also claims that the two companies want the settlement to include the Axanar project being shut down -- which would seem to contradict the claims from Abrams.
While anything is possible, and the revealing of the settlement before it was actually agreed to could make things a bit messier, I find the claims about this difficult to believe. Axanar had to file its response because the case is still going and it was due. And they filed a strong response with counterclaims, because they have to do that, in case the settlement talks do fall apart for whatever reason. They can't go back to the judge and say "Hey, we filed a weak response because we thought we were all chummy now." That's not how it works. And, of course, the lawyers on the other side know this as well. The idea that the high priced lawyers at Paramount and CBS were somehow offended by this seems like a stretch. I may not agree with their views on copyright law, but I'd doubt they're so thin-skinned that some expected counterclaims will suddenly stop them from wanting to settle. Frankly, all the talk about how the counterclaims have sunk the settlement seem like wishful thinking from a group of folks who just hate the idea of Axanar.
Since December, we've been following the ridiculous Paramount/CBS lawsuit over a big crowdfunded Star Trek fan film called Axanar. While it is true that by raising over a million dollars on Kickstarter, and getting a professional team and actors behind it that Axanar started to blur the lines between a traditional fan film and a full-on professional production, it still seemed like a ridiculous and anti-fan move to sue. To some extent, it highlighted yet another problem with today's copyright laws, which are woefully unprepared for the fact that the equipment is cheap enough and available enough for "amateur" work to be really, really good.
We'd been covering the case, including the ridiculous overclaiming of copyrights by Paramount/CBS (including claiming a copyright over the Klingon language and "uniforms with gold stars.") Things had just been starting to heat up and the judge was gearing up for a trial... when famed producer/director JJ Abrams announced at a fan event for the next film that the lawsuit was going away.
In case you can't watch or listen to that, JJ Abrams is on stage with Justin Lin (director of the new Star Trek Beyond) and professional Mythbuster Adam Savage and explains that he and Lin were really bothered by the lawsuit and what it meant for fandom, and urged Paramount to settle:
“A few months back there was a fan movie, Axanar, that was getting made and there was this lawsuit that happened between the studio and these fans and Justin, I’ll tell the story because he probably wouldn’t, was sort of outraged by this as a long time fan. We started talking about it and realized this was not an appropriate way to deal with the fans.
The fans should be celebrating this thing, like you're saying now. We all... Fans of Star Trek are part of this world. So you [Justin] went to the studio and pushed them to stop this lawsuit and now, within the next few weeks, it will be announced this is going away, and fans would be able to continue working on their project”
For what it's worth, the deal is not yet final. Alec Peters, the producer of the Axanar film has said that he wasn't expecting this and wasn't entirely sure what it meant -- but was "frantically texting" with his lawyers. He also says he's promised to name his first kid after Justin Lin, which, of course, now that it's on Twitter must be the same as a binding contract, right?
In my excitement, I may have told Justin Lin that I will name my first kid after him. In fact, I am pretty sure I did.....Alec
— Axanar Productions (@StarTrekAxanar) May 21, 2016
This seems like a very good result for all involved, assuming the details get worked out. It also shows that there are solutions that don't need to involve lawsuits (and perhaps Paramount would have been smarter to have gone down this road first rather than this far into the lawsuit).
Similarly, it's a good thing that Paramount will be releasing fan film guidelines (and it would be great to see others do the same) but the details here will matter. If it's making it easier for people to make fan films, even to the point of granting licenses to allow people to do things without fear of a lawsuit, that would be really great. But what restrictions there are on all of this should be worth watching closely -- especially if the guidelines suggest that fair use is not allowed or still include overclaiming of copyright. I'm actually reminded of the story from a few months ago about the Fine Bros. trying to freely license some of their stuff, which was doomed by the horrible way it was rolled out, along with the Fine Bros.' history of aggressive complaints against anyone doing marginally similar stuff. But at that time, I noted that if, say, Lucasfilm had opened up its assets to fan film makers to create fan films with a free license, with just a promise to share back a small percentage of revenue, that would be quite cool.
So, now Star Trek will be getting some sort of official rules for fan films -- and I'm guessing that they'll restrict any and all commercial releases (which, frankly, is silly). And those details will matter quite a lot. But ending this lawsuit and letting the film continue is absolutely the right move -- so kudos to Justin Lin and JJ Abrams for telling the studio that... and to Paramount for actually listening.
Last year, we wrote about a somewhat speculative article by Charles Duan from Public Knowledge, connecting the ridiculous result of the Oracle/Google fight on the copyrightability of software APIs, to the idea of trying to claim copyright in a language, with a particular focus on Klingon, the made up language from the Star Trek universe. And, then, of course, back in March, that speculative hypothetical became much more real, when Paramount's lawsuit against a Star Trek fan film did, in fact, argue that Klingon was covered by copyright, and that the fan film violated that copyright.
A bunch of things have happened since then, as this mess careens towards trial, and we wanted to catch you up. First, the lawyers for the fan film, put together by Axanar Productions, challenged many of the claims made by Paramount in its amended complaint, noting that many of the things listed as copyright infringing, clearly were not -- including the language of Klingon.
The Klingon language... itself is an idea or a system, and is not
copyrightable. As the Supreme Court held in the context of a system of bookkeeping,
although copyright protects the author’s expression of the system, it does not prevent
others from using the system. Baker v. Selden, 101 U.S. 99, 101 (1879). The mere
allegation that Defendants used the Klingon language, without any allegation that
Defendants copied Plaintiffs’ particular expression of that language, is therefore
insufficient to state a claim for copyright infringement as to any protected element.
That filing similarly challenged the idea that costumes (such as "gold shirts") or geometric shapes (like "triangular medals on uniforms") were copyrightable. Oh, and also lots of things that clearly predate the Star Trek universe, like the idea of transporters ("have existed in science fiction since 1877") and warp drive ("have existed in science fiction as early as 1945").
Paramount Pictures, not surprisingly, disagreed on all of this, insisting that all of these things absolutely were legitimately covered by copyright. First, it argues (somewhat convincingly...) that the issue is not these individual items, but rather the entire collection of them, creating a "world" that is covered by copyright, and that the fan film is obviously creating a derivative work, which they claim infringes. But then Paramount Pictures decides to attack the claims that these individual things can't be covered by copyright anyway. On the question of copyright in Klingon, they actually argue that Axanar's argument "is absurd."
Language is part of dialogue, which represents one aspect of the Star Trek
Copyrighted Works and may be considered (at a later point) in a substantial
similarity analysis.... Defendants argue that the
Klingon language is not copyrightable because it is a useful system...
Again, this issue is not yet before the Court – and certainly is not an issue to be
addressed on a motion to dismiss.
Moreover, this argument is absurd, since a language is only useful if it can be
used to communicate with people, and there are no Klingons with whom to
communicate. The Klingon language is wholly fictitious, original, and
copyrightable, and Defendants’ incorporation of that language in their works will be
part of the Court’s eventual substantial similarity analysis. Defendants’ use of the
Klingon language in their works is simply further evidence of their infringement of
Plaintiffs’ characters, since speaking this fictitious language is an aspect of their
characters.
And then things got even more fun. A group called the Language Creation Society, represented by Marc Randazza, sought to file an amicus curiae (friend of the court) brief, which is well worth reading, in part because the section headings, along with a few key words, are in Klingon. For example, there's this:
If you're wondering, the footnotes reveal the translation. The ending of the first paragraph would read as "it lacks reasons." The two words in the latter paragraph are translated as "pathetic" and "arrogant." The pronunciations are also included in the footnotes, but I'll let you explore those yourself. The full brief is worth reading as it lays out, in great detail, why Klingon cannot be covered by copyright. It goes through a bunch of legal reasons, with caselaw citations, and then also points out conceptually just how stupid this is:
To claim copyright in a language is to claim ownership over all
possible thoughts and artistic expression that might employ that
language. If not ownership, such a claim at least provides some
support for the idea that the copyright owner could, at some point,
simply pull the plug on any future development in the language. It is
a breathtakingly vast legal assertion that encompasses particular
expression that the claimed copyright owner, by definition, cannot
even conceive of.
The filing also points out how silly the assertion above, by Paramount, that since there are no Klingons to communicate with, it's not a language and therefore is copyrightable:
First, this is a non-sequitur; a process or system need not be “useful” in
order to preclude copyright protection, and Plaintiffs provide no
authority to the contrary.
But more importantly, this is an insulting assertion. Many
humans speak Klingon. The annual qep'a' involves singing and
storytelling in Klingon. (See Exhibit 6.) People get married in Klingon.
(See Exhibit 10.) Linguist d'Armond Speers even spent three years
teaching his infant son to speak Klingon. (See Tara Bannow, “Local
company creates Klingon dictionary,” MINNESOTA DAILY (Nov. 17,
2009), attached as Exhibit 12.) Speaking and writing in Klingon is
not simply a matter of transposing words from a different language,
either; it has an unusual grammatical structure that provides a
different connotation than other languages....
And insult aside, Plaintiff’s contention is absurd. A language is
not constrained to a given ethnic or racial group. By their logic,
Ancient Greek is not “useful” because the Ancient Greeks are no
longer with us, and the language has no native speakers, despite it
being the original language of some of the seminal literary and
philosophical works of the western world. Plaintiffs’ logic would
seem to dictate that French is not “useful” if spoken by a native
German.
Well, it probably won't surprise you to find out that Paramount Pictures and its pricey lawyers weren't too pleased about Randazza's/Language Creation Society's filing. They've filed an opposition. They argue (perhaps correctly), that the filing comes way too late, but also claim that the issue of the copyright in Klingon is "not before the court."
In its application and amicus brief, LCS is asking the Court for an advisory
opinion on whether fictional languages are copyrightable. This is not at issue in the
motion to dismiss. At the motion to dismiss stage, the Court will determine whether
Plaintiffs have sufficiently alleged the existence of their Star Trek Copyrighted
Works and whether Plaintiffs have alleged infringement by the Defendants. The
Court has not been asked to perform a substantial similarity analysis at this stage of
the proceeding, and especially not to determine the independent copyrightability of
the Klingon language (or fictitious languages in general) outside of context of Star
Trek works.
Instead, they argue again that Klingon is just one piece of the puzzle that they're using to show that Axanar is an infringing work. But, of course, that makes no sense. Because they were the ones who started this off by claiming that Klingon was covered by its copyright. And if Klingon is not copyrightable, then they can't make use of it as an example of how Axanar is infringing.
Meanwhile, Axanar Productions then hit back at Paramount Pictures in a new filing on Friday, claiming that in its opposition to the Language Creators' brief, it "raised new arguments."
First, while Plaintiffs now argue that the Klingon language is “merely one aspect of the Star Trek Copyrighted Works” and that Defendants’ use of Klingon is “further evidence of their infringement of Plaintiffs’ characters” (Dkt. 38 at 3-4), in the First Amended Complaint (“FAC”) Plaintiffs do not limit their allegations in this way. In the FAC, Plaintiffs claim ownership over “Klingons” as a race (FAC at 12) and over the appearance of Klingons (FAC at 13-14), and they claim separately to own the “Klingon language” (FAC at 32). In fact, the Klingon language is listed as a “Star Trek Copyrighted Work” according to the chart in the FAC. Id. Plaintiffs are hard-pressed to link their claim to the Klingon language to an actual character when their FAC does not identify a single specific Klingon character, let alone any character they claim Defendants have infringed through using the Klingon language.
They also point out that the question of whether or not Klingon is covered by copyright is pretty important in establishing whether or not Paramount has a legitimate claim:
Indeed, like recipes in a cookbook, while the Klingon Dictionary may be protected from wholesale copying, the individual Klingon words contained therein and expression flowing from the Klingon language system are simply not protected. This Court should decline to allow Plaintiffs to stifle expression in Klingon when this matter can be resolved now as matter of law.
And, yes, it's amazing that a copyright lawsuit has resulted in someone begging the court not to "allow Plaintiffs to stifle expression in Klingon." What a world we live in.
The Axanar filing also accuses Paramount of shifting standards when convenient:
Plaintiffs’ Opposition to the Motion claims that substantial similarity analysis is “unnecessary” here. Opp. (Dkt. 31) at 11:7-9. But now, Plaintiffs are reversing course and suddenly claiming that the individual works they alleged in the FAC are just pieces for a broader substantial similarity analysis. Plaintiffs cannot invoke the substantial similarity test only when convenient, and cannot complain about parsing out Plaintiffs’ claim to the Klingon language when their FAC does just that. FAC at 32. Further, the FAC remains unclear about (1) which episodes and films that Plaintiffs claim to own are at issue here (rendering it impossible to even begin to engage in any substantial similarity analysis), and (2) how the Court could engage in a substantial similarity analysis with respect to the Potential Fan Film when it has not yet been made.
Needless to say, there's likely much more to come on all of this, and I imagine that it will continue to be quite entertaining. That said, while the larger issue may seem silly, the underlying issues here are of extreme importance. As in the Oracle/Google case, allowing copyright over something as simple as instructions or the concept of a language, represents a massive expansion of copyright law in a manner that clearly stifles both innovation and expression. We should be quite worried when courts are willing to allow such absurdities.
Let's go back just a few months to remind you about two stories that seem fairly unrelated.
Story one: at the very end of last year, we wrote about the ridiculousness of CBS and Paramount suing the makers of a Star Trek fan film on the basis of that fan film actually looking like it was going to be good. The key issue, not surprisingly, was about money. Because this fan film had raised over $1 million from crowdfunding, suddenly it must somehow be illegal.
Story two: a few months earlier, in trying to better explain to people just how crazy CAFC's ruling regarding copyrighting application programming interfaces (APIs) was, we discussed Charles Duan's excellent argument that noted that if such a ruling stood, merely using Klingon could be copyright infringement. The basic argument was that an API is a "created language." But could you imagine a situation in which the creators of such a language would claim that merely speaking it was infringement.
Well, welcome back to the present, in which Paramount and CBS's lawyers are now claiming that part of the reason why the fan film infringes is because of its use of Klingon. As first noted by Eriq Gardner at THR, Esq., the lawyers for the fan film had responded to the original lawsuit by pointing out that nothing in the lawsuit showed any specific thing that they were infringing on. And that's a problem, because of that old idea/expression dichotomy. You're only supposed to be able to infringe by copying the actual "expression," not just the general idea. And, thus, we get the amended complaint, in which the lawyers for Paramount and CBS desperately scramble to try to come up with just about anything that they can claim was infringed upon. And thus, we get... Klingon. The amended complaint basically argues that anything similar to Star Trek is copyright infringement, including characters, races, places, costumes, plot points, spaceships, logos and... language. Yes, including Klingon:
But, that's hardly all. Paramount and CBS literally claim that using any of the following terms are infringing: "beaming up," "transporters," "warp drive," "stardate" or "starfleet" or "phasers." Really.
To claim making use of words or phrases like that, which certainly remind people of Star Trek, is by itself infringing seems crazy. Ditto for claiming that merely using Klingon is somehow infringing. But, really, when you're throwing everything at the wall, you're going to throw some really stupid shit. How about this one: it's infringing because it has the same "mood and theme" and that's as a "science fiction action adventure."
Even things like the fact that the Klingon logo is similar is called out:
And there are a lot of complaints about costume similarities, starting with a "uniform with a gold shirt" with a "particular type of collar":
Or uniforms with a "cowl neck." Or, "triangular medals on uniforms." Really.
Believe it or not there's a lot more in there. I'm just highlighting a few. And a bunch of these it's difficult to believe are actually protected by copyright. General similarities in "mood and theme" are nowhere near copyrightable. Costumes, which make up a bunch of the claims, are (as we've discussed in the past) considered by the US Copyright Office as "useful articles" and not subject to copyright protection.
Clearly, the lawyers at Paramount and CBS are trying to argue that by copying many of these non-copyrightable elements, all together, that somehow magically makes it copyright infringement. And, you never know. Courts have been persuaded by these kinds of arguments in the past. And, of course, no one denies that this is clearly an attempt to build a "Star Trek" fan film. So it's obviously based on Star Trek. But there's a real issue about whether or not there really is infringement here, and by throwing absolutely everything into the filing, even things that are clearly not even remotely covered by copyright, it really makes Paramount/CBS look extremely desperate.
Since late last week, we've been getting lots of inbound requests and submissions to write about The Fine Brothers, and the claims that they're somehow trying to "control" or "claim ownership" on the concept of "react videos." Almost all of the inbound requests are expecting us to trash the Fine Brothers for this apparent attempt to "own" something that can't be owned, and we're going to disappoint them. Having gone through all of the details, it actually looks like the Fine Brothers were legitimately trying to do something that's actually... kind of cool. Now, before you rip off my head as well, please wait and hear me out. I will say that they could have been a bit more tactful about it, but I don't think they deserve the intense hatred they're getting.
There are lots of details here, but it starts with the Fine Brothers, Benny and Rafi, who have built up a rather impressive empire in creating amusing internet videos. They have a bunch of shows, many of which are crazy popular. Among the most well-known is probably the "Kids React" series, in which they film kids reacting to things (often "old" things that the kids may not be familiar with, frequently pop culture related). Personally, I like the one where kids react to seeing the very first iPod. Warning, if you're older than, like, 10, this video may make you feel really old.
Anyway... this latest mess kicked off with a YouTube video where Benny and Rafi Fine act as if they've just cured cancer or something, they're so excited for what they're putting out into the world -- a way for anyone to "license" their various show "formats," like Kids React:
And, right off the bat, I can totally understand why people were at least a little concerned about this. We've all spent enough time dealing with big successful entities using "licensing" to mean "we're going to stop you from doing stuff unless you pay us." And, honestly, the video above does feel a little weird with the two of them acting as if they've just done the most amazing thing in the world for their fans. I think the other problem with the way they announced this is that they've probably been so deep in the Southern California/entertainment world where questions about "licensing formats" for TV shows is something that's understood by everyone, that they just used the same terminology, without realizing how that would play with basically everyone else in the world, especially among their fan base. Again, to most people "licensing" means taking someone else's money and "formats" sounds like they're claiming ownership of any kind of reaction videos.
Here's what they probably should have said they were trying to do: "Hey, everyone, we know we've got lots of enthusiastic fans who love our react videos and want to make their own. And now we're going to help you make those videos, help promote them and even help you make some money off of them! Yay! Isn't that exciting?"
Here's what they said instead: "Hey, everyone, we're going to let you license our "React" intellectual property. Also, people who copy our videos are bad people, but now you can do it if you license from us! Isn't that totally exciting?"
Here's what everyone heard: "Hey, everyone, we own "reaction videos" and now if you want to make your own, you have to give us a cut or we'll shut you down, because you're bad! Isn't that exciting?"
The problem was that they focused on the mechanism ("licensing!") rather than the benefits. They've been pretty clear that they're not looking to shut down anyone. And all the claims from people saying that they're claiming "ownership" of reaction videos is wrong. Yes, they've trademarked some stuff, but trademarks are not copyrights or patents. And, yes, while there is trademark abuse, there's no indication that what they're trying to do here is abusive. Actually, it looks like a pretty good idea.
They know that lots of people make similar reaction videos. And a lot of those people are their fans. But rather than shut them down and rather than demand big licensing fees, they created this (somewhat unique) program, where they're giving a license to anyone who wants it, and with that license, you get a variety of benefits, including graphic elements and (importantly) the ability to have the Fine Brothers help promote and monetize your videos. They take a cut (looks like a pretty small percentage actually), but that should be worth it for many people, who probably wouldn't have many opportunities to monetize the videos by themselves.
So, rather than use intellectual property to limit people (especially fans), this effort looks like it's designed to do the opposite. It's offering ways for fans who make their own videos to be considered "official" videos. Imagine, for example, if LucasFilm did the same thing, giving a sort of stamp of approval for people making fan Star Wars films -- and would even let them release them, just as long as LucasFilm got a small cut? That would be kind of cool.
Now, there is some, potentially valid, concern that the Fine Brothers have attempted to trademark some of the names of their shows, and those trademarks could potentially be abused. Additionally, the whole "people are stealing our formats!" claim in the video above just comes across as silly. Finally, there are at least some examples of absolutely stupid takedowns that may have been made by the Fine Brothers or by people working for them. And those are all certainly issues to be concerned about -- and the Fine Brothers should have perhaps realized that those issues were going to come up, especially the way they presented this.
But, going back to the actual licensing program, it's not that crazy by itself. A trademark is pretty limited in what it can prevent here, and it really doesn't look like they're trying to take down generic reaction videos -- and the fact that they've publicly insisted they're not intending to do so would clearly hurt any actual attempt to do so later. The takedown pointed out above was stupid, and pretty clearly fair use, but was using the Fine Brothers' original work (it was a video of him reacting to one of their Kids React videos). Again, it was a really really dumb takedown that they shouldn't have done, but is a separate issue from this licensing program for people creating something different entirely.
Similarly, a lot of the criticism is that there's nothing special or unique in "reaction videos" and that plenty of others have done them, even predating the Fine Brothers. That's true -- and this is where the misunderstanding of "format" outside of the cozy Southern California entertainment world comes in. What they're talking about is building off of the larger reputation associated with the shows themselves -- something the Fine Brothers actually did build up beyond just generic reaction videos -- including a general setup and script for how each of the videos goes along with the graphical elements that accompany the shows. Most other reaction videos don't follow that same format -- with multiple people looking at a laptop or a piece of technology, with the quick cuts between different folks, and the captions and explanation bubbles and whatnot. I'm not saying any of that is brilliant, but it is the kind of thing that, when packaged together, could certainly be a valid "format" for a show.
Again, if you separate it out, overall, this actually looks like a pretty cool idea for how an entertainment brand could (and probably should!) embrace fan culture and fans trying to build on their work. But, it was presented slightly awkwardly, with a focus on terminology not well understood outside of the entertainment business, and in a world where people are (so rightfully!) concerned about abusing intellectual property. And, the fact that the Fine Brothers have apparently done some stupid takedowns doesn't help at all. Mix in a bit of Reddit mob behavior and you have a recipe for a massive overreaction.
When Rockstar released its own video editor for Grand Theft Auto 5, the move in and of itself received only mild applause. People have been using video games to make entirely transformative works for some time now. More important was the signal that Rockstar was sending: use our game to make fan films. This is smart for any number of reasons, but allowing fans to use games as they see fit makes those games more valuable to the market, and those transformative works ultimately only serve to advertise the original game in the first place. It's a win for everyone, in other words.
Well, what started in GTA 4 has moved on into GTA 5. One example is a recently released fake documentary about the wildlife in the GTA 5 universe. With the exception of some of the extreme closeups, the whole thing has impressive production values, and the voiceovers and music are spot on for the genre.
The creatures of GTA V all lead secret lives that we often never get to see while playing. They hunt. They eat. They try to survive. 8-BIT BASTARD and Chaney555 tap into all of that with their latest GTA documentary, “Onto The Land.” It’s an impressive 15 minute video that took 6 months to research and develop, something which is pretty obvious when you look at the quality at display.
I think the most striking part of this fan film is just what the technology of a video game allows a third party to create. We've talked for some time about how the barriers for generating all kinds of media are shortening, or becoming non-existent. That includes creative film. This video, which took a mere six months to make and was a labor of love for essentially one individual, ought to serve notice of exactly what kind of impressive work can be done simply operating inside a video game.
Additionally, you have to think that Rockstar is loving this. The company's game gets all kinds of free publicity, the filmmaker gets to create his work inside of the game, and the public gets to enjoy the fun that results. All because a content producer decided to unshackle its content and embrace fan-works.
Peruse the history of fan-film posts we've done in the past and you'll be met with depressing results. Too often the makers of movies and video games prefer a restrictive approach to fans using any form of their content. The approach tends to be of the blanket variety, where a default to protectionism often ties up fan-work that is either usefully creative in and of itself, or else beneficial to the original content producers if only it would be allowed to breathe. Nintendo has become famous for this kind of restrictive practice in YouTube recently, but it is hardly alone.
Rockstar, as it has so often before, breaks the mold on this kind of thing. Back when Grand Theft Auto 4 was the latest iteration in the GTA series, some enterprising fans had used video editing equipment, along with the game itself, to create their own brand of fan-film, using game footage as the vehicle for an admittedly simple but impressive story line. The whole thing was 2 hours long and has been viewed on YouTube over half a million times. Rockstar, for its part, not only didn't take the video down, but it went so far as to provide its own video editing software for fans in the latest PC version of the series, Grand Theft Auto 5.
When Grand Theft Auto V launches tomorrow, it will come complete with a video editing suite that will allow you to make movies from Story Mode and GTA Online footage you capture. The software, the Rockstar Editor, lets you do a number of things [like] record and edit footage and share them with the community. The editor features special camera modes, filters, depth of field and audio customization options, and a Director Mode feature that allows you to create movie-making sequences from a cast of characters from Story Mode.
This, quite simply, is how it's done. Rockstar/GTA fans expressed an interest organically in something they wanted to do with Rockstar's product, an emergent use that Rockstar may never have even considered, and, rather than getting butthurt over the use of the content and sending out the threat-letters, the company enabled its fans' behavior instead.
And why wouldn't they? After all, far from harm, it would be an absolute boon to Rockstar to see YouTube pages filled with fan-creations in the form of short or monstrously-long creative works, all done within GTA itself. It's just one more way to have fun within the game, one more way to be expressive with fellow fans of the game, and one more way for the GTA name to be etched into gaming history. This is pure CwF+RtB calculus at its finest.
