Episode 25: Lawsuit at Axanar

 
 
Episode 25’s cover: Star Trek spaceships.

Elizabeth and Flourish talk to Sarah Jeong, a lawyer and journalist who is currently a contributing editor at VICE Motherboard, about Paramount and CBS’s lawsuit against the Star Trek fan film Axanar. They also cover the new fan film guidelines have been issued in the wake of the lawsuit, and return to the question of whether “affirmative,” “curatorial,” and “transformative” are good categories to use when discussing fandom.

 

Show Notes

  • As always, our intro music is “Awel,” by Stefsax.

The cover of  All The Feels , by Danika Stone. The title is surrounded by pins and convention badges.
  • OK so strictly speaking Axanar includes one character who appears on Star Trek once: Garth of Izar. That link is to Memory Alpha (the canonical Star Trek wiki); Memory Beta, the non-canonical wiki, has more. This clarifies the situation: the events of Axanar have been covered in official Star Trek products, but not in a motion picture or TV show.

  • The quote Flourish was trying to reference from Neuromancer: “The sky above the port was the color of television, tuned to a dead channel.”

  • Maus is by Art Spiegelman and if you haven’t read it, you should. But be prepared for things way darker than cartoon mice suggest.

The cover of  Maus , by Art Spiegelman. Two mice kneel under a swastika with a cat’s head superimposed on the swastika’s center.
  • Transcripts! Go read them!

  • The terms “affirmational” and “transformational” fandom were coined by obsession_inc.

  • It actually hurts Flourish’s heart to have to post this meme and include it in the show notes but there it is.

Hillary Clinton, as Daenerys Targaryen emerging from the fire with a dragon on her shoulder
 
 
  • The first musical break is the Star Trek original series theme, from the very first episode—the one without 1. Captain Kirk talking over it or 2. weird wailing vocals. (YAY.)

  • Sarah Jeong is @sarahjeong and also, here she is on Motherboard!

  • Axanar’s indiegogo, which is now rather complicated…

  • JJ Abrams says the lawsuit is going away.

 
 
The cover of  The Klingon Hamlet , featuring a Klingon dressed in Elizabethan garb carrying a skull and bat’leth and the pull quote “taH pagh taHbe’!” (“To be or not to be!”)
Taylor Swift carrying her cute white cat, Detective Olivia Benson

Transcript

[Intro music]

Flourish Klink: Hi, Elizabeth!

Elizabeth Minkel: Hi, Flourish!

FK: And welcome to Fansplaining, episode…what episode is it? I never know.

ELM: Well, it’s not even that important, because you didn’t even say “This is the podcast by, for, and about fandom.”

FK: Well, it is! It’s the podcast by, for, and about fandom and I think it’s Episode 25.

ELM: Yes. That’s true.

FK: That had better be right. And it’s entitled “Lawsuit at…”!

ELM: Yeah, that sounds like—

FK: …an episode of Star Trek?

ELM: I was gonna say it kind of makes me think of Slash: The Movie.

FK: Really?

ELM: Or I’m reading this book right now called All The Feels and it’s about fandom and it’s about a pretend science fiction fandom and that sounds like something from this.

FK: That’s OK! I'm up for that.

ELM: More words on this book upcoming, when I finish it. I have some feelings about it!

FK: All right!

ELM: It’s about vidders.

FK: Woah, really? Amazing! Usually I have to explain to people, I’m sure you do too, what fanvidding is. And there’s a book about vidders!

ELM: I mean the author is in fandom and I believe is in the vidding community, so that makes sense.

FK: Amazing!

ELM: But I can’t remember the author’s name right now! I’m terrible.

FK: That’s OK.

ELM: Shout out to her!

FK: Dear author, we’ll get you next time.

ELM: Yes.

FK: So today we’re gonna be talking to Sarah Jeong, who is a lawyer and a journalist who writes on VICE. I mean not on vice like prostitution, on VICE like Vice Media, about digital law.

ELM: Motherboard, right?

FK: Yes. And Sarah’s really cool and she’s going to be helping us understand what’s going on with this case that’s in the title of the episode, about the fan film Axanar, which is a Star Trek fan film which is getting sued by CBS and Paramount.

ELM: Wait wait wait go back. So “Axanar” actually is a made up science fiction word, so I guess me comparing it to Slash: The Movie and also this book is not that far off!

FK:Axanar” is a made up science fiction word that appears in Star Trek, like in one line.

ELM: Oh, it was already in Star Trek.

FK: If I understand correctly which I am not enough of a Star Trek fan to be 100% sure about this, but I believe it is mentioned as a backstory to a backstory of a backstory, basically.

ELM: The funny thing about me just saying that something sounds like a made up science fiction word, is that that’s literally all the words in science fiction, so… 

FK: Today I was in a meeting and we were discussing simulation sickness, which is what happens when you put on a VR headset and you get sick to your stomach, and there was a moment where we all stopped and were like, “We’re living in the future, aren’t we?” So. [ELM laughs] We’re literally talking about simulation sickness right now; it’s a thing.

ELM: Yeah, it’s the future! The robots are coming for your job.

FK: Pretty soon we’re gonna have a sky the color of a TV tuned to a dead channel, because there’s no TV that’s not dead channels anymore.

ELM: [sputtering] What words did you just say?!

FK: Oh, come on! Do you not…it’s a William Gibson reference.

ELM: No! Flourish, you know that I don’t really read science fiction.

FK: Well, I—

ELM: You knew that!

FK: I don't think that I fully knew that till just now.

ELM: You knew that!

FK: Well, I knew that you didn't read science fiction that was science fiction science fiction, but I thought you read some literary science fiction and maybe Neuromancer would count in that category since it’s important to…like…things. I’m so eloquent.

ELM: Um, NO.

FK: [laughs] She rejects my reality and substitutes her own!

ELM: Well why would I have read literary science fiction?!

FK: I don’t know, because you like books?

ELM: Sure!

FK: And thinking about…like, novels of the mind? And ideas? And… 

ELM: [horrified] Why do you think I like novels of the mind?!

FK: I don’t know! You like ideas! I like ideas!

ELM: Do you even know what books I read, Flourish!?

FK: Yeah, I know what books you read, but I like…I like science fiction… 

ELM: [amused] Oh so it’s all about you!

FK: No, it’s about you because I like you too and therefore you must also like science fiction!

ELM: Wow thank you. I don’t actively dislike science fiction, it just hasn’t historically been a part of my reading landscape.

FK: All right! So you’re going to be learning a lot about science fiction in this conversation today.

ELM: Well, so two fandoms ago I was in a science fiction fandom, so I guess I have read some science fiction texts in the form of fanfiction about a science fiction fandom.

FK: All right! That’s a step!

ELM: But as far as the, like, canon of sci fi goes, I don’t find that very accessible to someone who hasn’t…it’s not easy to get into, I would say.

FK: Fair enough.

ELM: I think that’s a common complaint. I mean I think that’s a common complaint about all genres. I see so much anti-literary-fiction on my dash and, I mean I think that’s a little different because everyone’s forced to read some of it in school.

FK: Right.

ELM: So there’s a backlash against it. But I also think people find contemporary literary fiction that’s being published in the past 10 years hard to get into cause you don’t know where to start, and you might read things that are popular and then not like them and then think that’s all trash.

FK: Right, I think that’s true and I think it’s also complex, because science fiction is very referential to other works within the genre, so you might read something that’s—in the same way as fanfiction can sometimes be.  You read something that’s referencing another work that you know nothing about so you’re like, what is this trash.

ELM: I think that’s why it feels less accessible. Comics don’t feel very accessible to me for that reason, even though I don’t think you actually need to…as far as I know from all my friends who read comics, half the time you don’t actually need all that.

FK: Right. But I want it!

ELM: To be fair, the aforementioned sci-fi fandom was Doctor Who and Torchwood, and I’ve never seen an old Doctor Who. And they simultaneously work on two levels where there’s stuff in there for the old school people—they are the old school people. But it’s also meant to be very welcoming.

FK: Right, completely. And I think comics also, you’re talking about serialized superhero comics, as opposed to graphic novels or the sort of literary… 

ELM: Oh sure. I had to read a graphic novel to take my English comprehensive exams in college, so.

FK: [laughs] One of them! You did it!

ELM: Well, I mean it was only a list of 12 works total that you could write about, so it’s not like it’s gonna be six graphic novels and then Tom Jones.

FK: [laughs] I wasn’t making fun of it because—I was more making fun of you reading a single graphic novel… 

ELM: [laughs] No! I’m telling you I read one for that. I have read other ones!

FK: [still laughing] OK, fair enough.

ELM: All right?

FK: All right.

ELM: I also only read one collection of essays for my comps.

FK: Uh-huh?

ELM: Mm-hmm.

FK: Uh-huh?

ELM: I didn’t watch any of the films because they put this warning on it. There were three films and they were like, “Just FYI, if you haven’t taken Film Studies, don’t think that this is a good idea, guys.” [FK laughs] And I was really glad they were just like, you may have gone to the movies before but don’t presume that you can write about these movies in an intelligent way. I really liked that. But they didn’t say that for the graphic novel, which I thought was surprising.

FK: Yeah, that’s interesting. I wonder why. It seems like… 

ELM: I mean it was a very wordy graphic novel, so… 

FK: What was it?

ELM: Maus.

FK: Oh, it was Maus. OK.

ELM: Yeah.

FK: That is sort of the usual suspect if you were going to read a graphic novel for a comp.

ELM: This was 10 years ago also, so.

FK: It still would be it, I think.

ELM: Yeah. It was good! I liked it.

FK: OK, we should get back on topic. So we had an interesting—before we talk to Sarah, we had an interesting reader question. Reader question? I always say this. Listener question.

ELM: Sometimes people read our content! They read our transcripts.

FK: Oh, and we don’t know if this person read the transcript or listened! So.

ELM: That’s true! If anyone doesn’t know—do you think anyone doesn’t know who listens to this that there are transcripts?

FK: It’s possible! We should tell them. We just have told them! There are transcripts!

ELM: Flourish painstakingly types, and you know she can only type with two fingers—

FK: Oh come on!

ELM: [laughs] So she—no, she uses all 10 fingers that she has, types out the episodes, and they’re usually posted within a week of the episode coming out.

FK: Unless something really terrible happens.

ELM: Usually by the weekend, we come out on every other Wednesday. And if you only subscribe in iTunes or something you may not know. But they’re on our Tumblr, and if you go to fansplaining.tumblr.com/episodes, you’ll see a full list, it’s got every episode and every show note link and every transcript link.

FK: Yeah! So that’s a thing you should check out and we should get back to the point, which is that we had a reader or listener send us a Tumblr ask—

ELM: Just trying to plug your content!

FK: I’m glad that you did.

ELM: All right. Go ahead, go ahead.

FK: So in this Tumblr ask, I’m gonna paraphrase, it was from an anonymous person, and they said that they were interested in the fact that we were talking about reality show fandom when we had Kevin Fanning on—

ELM: In our last episode.

FK: In our last episode, when we had Kevin Fanning on, we were talking about reality television fandom. And the person who wrote in said it was interesting because they normally think of men as being more interested in affirmational fandom, like making wikis or whatever.

ELM: Or curatorial, I think was the term.

FK: Yeah, curatorial.

ELM: You see those terms swapped out.

FK: Right. And women as being more involved in transformational fandom, fanfic, fanart, fanvids, et cetera. But they said they thought that reality TV show fandoms were more curatorial or affirmational, and also mostly female. And they were interested in this and wanted to know if we have the same impression.

ELM: So. I initially said, when we were discussing this, that I think the activities we think of as “curatorial” or “affirmational” as well as the ones we think of as “transformational” are a fraction of, if you have a broad umbrella of fannish activity. Just go on Twitter during The Bachelor if we're talking reality TV. Or not even! Go on Twitter during Game of Thrones. You’ll see a lot of people who, I couldn’t call tweeting about something affirmational fandom.

When I think about affirmational fandom I think about collecting, I think of cataloging in wikis, I think of people debating in forums and using evidence and their knowledge. It’s about curating the knowledge yourself and then laying that out. And I don’t think that collectively watching a show and making jokes about it with people, that feels different to me. I don’t know. What do you think?

FK: Hm. Well, I think it’s funny because I was gonna come at this from the other side, which is to say I think that although we like to talk about certain activities as being curatorial and affirmational and others as being transformational, I think that where we go wrong is when we start talking about people as purely affirmational or transformational fans. Because, I mean, I actually do think that probably there are people who are showing elements of curatorial or affirmational vs. transformational ideas when they talk on Twitter. Some people make jokes that are crossing, you know, I saw a horrible meme that turned Hillary Clinton into Dany, Khaleesi. It was a terrible meme, it made me sad even though I love Hillary, please don’t ever show it to me again. But. To me that was “Oh, that’s interesting, that’s sort of on the transformational side.” They’re bringing this into conversation, whatever. There’s other people who start arguing about fan theories, arguing about who’s Rey’s father in Star Wars. And I see those thing as being on, those are totally normal things that people do that don't involve wikis or cataloging or fanfiction or anything. I see those as being on an affirmational–transformational kind of a spectrum.

ELM: A spectrum!

FK: Right! But I don’t think that there’s any one person who always inhabits one side or the other. Maybe there’s some extreme cases, there’s some people who are totally obsessed with that wiki and just want it to be correct and that’s their whole life, and there’s other people who are like “Fuck canon and I don’t care about anything in canon at all.” But even you, if I knitted you a Weasley sweater, even though you don't like the Weasleys, I bet you would be kinda happy and pleased with that.

ELM: [shocked] I don't dislike the Weasleys.

FK: I know, but I’m just saying, it would be an object I think you would probably like and feel positively and affirmational about!

ELM: [processing] Are you going to knit me a Weasley sweater?!

FK: Well I was thinking about it. I just finished one for me.

ELM: My God. That would be amazing!

FK: See, look at that! You, the most transformational person in the world, are getting excited about a replica movie prop.

ELM: Can it be Gryffindor colors?

FK: Yeah. If that's what you wanted.

ELM: Really?

FK: Yes, really.

ELM: Even though it’s a hundred thousand degrees out this still makes me excited.

FK: The good news is that I can knit it, if I knit it for you after my next project or two, then it will be winter again.

ELM: [laughs] I’m not gonna say no. Well, I don’t feel like, I also spend plenty of time on Harry Potter wikis right now because I’m writing two different fanfics. I don’t know. I say “fuck canon” but I don’t mean I don’t care about canon ever and I’m not gonna read, I can’t read, for example, I’m reading a lot of Harry Potter fic right now and I can’t read stuff that’s been Jossed. I can read stuff that was written after the seventh book and ignores certain details, but that has to be made clear. And I think—

FK: That’s so funny. We have such different attitudes towards this. But you see my point, though. My attitude towards this is definitely, I think people do things that are more affirmational and transformational at different points and I think that can even get down into very small details of the way you’re interacting with or thinking about a thing you like, but I think most people have both in them. And so I don’t, I think that it’s useful to think about, in a broad sense I think it’s useful to think about these categories, but in a specific granular individual fan sense, I think it gets a little weird.

ELM: Yeah, but it is undeniable that transformative practices are mostly done by people who are non-men.

FK: I agree, and I think that actually there’s a lot—affirmational and curatorial practices are a little less purely male.

ELM: Yeah I think so too. But I think it is simplistic to be like “Men like wikis and women like fanfiction,” but the gendered elements of particularly transformational fandom are pretty important.

FK: Yeah, I agree. Now as for whether reality TV shows are mostly affirmational or transformational if we’re gonna use those terms for fandom…I don’t think I know enough about reality TV fandoms to say that with any confidence, although my impression would be to agree and say that a lot of people who really like reality TV stars and shows are more affirmational and engaged with the canon. Which is reality.

ELM: Also, reality TV is really really broad and there's a sense that like…there’s been a lot of academic work done. Like wasn’t it Henry Jenkins who wrote about Survivor?

FK: Yeah!

ELM: Survivor sites…that stuff I feel is very affirmational. Anyone who hasn’t read that stuff, it’s like, people who were trying to figure out the location of the—

FK: Where Survivor was being shot.

ELM: And this was the early early Survivors, right, the very beginning? To me that goes hand in hand with, like, people collectively cataloging facts and then trying to deduce certain truths about certain shows. Trying to solve a mystery together.

FK: But it’s a huge category, and so I was just thinking about people—I guess it’s Jezebel actually weirdly that does the thing with Keeping Up With the Kardashians where they track down when, what date, each scene was shot based on paparazzi photos, and they’re often way out of order.

ELM: That’s funny!

FK: Which is interesting, but then there’s also a million fanfics on Wattpad that are about Kylie Jenner, whether it’s Kylie Jenner as a character in a One Direction fanfic or whether it’s about the Kardashians or whatever it is, and those things are transformational, sort of? I mean, they are transformational!

ELM: There’s a difference here too just in what I observe between stuff like the Kardashians and celebrities who happen to be…I would say the Kardashians are not, I’m not saying they’re outliers, but when I think reality television, I think they're a tiny portion. When I think of reality television I think of Bachelor, I think of Survivor, these juggernauts that still get massive ratings.

FK: Right. American Idol, maybe, although that's gone now. My mom's obsessed with The Voice.

ELM: I have watched multiple seasons of The X-Factor while living in the United Kingdom, almost not ironically. Almost.

FK: Although that gets weird because The X-Factor and One Direction, the way those things go together.

ELM: Sure! The seasons I’ve seen you wouldn't want to write fanfiction about anyone unless it was gentle mockery. Jedward. [both laugh]

FK: I think I’ve told you about how one of my favorite One Direction fanfics takes into account obsessively everything that happened on The X-Factor and every tweet they made for the first three years of their existence as a band—

ELM: That’s really impressive.

FK: And it’s all written in, it’s the most canon-compliant story I’ve ever seen, except it’s also in an alternate universe where there are soulmates and you spontaneously develop a tattoo when your soulmate says your full name.

ELM: Is Louis in it?

FK: Yes.

ELM: No, not Louis from 1D, Louis Walsh.

FK: Yes.

ELM: Great. I would like to read this story.

FK: You can read it! It's actually amazing, and I highly recommend it. But it’s an interesting case where it’s like, OK, is this reality TV or is it—it’s not really about reality TV, it’s about a band, but the two things connect.

ELM: Right, so I think it’s all messy. And there’s, just reality TV is such a massive…what about Antiques Roadshow?

FK: Amazing.

ELM: Did I tell you that I’m looking for fanfiction for Unreal? You know Unreal, the Lifetime show about The Bachelor, essentially, which I’m obsessed with, although I’m not as pleased with this season as with the last one? In case anyone is watching it and wants to discuss it with me? But I went to see if there was any fanfiction—do you know, have you seen it, Flourish?

FK: I haven’t seen it. I know about it but I haven’t seen it.

ELM: Do you know the two main characters are women and I think they have a pretty shippy vibe, in a kind of Devil Wears Prada sort of—

FK: YES!

ELM: You know the kind of vibe. And they’re both these kind of merciless backstabbing, they do terrible things but then they love each other but they also stab each other in the back all the time…anyway, I went to see because I was like, maybe there’s a lot of fanfiction for this pair! As of last season, I looked like two months ago, there were three dozen stories max. And most of them were crossovers with other shows including The Great British Bake-Off. Which is incredible.

FK: It sounds like you have a fandom you’re going to request for Yuletide this year.

ELM: Unreal? Yeah, I would love that. But only…it has these men in it and it’s like… 

FK: You can request characters!

ELM: I’m gonna request Rachel and Quinn. And you know, I’ve been told that's a famous femslash ship in Glee, so I guess we gotta make it happen in another fandom too.

FK: [laughs] All right. On that note—

ELM: Write to me about Unreal, please, everyone who’s watching! It’s the only show I watch. Yeah, and also write to us if you’re in reality TV fandom, whatever that means to you, because we’d be curious to know! This is literally just our perceptions, as people who watch television I guess.

FK: I was just thinking that I hope sometime I get to study a reality TV fandom and I can come back with some report.

ELM: I would love for you to do that. The Bachelor in particular would be delightful.

FK: That would be delightful. I love it.

ELM: You studied hate fandoms in grad school, didn’t you?

FK: I did.

ELM: And I feel like Bachelor fandom is very, very hate fandom-y so.

FK: Yep.

ELM: So should we call Sarah?

FK: Let’s do it!

[Interstitial music]

FK: So we’re please to welcome Sarah Jeong to the podcast! Hey Sarah!

Sarah Jeong: Hey! How are you guys doing?

ELM: Thanks so much for coming on! OK. So you’re a lawyer, but you also come from fandom, right?

SJ: I have a law degree, I’m a lawyer, now I write about copyright law quite a lot, and I guess I first got into copyright because I was writing Harry Potter fanfiction at the age of 13. So that’s the connection here. It’s a pretty good fannish connection, right?

ELM: It’s a pretty good fannish connection.

FK: I'm making the happy Pun Husky face.

SJ: I know, right? It’s a fun coincidence.

ELM: Or cause and effect. Maybe not direct cause and effect. [laughs]

FK: Well, writing Harry Potter fanfiction at that time did sort of run you up against the copyright people.

SJ: I came up with some really strong notions about fair use and what fair use ought to be, and what the law ought to be, and I also came out of that experience with I guess a strong feeling about the value of the internet and how it was under attack at the time. I’m also one of the generation where all of your friends are being hit with demand letters from the RIAA, the MPAA, so I think it’s no wonder that I ended up getting really into cyberlaw and the digital rights community. You attack kids and one day they grow up and the become lawyers and jurists and they’re after you! [all laugh]

FK: The psyduck of justice.

ELM: So you’ve come on to talk to us about this Star Trek case, which I personally know literally nothing about. And I’m not just saying that to play the dumb cop, I actually don’t know anything about this.

FK: And my perspective on it has been largely shaped by people in the entertainment industry vaguely being like, “Axanar! It’s the fan film case!” And then there was a thing about Klingon being important in it, and then I thought that it was over, but—

SJ: It’s not!

FK: Yesterday we looked and it turned out everybody was counter-suing each other again and it was just like, “Oh!”

ELM: Spoiler!

SJ: So there was this Kickstarter for a fan film, and it’s a Star Trek fan film, and I believe it was called—is it The Battle of Axanar? But it takes place 20 years before the earliest event in the Star Trek canon. It fleshes out a reference made in one of the episodes to something that Captain Kirk says. So none of the characters in the original Star Trek are present in this film. There’s no part of the script that’s taken from, that's actually verbatim taken from any of the previous scripts. It’s not a mashup of bits and pieces from the Star Trek canon either. It’s fanfiction. And it’s fanfiction that’s not even using any of the Star Trek characters! That’s what really interesting. It takes place in the Star Trek universe and you can’t even make a claim that they're copying the characters.

FK: As compared to other Star Trek fan films that have been very successful on Kickstarter even recently that very closely mimic, like, there’s one right now that’s mimicking the Original Series that has the actor that played Scotty’s son plays Scotty in it; it has Grant what’s-his-name from Mythbusters… 

SJ: Yeah, so that’s a little different! And this is pretty far removed. The other thing that’s kind of cool about this case is that they have a trailer film up and it looks really good. And one of the reasons why it looks so good, this is what they said on their Kickstarter, the people doing photography and showrunning this, some of them worked on the set for actual Star Trek. So it looks really good and they got like a million dollars through Kickstarter, so now we're talking that they’re competitive with the actual Star Trek franchise. This is a fan film, but it’s industry competitive. That’s weird!

FK: And wonderful!

SJ: Yeah, it’s wonderful! So Paramount, and there’s three studios who own various rights in Star Trek, we're not talking about the actual creator of Star Trek or his estate suing, we’re talking about one of these studios. So I think that also adds something to the mix. They sue, and they have to assert copyright. This is where things get funny. Because things are so distant from the Star Trek canon even though it’s in the same universe, they have to end up asserting copyright in all kinds of things, like the pointy ears of the Vulcans, like the Vulcan language, the Starfleet uniforms, all this stuff, and all of those are actually really shaky points of copyright. They all get into the weird fringe edges of copyright, where I think probably all of those things are uncopyrightable. And yeah, it’s a weird case, super bizarre.

Anyway, it was supposed to all be over—J.J. Abrams said that they were going to settle soon—and the people from the Axanar film were all “We didn’t hear anything but OK if you say so!” He made this announcement, was it at Comic-Con?

FK: I think it was on maybe a talk show or something.

SJ: Yeah, it was some kind of—he made this announcement and it made it out to the press and Axanar was like “OK, if you say so!” But then they didn’t settle. They definitely didn’t settle. So things are rolling forward in this case and it’s a little bizarre. For awhile they were supposed to be moving towards a settlement that would create guidelines for all Star Trek fan films.

FK & ELM: Right.

SJ: That was interesting, and I thought that would be the direction things were gonna go in, and that would have been a very interesting thing to talk about, but nah. I guess we’re just rolling on forward.

FK: So what’s very interesting to me about this is in the received wisdom from the Harry Potter fandom, which is where I learned all the little I know about copyright law, nobody in the entertainment industry—and I say this as someone who works in the entertainment industry, so what is that, I don't know, anyway. It seems like a lot of people didn’t want there to be any kind of a test case for fair use in fan films and fanworks in general. Because…I don’t know why? But it seemed like none of the lawsuits ever came to anything. This is the first time in years I think that a fan—maybe since—

ELM: Wait wait wait, can you clarify? You mean Warner Brothers didn’t actually wanna have to sue some young fan?

FK: That was my understanding, which may be totally wrong, but it’s just sort of what I imbibed from the internet. That Warner Brothers doesn’t really want to sue a fanfiction writer because they might lose. They would rather send a cease and desist letter and have someone give up or agree to whatever they want.

ELM: Right, right.

FK: But this seems like it’s the first time since the Steve Vander Ark case, which we can talk about in the show notes I guess—

SJ: Which is the Steve Vander Ark case? Is that the Lexicon?

FK: Yeah, the Harry Potter Lexicon.

SJ: The Harry Potter Lexicon case, yeah.

ELM: But that’s complicated because that was Bloomsbury and Scholastic suing him, yeah? Which I think it gets a little murky when—that’s a little different than if Warner Brothers had been suing.

FK: Yeah, I just meant that that's the last time there was, that I know of that there was a fanwork in a lawsuit.

SJ: I guess probably major lawsuit for me? But that’s my sense as well.

FK: Yeah. I think there were probably minor things, but.

SJ: People can choose, remember I mentioned earlier that the quality of this one [fan film] was really high and they have a million dollars. It's the same thing with the Lexicon—I don’t know how much money the Lexicon made, but you’re talking about a work that’s competitive in the market as opposed to fanfiction that’s on Fanfiction.net, whatever. It’s not quite the same anymore once you get to market. It’s a different thing. So I think that the Axanar case is not as good as the case against the Lexicon, actually, because the Lexicon actually excerpts from the books.

I am a little startled that Axanar is proceeding, for the reasons you said: it’s maybe a little dangerous to try to set precedent because it could go the other way for you.

FK: I think it’s also interesting because Star Trek Continues uses all the same characters and I don’t know if either of you guys have seen Star Trek Continues but it’s remade the Original Series sets to a very high degree of detail, and actually the camera work and lighting is very very direct. So it actually—

ELM: What’s Star Trek Continues?

FK: Star Trek Continues is another, I guess it’s not a fan film, it's a series of fan TV shows, TV episodes, that have been Kickstarted. But they feature a bunch of professional actors, James Doohan’s son plays Scotty, Grant Imahara of Mythbusters plays Sulu, they even have Marina Sirtis as the voice of the Enterprise, and they have very high production values but the production values are all going to imitate a 1960s TV show because it’s based on the Original Series and all the characters are from the Original Series. So it doesn’t look like a modern movie, because it doesn’t need to, because it’s supposed to be exactly like the Original Series. So that’s a bit different I guess because even though it’s very high quality, and it’s almost an exact imitation of an existing Star Trek thing, it’s nothing that the average person would say is competitive in today’s market.

SJ: Well, who knows, right? I think it’s just that this got the attention of the rights-holders a little more. This is just—a million dollars on Kickstarter is a little scarier, maybe. That might be more it.

ELM: But this is the question. You're saying that one is mimicking the original 60s show. I guess I still am fuzzy about a lot of fair use and what’s transformative and what’s allowed, but coming from the book world, there’s plagiarism obviously, and then there’s these ideas of intellectual plagiarism, idea-stealing, which is complicated. So I’m wondering how that all breaks down, if it’s really complex and not easy to give a pithy answer to.

SJ: It’s the latter.

ELM: [laughs] OK!

SJ: This isn’t to say that fair use is indeterminate, but it’s a little complicated. I’m not gonna just throw my hands up and say “Oh, we can never tell what fair use is!” Because there’s actual case law, there’s an actual doctrine, but it is complicated and it’s not at all the same as plagiarism. 

Stealing ideas, or stealing someone's work, that's plagiarism, right? That’s not a thing you should do, but that’s not necessarily copyright infringement. For example, you could rip off original reporting or someone’s work in historical archives, and that’s because those are all facts, that’s not copyright infringement because copyright doesn’t extend to facts. And similarly, copyright doesn’t extend to ideas, so it’s…you could for instance infringe on the plot of a novel, but that would be different from saying you’ve stolen someone’s idea. If you steal an idea that’s not copyright infringement because ideas aren’t copyrightable.

FK: So translation, if I know that Elizabeth is writing a story about fairies who ride on frogs into a medieval style battle, then that cannot be copyright infringement if I also write something about fairies that ride on frogs into medieval style battle but has a totally different plot and characters…?

ELM: Why are you stealing my ideas?!

SJ: I’m not so sure though! That does actually sound like that would be copyright infringement.

ELM: But all of fantasy though!

SJ: It’s essentially similar… 

ELM: Orcs and elves and… 

SJ: Right. Exactly. All of that stuff, and here we’re getting into Axanar level stuff, where they’re claiming that the Vulcan ears are copyrightable, right? And actually pointy ears are in a lot of fantasy and sci fi series and shows. How can you claim copyright in pointy ears?

ELM & FK: Right.

SJ: Right. So it is interesting. Where you draw the line between idea and expression, and that’s sort of the copyright term, is that there's an idea/expression distinction and the expression is copyrightable but the idea isn’t, that can get a little weird when you’re talking about plots and literature and books and stuff. But yeah, you were right, orcs, elves, all of those things, they’re so commonplace that it seems really silly to say that anyone’s infringing on the copyright of another person just because they write a story that has elves in it too.

ELM: Right, especially mythological—like vampires.

SJ: Vampires, certainly.

ELM: Anything mythological is the foundation of our storytelling, thousands of years across the entire world people have been playing with the same mythological ideas, so who’s to say. I don’t know. Confusing!

SJ: And there’s at least once case where they talk about, the term is “scènes à faire,” where you get sort of the same scenes in literature over and over again in a specific genre. So like a novel about the antebellum South and slavery and freedom would involve chases through a field at night. Similar scenes. But these can all be different works. Similarly, in fantasy sci fi world, you get people who are working on the same starship [FK giggles] right? And then they get into a battle, and then there’s a tense conversation on the bridge with the captain. These are not, these happen over and over and over again.

FK: Somebody is of mixed origin, half alien and half human, and they’re torn between two worlds.

SJ: They land upon a world where all the customs are very strange, and then they learn a lesson at the end about each other.

FK: It turns out the world they landed on is actually basically like ancient Rome! [all laugh] And somebody’s Jesus!

ELM: That’s funny!

SJ: But what is humanity? [still laughing]

FK: Can we find God? We look to find God and only find William Shatner’s ego.

SJ: Is this robot actually conscious? What are our ethical obligations to the robot?

FK: How do emotions work? [all eventually stop laughing]

ELM: OK, this is tricky and I have no idea how any of this comes out in practice. If it really does vary then it’s hard to say, right? But it just feels like the people who have the power and have the copyrighted works and all the money are going to have the upper hand here because their versions of these stories are the most visible and they occupy the most prominent place in the culture. Is that, do you think that’s true?

SJ: Well, it depends on what you mean by power. Generally, the people who have the most money are at an advantage in the legal system. So there is that. But at the same time, especially in the Star Trek case, fans have a lot of power. Think about what Star Trek is. Honestly, Star Trek isn’t even that good! [laughs]

FK: OHHH.

SJ: No, let's be honest! Star Trek matters, and Star Trek is powerful and Star Trek is a big deal because of the fans. Fandom is what makes Star Trek a phenomenon. Fandom is what keeps it going even after all of these years. It’s what keeps it relevant. You piss off the fans and what do you have? So the thing about the Klingon language, the studios have claimed copyright in the Klingon language. And that’s not a thing you can do. But that’s interesting because Klingon is spoken by a lot of people all over the world. It’s a very popular constructed language, there’s at least one person who taught their child to speak Klingon from birth. Think about how powerful that is! That is such an amazing phenomenon, and that’s only possible with fandom. Here fandom has taken these things that have been created by people and have taken them to heights that they couldn’t have gotten to without fandom.

Star Trek wouldn’t be Star Trek without the fans; Klingon wouldn’t be Klingon without the fans. The Starfleet uniforms would not be Starfleet uniforms without the fans. All these things have the meaning, the power, even sort of the economic backing that they have because of fandom. And I think, you know, that’s what's interesting about Axanar. Sure, in a way it’s a showdown between the little guys and the big guys, but at the same time it’s like, what imbues this entire universe with meaning and power are the fans that are creating this fan film.

FK: Right.

ELM: That’s interesting because I feel like it’s not the same if we were to talk about Harry Potter. Because I think the fandom is massive and complicated and has a lot of power, but there’s also just a lot of readers who I don’t think necessarily be a part of the fandom—Flourish, you look upset. Do you disagree?

FK: No, I’m just not sure. Are readers not part of the fandom? You’re usually the person who argues that you can be part of the fandom without writing fanfic.

ELM: No, I think you’re part of a fandom when you self-define as part of a fandom. And I think there are millions upon millions of people who’ve read Harry Potter who would never say they are in the Harry Potter fandom.

FK: OK.

ELM: I just think it’s the same thing. I mean we’re also talking about massively different scale. It’s probably different now that the Star Trek movies reach massive numbers of people. Maybe, I don’t know. Maybe the show actually reached massive numbers of people, too. But… 

SJ: I mean who knows, right? These are two different things. The fact that we’re arguing about whether Harry Potter is as big of a deal as Star Trek, really intense Star Trek fandom is. Harry Potter fandom is actually a big deal, it’s a really big deal! But it’s, Harry Potter fandom doesn’t have Klingon. People aren't teaching their children to speak—what would even be the—

ELM: She didn’t really give us some language that we need to figure out.

FK: I beg to differ, Parseltongue! But no one’s ever created the conlang for it.

ELM: No one wants to speak Parseltongue.

FK: What’s wrong with you that you don’t wanna speak Parseltongue?

ELM: You Slytherin! I like Parseltongue in fanfiction…I don’t know. I’m just trying to think about the difference. I’m trying to think about, can I imagine a Harry Potter fanwork that wound up in the courts in this way where people, when the Harry Potter Lexicon thing went down, I don’t remember a lot of good will towards him, though I may be misremembering.

FK: That may have had something to do with the way he behaved in fandom.

ELM: Sure, OK, yeah, but imagine tomorrow you and I decide to create a Harry Potter fan film and we raise a million dollars. And Warner Brothers has something to say about that. I just think it would go down differently and I'm trying to think—

SJ: It’s because Rowling is still alive.

FK: That’s true!

SJ: Gene Roddenberry isn’t involved in this case, neither is his estate.

FK: Gene Roddenberry probably…I don’t know that he would have been.

SJ: I mean who knows? Maybe he would have actually been pissed, you don’t know, but the feeling gets different. Star Trek is such an old fandom that it feels much more like it belongs to the fans than it does to any creator. The studio didn’t invent Star Trek! It feels as much the fans’ as it is the studios’. So wait a few decades and see how—many decades.

ELM: She has to stop issuing press releases every three seconds [all laugh]. Give us a little space!

FK: I think that’s a really good point. I want to bring us back, though, to the question of Klingon because I was curious about the way that that…you mentioned it’s a conlang, but people actually speak it, does that impact whether it’s copyrightable or not?

SJ: Um, kind of? So here’s the thing: the Copyright Act does not allow people to copyright systems, procedures, information, algorithms, ideas basically. And that means that you can’t, for instance, copyright an accounting system. And here it gets really complicated because there is this case that you may or may not have heard of called Oracle v. Google, that involves 37 Java APIs and they’re declaring code and the structure, sequence and organization of the APIs that were copied by Google in Android from Oracle's intellectual property, Java Standard Edition—

ELM: Can we explain what an API is, for our listeners?

SJ: Yeah, basically in this case it was a language API so it’s an interface, and it basically allows developers for Android to use their code that’s written in Java to run on Android. So the APIs are kind of like a dictionary, they act as a dictionary in this case, except they had rewritten all of the definitions in the dictionary. So the words and the organization of the dictionary—this is just a metaphor—the words and the organization of all the words in the dictionary were the same, but the actual definitions had been rewritten, but they were rewritten in a way that the dictionary made sense. They hadn’t just invented definitions, the definitions corresponded to each of the words. This is all a metaphor here, that’s not how code works. [all laugh]

But, basically they’re like “Oh look, the structure, sequence and organization.” So it goes A-Z, and also some of these definitions are really similar, that means that you’ve infringed our copyright. And actually a federal appellate court agreed with Oracle, but this is a very contested case. Currently it is the law, but it’s not the law of the land and there may eventually become a circuit split and then it’ll go up to the Supreme Court and—anyways, it’s complicated. That said, I believe that if this Klingon claim ever went to the ninth circuit here in California, I don’t think it would pass muster. You just can’t claim copyright on a language. It’s a system. You just can’t do that.

FK: So it doesn’t count as a literary work because it’s a conlang.

SJ: Yeah, I mean, it’s a language! Right? It’s not, where’s the work? You can point to, say, a primer, or a dictionary, verbatim, that’s a work, but is a language a work?

ELM: What about Clockwork Orange? You guys read that? So Clockwork Orange if anyone hasn’t read it, there’s—I mean a constructed language within it.

FK: I feel like Clockwork Orange is just some slang, right?

ELM: No, it’s—have you read it? It’s not slang that exists in the world.

FK: Yeah, but there’s not a grammar to it. It’s not a system. It’s just a few words of slang that exist in the story.

ELM: It’s not a few words of slang, language is restructured in the entire book! You’re the modernist, Flourish. [FK laughs] You fuckin’ love these books where language is restructured!

FK: Maybe a little.

ELM: Yeah! So, it’s complicated. I’m pro-influence and transformation, I don’t think you should be able to clamp down on that, but I don’t know.

SJ: Would you for instance, how do you feel about if someone wrote a book in doge-speak, right?

ELM: I mean, more power to them, I don’t feel great about that [laughs].

SJ: I know, but it is that I think someone analyzed the linguistic patterns in it and were like, this follows every stricture of language—I don’t think that’s copyrightable.

FK: So the book is copyrightable, but the doge-speak itself is not.

SJ: Yes.

FK: Like The Clockwork Orange as a book is copyrightable, but the constructed language in itself is not copyrightable. So you could write your own Clockwork Orange language book.

ELM: But doge-speak is something that was communally created on the internet. Or was there a single author of that?

SJ: Who knows? I mean that’s the fun thing, right? If the real doge-speak creator and now it’s like we’re talking about the real Satoshi, but if the real doge-speak creator suddenly appeared and was like “All these memes are belong to me,” even if we took that seriously outside of the context of memes, I don’t think that would pass.

FK: So even if you get to Tolkien who talks about how he created languages and out of the languages he wrote stories, those languages are still not necessarily copyrightable even though they are—

SJ: I mean he wrote tons of dictionaries and stuff, so—

FK: He has copyright in the dictionaries?

SJ: You have tons of copyrightable material going around, in the appendices and the Silmarillion and whatnot—

FK: Yeah.

SJ: Yeah. But if you’re going around speaking Elvish, no one’s gonna—

ELM: But if I had a book in Elvish could the Tolkien estate sue me?

SJ: I don’t think this, no.

ELM: Should I try this?

FK: Well, they haven’t done it for Klingon, right? That’s the other thing that's curious, is there’s been so many other fan films that have not come under copyright scrutiny. And people have published Shakespeare in Klingon, which is a joke, by the way, that is throughout Star Trek if you don’t know, that you don’t know Shakespeare till you’ve read it in the original Klingon. Well, somebody translated it so you can read it. So they haven’t clamped down on that. Does that have an impact on whether the Axanar lawsuit is valid?

SJ: They’re suing on a lot of stuff. So the Klingon thing is just one part of a lot—they’ve got the Vulcan ears, they’ve got the uniforms and the badges, they’ve got a bunch of stuff, so it’s not just Klingon. I think the Klingon one is funny though because from a legal perspective it’s really funny and then just from a layperson’s perspective it’s really hilarious especially because I think the Conlang Institute—some third party filed an amycus going “No! Klingon isn’t copyrightable, and also we’re gonna file this brief that has a bunch of excerpts in Klingon in it throughout!” [all giggle] and it was great. It was a wonderful brief.

FK: That sounds like something the Conlang Institute would probably do!

SJ: Exactly. It was delightful. It was delightful.

ELM: Also isn’t Klingon on, like, the British census as a thing you can put down? Do you guys know about this?

FK: I know that being a Jedi is… 

ELM: Maybe it’s being a Jedi and I’ve just mixed them up. That’s correct.

FK: For your—that’s your level of sci fi. In the British census—

ELM: There are guns in both these universes so I only like Doctor Who. Sorry.

FK: There’s not really guns, so much as there are phasers in Star Trek… [ELM laughs] And blasters in Star Wars… 

ELM: I feel like there were a shitload of guns in The Force Awakens. It was just people shooting each other.

FK: [plaintive] Well, they’re blasters! And blaster rifles, instead of gun rifles—[dissolves into laughter]

ELM: Doctor Who has a screwdriver.

FK: [still laughing] But you’re right, on the British census you can put down your religion as Jedi and say that you believe in the Force, which has resulted in many funny interactions.

ELM: But like a lot of Jedi—

FK: There are a lot of Jedi. It’s something like 2% Jedi in Britain.

SJ: Well, it goes towards, we were talking about before, Klingon, they only made a full conlang to get people to speak it. Right? It was a thing, the reason they worked on all this stuff was so people would actually use it. I don’t know if they ever expected people to actually use these languages, but they did, and I think that made them really happy.

FK: How could it not?

SJ: Right? But that’s also how languages work. And it’s the same thing for Oracle v. Google, one of the weird things about it is that Java was created and promoted as a language that was free for everyone to use, to learn, and so on and so forth, so how could you crack down on someone for making it possible for Java developers to write Java for a platform? That just seems weird and bad. And a lot of the developer community got really angry about this. I think this is very much the case with systems and processes and languages, but it also goes for a lot of fannish elements. They’re there so that people can copy them and remake them and be fans, wear the costumes and put on the pointy ears and pretend to be the characters and so on and so forth.

ELM: Right.

FK: So I think we have to wrap up soon, but what should we be thinking about as the Axanar case goes on? I actually thought, I believed J.J. Abrams when he said it was going to be settled, and when the countersuits showed up I was like “What? No!” Is there anything? What do you think is gonna happen in the future?

SJ: Oh my God, I don't know. I really have no idea. It’s interesting though because J.J. Abrams wants this to go away and I think he’s like “This should go away, this should go away soon!” So I have no idea, I have no idea. Everything seems like it’s proceeding in the most trainwreck way possible. [all laugh] So I just don’t know what to expect. If this does go to trial though, I will be there. I will totally be there.

FK: If you are there can you be our, like, can you report from the courtroom?

ELM: Yeah!

SJ: I promise I’ll be back on here if they go to trial, yeah.

ELM: Will you do it like Nina Totenberg where they do, what are they called, like “dirty readings” or something? You know? [all laugh] She reads from—that’s NPR’s Justice correspondent Nina Totenberg, in case anybody doesn’t spend a hundred hours a day on NPR like I do. But she reads the Supreme Court transcripts in a way that I really love, so I would love for you to do that too.

SJ: That would be pretty amazing.

FK: You’ve got it, you’ve got your assignment right here if this goes to trial. [all laugh] To do whatever you want.

SJ: Awesome.

ELM: Thank you so much for coming on and trying to help me understand this.

SJ: Yeah! I hope that was interesting.

FK: It was very interesting! Thank you.

ELM: All right, bye.

SJ & FK: Bye!

[Interstitial music]

FK: All right, so true confessions time: it’s been a little while since we recorded with Sarah, and now we’re recording our thoughts on that. That was a weird construction.

ELM: That was not the confession. The confession is…OK, yeah, that’s part of it, it’s been a little while, a couple days. But the reason we have to disclose that is since we’ve talked to her, something has happened.

FK: Developments!

ELM: Yeah.

FK: So as we discussed, for awhile it was looking like the two parties in the lawsuit might settle and there was going to be a set of rules for fan productions that CBS and Paramount were going to put out. This then, as we talked to Sarah about, this kind of disintegrated with a new set of countersuits. But, here’s the new development, CBS and Paramount put out the rules for fan productions anyway. They’re called “CBS and Paramount’s Guidelines for Avoiding Objections,” and they’re a doozy. Some of them are reasonable and some of them are not.

ELM: I haven’t actually read them, so tell me!

FK: OK. So. Guidelines. Number one, a fan production has to be less than 15 minutes for a single self-contained story or no more than two segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.

ELM: Wait, really?

FK: Two, the title of any fan production or parts can’t include the name Star Trek, but it has to have a subtitle with the phrase A Star Trek fan production. It can’t use the term “official.” That seems totally reasonable to me.

ELM: OK, yeah. “Official.” Why would you say “official” in your fan film?

FK: Well, because you’re being a jerk. You wouldn’t want to, but… 

ELM: That’s fine.

FK: Which is fine, right?

ELM: Fine.

FK: Three. The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. Which seems a little strange to me because that means, number one, does that mean you can’t reproduce, like, the bridge of the Enterprise? Cause how could something be a Star Trek fan film if it didn’t at least reproduce some elements of Star Trek in it? And two—

ELM: What if they were dropped on some planet?

FK: I guess, but what about the uniforms, right?

ELM: Yeah, and aren’t shot for shot fan films, they have a very long history as far as I know. And I’m not sure why those are legally tolerated, so that’s a curiosity to me as well.

FK: Yeah, but what's funny about that is that it also means that you couldn’t use things like the sounds, which are really important in Star Trek. The sound of a phaser, the sound of a door. The music cues…kinda weird, right? It would really be a different thing if you couldn’t use those. So number four, if the fan production uses commercially available Star Trek stuff, these items must be official merchandise and not bootleg items or imitations of such commercially available products. [ELM groans] Which, isn’t a big deal to me except that it seems to contradict the previous thing to me which says you can’t make reproductions, because it seems to suggest that you can make reproductions, because if it’s not commercially available… 

ELM: Wait, they’re saying you have to buy their stuff.

FK: You can still make your own stuff.

ELM: Oh, you can?

FK: You just can’t buy a bootleg, like, version of a commercially available accessory. Which, whatever, so make your own, or buy the thing that’s officially available.

ELM: So wait these are guidelines or these are rules?

FK: Well, they're called guidelines, but the implication is they’re rules so that if you break them CBS and Paramount might go after you. At least that’s how I’m reading it and that’s how the Star Trek fandom seems to be reading it.

ELM: OK.

FK: So then 5, 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 can’t be currently or previously employed on any Star Trek series, films, productions, or DVDs, or with any of CBS or Paramount Pictures’ licensees. Which is quite a chilling effect for a lot of reasons. That’s interesting. Even nonprofits can pay people reasonable salaries.

ELM: Right.

FK: Typically, and effectively what this could mean, if you read it as broadly as possible, if you work at a—if you’re the secretary at the CBS news affiliate in your town, you might be banned from being in a fan film. If you take this this seriously. Which I think we should, right? They’re giving guidelines, they should be taken seriously. So then the fan production must be non-commercial, which includes some things that are reasonable and some things that I think are a little bit difficult, things like you can’t fundraise over $50,000 for the creation of a fan production—each segment. Which, OK, you know.

ELM: But didn’t this thing raise more than a million?

FK: It did. This is why they’re bringing this out and saying this is what they objected to. It can only be exhibited on a no-charge basis. Interestingly they say that it can’t be distributed in a physical format like DVD or Blu-Ray which seem a little strange to me, why is that important?

ELM: I’m makin’ a face right now.

FK: It can’t be used to drive advertising revenue, you can’t sell or give away unlicensed Star Trek merchandise or services as rewards in connection with your fundraising, or sell or license fan created production sets, props or costumes. Which, that’s tough because actually Star Trek specifically has, you know, there are recreations of the Enterprise that exist that are rented out to a lot of different fan films. So that’s kind of interesting because no one’s ever cared before and now these guidelines are saying that that’s not permitted.

It makes me wonder whether the person who wrote the guidelines knew about this or if they didn’t know about this, have they been living under a rock? [ELM laughs] No, I mean, really, if you’re the person who’s in charge of coming up with guidelines for fan films, you should know about this.

ELM: Sure sure sure.

FK: From before. And if you don’t know about…anyway. The fan production must be family friendly and suitable for public presentation. It can’t include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity. Which is funny because Star Trek includes almost all of those things. I mean not pornography or obscenity, but you can’t have an Orion slave girl? That depicts slavery and sexual lewdness—

ELM: [laughs] I love that that’s the—

FK: —alcohol—

ELM: Is that the hill you want to die on? You want a slave girl?!

FK: Orion slave girls are really interesting! To me they’re one of the most interesting things in Star Trek, and a lot of people agree with me, shout-out to my Star Trek fanfiction friends, so yeah, I do care about that!

ELM: Well, this is the, that’s the sort of thing why when everyone is like “Oh, maybe it’s OK that the fourth wall is down,” it’s because of things like that where I always assume that’s the clause they’re gonna put in. Where they’re like “Well, it needs to be family friendly” to be, you know, in my official fanfiction contest.

FK: Yeah yeah yeah. You know, I don’t mind that so much except it’s funny when, like, I mean I wouldn’t even mind it if they said they weren’t OK with people making a Star Trek porn movie or whatever, they may or may not be able to enforce that, but whatever, fine. I don’t care what they say. But it’s just so ironic when you’re denying things that are in the source text. It’s really weird. Anyway. So then, the fan production must display a disclaimer—fine. Then it’s interesting: it says that creators of fan productions must not seek to register their works nor any elements of the works under copyright or trademark law, which, that’s not really as I understand it, I wish we had Sarah back, but I gather that you’re protected under copyright law without registering. So it seems a little weird that you’re not permitted to register. Like, OK, I still own copyright in the elements of my fanfic that are not from the original source, of course I do.

ELM: Right.

FK: Anyway. And then fan productions can’t create or imply any association or endorsement by CBS or Paramount. So some of these are OK, right? That last one’s probably fine, nine doesn’t mean anything so who cares—that’s the one about copyright. The disclaimer, sure, whatever. Some of the non-commercial stuff—

ELM: No.

FK: But a lot of them are just not at all good ideas in my mind.

ELM: Yeah!

FK: I don’t know that that’s true, but it seems like they’re not—and they’re certainly not being taken very well.

ELM: No! Why would they be?

FK: Well, I think there could have been ways they could have approached this, that CBS and Paramount could have approached this, that could have been more well-taken. Right?

ELM: No. No. What are they scared of? They’re scared that the fan films are gonna make more money than their freaking hundreds of millions of dollar blockbusters? And the brand new show that’s gonna be on network television? The same thing with you getting your cease and desist for alohomora.net or whatever it was. Was that what it was? Was it .net?

FK: I think it was alohomora dot—

ELM: Com? Did you get the dot com?

FK: Org. I don’t think I got the dot com. I don’t remember.

ELM: Like—

FK: Might have been dot net.

ELM: What are you so scared of?

FK: Well, I think they’re scared about eroding their trademark. But they’ve been winking at Star Trek fan films so long it seems like maybe the damage is already done? We should have another lawyer on to talk about this. Or have Sarah back! She’s great.

ELM: Yeah, or maybe we could ask a lawyer if they can write it out for us or record us—

FK: A short…that would be great. I have to say I look at this and I think it doesn’t seem to be a very good PR move based on the way the fandom is taking it, and I don’t understand how it protects them either. Maybe it does, but I don’t understand it. So… 

ELM: All right, we’re gonna have to follow up.

FK: We’re gonna have to follow up. This is clearly gonna go on for some time and the implications are gonna be very large for Star Trek fandom.

ELM: Do you think, are there other fandoms that make a lot of fan films, as many as…is this particularly fan film oriented fandom, or can you think of other ones that also enjoy making fan films?

FK: I think Star Trek is the most fan film oriented fandom that I can think of. There’s also been some Battlestar Galactica stuff…sci fi fandoms are—

ELM: Why sci fi?

FK: —are pretty fan film oriented.

ELM: Funny, because it'd be easier to make fan films about things that aren’t set in the future.

FK: Yeah, but I think that there’s a problem. One of the issues that I tend to have with most Star Trek fan films is you look at things and it’s a beautiful set, and everyone’s dressed beautifully, and there’s some people standing around on the bridge and they look like they might actually work on the Enterprise, and then one of them opens their mouth and you’re like “Who is this clown pretending to be Captain Kirk?!” [ELM sporfles] And I think that would actually be worse for a lot of other things, because at least with sci fi you’ve got the trappings, the world which you can reproduce. So maybe you can have the world be the star and have the people be less important.

ELM: Look, I don’t think it would be very hard for us to make a Law & Order fan film.

FK: Yeah, but would you be attached to the characters or the situation?

ELM: No, you’re attached to—[sings the Law & Order theme song] You’re attached to the people who are represented by two separate equally important groups! Law & Order’s not about the characters. Law & Order SVU is about the characters, obviously.

FK: Mm-hmm. Don’t say obviously to me because I really have—

ELM: Detective Olivia Benson.

FK: Yeah, I know, but I’ve only seen like one episode of it in my entire life.

ELM: Get out of New York City. Go. Go away.

FK: I don’t like procedurals very much!

ELM: Get out. It doesn’t matter! I don’t like procedurals either! Law & Order, it’s the most important show that New York City has ever created! More than Seinfeld.

FK: OK! You heard it— [ELM sings the Law & Order theme song] Maybe I’ll do some homework and find out why everyone loves Olivia Benson enough that Taylor Swift named her cat after her and stuff.

ELM: Detective Olivia Benson, she’s so great. Eliot’s good too but he has his anger issues, but…she’s so great…and Ice-T! He’s so great. Detective Tutuola! I could go on and on. Honestly.

FK: We’ve had conversations about Law & Order in the past and I was trying to hide that I’ve never seen it.

ELM: [gasps] Wait! You were lying to me?!

FK: I didn’t lie… 

ELM: A lie by omission! You don’t even understand the Detective Tutuola jokes.

FK: I don’t.

ELM: That’s sad for you.

FK: [laughs] I never understood them! That’s the awkward laugh where you’re laughing because you don’t understand a joke but you know that you’re supposed to laugh!

ELM: That’s really good.

FK: So OK, I guess the answer on this is we both have homework, you need to go and read some more sci fi or something and I have to go and figure out Law & Order and what that is.

ELM: I’m reading Harry Potter, don’t make me read sci fi.

FK: I bet I can find sci fi that you’ll like.

ELM: You know what, I’m busy reading Harry Potter, I can’t do that right now. I really am reading them all. I haven’t read the seventh book since 2007!

FK: All right, well when you’re done… 

ELM: But hey, this wasn’t meant to be an awkward transition, but now I can make it one: speaking of Harry Potter, our next episode will be live from Leviosa!

FK: It will be!

ELM: Not live, I mean, we’re gonna record it. I’ll be there…in case you didn’t hear that episode, we talked to Alexa Donne who is one of the runners of this Harry Potter convention Leviosa that I’m going to and that Flourish is foolishly not going to.

FK: I know. I’m sad.

ELM: So I’m gonna be there, I’m gonna be on all these panels. So if you’re coming to Leviosa, you should come to my panels, including “Slash and Feminism,” “Adversarial Ships”… 

FK: Do you love ’em?

ELM: I’m trying to remember what the name of it is, something about mainstreaming fandom…this one I’m doing with Aja Romano about YA after Fangirl, Rainbow Rowell’s Fangirl, and then I am leading the Remus/Sirius roundtable where we just talk about our ship for awhile.

FK: Number one, you are on a hell of a lot of panels.

ELM: I know, it’s a lot actually!

FK: You are gonna have so much fun with the Remus/Sirius roundtable! The first thing I ever did at a convention was run a Severus Snape roundtable, so I feel like… 

ELM: Did you just talk about it for like an hour?

FK: Yes.

ELM: Yeah! I’m so ready for this.

FK: The room was packed! It was standing room only.

ELM: I don’t think the room’s gonna be packed for this.

FK: I don’t know. People love Remus and Sirius.

ELM: They’re the best! So if you’re coming to Leviosa, please come to any or all of those things. But we’re going to be doing something from there. We haven’t figured it out yet actually.

FK: We’ll have to find out. We’re gonna find out what’s good at Leviosa.

ELM: It’s a mystery. It’s gonna be great.

FK: It will be. So. In the meantime… 

ELM: In the meantime, iTunes as always. Ratings and reviews are deeply appreciated. If you wanna get in touch with us, fansplaining@gmail. Fansplaining on Twitter, Tumblr, Facebook, leave us an ask!

FK: And if you've got any thoughts or opinions or questions, sock ’em to us!

ELM: Yes! Alright, Flourish, next time I talk with you I’ll be dancing with Severus Snape, so.

FK: OH. Just rub it in why don’t you.

ELM: I’m going to.

FK: ARGH!!!

ELM: OK BYE!

FK: Bye Elizabeth!

[Outro music]

FK: The opinions expressed in this podcast are not those of Stratus Media Ventures, Chimera Media Group, Chaotic Good, or our clients, or our employers, or anyone’s except our own.

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