Response to Star Trek Fan Film Guidelines

11/6/2015 - Taurid Meteor Shower - Joshua Tree , CA by Channone Arif from Flickr (Creative Commons License)

11/6/2015 – Taurid Meteor Shower – Joshua Tree , CA by Channone Arif from Flickr (Creative Commons License)

In light of the recent lawsuit between CBS and Paramount Pictures and a Star Trek fan film creator, CBS and Paramount released guidelines regarding fan-created films.

Previously, fan fiction movies were limited to camcorders and sets people created in their backyards, but now with computer animation and other technology, a fan could create an impressive work of fan fiction. You can see some earlier Trek fan fiction on the documentary Trekkies.

A friend asked me to weigh in on these guidelines. As a die-hard Star Trek fan, my legal interpretation may be slightly biased in favor of promoting fandom. Below are the guidelines in full with my comments in italics:

CBS and Paramount Pictures are big believers in reasonable fan fiction and fan creativity (I’m glad you support fan art/fiction. Star Trek is known for inviting fan-submitted scripts, but what do you mean by “reasonable?”), and, in particular, want amateur fan filmmakers to showcase their passion for Star Trek. Therefore, CBS and Paramount Pictures will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines. (It’s nice when people tell you how not to get sued.)

Guidelines for Avoiding Objections:
1. 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. Is this because you don’t want fan fiction to compete with the TV series and movies? I wonder if someone is less likely to make significant money from a one-off video vs. a series. I wonder if the copyright holder would have objected if Melissa Hunter only made one Adult Wednesday Addams video instead of two seasons.)

2. The title of the fan production or any parts cannot include the name “Star Trek.” However, the title must contain a subtitle with the phrase: “A STAR TREK FAN PRODUCTION” in plain typeface. The fan production cannot use the term “official” in either its title or subtitle or in any marketing, promotions or social media for the fan production. (This makes sense from a trademark perspective. With brands creating content in various genres, it’s important to avoid confusing viewers about what is/is not made by the brand vs fans.)

3. The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. If non-Star Trek third party content is used, all necessary permissions for any third party content should be obtained in writing. (This makes sense because of copyright. It’s ok to copy ideas, but not the original work itself. This may be overstepping a little bit depending on how they define “recreations.”)

In my Starfleet uniform and Trill Make-up, 2000

In my Starfleet uniform and Trill Make-up, 2000

4. If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products. (I understand that they want to promote their partners and don’t want fans being misled. However, it makes more sense to require disclosure of sources of props and costumes. Some fans prefer to have a tailor custom-make uniforms instead of buying them from commercial sources. And thank you for calling them uniforms, not costumes – as a fan and Starfleet officer myself, I appreciate that.)

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 cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees. (What?! This seems overreaching and overly broad, especially considering that non-compete agreements are not permitted in California. Past and current employees can have non-disclosure agreements that limit their participation in other projects. Even a hobbyist has to pay for certain things – like a musician paying for studio time.)

6. The fan production must be non-commercial (This makes sense. Many artists approve of fan art as long as the person isn’t selling their work.):

  • 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. (Thank you for understanding that hobbyists have expenses – despite your contradictory term above.)
  • The fan production must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue. (Ok – so you can’t submit your video to film festivals or run ads on it if you post on YouTube.)
  • The fan production cannot be distributed in a physical format such as DVD or Blu-ray. (This makes sense given current technology. They want to protect their intellectual property.)
  • The fan production cannot be used to derive advertising revenue including, but not limited to, through for example, the use of pre or post-roll advertising, click-through advertising banners, that is associated with the fan production. (Fair enough.)
  • No unlicensed Star Trek-related or fan production-related merchandise or services can be offered for sale or given away as premiums, perks or rewards or in connection with the fan production fundraising. (This makes sense in terms of protecting their intellectual property, and also makes it more challenging to use fundraising sites.)
  • The fan production cannot derive revenue by selling or licensing fan-created production sets, props or costumes. (Agreed. This makes sense.)

7. The fan production must be family friendly and suitable for public presentation. Videos must not include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content. The content of the fan production cannot violate any individual’s right of privacy. (I understand no porn, but no illegal activities? What are the bad guys supposed to do? Even Star Trek episodes and films depictions of tobacco and alcohol and the films contain the occasional swear word.)

8. The fan production must display the following disclaimer in the on-screen credits of the fan productions and on any marketing material including the fan production website or page hosting the fan production:

“Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use. No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.” (This makes sense, but the last sentence suggests that CBS and Paramount may be able to use fan-created content without obtaining the creators’ permission.)

Hanging with the Klingons, Grand Slam Star Trek Convention, 2001

Hanging with the Klingons, Grand Slam Star Trek Convention, 2001

9. Creators of fan productions must not seek to register their works, nor any elements of the works, under copyright or trademark law. (What about the fans’ rights to protect their original works of authorship and their brands that don’t infringe on CBS or Paramount’s rights?)

10. Fan productions cannot create or imply any association or endorsement by CBS or Paramount Pictures. (Agreed.)

CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion. These guidelines are not a license and do not constitute approval or authorization of any fan productions or a waiver of any rights that CBS or Paramount Pictures may have with respect to fan fiction created outside of these guidelines. (This makes sense as long as CBS and Paramount don’t change the rules and go after a fan film creator who reasonably complied with the guidelines as written at that time.)

I appreciate that CBS and Paramount Pictures’ desire to protect their intellectual property and that put out guidelines to further this goal, but I wish they would be more fan-friendly. Hopefully this is only an over-zealous reaction to the recent lawsuit and not a sign of future legal battles between Star Trek and their fans.

If you have questions about the legalities of fan art/fiction or you just want to geek out about Star Trek, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

The Real Cost of a Social Media Misstep

Money by Andrew Magill from Flickr (Creative Commons License)

Money by Andrew Magill from Flickr (Creative Commons License)

I was talking with some non-lawyer entrepreneurs lately, and I asked them what they thought would be the worst case scenario if their company broke the law via their social media, and they both responded that they would have to take responsibility for their mistake, apologize, and do some damage control. While I appreciate that these business owners appeared to have integrity and good intentions, I internally cringed that they both assumed that saying, “I’m sorry,” should be enough to fix a problem.

I want to share some numbers for the costs a business could easily face if they violate a law with their online posts.

Trademark Infringement – Cost of Rebranding
Think about how much time and money you’ve spent selecting the name for your business or product, your logos, your slogans, your domain, and your website. Now, how would you feel if you had to do it all again? That’s what could happen if you select a name for your business or product that’s already been registered by someone else in your industry. In the best case scenario, they’ll send a cease and desist letter and demand that you rebrand. In the worst case scenario, they’ll sue you for infringement, and you could be spending tens of thousands of dollars in legal fees and fines.

This is why I suggest companies check the U.S. Patent and Trademark Database for registered trademarks to verify the name or slogan they want to use hasn’t been claimed by someone else.   I’m also an advocate of registering your trademark as soon as you can afford it, so no one can restrict your use of your own name or steal it from you.

Illegal Social Media Policy – at least $10,000
Every company needs a social media policy, but employers need to understand that a federal law called the National Labor Relations Act (NLRA) that protect union activities also apply to employees talking about their work – even in public online forums. If you fire an employee for violating the company social media policy and it turns out your policy violates the NLRA, you could be ordered by the National Labor Relations Board (NLRB) to pay the ex-employee back wages, damages, and offer them their job back. My friend who works on these cases says if you have to pay the ex-employee $10,000, you got off easy.

Copyright Infringement – $150,000 per Work Copied
Many business owners don’t understand that they can’t use any image they find via a Google Image search. There are even marketing “professionals” who will tell you that you can use any image you find online as long as you give an attribution and a link to the original. Both of these are excellent ways to commit copyright infringement. And photographers are becoming more savvy about protecting their rights so if you use their work they may send you a bill or a lawsuit instead of a cease and desist letter or a takedown notice. In the worst case scenario, you may face a lawsuit for $150,000 per image you used without permission.

Be careful if you outsource your content creation that your contracts clear state that the writer or artist who creates your content also indemnifies you if you are ever accused of copyright infringement because of something they created for your site or posted to your social media.

Defamation – $2,500,000
Defamation generally requires making a false statement about a person to a third party that hurts the person’s reputation. When I do talks about social media horror stories, I talk about a case where a blogger was sued for defamation because of one blog post and was ordered to pay him $2.5 million. 1 blog post. $2.5 million. (The case is currently up on appeal but I don’t think it looks good for her.) This is when little words matter because it’s easy to think you’re stating an opinion but your phrasing creates a statement of a fact – and if it’s a lie, it could be defamatory. Think before you post and check your sources.

ruthcover smallerPlease note, these numbers do not include legal fees you could face in addition to damages if you’re sued because of your social media posts. The legal issues listed above only scratches the surface of what wrongs a person or company can commit online. The good news is most of these problems are preventable with education and diligence. I strongly recommend you stay abreast of what laws apply to your social media postings and developments in this area of law.

If you need a legal resource for laymen on this topic, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to blogging and social media. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

How To Get a Free Consultation with Ruth Carter

Photo by Don McPhee

Photo by Don McPhee

I’m excited to share that I’ve teamed up with Gangplank in Chandler to offer free legal mentoring services on the first Monday of the month from 1pm until 4pm. I can see 3 people for 45-minutes each every month at no charge.

Hello Beautiful by Gangplank HQ from Flickr

Hello Beautiful by Gangplank HQ from Flickr

My legal mentoring hours are a great opportunity to informally bat around your ideas and questions about your projects and business. Coming to my mentoring hours does not create an attorney-client relationship between us. We won’t have any ongoing obligations to each other unless we decide to create a formal working relationship.

Gangplank provides free collaborative workspaces in Arizona, Virginia, and Canada. They provide the physical and social infrastructure for creative people to launch their startups. These are wonderful places for freelancers and new business owners to work. In Arizona, Gangplank has locations on Chandler, Avondale, and Tucson.

I love working with Gangplank. They have a fantastic group of dynamic people who have an enormous amount of creativity and drive. They have a very informal environment and they do incredible work. It fits brilliantly with my desire to be the approachable lawyer who wears t-shirts.

Skulls & Stripes by Gangplank HQ from Flickr

Skulls & Stripes by Gangplank HQ from Flickr

Gangplank in Chandler is located at 260 South Arizona Avenue. Their events calendar shows their mentors’ availability and also all their other events like their weekly brown bag presentations, hacknights, and workshops. They have a wealth of other mentors too who provide assistance in the areas of business, leadership, marketing, design, finance, and technology.

Gangplank is in charge of scheduling the mentoring hours so please check their event calendar for my availability. You can book a mentoring appointment with me by emailing them at chandler@gangplankhq.com.

Please note: my mentoring hours at Gangplank are not for my ongoing clients with whom I’ve created an attorney-client relationship. These appointments are for people who think they might need a lawyer, people who just want some general legal information, law students, anyone else who wants to chat for an hour.

You can connect with me via TwitterGoogle+FacebookYouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Celebrity Trademark Woes

Ivy Leaves by D H Wright from Flickr

Ivy Leaves by D H Wright from Flickr

In the last week there have been a few stories about celebrities running into trouble with prospective trademarks. I thought I’d break down the two major stories I’ve heard.

Blue Ivy
Jay-Z and Beyonce had a daughter earlier this year and named her Blue Ivy Carter. (Why do celebrities give their kids such stupid names?) According to the news report, Jay-Z filed an application to trademark her name within days of her birth. It seems very strange to me that a high priority of a new parent is starting a product line based on their kid’s name.

To have a trademark, you have to select a mark and the product or service you’re going to use it with. A mark can be anything that will differentiate your product or services from the competition – a word, a tag line, a color, a scent, a sound, etc. Its purpose is to inform consumers about the source and the quality of the goods they’re buying. Once you register a mark with the U.S. Patent and Trademark Office, no one can use a similar mark on similar goods and services because it might lead to consumer confusion.

Jay-Z’s trademark plan hit a bit of a snag. When he applied for the trademark, he was likely informed that there are several registered trademarks featuring the phrase “blue ivy.” One is an event and wedding planning service, another is an online furniture retailer, and another is a retail store that sells clothing, jewelry, accessories, and giftware.

Jay-Z and Beyonce could register “Blue Ivy Carter” as a trademark, but not to sell a good or service that was similar to one of the existing registered marks. It appears they’ve registered the mark for skin care products, baby products, ring tones, key rings, and accessories among other things. The list is disgustingly extensive.

The best part of the trademark record is where it says, “The name ‘BLUE IVY CARTER’ identifies a living individual whose consent is of record.” That’s funny.

Khroma
The other trademark story I heard recently involves the Kardashians. Apparently they plan to release a makeup line called Khroma Beauty that is expected to be sold in Sears and CVS Pharmacies. The problem they’re running into is the fact that there’s a salon called Chroma Makeup Studio in Hollywood that sells its own Chroma brand of makeup. I couldn’t discern in a quick search if the studio owner had registered the trademark.

The general rule in trademark is that it’s not enough to have a different spelling of the same word as your competition’s mark. For example, if someone owed an “Alligator Furniture Store” in your city, you probably couldn’t open a competing store called “Allig8tor Furniture.”

Even without registration, the owner of the Chroma mark gets the exclusive rights to use his mark in commerce wherever the market has been established. If nothing else, he might have a valid argument to keep Khroma makeup out of the stores near his studio. He’s asked the Kardashians to change the name of their makeup.

When selecting a potential mark, it’s a good idea to check the U.S. Patent and Trademark Office to see if someone has already registered the mark you want to use on similar goods and services. If they are, you’ll have to pick a new trademark.

It’s also prudent to run a simple Google search to see if someone is using the mark in commerce without registering it. If they are, you’ll have to consider whether it would be better to pick something new or use a similar mark knowing that the other user has the exclusive right to use the mark where they’re established. If you register your similar mark, you can use it everywhere in the country except the areas where your competition established itself prior to your registration.

Feel free to connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.