Fan films are quickly becoming a phenomenon on the internet with a host of amateurs and professionals producing some of the most interesting independent cinema out there right now. Whereas fans films were once the sole domain of diehard fans, today they have also become a kind of a training ground for young filmmakers and a fun place to experiment for the more experienced ones. With every year it seems that fan films are getting bigger and better and some are even launching the careers of newcomers, propelling them into the big leagues. Clearly the fans want to see more fan films judging by the massive views and attention from giant media outlets like Variety and The Hollywood Reporter, and there seems to be no shortage of enthusiastic artists to produce them.
There has been one nagging problem in the making of these films that has yet to be properly addressed; the very controversial broad topic of violation of intellectually property rights. It would be fair to estimate that for every successful fan film out there, perhaps 3 or 4 per year brutally collide with the legal realities of borrowing licenses/trademarks/copyrights from giant entertainment conglomerates.
While companies like Lucasarts have shown a surprising (and business-wise brilliant) tolerance to fan films, even going so far as to publicly embracing them online, others like DC and Marvel have had the odd nasty reaction to certain fan-made projects. Some would say that to make a fan film (with any kind of solid production quality) is to reach into the lion’s cage and to tempt fate, but is it really that simple? Are these companies arbitrarily shutting down these fan productions as they come across them or is there a recipe for these disasters?
I believe there is.
Here are some of the items I have identified as “project killers” in my fan film-making experience :
1. Thou shall not under any circumstances make money: This is perhaps the ultimate commandment of making a fan film that will see the light of day. Even with the benefits and loopholes of fair use laws, selling or profiting from your fan film is just the most basic way to scuttle your ship and even run the risk of heavier litigation later on. Crossing this line can be done with all the best intentions. Maybe you figured you could get a little compensation for yourself and your hardworking crew for all those long hours of blood, sweat, and tears. Maybe you wanted to cover the cost of the dvds/posters you printed for your fans. It’s a bad idea from any angle for the simple reason that you are generating revenue directly or indirectly with of a license that you do not own.
Accept right now that making a fan film will mean a personal or private investment, time and money, and remember that even fully sanctioned films don’t make their money back in the big leagues. As far as raising funds for a fan film through crowd-funding, that’s a bit of a trickier subject that I will cover some other time, but I will say that this is also a pretty bad idea unless it is done with utmost care and respect for the property holders.
2. Thou shall not make it look “too close” to the real thing: Mike Pecci can probably relate the most to this issue as it was the main focus of the cease & desist letter that his team was served by Marvel just days away from releasing their high-profile Punisher fan film, The Dead Can’t Be Distracted. There is such a thing as having your fan film look too much like the real thing, and holders of the copyrights have an understandable concern that their properties might be confused with the artistry of a heavy-hitter like Pecci. This case was a particularly unfortunate one as, if you read Pecci’s insightful journal about the rise and fall of the project, the filmmakers even managed to receive the blessings of the original writers and artists on whose works the film was based. Pecci recounts the numerous endorsements and approvals he’s secured from the authors, but ultimately hitting a solid concrete wall of Disney’s legal department.
The lesson: Make sure your fan film does not cross the line in terms of look/aesthetic by looking too much like the real thing. It may sound like a strange rule to respect but it’s called a “fan” film for a reason. This doesn’t mean necessarily that your work has to be sub-par or purposefully brought down in quality, only that it should try to avoid that red zone. Typical fan film micro-budgets and limited resources can be your friend in this regard.
3. Thou shall not attempt turn a successful fan film into a series: Look at it from the license owner’s point-of-view; even if you were lenient toward a first fan film by a young enthusiastic group of filmmakers and did not take legal action, now these same people are planning on putting these out a regular interval, every time risking to damage your intellectual property. Can you really blame a company for erring on the side of caution and shutting you down? This is not the same thing as making more than one fan film in a row, but rather committing publicly to borrowing a license and using it for your purposes indefinitely. Not the best approach.
4. Thou shall not make any claims about continuing or expanding on officially licensed content: A group of fan film producers recently ran into this problem with their project. While it is likely that the true nature of WB’s shutdown of this endeavour was focussed on the 100k the group was trying to raise to create a series (point 1 and 3), the studio also very likely became concerned by the fan film’s claim to “continuing and expanding” upon the already officially established Nolan Batman Trilogy. While this would have been a fun project to see, there were just too many aspects to Legacy for Warner Bros to take issue with legally.
The lesson: A fan film must remain squarely in the realm of fan fiction and should avoid overly-direct links with officially produced works by the license holders. With video game-adaptations there is a little more wiggle-room seeing as how you are riffing on a set story/game world, but caution is still advised. You have to walk that fine line between homage and originality and always keep in mind that you are playing with someone else’s property.
There are probably other things to consider when making fan films in order to protect them from the chopping-block, but avoid these major areas and you should be in the clear. I’d love to hear any other ideas and suggestions as well on this subject, particularly from anyone that has dabbled in fan films or is thinking about taking the plunge.