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Author Topic: Can someone boldly explain fair use and fan fiction?
babooher
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I wanted to throat punch a non-writer colleague of mine because he was thrilled Paramount was dropping their Axenar law suit over the fan-film using Star Trek materials. He said it was fair use; I think it is theft of intellectual property. Now this non-writer colleague is a tool, so maybe my desire to throat punch him stemmed from his demeanor, pheromones, I don't know. I figured we're all here trying to write and we'd like to be professional writers, so I'd like someone here to maybe explain how someone could claim a film with professional actors from the original Star Trek series playing their original roles and using the Star Trek universe is cool under the fair use doctrine.

I promise not to throat punch.

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extrinsic
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The colleague is misinformed. Reboot director J.J. Abrams purportedly said Paramount Studios would drop the lawsuit in a few weeks. The report is gossip, true or not, and not true as of 20 May 2016 that Paramount will or won't drop the lawsuit at this time.

The lawsuit seeks an injunction against Axanar Productions to cease all Star Trek fan production activity based on a copyright infringement claim. The underlying infringement claim, by law, must be heard in a federal intellectual property court, or a federal district court, like U.S. District Court for the Central District of California where the injunction suit is lodged, usually not a lower court. Federal district court is a suitable venue for such an injunction hearing.

Paramount, in a gracious move 23 June 2016, instead of Abrams' proposed nonsuiting at this time, issued ten revocable guidelines for fan production, and that Axanar staff deny hold merit. The Paramount guidelines compromise on several sections of the U.S. copyright code; one --

§ 106. Exclusive rights in copyrighted works, "Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:" clause "(2) to prepare derivative works based upon the copyrighted work."

That's the code provision Axanar most infringes and that Paramount's guidelines authorize limited fan-production derivation. Axanar's claims that phasers, Vulcan and other species' apparel, spaceships, Star Trek settings, characters, and Klingon language are ideas and, therefore, not subject to copyright, overlook that section's unequivocal meaning. Those milieu features as used by Axanar are derivative. Paramount's ten guidelines allow limited derivative uses for fan production sans express use permission and are revocable by Paramount at any time.

The entirety of Title 17, Code of Federal Regulations re: Copyright and Fair Use.
§ 107 Limitations on exclusive rights: Fair use

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

"(2) the nature of the copyrighted work;

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

"(4) the effect of the use upon the potential market for or value of the copyrighted work.

"The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

1, 2, and 4 above apply to Axanar Productions' infringing uses. 3 only applies in as much as Axanar uses of the Star Trek milieu's motifs and features and ideas are for derivative uses. Without which Axanar would have no Star Trek fan production product at all, so Axanar asserts a total, unlimited derivation of the milieu. 3 more generally usually applies to reproduced content: images, words, sounds, etc.

1. Axanar's purpose is commercial publication, is funded by fan crowdsourcing and pays Axanar's costs, wages, and otherwise monetary and nonmonetary gains. 1. Also, a feature-length film is a large quantity of content character, comparable length to any of Paramount Studio's whole products. Also 1, Axanar's intent is not itself a social commentary about Star Trek media, expressly not of a parody, satire, lampoon, or method, intent, meaning, or social critique character.

2. The nature of the original work and Paramount's ownership is itself for commercial publication, is fiction, is for audience entertainment (not for any of the code section-noted exceptions), and is visual-aural motion picture composition, too, as all apply to Axanar's uses.

4. The Axanar use competes with the copyrighted work, could be construed to diminish the copyrighted work's milieu's market value, past, present, and future, or, not too farfetched, an attempt to usurp ownership outright of the copyrighted work's milieu. Ostensibly, Axanar fans could assert only Axanar in future is the true owner of the milieu rights because Paramount lost touch with Gene Roddenberry's vision or similar assertions. Such a scenario could invoke other free speech codes and the spirit of compelling public interest embodied within U.S. copyright law.

On the other hand, perhaps Abrams' comments are meant to be heard in the court of public opinion for purposes of salving diehard fans' concerns. Likewise, Paramount's ten guidelines amount to a this-far-and-no-further-will-be-tolerated general use permission that as well shows Paramount is open to compromise, at the same time draws a hard bright line in the sand for the present and future litigation. Paramount arranged its legal ducks into well-organized columns and rows; Axanar has not, rather, obstructs and delays while they pursue production and hope for an outcome favorable to them some ten or more years hence.

[ June 27, 2016, 02:55 AM: Message edited by: extrinsic ]

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Robert Nowall
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Parody is fair use. Proclaim your fanfics as parody. (But you might not want to make your script into a movie...)
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Kathleen Dalton Woodbury
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Isn't the fact that Paramount has allowed fanfiction publication for decades a strike against them deciding to protect their copyright now?

They really should have drawn the line years ago. You can't sit back and wait when your copyright is challenged. You have to do something as soon as you know it's been infringed upon.

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extrinsic
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Up until Axanar expanded production ambitions, motion picture fan production had been amateur and not for profit, notably, perhaps barely permissible under the Fair Use doctrine clause 1. Paramount's and similarly situated others' strategies have been to balance fan enthusiasm with intellectual property ownership rights management. Axanar's latest project is simply a commercial and professional production too far.

General notice of Axanar's expanded ambitions arose in 2015. Infringement statutes of limitations expire at three years; a 2016 injunction action is timely.

Axanar's crowdfunding for the feature-length motion picture project is at $1.3 million and rising. Obviously, that's appreciable revenue, no matter the revenue method or funding source.

The intellectual property piracy line, as it were, evolves, especially in this evolving Digital Age. Technology has evolved to where the means of motion picture production is evermore accessible to the masses. An inevitable evolution, after all, because technology has made content itself evermore accessible to the masses. The fifteen-minute Axanar prelude, for example, was also crowdfunded at $65,000 and came in on budget.

Crowdfunding, advanced and economical digital cameras, advanced and economical editing apparatus, advanced and economical distribution methods, fan culture and culture overall that encourage David-like David and Goliath content production for the sake of fans who can't get enough content -- the line recently significantly jumped in favor of fan production. Axanar is the vanguard of that line jump.

Paramount's ten guidelines reflect the above recent line evolution, as well reflects a compromise strategy between appeals to fans and rights management, balances and compromises of the Fair Use doctrine even for fan production content, and intellectual property laws' likewise at present distributed balance between content creators, producers, packagers, distributors, revenue managers, and consumers. The law is the best it's ever been and yet technology and culture niches threaten at every turn to upset the balance and dismantle centuries of intellectual property rights advancement.

The base point of intellectual property laws is to do that distributed balance; one, so that content creators receive equitable compensation that fosters and encourages advancements of the arts; and as well fosters and encourages the entire arts culture's comodification continuation.

Axanar has simply gone a production too far. Pitiful, frankly, and a travesty that their creative efforts rely on someone else's creation's inspirations for the success of their own. Little else in publication culture is more pathetic than a deficit of imagination.

CBS and Paramount's ten Star Trek fan production guidelines here, a model for responsible fan production in this Digital Age.

[ June 28, 2016, 02:28 PM: Message edited by: extrinsic ]

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Meredith
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quote:
Originally posted by extrinsic:


That's the code provision Axanar most infringes and that Paramount's guidelines authorize limited fan-production derivation. Axanar's claims that phasers, Vulcan and other species' apparel, spaceships, Star Trek settings, characters, and Klingon language are ideas and, therefore, not subject to copyright, overlook that section's unequivocal meaning. Those milieu features as used by Axanar are derivative. Paramount's ten guidelines allow limited derivative uses for fan production sans express use permission and are revocable by Paramount at any time.


This takes me back. Fifteen or sixteen years ago now that Napster ran aground on the rocks of copyright infringement. They argued that allowing their customers to share music files didn't infringe copyright--and they lost big.

I was involved on the fringes as the company I worked for at the time developed the initial software by which Napster's usefully frightened competitors figured out how to pay one of the music companies what they owed for that shared music.

History does repeat itself, it seems. Faster and faster.

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Pyre Dynasty
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Fair use isn't a magic wand. It can be boiled down to education and review/response. What is the educational value of Axanar? Is it meant to be seen as a review of Star Trek?

I talked to a woman who sells fanart prints at cons. She said you can have a thousand dollar idea, you can't have a million dollar idea. That seems to check out here. I do think scale should be an important factor. A backyard production is a bit of fun and could be considered free advertising. A full fledged movie like this seems more like competition.

They are right that ideas aren't copyrightable, but are Vulcans an idea? Aliens who suppress their emotions, are psychic, have pointy ears, and exceptionally strong are an idea. Vulcan is a roman god. Put them together and they make something unique that is a singular creation. File off the serial numbers and trademarks and you have something you can sell. If you have something new to say then all the better.

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Robert Nowall
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One can stretch that back. The Star Trek Universe is infested with tribbles---but, arguably, these can be traced back to these things called "flat cats," in a book by Robert A. Heinlein called The Rolling Stones (which has nothing to do with Mick Jagger and company.)

Heinlein was magnanimous about it at the time---and admitted owing to a story called "Pigs is Pigs," by Ellis Parker Bunker---but later was somewhat bitter about lost revenue from tribble merchandising.

"Star Trek" owes a lot to who and what went before---and those who come after will and do owe a lot to them---but there are limits.

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extrinsic
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Flat cats and tribbles or, from real life, gerbils and hamsters, where an inspiration derives from may owe acknowledgment or not. Verbatim milieu derivation or verbatim reproduction indicates a deficit of imagination.

Yet imitation is a learning tool. Successful fan production, too, is a stepping stone to successful independent production. Much to recommend both and with responsible limitations.

On the other hand, an artful product speaks for itself, sells itself.

The feature motion picture Axanar intends is a first contact tableau akin to first contact between Rome and Germania, and war, with sparkly technology. Anyway, popular science fiction fan culture enjoys right now Star Trek and Star Wars, each of innumerable cultural reflections. Treks, okay, the basis of the Star Trek milieu is exploration, diplomacy, and battle as necessary, akin to the great age of exploration. Star Wars likewise reflects a religious-mystic warrior culture and dissenter rebellion against imperialist tyranny -- Rome again, and Christianity admixed with the way of the warrior. And there's the Battlestar Gallactica franchise, another interstellar star milieu, in which machine intelligence revolts.

Why not a new inspiration that reflects another cultural milieu, instead? If the Dune franchise were less complex to reproduce in motion picture format . . . still unoriginal to verbatim derive from, though.

Each of those in sublime and profound ways reflect and represent the wants and problems, desires and fears, social celebrations and concerns current to present-day existence. And they are timeless.

So what social contest is most forefront at present and timeless? The rise again of populist Nationalism that is isolationists' hate and difference intolerance rhetoric, and responds to social responsibility pressures. Science fiction's representations, though, are best practice of a non-one-to-one correspondence, for best reader effect and best persuasive influence.

Take the above and redefine the parameters, invert and warp those, re-imagine those as ironic representations. For example, glorify hate, demonize social responsibility, exalt might makes right, condemn all weakness.

Maybe those inversions are too superficial, too pat. Twist them more. Justify hate and demonization as diligence; condemn social egality as a curse of sloth; survival of the species demands an occasional wildfire clean out the slack deadwood. Yet show inexorably that way nonetheless lays chaos and madness and is itself a dead-end progress trap. Nature, like human life and commerce, abhors a vacuum and abhors oversaturation as much. Practical irony in all its finest satire glory -- Star Trek, Star Wars, etc., are practical-irony satires. Be as original as possible and practical and suitably ironic.

[ June 28, 2016, 02:36 PM: Message edited by: extrinsic ]

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Reziac
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There was a lawsuit back around 1990ish or a bit before in which Paramount and some fanfic author got into it over an unauthorized novel. I don't recall who or the details but the upshot was that the court determined that fanfic is not only a derivative work, but that Paramount owns ALL works set in the ST universe, including those using all new characters, settings, and events (and takes ownership of same); claiming copyright on your own parts or fair use of theirs makes absolutely no difference.

Since ownership was established to Paramount's satisfaction, and since they fully recognised that fanfic was free advertising that likely did more to keep the franchise alive and profitable than any other factor, ever since they've chosen to wink at the whole fanfic thing.

Until now. How much of that is Axanar's fault and how much is new management from CBS (who have historically been rather more hardassed about copyright, and have occasionally come down on fanfic)... no way to know for sure.

What is certain is that the new "Guidelines" will pretty much kill serious-quality ST fan films, since one pair of 15 minutes each is hardly worth major production expense; and as is evident from the existing body of work (being mostly fullblown series) hardly anyone wants to tell ST stories which are that limited in scope.

The item that prohibits use of "professional" actors and crew is probably illegal in right-to-work states. Obviously it's meant to prevent official-ST-actors from appearing in fan films; probably also to try to ensure that fanfilm quality is poor enough to not be "competitive" with the official productions. But it outlaws many (perhaps most) of the existing production teams, since many have personnel who also do this stuff for a living.

I think this is ultimately going to backfire on Paramount/CBS. They'd have done far better to embrace and profit from Axanar and its kin; there's no reason a licensing and royalty agreement couldn't be made the standard.

I think there's another factor at work here as well, quite possibly from the studio's POV the most important one: Fan films have conclusively proven that a quality production can be done on the cheap. Meanwhile studios spend a million dollars on 40 minutes of TV or $100 million on a 2 hour feature film... probably 90% of which disappears as graft, waste, and other forms of "Hollywood Accounting". How can they justify those costs to shareholders if fan films spend $50,000 and release a production that is arguably as good as the average from the big expensive studio??

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Robert Nowall
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For some reason, Reziac's comment above stirs my mind about a related topic: when does the copyright on a work such as "Star Trek" expire? When is something like that in the public domain?

When a writer writes something, the current rule, I believe, is that the copyright lapses seventy years after the death of the writer. That would be why the works of writers like Lovecraft or Robert E. Howard have recently been reprinted, and also likely why there are so many Sherlock Holmes things around right now. (I think some stories Conan Doyle published in the 1920s may still be in copyright, though.)

But what if the copyright is held by a corporation, in this case Paramount / CBS? Corporations are immortal unless they're dissolved; their assets are distributed to others (Paramount inherited "Star Trek" when they bought Desilu in the late 1960s, after all). Gene Roddenberry might be considered the creator of "Star Trek," but it'd be a while before life-plus-seventy-years passes---and, given what's been said about this "Axanar" project, likely it's one of those "Paramount / CBS is considered the author of this work" deals in the fine print of things.

A while back, it would have been seventy years and out---but Disney reportedly lobbied hard and got the law changed to prevent Mickey Mouse and his early appearances from escaping their clutches. Further change is likely when corporate interests are threatened.

Anybody know any more? 'Cause I'm working as an interested layman and writer who just wondered and did a little research on why things were reprinted when they were...

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Meredith
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Just a quick search

The Copyright Extension Act of 1998 is what extended copyright to author's life plus 70 years.

It also set the term for "works of corporate authorship" at 120 years from creation or 95 years from publication, whichever comes first. And extended the 95-year term to corporate works published after 1923 and still under copyright in 1998.

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extrinsic
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If a fan production entity claims a right to produce derivative-work, professional feature-length motion pictures and employs professional actors and staff, what then is the difference from another commercial studio doing so? Could not then Universal Studios, for example, or Disney Studios produce Star Trek media with impunity?

The claims that a derivative work is fan production, not-for-profit, amateur, and won't be commercially or professionally or publicly distributed, is a right, could as easily apply to any commercial studio with the foresight and resources to so arrange a production.

The "on the cheap" is a misdirection of enormous proportions. Cheaper all-around payroll and no licensing fees or royalty payments to copyright holders comprises the majority of the cost savings. Yet another laborer devaluation in this age of laborer devaluation epidemics: studio staff, for one, who claim volunteer status and no income or gain, and especially for artist-creators whose tears, sweat, and blood expended are rarely equitably compensated. The occasional blockbuster successes notwithstood. Fan production studios misrepresent a rash of real costs.

The matter of U.S. right-to-work laws only applies to union job shops. A union shop -- unionized place of employment -- in a right-to-work state cannot require workers enroll in a union or be assessed in-lieu-of-union dues against non-union workers' paychecks. Right to work laws' real intent is labor union dismantling, another laborer devaluation strategy.

Excluding fan production entities' engagement of professional staff and actors doesn't invoke those right-to-work laws. Other contract matters probably apply too, non-compete employment clauses, for one.

The top-level issue of copyright infringement by derivative works remains the central issue.

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extrinsic
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The Star Trek pedigree:

Creator Gene Roddenbury while under work-for-hire contract with Desilu Studios.

Desilu marketed Star Trek to NBC.

Desilu acquired by Paramount.

CBS cross-acquired by Paramount, and vice versa.

Paramount and CBS acquired by Viacom.

Viacom acquired by National Amusements.

National Amusements privately owned by the Redstone family of Massachusetts and California.

The Star Trek franchise is of a corporate authorship.

The first publication date of the franchise is 8 September 1966. That's a first episode content date of copyright for the ninety-five-year clock's run. The corporate authorship of the milieu's ownership runs on the one-hundred-twenty-year clock, though, due to new content published since the first publication date. 1966 plus ninety-five years equals 2056. 1966 plus one hundred twenty years equals 2086. 2016 is far shy of those marks.

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Robert Nowall
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And that's the definite info I was looking for on the issue.
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Reziac
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The new guidelines are already leading to exactly what I expected: the higher-end fan productions filed off the serial numbers and now they're free to do whatever they wish.

ETA: found the original:
http://renegades.show/home/a-message-from-the-renegades-team-regarding-the-new-fan-film-guidelines/

http://www.bleedingcool.com/2016/06/25/renegades-fan-series-removes-star-trek-elements-in-the-wake-of-new-guidelines/

"As you know, we’ve already begun filming “The Requiem” so we cannot halt, suspend, or postpone production. Renegades, from the get go, was designed to be transformative… not derivative. Thus, with very minor changes to our script, we have eliminated all of the Star Trek references. The good news is that Renegades is now a completely original and ongoing series."

(Renegades is good. I'll be just as happy to watch it as its own new thing.)

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extrinsic
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Renegades did the responsible method. Of note, the controversy itself is a cause of publicity -- the marketing proverb any publicity is good publicity. Signaling intent to imitate an intellectual property generates publicity. Only a few such publicity campaigns, intended or not, can succeed before "crying wolf" type word-of-mouth buzz becomes stale. Though a strategic kick start method for a product if judicious, timely, affordable, and justified implementation.

In any case, originality is the foremost marketing factor.

A similar scenario relates to an over-saturated market segment, say fast food services. Each outlet offers essentially similar products, prices, and access. Outlets saturate most locales. The only substantive difference between outlets is the quality of customer service. Poor customer service, poor revenue performance; exceptional customer service, better revenue performance. The real product is convenience and comfort; the food itself is largely convenient comfort food. Any product distributed for convenient comfort appeal will surpass equivalent products' marketplace performance.

The retail marketplace's comfort appeals generally fall short -- a mark of originality is an outlet that makes the effort and exceeds the competition's convenient comfort appeals.

For prose purposes, delivering convenient comfort appeals are a prominent consideration -- one reason conflict resolution-type contest narratives appeal and amount to a larger fraction of demand and product quantity.

Both factors together, controversy and convenient comfort appeals, targets emotional charge. An outcome of a controversial topic that is emotionally satisfying trumps other types. A controversial topic entices readers first.

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Reziac
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quote:
Originally posted by extrinsic:
The "on the cheap" is a misdirection of enormous proportions. Cheaper all-around payroll and no licensing fees or royalty payments to copyright holders comprises the majority of the cost savings.

No. The majority of the cost differential is waste and graft. Aside from having experienced the effects on-set, I have hard numbers:

Back when I was doing bits and extras (1985-1990ish) the average cost for a one-hour drama (with no stunt unit or SFX) produced in Los Angeles was around $500,000. -- Robert Blake had this twitch to do a series, and the only agreement he could get was "IF you pay for it out of your own pocket." And since he had to spend his own money, every cent was properly accounted for and every minute put to good use. Nothing was shorted (in fact, top to bottom the crew was treated and paid better than average), yet the per-episode production cost was a mere $56,000.

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extrinsic
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If the Hell Town situation series is the production -- well . . .

Like situation series in general, that television franchise limited sets and locations due to budget considerations. That, in turn, affected story lines. Once setting introductions were done, once and done, those are thereafter taken for granted.

Many motion picture productions similarly "treat" settings as inert and, ergo, short-shrift story lines to accommodate set and location budget limitations. The plot, as it were, is adjusted in order to use extant sets and locations that cost less than might be a best practice. The true shortfall, though, is lack of setting realization's dramatic relevance. Then only events shape a narrative, which are a convenient meolodrama habit of less than artful merit.

The three existents of event, setting, and character best practice continue development at least halfway through a plot, ideally, through to a final outcome: further dramatic portrayal, congruent yet different drama influence, of an objective correlative significance, and that show transformation -- at the least evince that time passes through and notably transforms existence. Only superficial event transformation is a mainstay of situation series overall, though, and, hence, for lackluster written word expression, initial and further essential setting development shortfalls, due to the primary model for prose anymore is visual media.

Settings and milieus, too, are dramatis personae as much as events and characters. Inert settings are static, a type of marble architecture disease similar to white room syndrome; they really aren't.

[ March 16, 2017, 01:26 PM: Message edited by: extrinsic ]

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Reziac
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quote:
Originally posted by extrinsic:
If the Hell Town situation series is the production -- well . . .

Like situation series in general, that television franchise limited sets and locations due to budget considerations. That, in turn, affected story lines. Once setting introductions were done, once and done, those are thereafter taken for granted.

At the time the standard fee for use of a private location was $1000/day (much cheaper than studio time). Hell Town was mediocre not due to budget constraints, but due to Blake being a little tin god with no patience (sometimes literally shoving aside his hired director and doing it himself; I witnessed that with my own eyes). There was also a great deal of "print the rehearsal", and in my observation rehearsal-takes never have quite the juice of those where the actors expect it's the real thing.
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