In the last couple decades, “Hollywood” and the broader film industry have undergone rapid changes, including in the popularity (or lack-thereof) of the movie-going experience, the market of movie studios, and the types of movies being made. These broad changes have led to two different monopolizations within the industry. First, a monopolization of movie studios themselves. This includes both major and independent studios falling out of business or consolidating, with the most notable current example including the recent purchase of Warner Bros. Discovery by Netflix, signaling the shrinking market for where movies can even be funded.[1] Second, there exists a monopolization of the types of movies the remaining studios are willing to fund, with an increasingly heavy reliance on making movies within the realm of existing intellectual property and created “universes”. These two monopolies within the film industry are naturally intertwined, and as further discussed below, have created an incredibly challenging environment for new filmmakers and ideas to break-into. As someone who takes a lot of joy out of both the theatre experience and a diverse film industry, I can’t help but see this as a critical issue that goes towards the broader long-term sustainability of the art form itself. Therefore, I see a broader interpretation of what “genre” is as being a possible novel legal and market solution to alleviate the impacts from these dual monopolies.
There are a number of stark figures worth mentioning to describe the extent of the dual monopolization in the film industry. First, between 1995 and 2009, the major studios in Hollywood theatrically released around 110 movies per year, but in the intervening years more recently, that number has dropped to under 85 movies per year, demonstrating the increased challenges that fewer studios in the market have on getting any movies made.[2] Further, of the last few years, among the top 66 movies that earned over $100 million at the domestic office, a whopping 71% were based on pre-existing intellectual property materials.[3] Last, the percentage of all domestic theatrical releases which were budgeted at over $100 million has grown substantially over the past two decades, specifically.[4] These data points all show an industry that has consolidated around fewer and fewer production studios and that have become more reliant on existing IP (of particular note, the reliance on IP to drive big box office earnings is causally related to the increase in budgets, where often, only IP-driven movies – including superhero or other action films – necessitate larger budgets). Such an environment means that studios are highly disincentivized on taking over any risk (including in new filmmakers, or crucially, new ideas instead of existing IP) where the big box office earnings are in existing IP, and fewer studios generally meaning there isn’t a market incentive to differentiate. Indeed, a significant amount of the discussion pertaining to the aforementioned Netflix purchase of Warner Bros. Discovery is squarely about the set of IP that Netflix will be acquiring.[5]
Clearly, then, health of the film industry and ability for new filmmakers to get novel ideas into the marketplace is rapidly dwindling. The question then becomes what tools might be available to independent creators and filmmakers to leverage to try to even this playing field? One example includes up-and-coming Canadian filmmaker Matt Johnson, recent director of the (subjectively excellent) “Blackberry” and creator and director of “Nirvanna the Band the Show”, and newly released movie-version, “Nirvanna the Band the Show the Movie”. Beyond the ridiculous title, the “Nirvanna” show consistently parodied common film and TV IP (including Home Alone, the Batman, Star Wars, Jurassic Park, and countless others), often wholesale using entire plot points, costumes, or music from these existing properties. In their newer “Nirvanna” movie – which has released to acclaim at festivals like TIFF – there are significant amounts of theme music, plot points, dialogue, and other material taken from the “Back to the Future” property (and also includes specific mention as to the copyright implications of what they’re attempting to accomplish, within the movie). As Matt Johnson discusses in a video made for TIFF a number of years ago, this use is based on a Fair Use/Fair Dealing argument.[6]While Johnson and the “Nirvanna” production team provide an example of leveraging Fair Dealing to use existing IP in a legal way (likely through parody), such a workaround has been well-explored in the film industry and has distinct limits (specifically with the requirements to fit within parody in the United States). However, an underdiscussed area that could provide more breathing room for new filmmakers and ideas to break-through involves the lack of copyright protection for “genre” in our scheme.
Johnson himself even touches on a “genre” element in the video when discussing Fair Dealing, by stating how in the show, they, “[do an] Indiana Jones parody, and use wall-to-wall John Williams music […] because we are couching ourselves inside the world of that movie”.[7] The novel argument could then become that Indiana Jones is not just an IP in the genre of adventure movies, but instead is so iconic and unique as compared to other adventure films that it is both an IP and is of itself a “sub-genre” of Indiana Jones-type movies. This would mean that using plot lines and even costumes or theme music could potentially be protected as falling under “genre” and not being copyrightable. This dynamic of an individual IP also being a genre is not wholly novel. Notably, Pokemon, as a video game, is both an IP while also being a “genre” of ‘Monster Taming” games in of itself,[8] (of which Nintendo vigorously tries to protect, and recently has had trouble doing so with competitor Palworld). However, this would likely require a broader view of what “genre” means. In the past couple decades, multiple Star Trek fan film and recreation projects taking place within the Star Trek “universe” have been shut-down by CBS,[9] creating the potential for a “universe” like Star Trek to even have copyright protection beyond a specific work.
While current conceptions of “genre” may therefore mean that popular IP and “universes” (like Star Trek or Indiana Jones) don’t qualify as sub-genres, there is an argument that the current filmmaking landscape necessities a broadening of this definition, and that this could result in a potential solution to alleviate the current dual monopolies in the industry. When it comes to the film industry, the fundamental balance of copyright from Theberge is misaligned; the rights of copyright holders of IP are dominating the public interest of a thriving arts industry, where reliance on IP (and its strict interpretations of “genre”) makes it near-impossible for new artists and ideas to break-out in the current industry.[10] Broadening the definition of “genre” to include works like the Star Trek or Indiana Jones universes would then accomplish two primary objectives. First, studios would become far less incentivized to adhere strictly to protecting their existing copyright, reducing the ability for studios to dominate the industry based on their collection of IP, and in turn breaking the first monopoly discussed of an aggregation of studios. Second, new filmmakers would be enabled to play within the world and “subgenre” of existing popular IP (like Matt Johnson) and could use its common identity and popularity to have their works more easily disseminated broadly. This, combined with the fact that studios would be incentivized to take more risks and pursue profitable films through originality and new voices, breaks the second monopoly of consolidation of the types of films being financed.
Overall, as Johnson discusses, there is a necessity to taking artistic risks in making movies (and not relying wholly on existing IP), where “being in the comfortable places [is not where] you’re going to discover that new magic thing”.[11]I, personally, believe this applies broadly to the film industry right now, and think that a broadening of the term of “genre” to extremely distinct and popular IP could alleviate current issues and facilitate a healthier and more diverse culture of film.
[1] L. Burke, “Netflix is buying Warner Brothers. Is this the end of the cinema?” (10 December 2025) https://theconversation.com/netflix-is-buying-warner-brothers-is-this-the-end-of-the-cinema-271518.
[2] FilmTake, “From Blockbusters to Bust: Why the Film Industry Isn’t Bouncing Back” (2 November 2025) https://www.filmtake.com/distribution/from-blockbusters-to-bust-why-the-film-industry-is-fading-fast/.
[3] B. Katz, “The Decline of Originality in Hollywood: a Look at the Numbers” (25 March 2025) https://observer.com/2025/03/hollywood-original-ideas-ip/.
[4] S. Follows, “How has the cost of making a movie changed over the past twenty years?” (14 July 2019) https://stephenfollows.com/p/how-has-the-cost-of-making-a-movie-changed-over-the-past-twenty-years.
[5] Netflix, “Netflix to Acquire Warner Bros. Following the Separation of Discovery Global for a Total Enterprise Value of $82.7 Billion (Equity Value of $72.0 Billion)” (5 December 2025) https://about.netflix.com/en/news/netflix-to-acquire-warner-bros.
[6] TIFF, “How Not to Get Sued with NIRVANNA THE BAND THE SHOW | TIFF 2018) (23 February 2018) https://www.youtube.com/watch?v=FQXxw6PUu_4.
[7] TIFF.
[8] R. DiVittorio, “Forget Palworld, Pokemon Will Always be the Definitve Monster Taming Game” (23 January 2025) https://www.cbr.com/pokemon-best-monster-taming-game/.
[9] M. Humphries, “CBS Kills Star Trek Stage 9 Fan Project” (27 September 2018) https://www.pcmag.com/news/cbs-kills-star-trek-stage-9-fan-project.
[10] Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 (CanLII)
[11] TIFF.
Copyright & Social Media
Communications Law