On December 29, 2015, Paramount Pictures and CBS Studios sued
Axanar Productions and its principal Alec Peters, claiming that its short movie
Prelude to Axanar infringes
their copyright in Star Trek, as it
is an unauthorized derivative work (Complaint). On February 22, 2015, Defendants
filed
a motion to dismiss (Motion), claiming that the complaint does not contain
sufficient factual matters to put Defendants on fair notice of the claims
against them.
Star Trek first
appeared on television in 1966, and the original series ran three seasons until
1969. The franchise now comprises six television series and twelve movies. Another movie is set to
be released on July 22, and another television show is planned. The Complaint
claims that Star Trek is “one of the most
successful entertainment franchises of all time.”
In one
of the episodes of the original series, Captain Kirk, the captain of the
U.S.S. Enterprise, meets his hero, former Starfleet captain Garth of Izar, and
they discuss the battle of Axanar between the Klingon Empire and the
Federation, which was won by Garth. Reading about the battle is required at the
Starfleet Academy, of which Captain Kirk is a proud graduate. This is the only
time the battle is mentioned in Star Trek.
The battle of Axanar is the topic of a short movie written,
directed and produced by Defendants after a successful crowdsourcing campaign
on Kickstarter. The movie has been shown
for free on YouTube since 2014. Defendants
are now raising money through crowdsourcing to produce a longer Axanar movie. According to Defendant’s website,
the movie is in pre-production with an anticipated release in the first half of
2016.
However, Defendants moved to strike Complaint’s allegation
that they “are in the process of
producing a film called Axanar.” They also argued the copyright
infringement claim regarding the movie is premature, at it has not yet been
made, and that “seeking to stop the
creation of a work at this stage would [be] an impermissible prior restraint”
(Motion to Dismiss p. 10).
Fan Fiction
In an article
published in 1997, Professor Rebecca Tushnet traces “[f]an fiction and organized
media fandom… to the second season of Star Trek in 1967,”
and cites a much earlier instance of fan fiction when Lord Tennyson imagined
what happened next to Ulysses.
Copyright Infringement
Plaintiff in a copyright infringement suit must prove
ownership of the copyright and must also prove actual copying. Copying may be
proven by circumstantial evidence by showing access to the protected work and
substantial similarity.
Plaintiffs claimed they own copyrights in the Star Trek television series and motion
pictures. However, Defendants argued that the Complaint “lump[s] both Plaintiffs
together and appear to allege collective ownership of all of the Star Trek
[c]opyrighted [w]orks,” even though Plaintiffs cite a
copyright assignment from Paramount to CBS, and “fail[ed] to specify which of those copyrights
Defendants have allegedly infringed.”
Defendant, of course, had access to Star Trek. But Plaintiff must also prove substantial similarity
between the original and the derivative work. The Ninth Circuit uses the
extrinsic/intrinsic test created in the Sid & Marty Krofft Television
Productions, Inc. v. McDonald’s Corp. case. The extrinsic text is thus
called “because it depends not on the
responses of the trier of fact, but on specific criteria which can be listed
and analyzed. Such criteria include the type of artwork involved, the materials
used, the subject matter, and the setting for the subject. Since it is an
extrinsic test, analytic dissection and expert testimony are appropriate” (Sid & Marty Krofft at 1164).
The Complaint claims that Defendant’s short movie is
substantially similar to the Star Trek
works, listing similar characters, the use of the Federation, similar costumes,
sets, props, and logos, and further claims that the “feel and the mood” of Defendant’s work is similar to the original
works.
It is interesting to note that the Star Trek New Voyages project has
also replicated some sets of the original series, such as the transporter
room, the sick bay and the bridge of the Starship Enterprise, and used Star
Trek characters and costumes, without having been sued for copyright
infringement.
Possible Defense
Plaintiffs argue that the Axanar short movie is neither a
parody nor fair use. Defendants calls it a “short
mockumentary.” Could the fair use defense be successful? Defendants did not
address the issue, arguing instead that the claim is unripe.
The four fair use factors are 1) purpose and character of the
use, 2) nature of the copyrighted work, 3) amount and substantiality taken, and
4) effect of the use upon the potential market.
The purpose and the character of the use factor inquiry
includes whether the use is commercial. Defendants explains on their website that
Axanar is not licensed by Paramount and CBS, but that it is an “independent project that uses the
intellectual property of CBS under the provision that Axanar is totally
non-commercial. That means we can never charge for anything featuring their
marks or intellectual property and we will never sell the movie, DVD/Blu-ray
copies, T-shirts, or anything which uses CBS owned marks or intellectual
property.” In a crowdfunding pitch video , Alec Peters is heard explaining that CBS has “graciously allowed” that he and others
make Star Trek movies as long as they
do not profit from it, sell anything with ‘Star Trek’ on it, and that they “have to honor the best story - telling
tradition of Star Trek.”
Indeed, this is what Star
Trek New Voyages has been doing for years. Defendants claim in their Motion
that Prelude to Axanar is a ‘mockumentary,’
and indeed the video narrates the battle of Axanar using a format favored by
the History Channel, as explained
on Defendants’ site.
As for the nature of the copyrighted work, there is little
doubt that the argument would go in Plaintiff’s favor, as the television series
and the movies are highly creative. The third factor, the amount taken, could
be in Plaintiffs or Defendant’s favor. It is hard to say without engaging in a
complete analysis.
As for the effect upon the potential market, it could be
argued that it is actually beneficial for Plaintiffs, not detrimental, and thus
the fourth factor could be in favor of Defendants. Professor Tushnet noted in
her article on fan fiction that the great success of the official Star Trek derivative works co-existed
with numerous Star Trek fan fiction,
and that this “provides strong evidence
against the claim that fan fiction fills the same market niche as official
fiction” (p.672). Could the same be argued for the Axanar movie if it is
ever produced?
This Case May Very
Well Stretch the Limits of Fair Use
This case is interesting as it shows that crowdfunded
User-Generated Content could stretch the limits of fair use. It seems that CBS
and Paramount have tolerated Star Trek
fan fiction for years, understanding that what a copyright attorney may regard
as unauthorized derivative work is indeed valuable user-generated marketing and
promotional content.
But written fan fiction, even if published online, may not
replace the experience of watching a Star
Trek movie or television show. Crowdfunding has allowed the Axanar project
to be built as a non-profit project, and it would not be shown in movie
theaters. But it could nevertheless compete on the market with official Star Trek movies. Watching the Axanar
short movie was quite entertaining, and I expect the future movie to be as
well.
Producing such fan movies is not possible without crowdfunding.
As more fan fiction is likely to be financed this way in the future, it will be
interesting to see the effect of this practice on fair use, although I do hope
fair use will live long and prosper.
