Friday, February 5, 2016

Star Trek: Axanar Fan-Film Sued?

by SandWyrm


I'm not sure how I missed this happening over a month ago, but it seems that CBS and Paramount have decided to sue Axanar Productions for the Star Trek: Axanar fan film they've been producing.
"The Axanar Works infringe Plaintiffs’ works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes," states the complaint.
Well, yeah. Duh. We all knew that. But there's a problem for CBS/Paramount, because they've allowed a legal gray area to form around these fan productions for some time.

Can they sue Axanar for copyright infringement when they didn't go after any of the previous fan productions? A quick Wikipedia search turns up 13 other productions, some (like Phase II) with multiple full episodes produced.
  1. Star Trek: Of Gods and Men
  2. Star Trek: Renegades
  3. Star Trek: Antyllus
  4. Starship Exeter
  5. Starship Farragut
  6. Star Trek Continues
  7. Star Trek: Dark Armada
  8. Star Trek: Hidden Frontier
  9. Star Trek: Intrepid
  10. Star Trek: Odyssey
  11. Star Trek: Phase II (formerly known as Star Trek: New Voyages)
  12. Star Trek: Phoenix
  13. Star Trek: Progeny
Hell, even "Star Trek: Phase II" is technically a copyright infringement of the name for Roddenberry's never-produced 2nd TOS series that got reworked into Star Trek: The Motion Picture.

While Axanar is definitely in violation of CBS/Paramount's copyright and trademarks, so are these other fan productions. And it's established precedent in copyright/trademark law that your rights are only protected if you actively defend them. Which is what prompted Games Workshop to go after "Spots The Space Marine" and Chapterhouse Studios, if you remember. Because you can't pick and choose who you want to defend your rights against. You have to shut everyone down or nobody.

The smart play would have been to publish clear fan-production guidelines (instead of verbal semi-agreements) and require a nominal $1 licensing fee and a signed contract with CBS/Paramount. But they didn't do that. Instead they ignored the fan productions until one of them got big enough to be a real worry. In that regard, GW is actually ahead, because they've published clear hobbyist rules/miniature guidelines for some time now that spell out exactly what you're allowed to do and not do with what they claim to be their IP.

So given that CBS/Paramount have never enforced their copyrights & trademarks on these other infringements, and have never issued formal guidelines or signed agreements for what fan-films may or may not do, I think they actually stand a decent chance of losing this case if Axanar Productions decides to defend, and they can get help from someone like the Electronic Frontier Foundation (who famously defended Chapterhouse Studios). The EFF has certain political goals, and widening "fair use" rights in the face of de-facto perma-copyright might well be right up their alley.

Now, did Axanar Productions overstep? Did they taunt CBS/Paramount about how their film would be better than the official Trek movies and upcoming TV show? Yep. They also bragged about how they would use some of the monies raised to set up a permanent studio for use by other productions. They also paid salaries and wages to producers, crew, and actors.

But "profiting" from infringement is not a cut and dry consideration when it comes to copyright law. It's just one consideration of many. And who's to say whether a studio originally set up to produce a fan film must be torn down afterward? Or whether the computers and film equipment bought with production money can be kept afterward? Or whether it's just the production company or the people that work for it that must not profit from the infringement as a consideration towards fair use?

Those are some very decent questions that deserve some legally-binding answers.

Personally, I would like to see a precedent set that widens and formalizes "fair use" rights in the context of non-profit works that use protected IP. If copyright is going to last effectively forever (by being extended every time Mickey Mouse would become public-domain), then we need to lessen the stranglehold that it places on our culture by at least allowing independent non-profit expressions of works that have become as deeply ingrained in our culture as Star Trek has.

I'll close with some nice video from the Axanar production:


Note that the first video I linked quickly got switched to 'private'. We'll see how long this link lasts. :)

29 comments:

  1. This gets even more interesting: The legal firm of Winston & Strawn have signed on pro-bono to defend Axanar Productions in the case.

    http://www.axanarproductions.com/axanar-signs-winston-strawn-to-defend-cbsparamount-lawsuit/

    In case you've forgotten, W&S are the 800 lb. gorilla law firm that also defended Chapterhouse (for free) against Games Workshop. I don't doubt the EFF is coordinating the defense here too.

    http://www.winston.com/en/thought-leadership/winston-strawn-defeats-hundreds-of-trademark-and-copyright-infringement-claims.html

    Might see a nice precedent set here after all... :)

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  2. Axanar has shut down its crowd-funding because of the lawsuit, but if you want to donate to them you can do so here and get a Blu-Ray or DVD of their "Prelude to Axanar" film for doing so.

    http://www.axanarproductions.com/donate/retroactive-donor-packages/

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  3. hey man, Alec from Axanar and Heresy30K here! THANK YOU for your article. Happy to do an interview if you want. And FYI Aaron Dembski-Bowden is writing the novelization of Axanar. :-)

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  4. Oh yea, and your blog is one of my favorites. I used your tutorial on modifying Chimeras from a few years back as the backbone of my IG.

    I am at alec at axanarproductions daht kom

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  5. "Can they sue Axanar for copyright infringement when they didn't go after any of the previous fan productions?, legally Absolutely. Federal Copyright laws give an IP holder free claim to take legal action to whomever they choose, to "Cherry Pick". If this suit was a Trademark case, then it would be different. But it isn't, so yes, CBS / Paramount can pick and chose whomever they wish to to, even if each of the listed fan based productions "all" behaved in exactly the same manner, which they don't.

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    1. (putting on my not-a-lawyer hat here…)

      Legally, that is true, although you don't even have to have a case to sue someone. But copyright cases are decided by juries, not computers. If the defendant can show than the copyright holder had one long-standing set of fan-work policies, and didn't sue groups/companies that held to them, but then singled out the defendant arbitrarily, then it at the very least lessens the damages they can hope to claim, even if they win the case. Juries like the idea of fairness and seeing people treated equally.

      Juries in the US also have the power, though it's not widely known, to judge the law as well as an infringement of that law. If they see a problem with how the law is being applied in this case, they can refuse to find fault on that basis alone, even if they believe the law to have actually been broken.

      So that’s the first interesting thing. These fan films have existed in a very grey area between the desire of CBS/Paramount not to piss off their dedicated fan followings, and the letter of the law. Seeing that gray area resolved into a solid set of rules for what is and isn’t allowed is in everyone’s interest. Just as it was with the Chapterhouse case.

      The second interesting thing is that short descriptive phrases and names are NOT protected by copyright. “Axanar”, as a battle, and “Garth” as a former Starfleet Captain, were just throwaway lines in TOS. There were no further story elements or images linked to those names. So they may, in fact, not be protected by copyright at all. Limiting Axanar Productions’ real infringements to a couple of derivative starship designs, a few emblems, and a couple of characters/places with established trek-verse backstories. Like the “Vulcan” ambassador from “Enterprise” that’s played by the same actor.

      Also, if you look closely at the Axanar production designs, they evoke Trek, but aren’t actually Trek uniforms, bridge designs, rank emblems etc. Clearly they set out to limit their copyright exposure from the start. Clever. I didn’t even see it until I took a closer look.

      But then we get to the third, and possibly most disastrous thing for CBS/Paramount. In fact if I were them I’d avoid a court battle just to keep this issue from coming up at all. Because just like Games Workshop, they could see some of their TRADEMARK claims overturned.

      You see, trademarks, like "Star Trek" or “Warhammer 40,000” are different than copyrights. They DO have to be defended in order to keep their protections. Because the whole point of trademark law is to give companies the ability to market their product without the fear of competitors using their brand names to deceive buyers into thinking they’re buying “The Real Thing” when they’re not.

      So if CBS/Paramount let fan productions use "Star Trek" to describe their works without any sort of pro-forma licensing agreement, and your average joe on the street never got confused as to who actually made them, then that might well diminish CBS/Paramount’s exclusive rights to that particular trademark. Thereby establishing “Star Trek” as a generic description of a certain kind of Sci-Fi storytelling.

      Which would open up the field to anyone making a “Star Trek” film or series that uses new (non-CBS/Paramount) characters and settings about a “Federation” fighting “Kingons” and “Remusans”. Future CBS/Paramount titles like “Star Trek: Beyond” would then have to share the market with fan and pro projects like Star Trek: Axanar, and Star Trek: Kirk Loves Spock. Only the specific combo-title would actually then be protectable as a trademark, not simply the words “Star Trek”.

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    2. You mistake trademark for copyright. Under copyright law (which the suit is about), the IP holder can, and often DOES cherry-pick who they go after. In this case they are going after someone who is stealing their property, trying to set up a professional production (see the Indiegogo page) to make a for profit studio based on donations to a production they don't own. THAT's why they are being sued.

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    3. Both CBS/Paramount's trademarks and copyrights will be a part of this case. If I were Axanar, I would absolutely threaten to counter-sue for the status of the "Star Trek" trademark.

      As for cherry-picking, it tends to hurt the damages that the plaintiff can claim.

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  6. I remember reading an interview with a guy who made a dark and gritty Power Rangers short film that got DMCA'd very briefly. He wasn't really a Power Rangers fanboy, but he was trying to make a statement about how all art is directive and we now live in a world where a near totality of our cultural reference points are owned.

    Star Trek, Superman, Batman, they've already generated enough income to support generations for their creators(who have long since passed). Their also so pervasive in our cultural consciousness that in a logical world it would be insanity for anyone to claim they owned them.

    Honestly though, since CBS/Paramount is bringing back a Trek show only on their shitty streaming service, they probably don't want to deal with a more easily accessible competitor.

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    1. I think you meant "all art is derivative" rather than "directive". Which is absolutely true.

      The original intent of copyright was to give authors (not immortal corporations) a *limited* monopoly on the reproduction of their works as an incentive to create them. But the original term was 14 years, which had to be explicitly applied for, and you only had the option of one 14 year extension. Ergo, after 28 years maximum, your work would be in the public domain, and would re-merge with the culture at large. While any work not explicitly registered for copyright would be assumed to be part of the public domain.

      By that standard, Mickey Mouse, Superman, Batman, nearly all Marvel superheroes, Star Trek (up through much of TNG), and anything else made prior to 1988 would be free for anyone to base their own stories, comics, plays, and films on.

      And it would hardly be the end of the world. “Sherlock” is currently doing great and making a lot of money, despite being based on a public-domain work. Frankenstein and Dracula films still show up every few years. So at this point it’s all about having perma-monopolies for a relatively small group of international corporations that churn out content.

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    2. That's what I meant.

      Yeah, Studios could still rake in the money with shorter copyrights. They could easily come to a gentlemen's agreements to not touch each other's brands. Indi and foreign studios might do their own things, but they wouldn't compete with the budget and quality of what someone like Disney can produce.

      You can go to the supermarket and buy many types of creme filled cookies that all pretty much taste the same. Only one is called Oreo. Consumers respond to brands. A century of sophisticated marketing has tricked us into it. We would recognize Marvel's Iron Man as the real Iron Man even if Marvel didn't have the exclusive copyright anymore.

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  7. One idea going round, which I've put forward, and the Synthaholics podcast before me, is that most of these series have avoided being sued because they're clearly based on the 60s Star Trek right down to their look and feel. Axanar by contrast is set firmly in the newer JJverse, complete with the revised look of the ships and the like. So that's why CBS and Paramount are suing them.

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    1. I really fail to see how Axanar falls within the JJ-verse in look, setting, or anything. That's a head-scratcher for me. If anything it looks firmly set between “Enterprise” and the re-mastered TOS episodes in general look and tone. One of the starships has phaser turrets that resemble the ones in JJ’s first reboot, but that’s it.

      As for CBS/Paramount's fan-film tolerance being based on the Trek era/setting of the fan film, that might seem kind of logical to them, but it really has (without formal contracts/guidelines in place) very little to do with the law, or the need to protect their trademark. It’s also obvious that they only took exception to Axanar when they thought it would compete with the so far abysmally received “Star Trek: Beyond” movie (i.e. “Trek & The Furious”), and whatever pay-per-view series they’re cooking up.

      Which is also kind of silly, as the production would have been 2/3rds of the way through its funding drives by the time either of those CBS/Paramount productions came out, and it’s not like giving Axanar $65 now is going to diminish fans’ ability to pay for more Trek later, except that the last movie sucked ass and a lot of faith has been lost that JJ can do anything that actually respects the spirit of Trek. But Paramount especially is used to a captive Trek audience that will pay for any crap they put out.

      Whereas, over in the Marvel-verse, the mixed up IP ownership of Marvel’s movie rights has resulted in some real competition between studios that has obviously made 20th Century Fox (X-Men), Sony (Spiderman), and Marvel/Disney (Everything Else) step up their games far beyond what came before.

      I’d love to see that same kind of competition in making Trek stories.

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  8. COrrect, Axanar firmly happens in the Primer Universe (Not JJ) timeline. Note that some ships are inspired by JJ verse designs, but totaly retrofitted to TOS style standards. Smaller ships with TOS era nacelles.

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  9. So Khan is still a Sikh then? ;)

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  10. "While Axanar is definitely in violation of CBS/Paramount's copyright and trademarks..." This statement jumps the gun. A trial with a judgement will determine this. Innocent until proven guilty.

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    1. Technically true, but I don't think Axanar has denied that they've infringed at all. The question is really to what degree they infringed vs. other fan productions, and why CBS/Paramount are singling them out when so many other productions have used far more storylines/characters/ship designs from the Trek-verse than Axanar has.

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    2. Sorry, SandWyrm, but no other fan productions are being sued here. The only thing in a copyright case that matters is whether the named defendants infringed, not whether any other third parties did. For its part, CBS says its problem with Axanar has to do with the production operating as a professional, commercial venture "trading off our property," such as building a for-profit studio with funds raised using the studio's copyright.

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    3. That no other fan productions are being sued is the entire point.

      It may not be against the law to cherry-pick your copyright enforcement (not so for trademarks), but it's going to weigh negatively when it comes to a jury's judgement on damages.

      I've heard various things about Axanar doing licensing with coffee companies, etc. But without further details its impossible for us spectators to determine how much infringement, if any, actually occurred.

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    4. Unknown, CBS has said no such thing. If you look at the complaint, all it brings up is all the individual items which they claim infringes on their copyrights, and the fact the production has raised over $1 million. Further, according to Mr. Peters, Paramount is the driving force behind this lawsuit, and not CBS.

      Speculation on what set off the lawsuit, whether it be the building of a studio, salaries paid out, the coffee thing, Is just that, speculation. One day we may find out it might be true, but until then, don't assert it as such.

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  11. So what's the difference between what they're doing and what the Star Wreck folks in Finland did, using not only Star Trek ships but Babylon 5 property as well. (and hilariously, I might add). Is it as simple a matter as making it overseas?

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    1. (watches some Star Wreck)

      I think that qualifies as parody, which falls under fair use. Though the straight-up use of B5 and Trek ships might get them a smack on the hand if anyone at Paramount cared.

      I still think Axanar's sin was in creating something serious, whose production quality is so good that CBS/Paramount felt threatened. They can laugh off amateur actors in front of home made green screens and sets. But Axanar doesn't look like your typical fan film at all.

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    2. I don't think Paramount could care less about the use of B5 ships. Warner Bros., on the other hand......

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  12. Axanar filed a motion to dismiss. Check out the story here: http://www.hollywoodreporter.com/thr-esq/star-trek-fans-want-paramount-868691

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    1. Those are pretty good grounds for dismissal. "We don't know what we've done, who owns what part of Trek, and we haven't even finished creating the supposedly infringing work yet."

      The last part is the best argument. CBS/Paramount really have no grounds to sue before the infringement, if any, has actually taken place. The proper time to sue is when the work has actually been released.

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  13. CBS/Paramount amended their complaint with specific allegations, thought you might want to peruse it. I believe they list the "kitchen sink" in their somewhere..... http://www.hollywoodreporter.com/thr-esq/paramount-claims-crowdfunded-star-trek-874985

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    1. Thanks for the link! New post incoming...

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