Tuesday, March 15, 2016

Axanar: Round 2, FIGHT! (UPDATED)

by SandWyrm

Anyone remember this classic 1992 3DO/PC game? Clearly infringing!
In our last episode, CBS/Paramount had decided to sue Axanar Productions over their clearly infringing (to some extent) fan-kickstarted movie project to tell a story about a Trek-Universe battle that was mentioned once in passing by Captain Kirk during TOS. Even though there are over a dozen OTHER fan projects out there, from movies to episodic series, that infringe on Trek copyrights and trademarks at least as much, if not more than Axanar does.

But then Axanar countered with the assertions that CBS/Paramount's lawsuit wasn't specific enough in its claims (which it wasn't), that the ownership of certain IP elements is uncertain due to the split of CBS from Viacom (which owns Paramount), and that they can't be sued for an infringing work that they haven't even completed, much less published yet. Fair Enough.

Well, CBS/Paramount has pressed on, and has filed an amended lawsuit (thanks to David Heagney Jr. for the link) that includes much more specific copyright claims. While at least a third of them seem reasonable enough, most wander into GW vs. Chapterhouse territory by ridiculously claiming ownership of ideas, instead of specific expressions of those ideas.

Let's take a look at a selection of CBS/Paramount claims, and talk about what is, and is not defensible under copyright.



Here's Garth, as depicted in "Whom Gods Destroy":

I suppose you could say that Alec Peters has a passing resemblance to him (better sue his mother!), but nothing about his costume or performance in Axanar can be confused with the Garth we see in this episode.

Since we're not shown Garth as his former starfleet-hero self, the descriptions of him and the Battle of Axanar are story IDEAS, not concrete expressions of those ideas. Which means that they're not protectable by copyright law.



Here's what the US Copyright office has to say about what can't be copyrighted.


Source: http://copyright.gov/circs/circ34.pdf

Now, some of the things on that list can be Trademarked. Which is to say that if CBS/Paramount registered them as names of specific products used in commerce, they'd be protected in the name of avoiding consumer confusion as to who made a product. But that's not what they're claiming here. They're asserting copyright violations for IDEAS.

That a CBS/Paramount licensee made a few books about one or more of those ideas doesn't mean anything in the context of TV/Movies, unless Peters was stupid enough to significantly copy one of those books when writing Axanar, which has not been asserted.


Doesn't matter. Names can't be copyrighted .


Now here we see a real honest-to-goodness copyright issue that should be in the suit. Axanar calls them Klingons AND copies fairly closely their previous appearance/expression in both the Trek films, and each of the post-TMP television series.

Ok, I've just learned that clothing can't be copyrighted.

http://www.newmediarights.org/business_models/artist/can_you_copyright_clothing_designs

So the only copyright-able bits of a costume are its non-functional decorations. Which means sashes, broaches, medals, and such. These are clearly different in the Axanar version.



As for the makeup, it also falls under the "can't copyright functional items" ruling. So CBS/Paramount would have to get the court to agree that feature X on a Klingon is purely decorative (protected), and not merely an accentuation of that person's underlying face (not protected).

But then I look at how Klingons have been portrayed over the years, and there really isn't a single specific look to their makeup. Some have ridges, and some don't. Some characters used to not have ridges, but now do. Of those that do, there's no real consistency to how many ridges, where they go, or how deep they are.

So that means that the makeup of the Klingons isn't a concrete decorative expression, but an idea best expressed as "ridges on forehead... sometimes".

And so as an idea, the look of Klingon makeup can't be copyrighted. Ouch!

But...


It's a lot more of a stretch for Vulcans, because this is the traditional appearance of elf and fairy creatures in mythology.

Given the Klingon's failure to be distinctive above, there's no way that Vulcans would be.


I mean, Elrond and his kin from the Lord of the Rings movies are only a bowl-cut away from being Vulcans. I think there's a very good chance that the appearance of Vulcans wouldn't be considered distinctive enough by a jury to be protected.  Klingons, on the other hand, are much more distinctive, and you have to do more than just put on ear extenders and some eyebrow makeup to portray one.


However here we have a specific Trek character that's been reproduced, actor and all, for the Axanar film. This is as concrete an expression as one could ask for. Sure, the costume has changed, but it's clearly an established Trek character, and the mannerisms/performance are certainly very close to what the same actor did while working on a character of the same name for CBS/Paramount.

And since we now know that the makeup and clothing can't be copyrighted, this point will have to rest on Soval being an existing character of Trek being portrayed in a similar way. Much less cut and dry now.


Sigh... Different triangles, different triangle patterns, on clearly different uniform designs. This one goes in the ridiculous pile. Otherwise clothing designers would be suing each other constantly.

And they don't because clothing can't be copyrighted. That's why they're going after the medals, but even that is too much of a stretch.

But that's nothing compared to...


Yes, CBS/Paramount are asserting ownership of the IDEA of Space Docks. Which is utterly ridiculous. The only thing they can legally sue for is copying of their SPECIFIC dock designs, but Axanar's differs in both overall shape, color, and fine detail. Which, for such a simple design concept, is enough to distinguish it from CBS/Paramount Trek.

You might think a little bit of difference like this doesn't matter, but copyright precedent relies heavily on "decorative" design details being a distinguishing characteristic. That's why if you read through the testimony of the GW vs. Chapterhouse case, you'll see a lot of attention paid by the lawyers as to whether specific bits of Space Marine armor were designed to be "functional" or "decorative" in nature. "Decorative" differences are considered to be more creative, and thus more protected.


Now this is something that I absolutely want to see argued in court, just to see where the decision goes, because there are a LOT of sci-fi ships in movies and video games that are (like a lot of actual Trek designs) merely re-arrangements of Saucer/Hull/Nacelles.

Does the placement/proportion of the Saucer/Hull/Nacelles make a design infringing, or is it the finer decorative details which are applied to them? Has the Federation Hull appearance become so generic that only the finer details can legally set a design apart?

Because here is the Titan:


And here is the Ares from Axanar:


Both are basically Enterprises with the nacelles bent downward, but they both differ in the shape and proportions of their larger elements, and in the color and geometry of their fine hull details. My gut tells me that a jury would find the general design too generic to protect, and judge them on their decorative details, as happened in the Chapterhouse case.

A ruling here would also apply to disputes between companies like Apple and Samsung over the relative visual "look" of their tablets, so this is actually something really important to argue from a design standpoint.


Sigh... Really? They also claim the word "Stardate" in another entry.


Now this one has the distinction of being both wrong, and right. The UFP logo on the flag held by Kirk looks nothing like the UFP logo of Axanar, apart from the shaping of "UFP". So no joy for CBS/Paramount there.

But...

The United Federation of Planets logo is clearly all-but-identical to the one on Picard's computer. So that's a cut-and-dry case of infringement.

There is some wiggle-room here though, as it's only one element of a larger work (the episode). We'll just have to see how it's ruled, but I do think it should be argued.


And here we go again. The Memory Alpha logo is completely different in shaping and design. Plus you can't copyright the name "Memory Alpha". But the Klingon logo used by Axanar clearly infringes on the one used by CBS/Paramount, since despite some color changes, the overall silhouette is identical.

Unless the Klingon logo is found to be too simplistic to copyright.


"Beaming Up" and "Transporters" are completely generic words in combinations that can't be copyrighted. "Warp Drive" started out distinctive (but still not copyrightable) in TOS, but has become a generic term that even NASA uses today.

As for the Klingon Language, this article makes some hilarious points about that:

http://www.hollywoodreporter.com/thr-esq/paramount-claims-crowdfunded-star-trek-874985


Now this would be a point in CBS/Paramount's favor IF this shot were from Axanar, but it's not. It's a still from when Peters played Garth in "Star Trek: New Voyages" a different fan-made Trek series. Kirk, Spock, and McCoy aren't even in Axanar.

Ooops! I can't wait for the fallout from this screw-up.

If CBS/Paramount withdraws this assertion because it's not from Axanar, then they open themselves up even more to allegations of only selectively enforcing their copyrights & trademarks. Copyrights don't always have to be defended, but they historically don't get judgements as favorable to the plaintiff as when they're even-handed in their enforcement.

Trademarks though, do get invalidated if they're not defended. So that's an even greater danger.


Conclusion

CBS/Paramount have a case here, as I do believe Axanar Productions have infringed on many copyrightable items from Trek. The only real question is how much they've infringed, and what the consequences of CBS/Paramount not also suing every other fan production will be.

(PDF of the updated suit: https://www.documentcloud.org/documents/2757228-Axanar-Klingon.html)

But obviously CBS/Paramount, like Games Workshop, is about to get smacked in the head with the reality of what is and isn't protectable about their IP. Like GW, they think they own IDEAS, instead of the actual expressions that came from those ideas. They've also, like GW, been very sloppy in the research and documentation of their claims.

CBS/Paramount will "win", certainly. But like GW, whatever they get in damages will probably be heavily outweighed by what they lose. In money, in perceived and actual IP protections, and in the goodwill of their fans.

Peace.

29 comments:

  1. Great post! I thought you might like tearing into the finer details. You pretty much nailed it in your last sentence. By throwing in everything, including the Klingon language, they've opened themselves up to ridicule in the media. So much so than even Justin Lin, the director of the upcoming Star Trek Beyond, has tweeted out against the lawsuit. I'm just wondering if or when CBS/Paramount will decide that whatever victory they may claim will be pyrrhic, and just settle the damn thing.

    One question I have for you, though: You say that the Klingon logo, and the second UFP logo are clearly items which show infringement. However, I thought that logos were also not copyrightable, but would be covered under trademark. Am I missing something there?

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    1. Logos can have both copyright (if they're complex/expressive enough) and trademark protection.

      The logos in question probably aren't registered, and don't have the ™ or ® symbols appended that would indicate that they have trademark protection. Plus CBS/Paramount are only asserting copyright violations for them.

      It's possible that a jury could find the Klingon logo to be too simplistic to deserve copyright protection, but I don't think that CBS/Paramount are out-of-line in claiming it. I would.

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    2. You do realize that the Klingon Language IS a copy-write and Trademark protected work?

      All of the logo' for Star Trek are registered just because it doesn't show it on a screen shot from an episode doesn't mean they didn't protect it in any way.

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    3. I don't know the exact status of the Klingon language. Have you seen the documentation? We went through this with GW vs. Chapterhouse, and we saw that GW had gotten lazy about its paperwork with many of its contractors.

      As for the logos being trademarked, I assume (possibly incorrectly) that most of them have been, but these are COPYRIGHT claims, not trademark claims. Trademark protection is actually quite a bit more limited than copyright, and CBS/Paramount have to be careful lest some of their trademarks become invalidated as a result of this case.

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    4. Also, the copyright-ability of languages hasn't been decided in court yet, but under the same "functional solutions can't be copyrighted" rules that apply to clothing and makeup, it's quite likely that Klingon would be seen as a functional method of expression, rather than a piece of expression itself.

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    5. Is "showing the logo" even something I can be sued for? E.g: If I design a new shape for a glas bottle and put the Coca-Cola logo on that and publish that as a picture on the internet, can I be sued for using their logo on my bottle?

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    6. It depends on the usage. It it's a trademark dispute, you can only be sued for using their logo to sell something where your use might confuse others into thinking your product is an official Coke product.

      If it's a copyright dispute, and their logo qualifies as complex/decorative enough to be protected, then you can be sued simply for using that image without permission.

      But if your use is editorial ("I think a Coke bottle should look like this..."), or a parody ("Wouldn't it be funny if it looked like this..."), then you're protected. But the process of determining that still requires them to sue you (if they choose to), and then you have to convince the judge/jury that your use is really editorial/parody, or if you're just saying it is in order to accomplish a non-fair use goal.

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  2. Are they trying to kill all fan works at this point with those claims. That USS Titan was designed in a fan competition for Pete's sake.

    It's Star Trek. No series exists in as much of a symbiosis with it's fans as much as this one. Honestly, I think this whole suit is because of the upcoming official web series and some idiot executive worried about "brand integrity" or some other nonsense. This one just came up first in his google search or something.

    They would be better served by just releasing anything Original Series as public domain at this point. It's not like Paramount is going to use the 60s retro look that much anyway.

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    1. Releasing TOS into the public domain would be a wonderful (and long overdue) thing, but CBS/Paramount would then have to consider what would happen when someone inevitably pushes the timeline forward and creates another Marvel-like fork in the continuity. Different ships, different characters, different stories, but still Trek.

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    2. Then their work would have to stand up against the competition on it's merits. (looks over at NuTrek) Yeah, they'd be screwed

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    3. Oh so Paramount has to compete with people trying to steal THEIR property? That makes a lot of sense. It's not like the folks at Axanar haven't admitted to violating IP in regards to Star Trek because they openly admit that they do. I'd bet good money Axanar won't even be any where near as good as Star Trek Renegades (another big hype fan film that fell flat on it's face).

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    4. Reading comprehension fail. That's not what we said.

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    5. The failure is all yours, SandWyrm. You and others don't like the official movies by Bad Robot and Paramount, and now you're using this hate to justify IP theft and copyright infringement.

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    6. So you what, just skimmed this article (at best) before trolling off at me?

      This post is about what is, and isn't, copyright-protectable under the law. Or at least my not-a-lawyer, but generally well educated on the subject view of it. CBS/P do (well did until the recent settlement talks started) have a case here, and at least a third of the issues cited deserve(d) their day in court, but there are other places where they've ridiculously overreached in their assertions. I've simply pointed out what a reasonable assertion looks like next to an unreasonable one.

      That is a very separate thing from my dislike of the ridiculous changes to the length of copyrights that has essentially ensured that no work created after Mickey Mouse first appeared will ever enter the public domain.

      Superman, Batman, Star Trek, and Star Wars, and other important cultural icons, under the constitution's original copyright terms, would all be in the public domain now. Just as Sherlock Holmes, Tarzan, Jungle Book, The Wizard of Oz, and countless other stories that were written BMM (before Mickey Mouse) have passed into the public domain.

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  3. It's surprising how weak copyright law is really. My naieve assuption would have been that Axanar is clearly violating Trek copyright and can easily be stopped. I imagine this is the extent of the thought process of the execs who commissioned the lawsuit. After all lawyers don't just spontaneously file suits so there must be a collective will at Paramount to do this. The difficulties in actually prosecuting the case are really interesting and pretty counter-intuitive.

    I'm wondering how much of our assumptions about copyright come from aggressive use of the law by big studios in the recent past. Maybe some more legal cases will lead to more willingness to make derivative works, which could end up being pretty positive.

    I don't like how stifled we are by modern views on copyright. Being able to riff on popular stories is really core to how we told stories in the past. Imagine if Goethe couldn't have written Faust or Disney couldn't have made their films because they weren't original tales. We all stand on the shoulders of giants, as they say.

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    1. I'll turn that around on ya and say that it's surprising how many rights to "copyrighted" works we actually do have. It's also surprising how many creators just change "Phaser" to "Phasor/Phazer/Phazor/etc." and think that really means something copyright-wise.

      And yeah, ignorance of our fair use rights is rampant, and large companies take advantage of it all the time. Even when you know your rights, it's often better to steer a wide berth around a large company's claimed IP just to avoid the mere chance of a lawsuit.

      It's also a travesty that we're no longer allowed to stand on the shoulders of those that came after 1920 or so. If copyright hadn't been extended past its original limits, TOS, Superman, Batman, and so many other works central to our culture would be in the public domain today. It also used to be that works were not copyrighted unless they were registered, which would fit our internet culture much better than everything automatically being copyrighted the moment it's created.

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  4. The shots with Peters in the Garth costume, isn't New Voyages... It's from the Heroes Vignette which is produced on the NV sets using the NV actors, but is actually produced by Axanar....

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    1. Well, if that's the case then CBS/Paramount should pull New Voyages into the case, since it's a co-production.

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  5. Also, I noticed you left out the Enterprise, was that intentional?

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    1. "Also, I noticed you left out the Enterprise, was that intentional?"

      I left out a lot of things, because I was focused on making teachable points, and also because the single shot of a Constitution-Class ship that we see in Axanar isn't detailed enough for me to see if Axanar changed any of the decorative details. So I didn't have an opinion on it one way or another.

      My interest in the copyright-ability of particular saucer/hull/nacelle placements was also applicable to the Titan/Ares, which we do have detailed pictures of. So I left it at that.

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  6. Hey, this Axanar thing has led me to firing my old blog back up. I gave yours a shout-out in my most recent post;http://hubcapdave.blogspot.com/2016/03/paramountcbs-vs-axanar-where-no-fan.html?spref=fb&m=1

    Check it out when you have a minute!

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  7. Articles of clothing can not be copyrighted, patented, nor trademarked. This is why it is possible to copy expensive brand clothing, down to the exact stitching, and sell it (thus, all those knockoffs in the very profitable world of fashion), so long as you do not also duplicate the brand's actual trademarked name or logo.

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    1. That's pretty interesting, I'll have to go look that up.

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    2. Wow! Sucks to be a clothing designer:

      http://www.newmediarights.org/business_models/artist/can_you_copyright_clothing_designs

      Turns out that only distinctive, purely decorative features that are not actually a part of a piece of clothing can be copyrighted. Such as a fancy belt-buckle or a broach.

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    3. Oh... makeup can't be copyrighted either. This gets worse and worse for CBS/Paramount.

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  8. Hey, some more light reading on your favorite lawsuit!http://www.axanarproductions.com/axanar-files-motion-to-dismiss-amended-complaint/

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    1. Yeah, I've read the new motion to dismiss, but I'm not sure what to say about it. There's a lot of good logic in it, but also some questionable assertions that might just annoy the judge.

      For instance, they call "Prelude to Axanar" a "Mockumentary", as if having "Mock" in the name of the genre automatically makes it a parody. But to me it's not a parody at all, just a different way of telling a Trek story.

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    2. Yeah, I'd say most people think that because the first time anybody ever heard the term, or at least the first time I ever heard it, was in connection with This Is Spinal Tap. However, Ms. Ranahan does define the term in the MTD, so it should be clear to the judge what the defense means by it.

      Besides, most Mockumentaries we are familiar with are more satire than parody.

      Delete

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