In Part 1, we began looking at the hard-hitting, 15-page Order on Motion for Partial Summary Judgment issued by Judge R. Gary Klausner in the AXANAR lawsuit early on Wednesday morning. It was mostly bad news for the defense, although not fatal. The judge didn’t grant either side’s motions for summary judgment, leaving the jury to decide whether Axanar is similar enough to Star Trek to qualify as copyright infringement.
The judge did rule that, in his opinion, Axanar was “substantially similar” to Star Trek and should be considered contributory and vicarious infringement. So that’s definitely bad for the defense, since it pretty much rejects a good portion of their motion for summary judgement.
However, he also didn’t grant the plaintiffs’ requests to declare Axanar to be infringement (which would have taken the decision away from the jury) or to issue an injunction against Alec Peters of his associates producing anything else Axanar. So that was good for the defense. Also good was the judge’s opinion that given the benefit of the doubt, “…Peters’ actions demonstrate a respect for Plaintiffs’ intellectual property that makes a finding of willfulness on summary judgement inappropriate.” If the jury agrees, the judgment against Alec Peters (if he loses) could drop from the seven-figure range down to the five-figure range.
But then things got UGLY. The judge nixed the “fair use” defense completely. But is he allowed to actually do that? I’ll go through what the judge actually said first, and then tomorrow we’ll look at how he may have actually given the defense a gift (of sorts) if and/or when it comes time to appeal.
Here we go…
Unfortunately (or perhaps fortunately), the defense brought up “fair use” in their motion for summary judgment. And so Judge Klausner got a chance to smack that argument down…hard.
The “fair use” defense is a fickle mistress. The determination is always made on a case-by-case basis based on four factors…none of which by itself is a slam dunk either for fair use or against it. Instead, it’s an ambiguous grouping of the four elements together that is typically left up to a jury to weigh as they see fit.
So even though I’ve gone through the four elements before, I’ll do it one at a time with the judge’s commentary after each one…
1. Purpose and Character of the Infringing Use
Is Axanar transformative? Does it add something new, with a further purpose or different character, altering the first with new expression, meaning, or message…or merely supplant the original? Apparently the latter:
Viewed as a whole, the Axanar Works do not have “a further purpose or different character, altering the [Star Trek Copyrighted Works] with new expression, meaning, or message.” On the other hand, Defendants want the Axanar Works to supplant the Star Trek Copyrighted Works. Peters “was interested in creating alternative ways for fans to view Star Trek.” He wanted to create “a whole new way that fans can get the content they want, by funding it themselves.”He used “a fully-professional crew – many of whom have worked on Star Trek itself – [to] ensure Axanar will be the quality of Star Trek that all fans want to see.” The Axanar Works are not transformative.
This first element of fair use also asks whether or not the work is commercial or non-profit in nature. The defense argued (fervently) that Prelude to Axanar was shown for free and was therefore not commercial (and that donations are not revenue or profit). And of course, the Axanar movie was never made and therefore could not be considered profitable in any way.
The judge was not convinced:
Here, it is undisputed that the Defendants did not pay Plaintiffs for a license. It is undisputed that Peters hoped to derive non-monetary benefits, for example, other job opportunities, from the Axanar Works. Defendants “profit from exploitation of the copyrighted material without paying the customary price.” The Axanar Works are commercial.
Is it over yet? No? Oh, dear…
Defendants argue that the Axanar Works are not commercial because they are, and will be, distributed for free. This argument is unpersuasive because, even though Defendants do not profit directly from distributing the works, “common experience suggests that [Defendants] stood to gain at least indirect commercial benefit from the [viewership] boost which [they] had reason to hope would (and in fact did) result from the” Axanar Works.
The successful fundraising campaign leveraging the popularity of Prelude is an example of such indirect benefit.
Yeesh! Axanar is gettin’ clobbered here. Well, what about the mockumentary format? Isn’t that transformative? Or maybe it’s critical parody or something like that? Please?
For the purposes of copyright law, however, parody must use some elements of a prior work to create a new work that criticizes the substance or style of the prior work. “The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole.” “The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.”
Here, the Court has difficulty discerning from the Axanar Works any criticism of the Star Trek Copyrighted Works. This is not surprising since Defendants set out to create films that stay faithful to the Star Trek canon and appeal to Star Trek fans.
Thus, the Court finds that the first factor weighs in favor of Plaintiffs.
However, I do have an editorial comment to insert here in the midst of simply summarizing the judge’s ruling…because here I think there’s an important argument being missed. One of the FAN FILM FACTOR readers pointed out to me recently that the “criticizing” purpose of Axanar was to show the studios that good Star Trek could be made on a very low budget, and that hundred-million-dollar blockbusters, while fine, weren’t the only answer.
Was Alec Peters “criticizing the substance or style of the prior work“? Damn straight, he was! He was criticizing the studios pouring hundreds of millions of dollars into rebooted rubbish that had lost sight of the very heart and soul of Star Trek (remember that Prelude came out prior to Star Trek Beyond, which attempted to recapture the ol’ Trek magic a bit…but still cost nearly $200 million to make!). Prelude to Axanar was saying, “Hey, it’s possible to do this another way, for 1% of the cost…and here’s how!” And sure, Alec could have just written a letter to the studios or posted a blog, but part of the purpose of parody is to get attention…and Axanar certainly got attention!
So yeah, if I were the defense team, I would have gone up to the jury during trial and said, “This is indeed criticism of the substance of the original…or rather, the lack of substance that Star Trek was turning into. And rather than just telling them, Alec Peters was showing them…which is at the very heart of the idea of fair use. And without making it meticulously accurate Star Trek, the message to the studio wouldn’t be nearly as powerful.
Okay, getting down off my soapbox. The other elements of fair use are faster to get though…
2. Nature of the Copyrighted Work
See, this is the shortest one. Does Star Trek deserve copyright protection in the first place? Of course, it does! Even I wouldn’t argue with that. And the judge warped his way through this one quickly:
Here, the Star Trek Copyrighted Works include thirteen motion pictures and six television series set in a fictional universe. These works have transported the hearts of a legion of fans to the Star Trek universe. The creativity in these Works and their status as published works are not disputed. They are the type of works that are given broad copyright protections.
3. Amount and Substantiality of the Portion Used
On this aspect of fair use, the defense was trying really hard to argue for what is known as de minimus use. In other words, yes, they used elements from Star Trek, but only enough to do what they needed to do to make their fair use commentary (see my soapbox mini-rant above). After all, compared to something like Star Trek Continues or New Voyages (which use Kirk and Spock and McCoy and all the rest), Prelude to Axanar used just two existing characters, and pretty minor ones at that. They used Vulcans and Klingons (and mentioned the Andorians), but they didn’t use Romulans, Gorn, Tholians, Ferengi, Borg, Cardassians, Betazoids, Trill, Bajorans…the list goes on and on. There’s just so much Star Trek out there, and what Axanar used wasn’t the “heart” Star Trek.
Or apparently it was:
While it is difficult to quantify the amount of the portion used in relation to the Star Trek Copyrighted Works as a whole since “the portion” involves many recurring elements in the Star Trek universe and the Star Trek Copyrighted Works are numerous, it is fair to say that elements of the Star Trek Copyrighted Works pervade the Axanar Works. For example, every scene involving a Klingon or a Vulcan can conjure up Star Trek in the minds of fans. The same is true of Federation spaceships, Klingon battlecruisers, transporters, phasers, and so on. The elements from the Star Trek Copyrighted Works that Defendants use are qualitatively important because they give the Axanar Works the Star Trek feel and enable Defendants to stay true to the Star Trek canon. Thus, the third factor weighs in favor of Plaintiffs as well.
Not going well for the defense, is it? Last one…
4. Effect of the Use upon the Potential Market
There’s no question that it would be virtually impossible for the studios to show a direct correlation between Axanar and the revenue stream for Star Trek. The multi-billion-dollar franchise is just too huge. But Judge Klausner has found a legal way around that challenge to still show Axanar could harm the studios…
Here, the prequel depicted in the Axanar Works is the kind of potential derivatives Plaintiffs “would in general develop or license others to develop.”
I kinda wish they had licensed it! In fact, they still can…and should! Alec Peters would purchase that license in nanosecond! But I digress…
Judging by the success of Defendants’ fundraisers, the Axanar Works are the type of work “for which there [is] a separate demand that [Plaintiffs] may one day seek to exploit.”
Well, d’uh! That was kind of the whole purpose in trying to show the studios how commercially viable “classic” Star Trek could still be if done correctly!!! Oh, sorry…interrupted again.
The fact that Defendants distributed Prelude and the Vulcan Scene for free online and intend to likewise distribute their future works may likely increase the risk of market substitution as fans choose free content over paid features.
Hmmm, seems the judge is drawing a factual conclusion from a “may likely” conjecture. Can he do that? Well, he just did.
Darn…shutting up now!
Defendants further argue that the Axanar Works, through their promotional value, actually increase the sale and visibility of the Star Trek Copyrighted Works. But “the boon to the [latter] does not make [Defendants’] copying fair.”
Well, I can’t argue with that last point.
The Court thus finds that all four fair use factors weigh in favor of Plaintiffs. If the jury does not find subjective substantial similarity, Defendants did not infringe and fair use defense is moot. If the jury finds subjective substantial similarity, the Axanar Works are rightfully considered derivative works of the Star Trek Copyrighted Works. Rejection of Defendants’ fair use defense is consistent with copyright’s very purpose because derivatives are “an important economic incentive to the creation of originals.”
And thus dies the “fair use” defense. The judge has ruled it “invalid” and, therefore, it cannot be argued for in court by the defense. So the only two things left for the attorneys to bring before the jury are…
The Court leaves subjective substantial similarity and willfulness for the jury to determine. Findings of direct, contributory, and vicarious copyright infringement are contingent upon the jury’s finding of subjective substantial similarity.
Sounds pretty devastating for Axanar, doesn’t it? After all, their one chance of getting an outright “win” was fair use, and now they’re not allowed to argue that in front of the jury. The best they can try is to prove that Axanar (Prelude, the Vulcan scene, and the full feature script) are not substantially similar to Star Trek. And as many people have commented to me yesterday: good luck with that…
Granted, even if Alec loses, there’s a reasonable likelihood it’ll just be a slap on the wrist judgment in the low five-figure range (rather than millions). But is there a way Axanar can win on appeal? Lots of Axanerds are now predicting and rooting for an appeal (having already assumed a loss for the defense at trial…love that optimism, guys!).
But is an appeal even possible, and if so, will it make a difference?
Well, as it happens, Wednesday’s ruling by Judge Klausner might end up being just what the holographic doctor ordered when it comes down to getting and possibly even winning an appeal. So what exactly did Klausner do to help Axanar despite all of this carnage?
Tune in next time to find out!
(And if I can write fast enough…tune in two blogs from now to see if the Axanar lawsuit could actually make it all the way up to the SUPREME COURT. The answer may surprise you!)