A Tale of Two(?) Fan Films – Analyzing the MOTIONS FOR SUMMARY JUDGMENT in the AXANAR LAWSUIT! (Part 2)

Axaanr splash imageLast time, we began to analyze the DEFENSE Motion for Summary Judgment that was filed by the AXANAR legal team on Wednesday with Judge R. Gary Klausner of the Ninth Circuit Federal Court.

The attorneys for CBS and Paramount also filed a PLAINTIFFS Motion for Partial Summary Judgment, and I look more thoroughly into that in my next blog.  But the defense won the coin toss (yes, I actually flipped a coin to see which side would be analyzed first!).

When last we left off, we had just gotten to the “meat” of the defense’s motion:

“FAIR USE” – WHAT THE HECK IS IT?

Well, here’s the official explanation (I’ll translate in just a moment):

To avoid “stifl[ing] the very creativity which [copyright] law is designed to foster,” certain uses of copyrighted works are protected as fair use. In determining whether a work constitutes fair use, the four statutory factors to be considered are:

  1. the purpose and character of the use
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Courts will look to the totality of the circumstances and apply the four factors on a “case-by-case analysis” to determine whether fair use exists. Moreover, there is no bright-line rule for determining fair use. Thus, the four factors are not considered in isolation, but rather, are weighed together “in light of the copyright law’s purpose to ‘promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works.

So fair use was designed to keep copyright protections from turning from super-heroes into super-villains.  Yes, creative people need to be protected, but not at the expense of other creative people.  There needs to be a fair medium so that the very laws designed to encourage creativity don’t inadvertently end up stifling it.

Granted, this doesn’t mean it’s the Wild West and anyone can just go copy anything they want to in the name of creativity!  But it does mean that the law has to consider whether copying a portion (large or small) of another work might actually be permissible under the right circumstances.

Let’s look at how the defense is arguing for fair use, going through the four elements listed above, but slightly out of order)…

AXANAR IS NOT GOING TO FINANCIALLY DAMAGE STAR TREK

The effect of the use upon the potential market for or value of the copyrighted workThis is where the “Tale of Two Fan Films” starts to come in.  The defense sees Axanar as causing no financial harm while the studios see it as an imminent threat now and into the future.  I’ll cover the plaintiffs’ arguments in Part 3, but for right now, here’s the crux of the defense argument:

  • Axanar is non-commercial, not being shown in theaters or even charging anyone to see it in any way…so there’s no competition between the two properties in terms of distribution.
  • Axanar is distinct in having mostly new characters (only Soval and Garth have appeared before, and Garth was very different…and if the full Axanar movie ever gets made, it will have 50 more original characters).  The time period, plot, dialog, and theme (war) are also distinct from established Star Trek.  So Axanar doesn’t diminish the “novelty” of Star Trek.
  • Axanar does not serve as a “substitute” for Star Trek.  Fans don’t watch one and then avoid the other ( I know I don’t!–I watch TOS each night with Jayden, and took him to see BEYOND twice in theaters!).  If large numbers of fans are watching Axanar and then abandoning studio Star Trek because of it, the plaintiffs haven’t proven it yet.
  • Star Trek has benefited in the past from fan engagement through things like fan fiction and even from other fan films.  (Free advertising!)
  • The full Axanar movie hasn’t even been made yet, so how can it be proven harmful tot he studios?

Remember, I’m just summarizing here.  You’re welcome not to agree.  I have my own thoughts on this that I’ll save for the end.

AXANAR IS BOTH NON-COMMERCIAL AND TRANSFORMATIVE

The purpose and character of the useAgain, the two sides couldn’t be farther apart on this point, for but now, I’m summarizing the defense argument…

  • The non-commercial argument (for the defense) is purely about Axanar being distributed for free and therefore no profit is either intended or being made from Prelude or, potentially, from the full Axanar feature itself.  And yeah, the defense conveniently leaves out ANY mention of funding a “for profit” studio with donations…a point that is NOT forgotten when the plaintiffs have their say!
  • Star Trek has never done a pure documentary/mockumentary-style episode or movie before.  Rather than simply copying Star Trek directly, Prelude to Axanar was inspired by works such as “M*A*S*H,” “Band of Brothers,” “Babylon 5,” “The Pacific” and “The Civil War.”  Star Trek was never purely about the horrors of war (DS9 notwithstanding…although that aspect of the property was never mentioned specifically in the original complaint, so it’s kinda off-limits now).
  • I just need to quote this directly, “This style allowed Defendants to add critical commentary and analysis in order to highlight a comparison of concepts in the Star Trek universe to the present-day military industrial complex, thus serving a “completely different purpose” than the solely entertainment-focused Plaintiffs’Works.”  Um, well, would you like some help getting that argument down from the top shelf…’cause it’s a bit of a reach.  Granted, critical commentary is, indeed, something that can support a fair use defense, but I’m not exactly certain the judge is gonna buy that this was the primary goal of this fan film.  Of everything I’ve listed so far, this one seems to be the least convincing.

AXANAR DOESN’T REALLY USE ALL THAT MUCH STAR TREK

The amount and substantiality of the portion used in relation to the copyrighted work as a wholeBefore any detractors start writing their comments, let me summarize the defense’s arguments on this one:

  • Their motion lists as an undisputed fact that “Prelude features an obscure character and original dialogue [true], is filmed in a unique narrative fashion [yeah, documentary style is unique in the genre of Star Trek], derives inspiration from many other works [also true–I did enjoy “Band of Brothers”], and is set in a previously unseen timeline [I’d say time frame, but yeah, we haven’t seen 20 years before Kirk in Trek before], indicating that Defendants’ use of Plaintiffs’ Works was minimal.”  Well, when they put it that way, then yeah, “minimal” seems like a reasonable word.  Of course, the judge might not be so easily convinced…
  • “Moreover, the Axanar Works ‘do not use any clips, dialogue, plotlines or primary characters’ from Plaintiffs’ Works, further demonstrating that Defendants took only what was necessary to establish the context for their novel story.”  This is actually important.  Having not used Kirk, Spock, McCoy, etc., Axanar avoided primary characters and so only used these two minor guest characters of Garth and Soval.  That supports the “minimal” argument, as well…along with not using clips or dialog from any filmed Trek anything.  Only the part about plotlines is vulnerable, as there was both a “Four Years War” and “Garth of Izar” book published.  But again, how close is the fan film to the published literature?  Did it transform enough?  We’ll see…remember this is all about taking “the whole” into account, not simply the sum of its parts.
  • “Defendants’ minimal use of Plaintiffs’ Works pulls pieces from the Star Trek universe, but, such borrowing cannot be considered substantial, as it does not portray coherent, wholesale portions of Plaintiffs’ Works.”  In other words, we don’t grab the entire Klingon plotline of Star Trek VI: The Undiscovered Country.  Instead, we’re just planning to use Chang.  We might have shown the USS Enterprise for 10 seconds, but it was only being built in drydock and not out exploring strange, new worlds.  Again, minimal use.  Granted, still use without permission, but how much was used is important.
  • Now, the “Vulcan scene” by itself actually uses a lot of Star Trek source material: the Vulcan starships, Mt. Seleya, Shikahr city, and of course, Soval.  (NOTE from 3D artist Tobias Richter: “The ships are our design.  Similar, but nonetheless original.  And we based Shikar city on only one original building design from “Enterprise”, so the copyrighted elements that might be infringing are only Mt. Seleya and Soval.”)  Two arguments here: 1) that all was necessary to establish for fans that this planet was Vulcan, and 2) this scene was only three minutes…compared to the hundreds of hours of filmed Star Trek out there.  So again…minimal.  Well, maybe.
  • And finally, aside from two minor characters and a few other fringe elements, Prelude to Axanar was an entirely original story.  (True.)  Yes, it needed to use some aspects of Star Trek in order to tell that story within the established Star Trek universe (which CBS doesn’t own…remember?–still pondering that one), but they used only the bare minimum necessary.  And again I say…well, maybe.

STAR TREK IS NOT AN UNPUBLISHED WORK

The nature of the copyrighted work This is the least important of the four elements of fair use, but it’s still in the equation.  There are two important aspects of this: 1) is the original work creative enough to warrant copyright protection, and 2) is it unpublished?

The first question is obviously a “yes.”  Star Trek is totally creative and deserves copyright protection (as opposed to, say, painting someone’s house bright orange and lime green…creative, yes, but not deserving of copyright protection).  But the second question, well, we need to talk about Gerald Ford again…

In the bottom portion of this blog, I discussed the case of former President Gerald Ford’s autobiography and its effect on fair use.  The defense brings up this precedent-setting fair use case because one of the reasons the plaintiffs won in that case was because Ford’s biography had not yet been published, and an author has the right to control the first appearance of his or her expression.  That’s not an issue for Star Trek, which has been around for 50 years.  So in this one small way, the defense is trying to grab a tiny extra piece of fair use because the original work (Star Trek), while creative, is not waiting for its initial introduction to the world.  In other words, Prelude to Axanar would be much more of a problem for the copyright holders had it been released on September 7, 1966 or earlier.

So before I end part 2, let’s take a final look at how the defense team summed up their argument for fair use:

Defendants’ noncommercial works are transformative in that they tell an entirely original story, using original characters, and using only what was absolutely necessary from Plaintiffs’ Works so that the original story takes place in connection to the vast Star Trek universe, albeit in an unexplored timeframe. Plaintiffs can point to no actual harm suffered as a result of Defendants’ Works, and indeed, the only evidence is that Plaintiffs obtain free benefit. In weighing the factors together, Defendants’ Works qualify as fair use.

Do I think it’ll work and Judge Klausner will grant the defense motion for summary judgment?  Honestly, no.  But if he does, expect this story to explode across the entertainment newspapers and websites and TV networks.

But just because the argument doesn’t work in getting the case thrown out, don’t assume it won’t work in trial.  In fact, the whole reason that Judge Klausner may decide NOT to grant summary judgment for the defense (if that winds up happening) might be precisely because he doesn’t want to be the final word on setting this HUGE precedent in intellectual property case-law.  Most judges don’t like to be accused of being “activists,” so better to let a jury of 6 to 12 individuals take the heat.

Next time, we’ll finally get to looking at the plaintiff’s motion.  Do they have a chance of getting what they want, or are they in for a letdown?

41 thoughts on “A Tale of Two(?) Fan Films – Analyzing the MOTIONS FOR SUMMARY JUDGMENT in the AXANAR LAWSUIT! (Part 2)”

  1. Sunday, BBC America show a reconstructed 50 year old Episode Surviving original Audio, Animiation in place of video. Dr. Who Visited the Planet Vulcan.

    Star Trek used the names of US and Other Navy Ships.

    Part of What Axanar Borrowed Star Trek Borrowed as well. It will be interesting to see how it plays out.
    AT Least CBS/P hasn’t sued the Navy Because it has Captain James Kirk Commanding a ship(Zumwalt). He could end up commanding the new Enterprise when it goes into service.

  2. I find it telling that nowhere in the Plaintiffs’ list of supposedly-infringed episodes do we find the second episode of “Enterprise”–you know, the one titled “Axanar”?

  3. Just a few points:

    1. the “history” of star trek has been laid out in various licensed products over the years, such as the RPG game. So there may be noises to be made about that 20 year period that’s not been depicted.

    2. “establish for fans that this planet was Vulcan…”: I’d consider that deliberately making the connection to such an iconic thing as the planet Vulcan is a detriment to defense’s case, not a benefit; they’re practically stating that their story would not make sense without being identified as being specifically Star Trek

    3. commercial argument: I’d be trying to argue that the Axanar film is a “loss leader” and that everyone involved in the product will benefit after the fact, even if this film itself is distributed for free: there are tons of movies made that are not ever even distributed, but cast and crew still put them on their resumes….

    4. that bit about the movie being commentary on present day military and suggesting that original, legal Trek was mere entertainment…is not just a reach, its an insult.

    1. Well…
      1. Yes, but HOW? Is Axanar transformative of what little has been seen so far about twenty years BK (before Kirk)?
      2. That doesn’t necessarily mean they can’t argue fair use. They used just enough to establish that they were in the Star Trek universe specifically because the Star Trek universe was how they wanted to tell they story. The rest is up to the judge and jury to decide if they used too much or just enough.
      3. Nothing wrong with that either. James Cawley parleyed his success with New Voyages into a walk-on appearance in Star Trek 2009. Star Trek: Renegades even stated for years that they intended their fan film to serve as a pilot for a new CBS Star Trek television series. Vic Mignogna appeared on stage with William Shatner at cons. Fan filmmakers benefitting “after the fact” from releasing “loss leader” productions is well precedented.
      4. Insults are allowed in legal filings, Steve. 🙂

      1. “James Cawley parleyed his success with New Voyages into a walk-on appearance in Star Trek 2009” Prior to that, parts of his set were borrowed to make the mirror universe Enterprise episodes. I recall a different fan lent a piece of his collection for the TNG episode Relics. So fan productions have directly assisted the official ones.

          1. Not necessarily directly profited. Perhaps indirectly. The major thing is fact it will be challenging to prove that the studios were or will be HURT by fan films because, if that were true, they would/should have taken action long before now to get them off of YouTube and the Internet in general.

  4. Jonathan, the Plaintiff’s summary judgement petition (page 3) claims an RPG and one of its supplements described the battle of Axanar and the four years’ war, however, in the 57 original claims that the plaintiffs submitted there’s no mention of these RPG elements whatsoever as being infringed upon by AP. Can CBS/P retroactively submit this, or is it too late because it was never included in the original Heinz 57 infringements? Were these ever discussed in the discovery? If not, can CBS/P even claim ownership of the RPG as far as this case is concerned during trial?

    1. That is a GREAT question! I have no idea!!! I don’t know whether they were discussed in discovery, but it will be interesting to see what the defense says in their response. You might be able to win a bet, David! 🙂

  5. There is a prominent backlash against CBS/Paramount following the release of the Kelvin universe films, with many vocally saying they would prefer to watch something like Axanar as it is deemed to be ‘true’ to Star Trek. So the ‘financial harm’ argument is certainly one that could be argued, although how much of this is from a vocal minority is open to question.

    I feel the ‘Star Trek universe’ argument could be key to verdict against the full film. In a hypothetical scenario where CBS just decided to disappear, any subsequent Axanar film would probably be far different to the one that was initially planned, with minimal use of copyrighted elements and much more use of the ‘universe’ elements. Can the defence argue that the film would be different now or is the final script the marker in the sand for how the end film would have looked like?

  6. “The non-commercial argument (for the defense) is purely about Axanar being distributed for free and therefore no profit is either intended or being made from Prelude or, potentially, from the full Axanar feature itself”

    So does that confirm that the Netflix/Amazon discussions were about free distribution only?

  7. The Gerald Ford issue is relevant because it also touches on an often mistaken idea that there has to be a minimum amount of infringement. 300-400 words were quoted verbatim from the 500 page book. Although a trivial amount, what was copied was considered the heart of the book, the main draw in reading it. So there is no clearly defined percentage of use that defined infringement over fair use.

    1. True! And so it becomes even more fascinating that we are looking at a tale of two fan films. Which is the “real” Axanar–the fan film that steals the very “heart” or Star Trek or the one that is mostly original and uses just the smallest amount possible. And this is why we have trials. 🙂

      (Look for a great example of this very dichotomy in Part 3 of this blog series.)

  8. So on the topic of fair use and trans-formative art, would the new trek be considered trans-formative enough to have qualified for fair use protection had it not been produced by the studios. It uses an alternate universe as an excuse to deviate from the traditional star trek model, the characters though based on original star trek characters in MHO deviate significantly from the originals. Though the ships are similar in design their use is radically different, I remember being very disappointed during the opening scene of the new trek when what appeared to be a Anubis style scout ship opens up with a dazzling barrage of weapons fire. Such a scout ship would have only had 1-2 old style phaser banks and a single photon launcher, so it was definitely not what I was expecting. That opening scene to me really embodies the entirety of the new treks radical change in direction, though I’ll admit I have not seen the other two. To me it seems like the studios wanted to transform the franchise into something new and flashy and more action oriented. Though some parts of star trek historically may be flashier and more action packed than others they still seem to do it in a way that’s remained true to genre, pushing the boundaries instead of breaking out of the box. while the new treks seem to be aimed more at redefining the genre. Or maybe it’s just me being overly critical because I was rather excited about getting to see a rare starship in action then being disappointed by “the new direction” of the franchise.

  9. On in that same vein of transformative thought I was just imagining a Hardcore Henry style of FPS action film set in the star trek universe. It would be glorious, but I don’t think it would really be star trek.

  10. Jonathan,

    I just thought of something else. ST: Disco is not yet published, and if, say, that show uses Garth of Izar as the captain of the Discovery, would that undermine the ‘not published’ argument? If that were true, shouldn’t Loeb & Loeb have mentioned that in the discovery phase of this trial? And if they didn’t, isn’t it too late at this point as discovery is now over?

    1. They filed suit back in late 2015. The earliest Garth could show up in DISCO would be 2017. Obviously, Alec would have had no way to know. The studios could argue for future harm to derivative properties and licensing based on Garth (there would be two conflicting versions), but that’ll be hard to prove in court if DISCO hasn’t premiered yet. Tough question to answer, David!

  11. After your summary it actually looks like quite a strong case the defense has. I believe that the argument about minimal use of the copyrighted elements might be the crucial one in this case. Prelude indeed is mostly original, I’m not sure of the Axanar featture of course, since in hasn’t been made yet (which is another strong point by itself), but I trust that the content of the script truly is something novel and I’m looking forward to learning more about it.

  12. Honestly Prelude to Axanar did two things that amazed me. They managed to take Enterprise and the disastrous JJverse ship designs and incorporate it into something palatable. I never had any appreciation for either independently until Prelude and that’s from a 50 year fan

  13. One of the biggest things that counts against Axanar is that Alec seemingly tried to use Axanar to establish a future for-profit studio. Whilst Axanar may never have been sold, I think it is this that could be a killer.

    1. Not necessarily. If he can prove fair use, then the creation of a “for profit” studio is irrelevant. Also, if statutory damages are sought, any money made from Ares Studios and/or crowd-funding also becomes irrelevant. The plaintiffs and detractors are putting a LOT of stock into the “for profit” studio point. If what I think is going to happen actually does, many jaws will be left on the floor.

      1. Isn’t the argument that the “for profit” studio only comes about because of the defendants use of the plaintiff’s IP, without which they would not have raised anywhere near as much money and the studio would not exist? Thus, the entire endeavour ‘profited’ from the Star Trek IP…

        1. But did they profit at the expense of CBS and Paramount? Fair use allows for profit. If they took revenue away from the studios, then there’s a potential problem with fair use. But it’s awfully hard to prove that a 22-minute fan film is costing the billion-dollar, 50-year franchise significant amounts of money. If the studios can prove that, though, all bets are off.

          1. So to clarify: any profit has to be money that was essentially diverted away from CBS/Paramount for it to be deemed not fair use? Otherwise, any other money made through the use of the Star Trek IP is fair game?

          2. Ah, if it were only that easy to figure out, Eman! Fair use is a structure built on four pillars. Even if one pillar is completely missing, you can still create a solid structure on just three pillars. In fact, you could construct an archway with just two. The problem is when some of those pillars are wobbly or weak, the whole structure could still come crumbling down.

            So even if Axanar shows it didn’t take any money directly from CBS, it is no guarantee they will win on fair use. They might still not be transformative enough. It’s a bit of an holistic thing. However, if it turns out that money Axanar made DID directly come out of the pocket of CBS (and not simply a few fans boycotting STAR TREK BEYOND–that amounts to almost no damages), then not only is one of those pillars now completely gone, but it’s kind of a load-bearing support, and it could well knock down the other three pillars.

            As my old geometry teacher used to say, “Was that all perfectly unclear?” 🙂

  14. I know you “smilied” that post, but a few years ago someone did a study comparing the accuracy of Wikipedia to the Britannica online. My memory tells me the Britannica was a bit more accurate but errors in Wikipedia were fixed faster as one would expect.

    So personally I think Wikipedia is a very good source secondary source but sometimes one should go to the primary documents.

    1. Actually, I agree. But I know so many teachers who skewer it as being too susceptible to missing, incomplete, or erroneous information. Personally, I like to use Wikipedia as a starting point.

      1. Try getting a college professor to allow you to use Wikipedia sighted as a source… There’s no way they will allow anything except peer-reviewed sources… and because wiki is changeable at a moments notice, forget it.

        Albeit, wikipedia IS a great starting point and it holds tons of accurate info… the mere fact that a wikiboard can “change” the content makes it unreliable.

  15. Point of clarification…what makes the studio “for profit”? Wasn’t the point to have alternate uses of the studio to support the rent costs so the studio would be available to film Axanar? So, I’m confused. From a tax standpoint, there’s no problem with “making money” on one aspect of an operation, as long as the overall operation isn’t profit oriented. Even if the potential income from the studio space was to be ongoing, wasn’t there an expectation that more Trek films would be made after Axanar? So, I’m missing something here about the studio. Yes, no?

    1. Well, Axanar may also end up being a non-profit corporation in the end. But understand that the point in trying to call attention to Ares Studio’s “for profit” status isn’t to make any kind of specific legal point. The law allows for infringers to make money on their work…assuming they can demonstrate fair use and not be caught copying too much. The strategy behind the plaintiffs’ drum-beat of “for profit” is to paint a specific–and inarguably negative–picture of Alec Peters for the judge (and jury eventually). If the plaintiffs don’t do this, then Alec looks like just some geeky but (mostly)harmless Star Trek fan trying to have the same kind of fun that all of his friends are having, and the studios end up looking more like big, bad bullies. But if Alec looks like he’s a profiteering snake looking to piggyback his success and fortune on the backs of the noble creators of the beloved Star Trek franchise, then the studios aren’t bullies so much as gallant knights fending off a nefarious highwayman trying to rob the kingdom of its wealth and prosperity.

      Wow…how poetic of me! 🙂

  16. Well, after reading the blog, and before reading many comments, I actually did a search of “The Four Years War” right after the comment of the Enterprise episode “Axanar” I looked it up on the official StarTrek.com then off to the races with…..WIKI (-: And so, here are some interesting links to the four years war, non-cannon Trek wiki.

    http://stexpanded.wikia.com/wiki/Star_Trek:_The_Four_Years_War

    http://memory-beta.wikia.com/wiki/Four_Years_War

    http://memory-beta.wikia.com/wiki/The_Four_Years_War

    And the funny thing is, I just watched the Axanar episode less than a week ago, and didn’t even realize it. I must be getting old. But H&I TV is fantastic. I can’t believe how much of the first run of Enterprise I actually missed. And reliving all the old episodes of all other series is amazing. Five hours every evening, six days a week!

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