A Tale of Two(?) Fan Films – Analyzing the MOTIONS FOR SUMMARY JUDGMENT in the AXANAR LAWSUIT! (Part 3)

axanar-logo-3Last time (and the time before that), we took a look at the defense’s DEFENSE Motion for Summary Judgment in the AXANAR copyright infringement lawsuit.  Now it’s time to take a look at the PLAINTIFFS Motion for Partial Summary Judgment and see what they have to say.  And they certainly have a lot to say (as did the defense).

The first question you might be asking is why the plaintiff’s motion is only for a partial summary judgment.  The answer is actually rather simple.  They aren’t asking for the judge to stop the entire case, only the parts where the plaintiffs could lose and the defense could win.  In other words, they want Judge Klausner to say that the defendant Alec Peters infringed and shouldn’t be allowed to make any more Axanar anything.  But, you ask, isn’t that all there is…is there nothing more?  Oh, there’s one more thing still to determine…

The monetary award.

From what I’ve been told, the plaintiffs might not want to actually ask for the full amount ($8.55 million if Alec is found guilty of all 57 violations and the judge decides they are willful violations…at $150,000 per violation) because:

  1. The plaintiffs might look like bullies if they seem like they’re trying to utterly destroy the “little guy” defendant, and/or
  2. They actually might get MORE if they DON’T give a specific number.

Ah, greed.  But remember that the plaintiffs, if they win, can ask for EITHER statutory damages (the $150K per violation as I mentioned above) OR they can ask for damages for the financial harm they’ve incurred and might still incur because of Axanar.  They say in their motion that “monetary damages are inadequate”–meaning that they’d better get paid a lot and even THEN it won’t be enough!  Maybe the judge will agree.  Who knows the horrors he might bring down on poor Alec Peters!  Why put ideas in the judge’s head?  Better to let him rule on the partial summary judgment first and then, once the outcome is locked in but the case still isn’t officially over yet, wait for him to ask the plaintiffs, “Well, what do YOU think the penalty should be?”  Oh, the delight of the studios if and/or when that happens!

Okay, let’s start looking at this 20-page filing (the same length as the defense’s motion).  The first thing one notices is what I said in the title of this blog: it really does seem like the defense and the plaintiffs are talking about two totally different fan films!  To better understand exactly how this can happen when we’re talking about the same fan film, let’s take a look at the choice of certain words that the plaintiffs have decided to use (I’ll put them in ALL CAPS)…

Defendants hired professional actors, A NUMBER of whom had previously starred in the Star Trek television series…

…and feature, among many other copyrighted Star Trek elements, NUMEROUS specific Star Trek characters…

Now, let’s change those two ALL CAPS words (phrases) only slightly and keep yet still keep to the same facts that the plaintiffs are citing:

Defendants hired professional actors, THREE of whom had previously starred in the Star Trek television series…

…and feature, among many other copyrighted Star Trek elements, FOUR specific Star Trek characters…

The three actors were, of course, Gary Graham (reprising his role as Soval), Tony Todd, and J.G. Hertzler.  No actor had been officially cast yet (or rather, announced yet) for the full Axanar feature (although Gary Graham appeared again as Soval in the short “Vulcan scene.”  Likewise, the specific Star Trek characters that would appear in both Prelude and Axanar together would be Garth and Soval, of course, along with Robert April and Chang.  (It’s not clear whether T’Lera is the same character as appeared in the novel Strangers from the Sky, so I’m not listing her.  But even if I did, that would bring the total to 5 characters out of 50, which means 90% of the characters appearing in the proposed full Axanar feature would be original.)

So yeah, it all depends on how one looks at it!  Does Axanar use “numerous” Star Trek characters or only 10% established characters and 90% new and original ones?  Is the full Axanar movie all but completed except for the actual filming and production, or is it a project still in flux which could be altered in numerous possible ways to avoid infringement based, in whole or in part, on the outcome of this case?

Keep all of this in mind as we go through the plaintiff’s arguments.  Obviously, they want to present a “story” to the judge that will lead to them winning their case.  So does the defense.  But now that we’ve already looked at the defense’s version of the “truth,” it’s going to be quite–shall I say it?–fascinating to look at how the plaintiff tells the “same” story…

In a “he said/she said” situation like this, it’s important to make sure that you can come out of the starting gate and establish the facts are all on your side.  So the first thing the plaintiffs do in their motion is to try to define all the terms and labels in the case and then do what they can to cherry pick Alec Peters’ own words to hang him (figuratively, of course) in the eyes of the judge.  Take a look:

Prior to the filing of this lawsuit, Defendants unequivocally declared that they were creating a “professional” Star Trek film, with a Star Trek storyline and Star Trek characters. Although Defendants’ counsel has repeatedly referred to the Axanar Works as “fan films,” this is a legally irrelevant designation, as there is no special treatment afforded to fan films under the Copyright Act. Moreover, the Axanar Works are not “fan films” (amateur works created by fans simply for the fun of it). Rather, the Axanar Works are exactly what Defendants proclaimed them to be prior to this litigation – professional productions that are intended to be unlicensed “independent” Star Trek films for which Defendants received financial remuneration, and which were targeted at the same audience as Plaintiffs’ Star Trek movies and television programs.

What I find most notable about this is the plaintiffs suddenly providing what seems to be a generally-agreed-upon definition of “fan film”: amateur works created by fans simply for the fun of it.  You might remember in their portion of the 60-page Joint Stipulation document that the plaintiffs said the following on page 31:

[Plaintiff] further objects to this Request on the grounds that the term “fan films” is vague and ambiguous.

I would expect the defense to throw this comment back a the plaintiffs and concur that there is no generally agreed upon definition of “fan film”…and certainly not one that includes the word “amateur” (as many of the previously-allowed “fan films” like Star Trek: New Voyages, Star Trek Continues, and Star Trek: Renegades have also paid cast and crew members to participate).

As such, Alec Peters’ previous comments about Axanar being a “professional” Star Trek film may not be as relevant as the plaintiffs might expect or want.  As it happens, there is nothing in copyright law that prevents someone from being financially or professionally successful if they prove “fair use.”  If they don’t, however, then yes, any profit that Axanar Productions made could be tagged onto a judgment in addition to actual financial damages to the studio(s).  However, that would require plaintiffs to prove actual damages…which could be challenging with such a large media property as Star Trek.  I’ll go into this a little more in the next (and final?) part of this blog series.

The plaintiffs go on to state more facts.  For example, they own Star Trek.  All of it?  Well, they didn’t exactly say that.  Here’s what they DID say (and man, if you didn’t read super-carefully, you would have totally missed it–I almost did!):

The series chronicled the adventures of the U.S.S. Enterprise (one of the ships of “Starfleet”) and its crew as they traveled through space during the twenty-third century, featured numerous original and copyrightable elements, including but not limited to elements such as the plots of the episodes, mood, dialogue, theme, characters, settings, as well as the Starship Enterprise…

Did you just see what I saw?  Their series featured numerous copyrightable elements…not numerous COPYRIGHTED elements!  These copyrightable elements include but are not limited to a whole bunch of stuff.  BUT!!!!  Did the studios ever bother to actually copyright it all?  Is Garth of Izar actually copyrighted?  Is Soval?  Is Chang or Robert April?

Later on the motion does state the following:

There is no genuine dispute that Plaintiffs own the films, television series, and novels that comprise the Star Trek Copyrighted Works. Plaintiffs also own the characters portrayed in the Star Trek Copyrighted Works, which include the Klingon and Vulcan races, Ambassador Soval, and Garth of Izar. These characters have “physical as well as conceptual qualities” and are “sufficiently delineated” in Plaintiffs’ works so as to merit copyright protection.

But here’s where it gets potentially interesting.  I’ve been told (although I still need to look it up) that the studios never bothered to copyright minor one-episode characters like Garth.  They certainly copyrighted Kirk and Spock and Picard and Data and Khan and all the major ones.  But what about Garth?  What about Chang and Soval and Robert April?  Are there specific copyrights for them?

Or do the studios, by default, own everything and everyone that appears in Star Trek…every character that ever appeared in an episode or movie?  If you’re about to say, “Of course, they do!” then riddle me this, Batman: do they own Abraham Lincoln?  Do they own Isaac Newton, Albert Einstein, and Stephen Hawking?  Do they own Samuel Clemens (Mark Twain)?  Do they own Amelia Earhart and Leonardo da Vinci?  All of these “characters” appeared in Star Trek episodes.  Now, before you say they are all obviously real people, not characters, does CBS or Paramount own Sherlock Holmes or Moriarty?  Robin Hood and his Merry Men?  Rumpelstiltskin?  They all appeared in Star Trek episodes, too.

You can see how an “umbrella” copyright of everything and everyone ever shown in Star Trek could be problematic.  Now, if the copyright only goes for original characters unique to the series, then yes, the plaintiffs have a good argument.  But then, so does the defense if their characters are also unique.  Prelude to Axanar had four entirely new characters and two from actual Trek…one of whom was portrayed very differently from his previous appearance in “Whom Gods Destroy.”

Before some of you start jumping down my throat for seeming like I’m just tearing down the plaintiffs’ case one brick at a time, that is not my intention.  I did a bit of this same “devil’s advocating” for the defense, as well.  I’m trying to show all the reasons why the question of infringement might not be quite as cut and dried as one side or the other might think.  I really do believe this is headed for trial, despite two powerful motions from the plaintiffs and defense.  And if neither is granted by the judge, I want all of you to have at least a possible idea as to why.

The plaintiffs motion also says the studios own the novels Garth of Izar, Strangers from the Sky, and Infinity’s Prism.  They go on to list the FASA Role Playing Game and one of its supplements, “The Four Years War,” which Axanar was based off of.  But the question of transformative comes up again (at least in my head).  FASA was a board game.  Garth of Izar, Strangers from the Sky, and Infinity’s Prism were novels.  Prelude to Axanar is a FILM.  Is that enough to claim transformation?  Maybe…maybe not.  This will be where both sides will likely wade deep into the reeds to establish position in a murky patch of legal swampland.

The plaintiffs go on to inform the judge (obviously with a bit of a spin–which is also what the defense did) about what exactly it is they are suing for:

Prelude copies the look and feel of the Star Trek Copyrighted Works, and includes plot points, mood, dialogue, characters, settings, and themes taken from the Star Trek Copyrighted Works. It features Plaintiffs’ character, Garth of Izar, and describes and depicts his military exploits during the war between the Federation and the Klingon Empire. Prelude replicates the uniforms worn by Starfleet officers, by Klingon military personnel, and by Vulcan ambassadors.

They go on to include the following (rather damning) claim:

In this case, however, Defendants concede that they intentionally set out to, and in fact did, extensively copy Plaintiffs’ Star Trek Copyrighted Works. Defendants’ Axanar Works simply replicate Plaintiffs’ plot points, copyrighted characters, including Garth of Izar, Ambassador Soval, Klingons, Vulcans, the Federation, the Starship Enterprise, Klingon battlecruisers and even specific settings such as the fictional planet Vulcan.

Well, if that’s all true, then why even bother having a case at all???  Oh, wait, that’s the whole idea of summary judgment, isn’t it?

As in most sports, if only one team is on the field, it’s pretty easy to win.  Somehow, though, I don’t think the defense is going to be quite so willing to agree with all of the above claims by the plaintiffs.  Their story is MUCH different.

And with that, let’s take a pause that refreshes and let our minds wrap around all of the above and our fingers type about it.

Next time, we’ll finish up by looking at the concept of substantial similarity (hi, Mr. Hinman!), what the “heart” of Star Trek actually is, and what Jerry Seinfeld has to do with this case.  We’ll also take yet another dive into that most elusive of prey: the “fair use” defense…this time from the point of view of the side that wants to obliterate it.  And finally, did the plaintiffs end their motion with a fatal flaw?

I’ll likely not have the last part of this blog series up before the big U.S. holiday on Thursday.  So for my American readers who will be traveling to be with friends, family, and overfed flightless fowl festively feasted upon, I wish you a safe and happy Thanksgiving.  May you all find things you are thankful for.

I am thankful for all of you (yes, even the negative nellies and ranting ralphs) because you are taking the time to read what I am taking the time to write.  Truly, that means the world to me…so thank you all.



84 thoughts on “A Tale of Two(?) Fan Films – Analyzing the MOTIONS FOR SUMMARY JUDGMENT in the AXANAR LAWSUIT! (Part 3)”

  1. After reading this post and the two different universes on exhibit, I’m reminded for some reason of this gem in Christopher Anvil’s story “Dukes of Desire”. I guess the judge in this case represents “heavenly judgement”? 🙂

    “I hope,” said Roberts, noting the intensely-calculating look on the faces of his two human companions, “that there will be no warring among my vassals. In the Empire, it is our custom to submit such affairs to heavenly judgment. This we do by sending both disputants into the next world. We can get them there, but so far have found no way to get them back again.

    1. Oh good God that’s funny. We really don’t have a dispute sir, we can learn to live with each other. There’s no need for heavenly judgement.

  2. Jonathan, I will be in the Captain’s chair on the bridge of the USS Emergency Dispatch Center (NCC-911) for 12 glorious hours! I pray my lovely communications officer will hear from you or your family. Be careful and get back to your Alpha Quadrant safely!

  3. To answer one of your questions. Yes…CBS/Para do own the copywrites to Garth and all the other characters on the show…down to unnamed Redshirts.

    They do not own the copywrite to Abraham Lincoln…they do however own the copywrite to the Abraham Lincoln portrayed on the show and the dialogue and imagery created.

    They may or may not own the CW to any specific produced FASA stuff…but either way that material was produced under license…and at the time FASAs license acknowleded CBS as the rights holder.

    Finally…the purpose of a summary judgement is not to stop parts of the case that plaintiffs are afraid they will lose. It is to rule on items that are incrovertible/unarguable points of law. For example…Axanar and Prelude to Axanar used CBS copywrighted characters and concepts. This is indisputable. Whether it is 5 characters,3 characters or 1 character is irrelevant. Anything >0=infringement.

    The trumping question is whether this use by Alex Peters use can be considered ‘fair use’ or not.

    1. It’s that “trumping question,” Brian, that could send this to a jury. And I’m still not convinced CBS has a copyright on everything that was featured on Star Trek. I need to research that more after I get home. I’m not willing to consider anything definite at the moment…which is why I don’t think either side will get its summary judgment. But again, I’m just a blogger, and my opinion doesn’t count for a hill of beans in this crazy lawsuit. 🙂

      1. The distinction you draw between “copyrighted” and “copyrightable” isn’t really relevant. The only difference between the two words is whether you’ve got a registered copyright or merely an informal copyright- both of which are legally protected, the registered copyright is just a way to timestamp your work officially to make claims like this easier, and of course to allow for transfer of rights from the author. As rightsholders CBS and Paramount want to keep emphasis on “copyrightable” elements because they don’t want distinctions drawn between what’s registered and what’s not, and to be honest, the law is on their side there, the registration is just a formality to allow for transfers of rights and as a convenience in adjudicating disputes. Not to mention that in cases where there is only a single rightsholder per work, everything copywritable in that work is copyrighted to the rightsholder. (the Star Trek situation is arguably more complicated with the rights having been split in two, and it’s possibly deliberate that the plaintiffs have left out reference to the wider “Star Trek Universe” in their claim for this reason, despite it being the strongest argument for infringement, given that they might not want to risk that wider universe being assigned solely to either CBS or Paramount, or even worse, being ruled that they each only have copyrights to their specific works. It’s also hard to establish specific violations for a “universe”)

        As anything in Star Trek that is copyrightable is copyrighted automatically and those rights accrue to the creator (and by transfer, to the rightsholders) without any registration, the question is more, as Brian says, about whether the relevant characters used in Axanar were non-copyrightable and thus don’t need to be defended as fair use. (or as an unwillful violation) Soval, for instance, is highly likely to be copyrightable and therefore either fair use or a copyright violation, and as Brian has pointed out, that means that the defense’s motion to dismiss can’t be upheld. (It doesn’t knock out the plaintiffs motion, but I expect that to be dismissed too because it needs a very strong argument to knock out fair use categorically, and although IANAL, I don’t think they’ve made it convincingly)

        Given that part of the defense’s strategy has essentially been to out-reasonable the plaintiffs to move the equilibrium of any compromise towards the defense, I find it very unlikely that they would even argue that any of the characters used from various ST shows are not use of copyrighted characters. Instead they will be shooting to get their use ruled as fair use, or maybe unwillful violations as a backup strategy.

        1. Now THAT is the absolute BEST comment I have had the pleasure to approve in a long time, Matthew. Well-reasoned, polite, intelligent, and lacking in any insults or curse words. My hat is off to you.

          Also, I don’t have any reasonable rebuttal (mostly because you come to some of the same conclusions I do). And even though you say “IANAL” (I am not a lawyer), you could almost have fooled me! Great job!!!!

          1. As an author-in-training, I am highly familiar with copyright law because it’s the part of law that’s most relevant to what I want to do, so that’s probably why I sounded confusingly like a lawyer on this matter- because I’ve read a lot of advice from actual lawyers on how copyright pertains to books.

            Also my comment probably comes off as very pro-plaintiffs on this issue, which is ironic, given that I’m actually kinda hoping we get at a ruling that determines Axanar is at least partially as Fair Use, given that there isn’t much settled law about fan fiction, so if the case does go to trial, whatever the ruling, it’ll end up settling a lot of legal questions about the right to produce non-commercial fan fiction. (which I hope is protected, as a lot of great authors and other creative types sink their teeth into these fan projects first, then end up doing something original later that makes their career, so if the judge rules too restrictively, it could stop a lot of future success stories from getting their start) The double-edged sword of copyright is that in many cases it gives too many rights to highly successful works that prevent derivative works that are worth having, despite great creators like for instance Disney, having previously benefited from what would today be a copyright violation. More precedent for Fair Use as a defense would help reverse that trend a little and allow more derivative works like Axanar to be made without legal issues, at least if the creators take siginificant care to respect copyright and infringe on it as minimally as possible.

            So, I’m not exactly surprised we don’t disagree- I’ve left off commenting on your previous posts because you’ve usually covered my own thoughts on the matter already. 😉

          2. Ya read that, Sandy? 🙂

            Thanks, again, Matthew. Your writing is clear, concise, and insightful. I’m glad to hear that you’re a writer (in training or not). You’re good at what you do.

  4. Looking forward to reading your final (?) Part. As for the fatal flaw comment at the end. IMO this whole idiotic lawsuit was a fatal flaw for the studios and in the end may cost them more with the fans (whether they’ve taken a side or not, the press alone is inescapable) than any monetary or “copyright” victory could gain them.

    1. The studios don’t agree, Brian. They’ve decided that it’s imperative to stop this “rocket” known as Star Trek fan films before it enters orbit and instead keep it much closer to the ground. And in their minds, successfully defeating Alec Peters with a resounding legal loss is the best and perhaps only way to do it.

  5. Point of clarification – The Star Trek role-playing game released by FASA (’82-’89) was just that… a role-playing game, not a boardgame. While role-playing games and boardgames are both classified as tabletop games they are not the same thing.

        1. Important note about the FASA STCS:
          “It came into being as the combat system in Star Trek: The Role Playing Game, published by FASA, as the space combat portion of the game. Later, it was published as a separate game, still usable by players within the RPG game.”

          So, yes, at least in the beginning it was considered part of the rpg. So, while Tabletop Gamer is technically correct, that isn’t the whole story and misses some important context.

      1. You might be remembering Star Fleet Battles, which is a Star Trek board game with hexes that is of similar vintage.

      2. Here’s the skinny on the FASA rpg, which had miniature starships as support material.

        Maybe you’re thinking of Starfleet Battles?? That has been a very popular boardgame (by Amarillo Design Bureau) set in the Star Trek universe. Originally it was a boardgame using counters for starships, players expanded it out to use miniatures (primarily using the minis FASA produced before ADB began making their own lines). Or perhaps another game which your friend had conversion rules to play out scenarios in the Star Trek universe? That is quite common in the gaming community, pick a game engine that one favors, and generate conversion rules to play in a given genre universe (e.g., Star Trek, Star Wars, Battlestar Galactica, etc). Sometimes these conversions are simple and straightforward, sometimes they are inordinately complex. Depends on the game engine the gamers in question prefer playing.

        Thanks for the continued insight into this whole mess!

          1. I’ve got it, we’ll just get the axanar cast together for a RPG, licensed and bonded. then we can film it. People make money on youtube playing games nowadays without threat of legal action, they even include copyrightable material. we can insert some sfx, some backgrounds, make it pretty and were done.

  6. The time paradox as proven by Einteins relativity theory show that vessels traveling at speeds as in Trek would each experience there own time dependent upon speeds achieved. Thus the crews aboard would all find themselves living at time rates divergent from all the rest of Federation planets, stations, outposts, other ships, etc. This fact makes Trek an impossibility as a construct so far created. There would not be a set time within which a vast Federation existing across vast areas of space that all would be synced to. Sorry to tip the bucket over..

    1. Except the ships do not accelerate freely, rather they create a warp bubble and the universe travels around them, thereby not breaking Einstein’s general relativity.

        1. Well sublight speeds wouldn’t really impact a time differential. In the face of all this seriousness, it’s nice to have a little nerd debate (:

          1. Einstein would not agree. As one approaches the speed of light, the perceived passage of time slows. So traveling at half-impulse (always assumed to be half-light speed) would certainly throw the Enterprise out of synch with time back on earth. Maybe it wouldn’t be as much as full impulse at just below the speed of light, but the clocks would definitely be off after a trip to the moon and back.

            That being said, explosions STILL don’t go “BOOM!” in space!!!

        2. Jon – are not impulse engines limited to either 0.1c or 0.25c? Either way you’re looking at a relatively small amount of time dilation. I calculated a 0.5% difference at 0.1c and 3% difference at 0.25c.

          Did y’all see the mounting evidence that the EM drive works?

          1. I think I need to ask Alex Rosenzweig. He’s forgotten more trivia about Star Trek starship engineering than I will ever know! No wait, he’s forgotten nothing, so that would mean I know nothing. So scratch that! (We did write “Starship Spotter” together, though.

            Either way, I think I need to get back to you. Time for bed. 🙂

  7. Just remember Jonathan, that not all those flighless fowl will be feasted upon. Some of them will end up as road kill. You be careful out there!!!!

    1. Actually, in the last 18 hours, I have nearly run over FIVE different deer! Those things are all over this neighborhood! Good thing I learned to drive in New York City…no deer, but an unlimited amount of crazy pedestrians who unexpectedly walk out in front of cars anytime thye frcikin’ want to!! And since we’re in New Jersey right now, I could have sworn I heard one of those deer shout at me as he galloped across the road, “HEY, I’M PRANCIN’ HERE!!!!”

      Oh, deer…

      1. Jonathan, been there. Had a deer once crossin front of me, while I still had a S-10 Blazer before I could react, I hit him broadside. Broke a grill and a headlight. This was in Bucks County PA. Oh!! By the way the deer lost. So definitely been there. LOL!!!!

          1. James, actually lived in Delaware County at that time (now living in Philly.) I was coming from visiting my horse at the time, which was stabled in Bucks County.

        1. Jonathan, had to pass through Blue Bell, by way of Butler Pike and Ambler to get to where my horse was stabled. I knew all the back roads. Beautiful area.

  8. Perhaps on topic, perhaps not but, from the legal point of view of the donors (of which I am one), I’m curious as to what our rights in all of this might be.

    We gave money to have Axanar. I would never, in a million years, ever donate a dime to CBS/Paramount and it seems that they’re after every single penny raised in the fund-raiser (if not more). Should Alec lose, does this mean that I have donated to CBS/Paramount against my will? Can I sue CBS/Paramount next?

    Can I have some more turkey, please?

    1. Remember that you donated, you didn’t invest. There is no contractual path for your money to take after it leaves your account. Let’s say you give $5 to a homeless person to buy a sandwich and he instead buys a six-pack of Buddweiser. You can’t sue the homeless guy, and you can’t sue the liquor store. Once you gave him your money, it became his to do with as he pleased.

  9. What you don’t understand is that copyright attaches the moment a work is created in a fixed, perceptible form. The Copyright Office doesn’t grant copyright, it merely registers them. This copyright grants the holder exclusive use to the property, including any and all derivative creations from it. CBS has a copyright on every element in Trek because they were the first to create Trek.

    You have a copyright on this blog post the instant it’s published but to actually register it you’d need to go to the copyright office. This is a fundamental flaw in your entire argument. Maybe you need to subscribe to Westlaw, it’s all in there.

      1. Curly Boy is right, but he leaves out a bit, too. You have copyrights the minute you create something, but in order to actually pursue an infringement claim your copyright needs to be registered.

  10. Paramount’s paid the Conan Arthur Conan Doyle estate for the use of Sherlock holmes in The Next Generation. Google it!

    1. Yep…although at first they thought it was public domain; it wasn’t. But since Sherlock Holmes was used in a TNG episode, does that particular iteration of the grand detective become a copyright of Paramount/CBS…just because it appears in one of their copyrighted series? No. This is just one of those examples of how the studios don’t own the entire universe of Star Trek…only certain aspects of it.

    2. OOPS!!!!!! There’s an extra Conan in there. Wonder if he was related to Conan the Barbarian??? Couldn’t resist.

  11. Either CBS owns the character of Garth, or the person who originally penned the “idea” of Garth owns him. The two writers of of the original episode are both dead, but that doesn’t mean the character would suddenly fall into public domain. It would still be registered to his/their estate for a number of years after their death.

    This is similar to the character of Captain Edward Jellico (Dick Jones to you!) from the TNG episode Chain of Command. This character was going to be reused (in name only) in the episode Tapestry. However, it was discovered that CBS did NOT own the character, and would have had to pay the original writer for their use of him again. The name was changed to Thomas Holloway for Tapestry.

    So, either CBS “owns” the character of Garth (not just the original script), or the writer of the episode owns the character (even after his/their death).

    If we consider the original script “unpublished”, then the character of Garth wouldn’t fall into public domain for 70 years after the date the author/writer died (which would be about 2044 at the earliest).

    If the script is considered “published”, then I believe it would fall into public domain 95 years after it was published (which, from 1966, would be 2061).

    1. CBS didn’t own the rights to any Star Trek when “Chain of Command” was made. It was still Paramount back then (and, later, Viacom).

      The writer of “Whom Gods Destroy” was Lee Erwin (from a story by Erwin and Jerry Sohl). Typically, television scripts are “work for hire” (which is why the estate of Gene Roddenberry doesn’t won Star Trek…much as that would have been a cool “surprise” in this case). So that episode, along with 700 other episodes, belongs to CBS as part of their copyright. Anyone copying “Whom Gods Destroy” (or direct portions of it) would certainly be suable, and CBS would very likely win. But Alec Peters didn’t copy “Whom Gods Destroy” or any portion of it. He took a character from it, put that one character into a different time period within that universe (sorry, to all of you pointing to the J.D. Salinger case, but that infringer used ALL the characters), and transformed that one character from a mentally deranged psychotic murderer into a brilliant strategist and war hero leading men into battle and many to their deaths. If there is a critical story to tell about PTSD and how even the greatest of heroes might be susceptible to it, then perhaps setting Axanar in the Star Trek universe was the best way to do that. Personally, I have no idea. But it’s as good of a defense as any…except maybe the defense Erin Ranahan is planning. 🙂

      Look at the defense motion again and Part 1 of my series. The defense is planning on saying that CBS never registered a copyright for Garth. If true, then that limits the ability of the plaintiffs to go after Axanar for using their character in any general way. If Alec Peters used Garth in a transformative way, then the episode “Whom Gods Destroy” is the basis for any comparison for transformative purposes. Had they registered Garth as a character in general (like they did Kirk and Spock), then there’s more to go after Alec Peters for.

      I’m not sure I’m explaining this as well as I could be, but all my legal eagles are now off on vacation, and I’m just trying to remember what they tried to explain to me. That’s why I might not be sounding as coherent right now as usual (that and the craziness of the holidays and hanging out with two boys whose combined age is ten). 🙂

      1. Excellent answer. However, I don’t have to ‘register’ my own creations for them to mine. It’s just one level of protection, but it’s not the only one. The burden, here, doesn’t rest just on CBS to prove they own it, it would also be on Axanar to prove why they thought they could use it (since there’s no way they could claim they thought of it in the first place).

        Having said that, a new concern would be this:

        “and transformed that one character from a mentally deranged psychotic murderer into a brilliant strategist and war hero leading men into battle and many to their deaths.”

        It’s established in the episode in question that Garth WAS such a person before he became ill. Kirk eludes to this fact himself before they reach the colony.

        So, is Axanar transformative… or is it interpretive?

        Are we saying that Anakin Skywalker from The Phantom Menace is a transformative, different character than Darth Vader, or are we saying that they are simply separate examples of the same person? Are we saying that if you and I and a few other people produced The Phantom Menace exactly as it was (cringe) a few years before Lucas did that he would not be within his rights to sue us for using his IP? After all that sounds like what Axanar is… a earlier universe, different characters and ships, trying to explain in larger detail small facts that were established in later iterations.

        I suppose if Axanar was actually done, one would have a good case for an argument. But, since the work in question was never complete, it’s all finger pointing and hair splitting.

        1. I think that the fact that the Axanar feature was never made will, in fact, come into play in favor of the defense. Asking for an injunction on something that could only POSSIBLY cause damage (and considering that the studios never bothered contacting YouTube about taking down Prelude or any other fan film) could run afoul of first amendment protections. But that’s just my opinion as a lay person (my legal eagles are on vacation right now).

          As for Annakin Skywalker being transformative, I won’t waste time on that kind of speculation. The three SW prequels were made by the SW creator himself, so it’s a moot point and just a thought experiment…and hey, I’m on vacation, too! 🙂

          And finally, your first point “I don’t have to ‘register’ my own creations for them to mine…” is kinda true and kinda not. Yes, if you write the great American novel, yes, it’s yours. You own the copyright. But unless you REGISTER that copyright, you cannot sue anyone for infringement. Yep, it’s true. Take a look at what federal law says:


          “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”

          Sorry to all the folks who think I’m on a fool’s errand checking for a registration for Garth of Izar. But it’s necessary for the lawsuit to be valid in Federal Court.

          Here’s another excellent website written in lay-man’s language (because they’re selling their services as copyright registrants) that explains the way copyright registration is required for legal action:


  12. “does CBS or Paramount own Sherlock Holmes or Moriarty? Robin Hood and his Merry Men?”

    Hi, CBS doesn’t own Sherlock Holmes, but they licensed it. The Doyle estate is famous for defending their IP.

    Robin Hood is in the public domain.

    There has been a lot written in the last year about how characters and copyright works, with the copyright for the first James Bonds stories falling into the public domain.


    Characters do not need to be copyrighted individually. You may be confusing things with companies taking additional trademarks to take additional protection against the names from being used. You can’t copyright a character’s name, only its expression. Writing a back story or a sequel to a character of a novel is forbidden, it’s derrived from the expression from that character that’s part of a copyrighted work.

    1. If you’re correct, Serge, then I guess this is going to be a VERY short trial…if it even gets that far. And in that case, I would also assume Winston & Strawn aren’t particularly good I.P. attorneys for missing something so obvious.

      So for the sake of those hard-workin’ lawyers at W&S, I gotta root against ya being right. 🙂

      1. The above post reminded me of the following cases that were dismissed as not being ‘fair use’ (taken from a great website on fair use: http://fairuse.stanford.edu/overview/fair-use/cases/):

        “Not a fair use. In a case involving the author J.D. Salinger, an author wrote a book in which a character known as Mr. C was allegedly modeled after the character of Holden Caulfield, from Salinger’s Catcher in the Rye. After Salinger sued, the sequel’s author claimed that his work was a parody, an argument rejected by the district court. Important factors: Aging the character and placing him in the present day does not add something new, particularly since the character’s personality remains intact as derived from the original work. (Salinger v. Colting, 641 F. Supp. 2d 250 (S.D. N.Y. 2009).)”

        From my understanding, you would therefore not be able to take Garth and stick him in a different setting and claim fair use. However, the fact that his character is very different in Axanar may be considered transformative.

        “Not a fair use. A company published a book of trivia questions about the events and characters of the Seinfeld television series. The book included questions based upon events and characters in 84 Seinfeld episodes and used actual dialogue from the show in 41 of the book’s questions. Important factors: As in the Twin Peaks case, the book affected the owner’s right to make derivative Seinfeld works such as trivia books. (Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998).)”

        Consequently, it could be argued that using Garth and the Four Years War in a film could affect the owner’s right to make similar works. However, this conflicts with the nature behind transformative works for me.

        ONE FINAL THING. As far as I can work out, you do automatically hold the copyright for any of your own work, you apparently cannot sue for copyright infringement in the US unless you have a registered copyright. Which seems totally contradictory to me because what’s the value of the unregistered copyright in that case? Anyway, would love to hear what your legal eagles say about it all. Have a lovely Thanksgiving and really think about the true reasons behind the occasion (hint: genocide).

        1. Damn, I just wrote you this HUGE reply and then, while editing it, hit “REFRESH” accidently…and now it’s gone. I literally wrote about 1,500 words, Eman. But I can’t write it all again…it’s too darn late. I’m really sorry. But yes, you can only sue someone for infringement if you have registered the copyright.

          Oh, and those two cases were both cited by the plaintiffs in order to get a permanent injunction against Axanar. However, I don’t think they’ll get it because they need to show four things:

          (1) that the studios hav suffered irreparable injury;
          (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
          (3) that, considering the balance of hardships between plaintiff and defendant, a remedy in equity is warranted; and
          (4) that the public interest would not be disserved by a permanent injunction.

          I just don’t think they’re gonna be able to meet the burden of proof for #1 above…not with a billion-dollar franchise that just inked two HUGE licensing and broadcasting deals with Netflix.

          But we’ll see.

          And Thanksgiving is a holiday about peace, friendship, hope for a better tomorrow, and appreciation for the blessings of today. Yes, there is tragedy in its origins (or aspects of its origins), but the same could be said of Easter and Memorial Day. I choose to see the good during celebrations. And yes, I took a course on Native American history back at Cornell. What the United States did to Native Americans is a national shame. But when I’m with my family and watching my 6-year-old son playing with his 4-year-old cousin, I think it’s important for me to stop in my life long enough to remember how special that is and be thankful for how lucky I am and how much I have.

          (My first answer was SOOOOO much better! DRAT!!!)

        2. It makes perfect sense to me that you would have to register your IP to protect it. you have to do the same thing with a business name right, then once its registered others know its not available anymore. And if its not registered how do you know its actually copyrightable, as Johnathan has pointed out many of the elements the plaintiffs have claimed may not be copyrightable. I’m pretty sure farscape doesn’t own wormholes even though it was a key element of the plot from day 1. I’m pretty sure those people who are espousing that you can copyright red shirts are going to be sorely disappointed. Not every element in an IP will be considered unique thus the comment that CBS doesn’t own the star trek universe takes on a new meaning, i could sit here all day and list objects that I’m fairly certain they can’t copyright. earth, cause God already owns that one, even though it appears in quite a few episodes. So some of those incidents of infringement may go away however i do not believe all will. then like Jonathan said it comes down to proving damages and willfullness. which will goto court.

          1. Nope, definitely can’t copyright the idea of a red shirt or red shirts as a whole. But if they wanted to define Ensign Garrovick as a unique security officer wearing a red shirt as one of his defining properties, then yes, he would be copyrightable. But unless they registered a copyright specifically on Ensign David Garrovick, security officer of the USS Enterprise NCC 1701, the studios can’t sue you for infringe if you use him in your fan film.

  13. In one of the comments under the previous blog post somebody (rightfully) complained that insinuating that Star Trek is just an entertainment is insulting. Well then what about calling fan films in general ammateur! I agree with what you had to say about it, Jonathan. It is an insult to many (not only) Star Trek fan films and fan series. Qualities of many of them prove such a claim wrong and I hope that during the trial (if it comes to that and I believe it will) there will be a voice defending the culture of fan films against such calumny.

    1. Fan films have evolved in recent years to something that CBS and Paramount simply don’t understand (although Disney certainly does). And what they don’t understand scares them. It shouldn’t. The opportunities that quality fan-created content provide for their 50-year-old franchise are truly amazing. But hey, if the studios would rather spend money than make money, it’s hard to dissuade them!

    2. Professional simply means that the one doing the work is paid for doing the work. That does not actually mean it is of a better quality. It is generally thought that professional is of a better quality. Amateur means it is not paid. In my opinion a dedicated Amateur generally produces a better quality of work than most Professionals.

      1. I know what you’re getting at, Tim, but I gotta tell ya, professionals really can make a big difference in a finished product. While I do enjoy ALL fan films and love the HEART and SOUL fans pour into them, there are just some things the professionals can do better. Trained professional actors put in incredible performances. Just look at George Takei in “World Enough and Time,” Nichelle Nichols and especially Walter Koenig in “Of Gods and Men,” and Tony Todd in “Prelude to Axanar.” They just nail it! The lighting, sound, editing, VFX, make-up…the amateurs can do all of this quite well when they work hard, but the professions just take it to a whole other level. I still applaud the dedicated amateurs and love their fan films, but I won’t lie and say their work is generally of a better quality than professionals.

  14. I find it very interesting that you seem to have all of this confusion about what Trek copyrights the Plaintiffs own when it turns out you worked for Viacom in their Consumer Products Licensing Division for 8 years as their “Trekspert”. You should know how licensing works and that Axanar clearly isn’t licensed. I suspect there’s probably some at the child companies that would view what you’re doing now as traitorous. Did they sack you when they split and you’re still pissed off about it?

    1. Here’s a question for everyone EXCEPT Sandy to answer…and I’m really curious to hear what you all have to say.

      It’s very obvious that Sandy is looking to just “start a fight” with his most recent post (and this isn’t the only example). Should I…

      1) Just ignore him? I’ve tried that before with Sandy and other cyberbullying types, and it seems they just assume they’ve hit some kind of a raw nerve or have found a “gotcha” and start asking why I’m avoiding answering the question.

      2) Just delete the comment without publishing it? I don’t like to do that. I only trash comments after first giving a warning and then receiving another post that breaks the rules I just warned the person about. This happened yesterday with a post from Michael Hinman that went into the trash as soon as I saw an F-bomb. I didn’t even bother reading it through (you don’t show me respect; I don’t show it to you). But Sandy hasn’t been warned yet, and technically, he’s not being directly insulting. He’s IMPLYING that “some” person or persons at CBS might see what I’m doing as “traitorous.” While certainly an insulting and incendiary word, he’s not directly calling me that…he’s insinuating that others “probably” view what I’m doing as traitorous. (Personally, I don’t think they give a shat about what I’m doing.) So I don’t feel right just trashing Sandy’s comment and having him accuse me of just deleting posts that don’t agree with my world view.

      3) Just answer him? After all, the truth is a LOT less interesting than his fiction. I was hired as a Star Trek trivia expert and NOT as a licensing expert. I was asked, initially, to read over Star Trek online gaming scripts and give feedback. I was actually PAID to say stuff like, “Well, I don’t think Tellarites would do that, but Andorians probably would,” or “This is more a line I could see Counselor Troi saying rather than Dr. Crusher.” Seriously, they PAID me for that!!! I also wrote the menu for Quark’s Bar and Restaurant at the Star Trek Experience in Las Vegas, wrote 800 trivia questions for the CD-ROM game “Star Trek: The Game Show” hosted by John de Lancie as Q (I wanted them to call it “Star Trek: Q & A”–they chose not to), and worked directly with countless other licensees writing text for museum exhibits, trading cards, the book “Starship Spotter,” and I even designed all the LCARS animations for the Borg Invasion 4D ride at the Star Trek Experience. Over the years, Viacom (and later, CBS) brought in more internal people like John Van Citters who knew Star Trek as well as I do (in JVC’s case, probably even better!). After a while, it became less necessary for them to pick up the Bat-phone and call me (usually it was e-mail, actually). Eventually, I just didn’t hear from them anymore–which was fine. I’d had my fun for eight years and was left with some fun stories to tell my fellow fans. Obviously, I do know how licensing works and that Axanar clearly isn’t licensed. That has little to do with this case, though. If it did, I doubt Winston & Strawn would have taken it on pro bono.

      4) Confront Sandy and imply that his attitude is not conducive to civil discussion? I mean, that’s probably obvious to most of the rest of us civilized people. But Sandy seems to be like Mirror Kirk and unaware that there is any other way to be than his way. He probably even thinks this kind of comment is perfectly acceptable. Do I/we point out to him that it’s not? Do I/we suggest that his mother should have taught him better? If Sandy really is Mirror Kirk, he still won’t get it. He won’t understand that, if there were a movie made about all of this, Sandy and others like him would be the bad guy bullies like Biff Tannen from “Back to the Future,” Scut Farkus from “A Christmas Story,” or Johnny Lawrence from “The Karate Kid” whom the audience hisses and who get their just desserts in the end. So really, is this approach of explaining proper respect for others even worth it? Sandy probably just won’t get it…even if we all sing it in a chorus.

      5) Ask him to go bother some other blogger? I’ve thought of this. After all, this blog really seems to disturb him…why not just suggest he take his business elsewhere? Of course, then he’d feel that “Slow Lane” would have no one to challenge him and would just go right on saying whatever the heck he wants to. Actually, that’ll happen even with Sandy’s mudslinging. But anyway, I just kinda have a gut feeling that suggesting he go elsewhere or just be more civil and less accusatory wouldn’t work any better than the other ideas I’ve suggested.

      So what do the rest of you think? Is there a way of dealing with Sandy that I haven’t thought of or suggested? I’m really curious to hear from you all…even Sandy (although I suspect we’ll just hear more of the same from Mirror Kirk).

      1. I think you just handled it perfectly. People like Sandy tend to slink away when they eventually realize people are simply laughing at them for all the “sturm und drang” they blather rather than being persuaded.

        1. But I don’t think Sandy realizes how many people are laughing at him, James. And I don’t say that just to be mean and snarky. I think he really has no idea how he looks to people who understand how to behave in mature and respectful ways. I can’t even begin to know how I/we can even explain it to him.

          1. The thing is, Curly Boy is not in any way interested in actually having any kind of rational discourse regarding the subject. That ship sailed months ago. All he is after at this point, in as far as this blog is concerned, is making Jonathan “wrong”. In his eyes (as well as the eyes of his cohorts), Jonathan is not speaking for himself, but is nothing more than a mouthpiece for Alec Peters. Indeed, they believe Alec has intimate knowledge of Jonathan’s prostate! Therefore, the ONLY thing he will ever do in regards to any article posted here is attempt to invalidate it. No discussion, no attempt at gaining any kind of understanding with Jonathan or any other commenter here, just variations on “You’re WRONG!”, ad infinitum.

            Apparently, it doesn’t even matter to him if he’s right or not. If you look up the thread, where he blusters about registering doesn’t create the copyright, I pointed out the crucial piece he was missing (deliberately or not) about needing a copyright to be registered in order to pursue an infringement claim. That one bit completely invalidates what he was trying to say, but does he try to defend his position, or consider it, or anything? No. He just blows on by it with his next accusation against Jonathan. It’s very reminiscent of some of the more whacko conspiracy theorists I’ve had, ahem, “discussions” with over the years.

          2. Then let the other people answer him, cause I got this one. Like Jonathan I have a legal eagle in my backyard as well, but even she doesn’t know half of what comes up in this blog. cause you see sandy we live an industrial world where people specialize, my legal eagle worked on wall street doing acquisitions, so if it doesn’t involve contract law she doesn’t care and even then its been over a decade since she work on wall street and half a dozen years since she gave up law. how many lawyers do you think have handled star trek, because without sorting through copious amounts of documentation they’re the only people who know whats going on and each only the sliver that they worked on. So to suggest that Jonathan who INAL and was likely not employed by CBS to track and catalogue their trek acquisitions to know what licenses CBS holds is ridiculous on numerous levels. I worked for an oil company yet I have no idea of the copious patents they hold, I just fixed things. And just like you Sandy I’m pretty sure that even CBS execs don’t know what trek they own or what 90% of what their fighting over means, they just assume that they own everything and leave it up to the lawyers to prove it. But you know what they say about assumptions so don’t be an ass Sandy. Stop assuming things and just sit back and watch the show, cause neither yours nor my assumptions are going to amount to anything in this fight unless like Jonathan your called as a witness. So really Jonathan is the only person here that I know of who has a dog in this fight. Except when Alec drops by. And I still don’t think you can copyright red shirts, but I’m clearly an anarchist for thinking that.

      2. It’s not fiction, it was taken from your Linked In profile and I can guarantee that there are a lot more folks laughing at you than at me.

  15. I do love some of the thought experiments that arise out of this blog. Like I don’t think they can copyright the name USS Enterprise only the ship and only in the iterations that have appeared on film right. Because I’m pretty sure their are other USS enterprises in SCIFI, plus ya know the one that actually exists. So if they don’t use the dry dock scene they can still refer to it right, I would assume since it could be referring to any enterprise even if we know which one wink wink. And then how do copyrights hold up when life imitates art, phasers are real now so did they become fair use, or are they still classified and does the army have to pay paramount ever time they deploy. Tesla died in 43′ so does Tesla have to pay royalties for every car they produce until 2038, because their obviously using his reputation to sell their cars, but is that causing financial harm to the Tesla estate. Anywho Ima gonna go sleep now, I look forward to your next article.

  16. Speaking as someone who works in the publishing industry, as soon as an individual writes an original story he owns the copyright to that work. If he takes certain steps that show proof of ownership of that work and when it was written, it is not necessarily needed to register that work. If there are specific names that he wishes to be copyrighted, a statement declaring the names as copyright by author name in the front pages is typically enough to satisfy civil courts.

    1. What many who are reading my blog do not seem to be aware of (and, to be fair, I wasn’t aware of it either until I dove into all of this) is that in order to SUE for infringement, a work must FIRST be registered with the U.S. Copyright Office:

      “…no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”

      § 411 . Registration and civil infringement actions < http://www.copyright.gov/title17/92chap4.html#410 >

      So yes, an author may hold a copyright as soon as he or she or they write something original, but they cannot take legal action against an alleged infringer, as a matter of law, unless they have first registered their copyright. And what’s more, they have to have registered a copyright for the thing that is being infringed. For example, even though Garth of Izar appeared in an episode of TOS (and there is a registration on the catalog of all Star Trek episodes), Garth himself is–it turns out–NOT individually registered! So unless Garth was used in a way that directly copies his use in “Whom Gods Destroy”–which he wasn’t in Prelude–there’s a chance that the studios can’t really sue for the use of him in any of the Axanar works.

      Crazy, I know! But that seems to be the case…stay tuned!

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