Last time, we began looking at the PLAINTIFFS Motion for Partial Summary Judgment in the AXANAR copyright infringement lawsuit. In Part 1 and Part 2, we looked at the DEFENSE Motion for Summary Judgment. There’s been a LOT to cover, but we’re finally seeing the light at the end of the tunnel (I’m just not sure whether or not it’s an oncoming train!).
Okay, so let’s say you to want to bake a winning copyright infringement lawsuit…what do you need to win?
Well, if you’re the plaintiffs like CBS and Paramount, you first need to show that you actually own a valid copyright on the property being infringed upon. And while we’re not completely certain the studios own the entire Star Trek universe (the defense says they don’t), the studios unquestionably own the rights to all the 700+ episodes, the 13 movies, novels, role playing games, and countless other licensed works.
The next thing you need to show is that the infringers had access to the copyrighted work. This usually applies to an unpublished work that is stolen and released before the author can do so. In the case of Star Trek, well, it’s been around 50 years…so no problem there.
But here’s the most important part: substantial similarity (or striking or probative similarity). What this means is that enough of the original work was copied to not be mere coincidence or the result that both works drew from the same common source (say, Forbidden Planet). Also, the amount copied has to overcome a de minimus exception–which is really just the “fair use” that we keep hearing so much about. Did the infringer use just enough of the original work to make some kind of critical point or tell a unique story, or did he or she misappropriate the original work without permission, copying too much?
Sometimes it’s easy to tell if there’s word-for-word copying. Sometimes, you need to bring in experts (like musical scholars) to decide, for example, if Ray Parker, Jr. copied the Ghostbusters theme from Huey Lewis and News’ I Want a New Drug:
(If you’re curious, that particular lawsuit was settled with Columbia paying a lump sum to Huey Lewis.)
And then there’s something like Star Trek and Axanar. There’s over 730 hours of filmed Star Trek canon plus all the derivative licensed works like novels, comic books, games, etc. How much copying constitutes “enough” to cross the line of misappropriation? After all, Prelude to Axanar is only 22 minutes long…the most it could even hope to copy is about 1/2,200th of the entire Star Trek catalog.
The law provides an answer to this question that does not require an infringing work to actually copy all or even most of the original work. Instead, you can argue that the infringing work copies the “heart” of the original. If you listen to the two pieces of music above, it’s that catchy riff that defines both songs, that gives them their “hook.” So even though the similar melody is only a few measures long, it is still the heart (of rock and roll) and of both songs.
The plaintiffs bring up the concept of substantial similarity on page 9:
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. Where, as here, there is direct evidence of copying, the question is whether there is “substantial similarity as a matter of law,” which involves an examination of whether Defendants copied “elements of the work that were original.” There is no question that the Axanar Works are substantially similar to the Star Trek Copyrighted works. The Axanar Works and the relevant Star Trek Copyrighted works are before the Court, and the Court may make its own comparison of these works.
So at least according to the plaintiffs, there’s no question the two works are substantially similar. In fact, it’s the whole basis of their case…even though Axanar is only 22 minutes long and Star Trek is huge. To support their argument, the plaintiffs actually bring up another media property with many episodes, Seinfeld:
In a case directly on point, an unauthorized party published the “Seinfeld Aptitude Test” (or “SAT”), which incorporated a range of questions derived from the episodes and characters portrayed on the long-running television series, Seinfeld. Even though the defendants’ infringing work took from hundreds of episodes of the series, without addressing each particular episode infringed, the district court (affirmed by the Second Circuit) found that defendants had created an unauthorized, derivative work. Castle Rock held that the SAT “draws upon ‘essential’ elements of Seinfeld, and it draws upon little else; and, most importantly, SAT occupies a market for derivatives which plaintiff whatever it decides must properly be left to control.” This is exactly what the Defendants did in this case, and to the same effect.
It’s a solid point. Of course, that trivia book drew from all of the Seinfeld episodes. Axanar draws primarily from only a few. But does Axanar draw from the “heart” of Star Trek? Apparently so, according to the plaintiffs:
Defendants also appropriated the mood and theme from the Star Trek Copyrighted Works, attempting to recreate the drama between the Federation and the Klingon Empire in a military space drama. Taken as a whole, Defendants have taken, and reproduced, the “heart” of the Star Trek Copyrighted Works in recreating the entire Star Trek universe. This factor too favors Plaintiffs.
So is the “heart” of Star Trek the “military space drama” between the Federation and the Klingon Empire? After all, to copy the “entire” Star Trek universe, we can’t count anything that WASN’T in Axanar without giving up our ability to say “entire But even in TOS, the Klingons only appeared in 8 out of 79 episodes (counting the Klingon-design ships flown by the Romulans in “The Enterprise Incident”), or 10%. By the time of the 24th century, the Klingons were our allies (minus a season or two here and there). For some people (like me) maybe Star Trek is about exploration and a positive future. For others, maybe it’s just about red shirts dying…or cool spatial anomalies…or creative science…or strange space monsters and aliens…or Starfleet politics…or interpersonal relationships…the list goes on and on.
So whether or not Judge Klausner agrees with the plaintiffs about the “heart” of Star Trek being copied remains to be seen. Certainly, Alec Peters and his team took great pains to be true to Star Trek…but at what threshold?
All right, let’s take a brief look at how the plaintiffs are hitting back at the “fair use” defense. Remember from Part 2 that there are four elements of fair use:
1. The Purpose and Character of the Use
As we’ve just been discussing, the plaintiffs are pretty well convinced that Axanar is NOT transformative:
Here, there is virtually nothing that could even arguably be deemed to be “transformative” about Defendants’ work. The Axanar Works meticulously replicate the Star Trek Copyrighted Works. Defendants copied exact characters (some played by actors who had appeared in the Star Trek Copyrighted Works), appropriated plots and elements from works owned by Plaintiffs and, by their own admission, sought to create a motion picture “prequel” to The Original Series that was meant to be the first “independent Star Trek film.
In this case, Defendants have not furthered the goals of the Copyright Act, and have not engaged in criticism, commentary or scholarship of any kind. Further, and perhaps most fundamentally, the Axanar Works are the very same products (Star Trek films) that Plaintiffs own and produce. Defendants’ Axanar Works are simply a continuation (and intentionally so) of the Star Trek universe and, as such, the Axanar Works are true to Star Trek canon. This is not a different type of work, or a transformative use or work. This factor weighs entirely in favor of Plaintiffs.
Here, I think the plaintiffs make their strongest point: that Axanar was never billed as criticism, commentary, or scholarship. That said, it’s not necessary to announce the intentions of your work in order to claim it was intended as such. But here, we’ll just have to see.
2. The Nature of the Copyrighted Work.
This one seems to be a quick slam dunk for the plaintiffs:
The Star Trek Copyrighted Works are extraordinarily creative, and involve the aggregation of hundreds, if not thousands, of individual creative contributions, over the course of the last fifty years. These highly creative works are entitled to the highest level of protection under this factor, and Defendants have appropriated all of these creative elements, for their own purposes, and without authorization.
In other words, Star Trek is creative enough to justify copyright protection. True. But in Part 2, remember that we also talked about a work that was unpublished being more deserving of copyright protection. However, this point I’d have to award to the plaintiffs…even though it is minor.
3. The Amount and Substantiality of the Portion Used
We’ve pretty much covered this one above, and the plaintiffs pretty much continued their laundry list of all the elements of Star Trek that Axanar copied. It’s a pretty long list, so just check out pages 13 and 14 of the motion. Suffice it to say, everything they listed was indeed taken from Star Trek. But the question still remains: did Axanar take too much or just enough to do what they set out to do using the universe of Star Trek fairly? Again, we’ll just have to see. This is that “tale of two fan films” I titled this blog about–or rather, one fan film being interpreted by two different sets of lawyers each trying to prove their own case.
4. The Effect of the Use Upon the Potential Market
Here’s where I think the plaintiffs run into the first of two fatal flaws in their argument…and I really hope the defense brings it up. But first, let’s take a listen to Chicken Little:
Here, by creating a derivative work, set in the Star Trek universe, using Plaintiffs’ copyrighted characters, settings, and plots, Defendants are, by definition, causing market harm to Plaintiffs by damaging Plaintiffs’ potential market for derivative works.
The market harm here is not theoretical, as Plaintiffs have continuously mined the intellectual property and characters from The Original Series to create new, authorized, derivative works, whether in the form of television series, feature films, encyclopedias, reference guides, or novels. Specifically, the second Star Trek motion picture, The Wrath of Khan, was a derivative work that expanded upon one of the episodes of The Original Series, which featured a megalomaniacal villain named Khan. Similarly, here, the character Garth of Izar was featured in an episode of The Original Series, and the history and exploits of that character during his battles with the Klingon Empire were explored in The Four Years War adventure guide. Further, in 2003, Plaintiff Paramount published an entire novel devoted solely to Garth of Izar. Thus, the creation of Defendants’ Garth of Izar-themed works impacts an actual, not simply theoretical, market that Plaintiffs have repeatedly exploited.
Yikes! This could spell disaster for Star Trek! Let’s read some more…
If other producers were permitted to create their own “independent Star Trek films” with paid actors, directors and crew members, and incorporated copyrighted elements and characters into those films, as Defendants have done here, the damage to Plaintiffs’ market would be manifest.
The continued production and distribution of the Axanar Works would cause irreparable harm to the market for the Star Trek Copyrighted Works because Star Trek fans will view the Axanar Works (and donate for the production of future works) instead of paying to view the Star Trek Copyrighted Works.
Personally, I think this is gonna be impossible to prove, but all of the above comes together with the plaintiffs woefully asking for an injunction preventing Alec Peters from making any more fan films:
Failure to grant an injunction would be, in effect, a mandatory license, where Defendants (or anyone else) could simply create an “independent” Star Trek film, and Plaintiffs would lose all exclusivity over their copyrights.
…the public interest would be served with a permanent injunction because it would protect Plaintiffs’ copyrights in the Star Trek Copyrighted Works against increased infringement.
Public interest, huh? Increased infringement, hmm?
I want you to picture Captain Kirk in Trek V when he asks, “Um, what does God need with a starship?” as I ask the following question to the studios:
Um, so why is Prelude to Axanar still up on YouTube?
I mean, if this one 22-minute fan film is such a HUGE threat, why not call YouTube and tell them to take it down? They’ll do it in a heartbeat (as they did for Star Trek Conitnues’ “The White Iris”). In fact, why not take down EVERY Star Trek fan film? After all, Star Trek Continues and New Voyages have used “minor” TOS characters like Apollo, the Mirror Universe crew, Kirk’s nephew Peter, Carol Marcus, Matt Decker, the Orions, Tellarites, the Guardian of Forever, even Lt. Arex! The 2015 Star Trek: Renegades movie shows us an older Admiral Chekov, Tuvok, Admiral Paris, Dr. Lewis Zimmerman, and even Khan Noonian Singh’s alleged descendent Lexxa Singh. Star Trek: Horizon shows us the Enterprise NX-01 and its sister ship, the Discovery NX-04. (Isn’t there a new series called Star Trek: Discovery?)
This isn’t to say the studios should immediately go out have YouTube take down every Star Trek fan film from YouTube. It’s actually WAY too late for that. Had their argument about Axanar‘s potential risk been a true and valid concern, the studios would have taken such an action years ago. Doing anything now would actually make them look worse, calling attention to their mistake only after some random blogger commenting on the case pointed it out!
But not only that, if fan productions that incorporate “copyrighted elements and characters into those films” are so potentially damaging, they why are CBS and Paramount releasing guidelines that encourage fans to create more? Granted, the guidelines specify no professionals, but it would seem from their motion that the very nature of using established ANYTHING from Star Trek potentially damages “Plaintiffs’ potential market for derivative works.”
So on this point, regardless of whether Alec Peters made profit or not, I don’t think the studios can successfully argue that they’re truly worried about the harm Axanar could do to them. If they were, they’d have called YouTube by now to, if nothing else, just take down Prelude to Axanar until the case is completed. And as I said, it’s too late to do so now; they’ve lost credibility.
One final, potentially fatal flaw jumped out at me as I read this somewhat snarky comment at the very end of the motion:
Peters’ infringement was clearly willful as well, as he is a trained attorney, and had worked with CBS before. In fact, in the years prior to his creation of the Axanar Works, Peters continuously reached out to CBS to report other “infringers” that Peters believed were using Plaintiffs’ intellectual property without authorization.
In this, the plaintiffs were trying to crush any chance Alec Peters has of being able to claim non-willful infringement (and therefore reduce his potential penalty per violation from $150K down to only $200). But in trying to add in this one final “dig,” I think the plaintiffs may have inadvertently sabotaged themselves and locked in a very plausible non-willful infringement claim by Alec. How? Glad you asked!
Note that two things are stated as facts:
1. Alec Peters is a trained attorney.
2. Alec tried to report other “infringers” to CBS.
And to this, I would like to add one other fact:
3. CBS did nothing to contact, challenge, confront, or in any way take down any of these alleged infringers that Alec reported.
In what I affectionately like to call the “If you can’t beat ’em, join ’em” defense, doesn’t the studio’s lack of action toward fan films lead to the reasonable conclusion by Alec Peters that CBS is OKAY with them? After all, yes, he is a trained attorney. He wouldn’t come to such a conclusion lightly or ignorantly. In fact, he even met FOUR different times with representatives of CBS to update them on what he was doing…and they never said, “Stop this, Alec.” So what reason would Alec Peters have had to assume his fan film would NOT be okay with the studios…just like all the others?
And that, my friends, is the “heart” of the non-willful infringement strategy. So in this, by trying to get in one last “gotcha!” at Alec Peters, I think the plaintiffs went one step too far, got too greedy, and are going to pay for it with a very small judgment…assuming they win at all.
And of course, that all depends on whether we even get to trial. The next big day is Monday, December 5 when the two legal teams file their rebuttals to each others’ motions. A week later is the deadline for responding to those rebuttals. And then, on December 19, judge Klausner hears oral arguments from both sides. After that, we’ll know whether or not all this summary judgment drama was worth it for either side.
Stay tuned!
They just “HAD” to get the last dig in. By “piling on” they may have weakened their case. Judges normally do not like a plaintiff who add things to a complaint apply because they can. While Axanar does use some of the Star Trek universe, so did so many other fan productions, including those that simply sought to continue the 5 year mission of Kirk, Spock, McCoy etc. By not saying anything about them in the past, the whole “future harm” argument becomes very weak.
Hope you had a good holiday, and have safe travels back to CA.
A couple points.
1st…the decision to go after one infringer and not another is an irrelevant argument to the law in deciding market harm.
Second…the plaintiffs dont generally have an issue with prelude to Axanar existing. It is a fan film…and meets a lot of their recent guide lines, although not all. That is why it is still up. And any potential harm it has done has already ocurred.
The importance of establishing appropriate infringement of prelude is to eventually get to the second part (the main part) of the case.
The (alleged) infringing works of prelude were then used to gain over $1,200,000 and growing. These funds stated sole purpose is to produce more Star Trek works(1…Axanar a feature quality film), and build a production studio designed to produce more, and studio quality Star Trek works.
That the Axanar film hasnt been produced yet (or its nature of film or mocumentary) is essentially irrelevant to the second phase of the case.
The point is (a lot of) money was gathered based on prelude to axanar short film….which is a cps/para copyrighted work. The purpose of which is to produce further infringing works…and a competing entity.
The studios’ decision NOT to contact YouTube to have any fan film–including Prelude to Axanar–taken down could come back to haunt them as they try to convince the judge that they are at significant risk from fan films like Axanar using their IP. Yes, there is no requirement in the law that they must “go after” other fan films. But if these fan productions are so threatening to the studios’ property, then they have to prove it. And if they themselves aren’t worried enough about the fallout to make even a single phone call to YouTube, well, it’s going to be that much harder to convince the judge that the threat is real and imminent. As for how much money Axanar made and their intention to make more Star Trek, well, if they can prove fair use, then the amount they took in becomes irrelevant.
Correction – To have one of the CBS underlings make the call…
Brilliant article, CBS/P’s attorneys dealing terrible blows… until the twist ending of the chapter!
I haven’t read a chronicle so compelling since Barbara Tuchman’s Guns of August. Way to go!
The case practically writes itself! Oh, wait, it actually does just that. 🙂
“military space drama”
And herein lies the heart of the problem. No, CBS, Star Trek is not even remotely a “military space drama” – which is also why I was initially sceptical upon hearing the general idea as to what Axanar was about. Then came Prelude to Axanar and the speech of Admiral Ramirez.
No, CBS, Star Trek is not a “military space drama”, it’s a positive vision for mankind to strive for (even though it may be inattainable in full), and it shows us how to uphold these ideals even in the face of adversity. At no time in the recent past has such a vision been more necessary than right now – and it is highly doubtful that you are going to deliver yourself
Too bad you’re not a witness! 🙂
The IP holders were more likely to be harmed by their own lackluster and almost blase treatment of their own property than anything Peters has done. Their massive UNDER-promotion of the 5oth Anniversary of the franchise(using it to promote BEYOND rather than using BEYOND to promote the 50th Anniversary) was an unbelievable blunder on par with the LOTR $700 Blu Ray shelf debacle. Leading with a lawsuit(going from 0 to 1000 in a second with NO advance warning outside Variety magazine) rather than more level-headed responses just makes them look incompetent. Very Thud and Blunder, rather than Blood and Thunder.
You can teach us all the Reacher Rules that you want, it doesn’t change the fact ya done f&@ked up.
And there’s still the COUNTER-SUIT to look forward to after all of this!
Another argument against future harm and more proof that the execs don’t understand the genre is that if the studios create something that I don’t care for, I’m not going to go see it whether or not theirs a trek alternative. Because theirs always more scifi out their, in fact my anticipation for new Leviathan wakes, both book and tv, is almost painful. If the studios could produce something half as good they would have nothing to fear from fan films or market competition. I also have a massive pile of Heinlein to get through and I’ve heard rumors of a genuine true to book Starship Troopers movie in the works. Which is amazing Heinlein is a scifi god, and I like to argue that some of his work should be required reading, it’s already recommended reading for military leadership courses.
Heinlein had me at “The Green Hills of Earth” and never let go. 🙂
Mine was “Space Cadet.”
Red Planet for me, followed by Space Cadet. I found his Boys Life stories much later.
“CBS did nothing to contact, challenge, confront, or in any way take down any of these alleged infringers that Alec reported”.
What makes you so sure? Are they even referring to fan films in that paragraph? From what I know about Alec, I would rather assume they are referring to reporting distributors of fake Star Trek props. But that is just a guess, of course.
Yes, they are referring to fan films, as in their supporting documentation from the discovery phase, e-mails from Alec Peters were included of him trying to “tattle” on Star Trek Continues and Starship Farragut. Personally, I don’t agree with Alec being a fan film “narc,” but in those days, he really was concerned about making sure the world was “safe” for Trek fan films. And he was a strong proponent of having the studios issue guidelines for fan films to follow (not nearly as Draconian as the ones that ultimately came out). While I haven’t spoken to Alec specifically about the e-mails that CBS and Paramount provided in their discovery, I think it’s reasonable to assume that Alec, at least in part, was trying to convince the studios of the need for standardized guidelines by showing the copyright owners what could happen without such guidelines. And yeah, Alec’s feud with Vic Mignogna is pretty well public knowledge, as well. Of course, Alec is welcome to chime in himself, as well…mine is only conjecture.
Thank you for your reply. I noticed Alec’s pubic concerns about behaviour of some other fan productions and his opinion on Vic is well known, but I didn’t know (of course) that he shared his concerns directly with his contacts at CBS. If that is true – and I have no reason not to believe it is – it really could be considered an evidence of indifference or even ignorance of fan films on the side of IP owners. I always presumed there exists some “backstage” communication and therefore some superficial cooperation between high-profile fanfilmmakers and CBS, since some fanfilmmakers reported contact with CBS and getting instructions – passive rules what not to do, but without any guarantee it will be enough to avert legal action. CBS always seemed mysterious and inscrutable regarding fan films. This past lack of interest might yet work against the copyright owners as you suggest.
I’m about to post the opposition filings, and sure enough, the defense mentioned that very point! I think Erin Ranahan is reading my blog! 🙂
I could wager a reason why they didn’t DMCA prelude. I have a crim justice degree so, I have some understanding of what we can call “knock on effects” of case law.
First filing a DMCA case on youtube requires them to involve youtube. Any content posted to youtube is in some way legally reflective of youtube. In the same vain any content removed from youtube is reflective of youtube. AKA if they pull content down for a reason and that reason applies to another video they MUST generally remove that other video. Now this rule is highly flexible and as we see with groups like twitter banning accounts and giving no reason… as a private company they have alot of room.
The problem becomes.
1. A DMCA filed in youtube now involves youtube.
If youtube decides to fight the DMCA the studio has a huge problem… youtube isn’t some poor single person they can bully around. Further if youtube fights then they set precedent and other films will be protected in the future.
More so youtube has lawyers and those lawyer could win the case. Even assuming they lose its alot more money.
The biggest problem is not just youtbue winning but also losing. If youtube loses now unlike before where youtube can be flexible, their are now laws in place, specifically on youtube no less on how star trek fan films are handled. This causes all kinds of problems for both youtube and the studios. You can have alot of “unintended consequences” to large scale cases like this.
Bottom line it would be insanity for the studios to file a DMCA on youtube unless it was a very clear cut case, because even if they win they could suffer alot of damage in both money and laws they don’t like.(Plus pissing off youtube).
I would have said you had a solid point there, Unknown (may I call you “Un”?), except for something that happened back in June of 2015. Star Trek Continues had just posted its fourth episode, the inspirational and deeply touching “The White Iris.” In the episode, STC used a short clip of the inside of Kirok’s tent from “The Paradise Syndrome,” superimposing Vic Mignogna’s Kirk in a holodeck recreation of the scene. However, Youtube’s autobot detectors caught the clip and immediately pulled it down. So Youtube DMCA’d the episode themselves…with no coaxing at all from CBS. Later, CBS would actually contact Youtube to put the video back up: http://www.thegeekianreport.com/index.php/2015/06/19/star-trek-continues-the-white-iris-is-back-on-youtube/
If “The White Iris” (released six months before the filing of the lawsuit against Axanar) had concerned CBS in the least, all they had to do was nothing. Literally, they could have simply let Youtube be the instigator of the DMCA pull-down. Instead, CBS actually called up Youtube to put the film back up–quite an illogical action for a studio so worried about high quality fan films using established characters and potentially harming their abilities to create or license derivative content. In fact, while Prelude to Axanar used just two pre-existing characters from Star Trek, STC’s “The White Iris” used Kirk, Spock, McCoy, Scotty, Sulu, Uhura, Chekov, and–for this particular episode–Miramanee, Edith Keeler, and Rayna Kapec from “Requiem for Methuselah.”
Now, my point is NOT to say that CBS should have Youtube take down STC. It’s way too late for that anyway. It’s simply to say that the studios need to convince the judge that there is a real and significant risk of damages to their property if Alec Peters isn’t given an immediate injunction from producing anything else. And while the studios’ lawyers are telling the judge that, Erin Ranahan is going to be waiting patiently for her turn to speak and ask the same question I did: “What does God need with a starship?”–um, I mean “Then why didn’t CBS ever try to have Prelude, or any Star Trek fan film, taken down from Youtube?” And if they answer with the “knock-on effects” response, then I suspect Erin will bring up the same “White Iris” story I just did (which is in evidence since it’s part of my “History of Star Trek Fan Films” document) and make the same point that I just did: that Youtube initiated the DMCA and all the studio needed to do was nothing…and they did the opposite.
Thats good info and i think you should pass that event on to the defense team as it shows CBS actively helping people “infringe on their copyright”.
I would however point out some important points.
1. As you say the auto-bots got it. The studio went to put the clip back up out of a possible fear that a counter DMCA would be filed and then lost. Youtube auto-bots are well known for taking a very broad brush to contend and it is upon the poster of the video to whine to youtube. Very few however file a full blown counter-DMCA(in lawsuit form) they normally file a complaint through youtube support.
2. Also I would strongly wager the reason they went to put the video back up is fear of losing or at the very least getting into a fight on youtube/poster.
What I forgot to mention above was that youtube makes money off these fan films and not just star trek but thousands of different series. Having studios mess with those films through the court instead of through the “wink wink nudge nudge” approach could badly hurt youtube’s cash flow. This forces youtube into the mix, not only will they lose money because fan films will be “banned”, but worse what happens if they have to pay that ad revenue they made back to the studios. Thats alot of money more so, money already spent by youtube.
I would also point out another side problem. That being star wars in this case. The rights changed hands… what happens if say the new owners have a very “strict” idea of copyright enforcement. Lets take the fan film “force awakens” which was produced in 2006… the new copyright holders completely ripped of the name of the fan film. “Now under luces, fan films were fan fine”(i don’t know the details just making a general statement). Now lets say disney got a bug up the ass and started to clamp down on films. They try to ban “force awakens” over copyright. Well a lawyer and yes this will sound a bit crazy but, a lawyer could make the argument that disney stole the title and a number of things from this fan film. Yes disney now owns the copyright but back then this was legal and basically that fan film fell under unique copyright laws because luces basically said “go forth and make films”. This may seem far fetch but trust me, put 100 lawyers in a room and you’ll have 100 definitions of the meaning for “is”. With a One and a whole ton of zeros following it i can promise that there would be lawyers and suit backers who would make a go of it because your talking hundreds of millions in profit if they could win. When CBS and such go into lawsuits like this, they have to win and picking small targets to get a track record is the safest way. They have to basically never show any weakness because a copyright suit as in the case of star wars could possibly(though highly unlikely) end up on their door step. For axanar this could be part of the new series they have. What if they saw prelude and suddenly said “hey that a great idea lets rip it off”. They set the frame work but it got pushed back and back… then suddenly they get the green light. Well now anaxar is due to drop just a few months before the series. If they ripped prelude off. It could cause alot of problems with the fans, also may lead to a lawsuit by anaxar claiming that they stole the script from axanar. Once again highly unlikely but from a lawyers view point its going to be likely enough. Plus lawyers like to get payed alot, so going to court and such is making money for them. Not hard for them to hype a counter claim up and if the fan based is pissed then it becomes all the more real.
This is one of the reasons I believe they refuse to go through youtube. They have to win and youtube isn’t an easy place for them to do it. Which is also why they won’t go after prelude… unless they can win a huge victory in this case they won’t risk it.
This is alot of guess work but as I said “unintended consequences” can be simply off the sanity scale. Alot of small cases come back to haunt many counties and townships because they had a judge and DA who were buddy buddy and they didn’t give people due process and half assed it then suddenly 8 years later someone pushes it to 2 courts levels higher and that courts laughs and says all those tickets and such, yeah county/township pay them back because you were the ones in fact breaking the law.
There’s a LOT of “if”s in your last posting, Unknown. Now, I know that lawyers are all about the “if”s–it’s their job to imagine worst-case scenarios and then try to protect their clients from them (it’s what my wife does about 50% of the time). But judges are typically more concerned with peeling away the layers of the imaginary and focusing on the real. So if the plaintiffs tried to argue that they didn’t confront Youtube for fear of opening a whole can of worms on themselves, the judge is likely to ask them what concrete evidence they had to believe that Youtube would be confrontational rather than cooperative. After all, Youtube’s history has been VERY conducive to maintaining good relationships with copyright owners–which is why they have their autobot program to begin with.
Youtube knows that, there but for the grace of content owners does Youtube keep itself out of a perpetual endless loop of lawsuits draining away its legal and monetary resources. And Youtube is well aware that, if push came to shove, there is no guarantee that they would emerge from a simultaneous legal barrage in multiple federal district courts with their business model intact. So rather that being CBS’s worst nightmare in the courtroom, CBS could be Youtube’s worst nightmare. As such the two entities would and are mutually respectful and synergistic. CBS is aware of the value of Youtube as a content delivery mechanism that can benefit their viral and social media marketing plans immensely, and Youtube is likewise aware of the value of CBS content on its platform. And the judge is most likely aware of this as well–as Hollywood is located smack dab in the 9th Federal Circuit.
As for your conjecture about the 2006 fan film “Force Awakens” (which I’ve never seen)–as you know from reading my seemingly-endless series of blogs:
1) You cannot copyright a simple word or phrase, and
2) Unless you have registered a copyright, you can’t sue for infringement.
I doubt the fan filmmakers of “Force Awakens” bothered to register anything in their fan film. If they had, knowing how many attorneys are employed at both Lucasfilm and Disney, I am certain such attempted registrations would have long since been detected, identified, and successfully challenged. So again, your Star Wars scenario is rife with “if”s (you can’t even spell rife without “if” y’know!), and many of those “if”s are not only highly unlikely but bordering on the impossible (since one cannot copyright a simple name like “force awakens”).
I think you’ll discover, Unknown, if and when you finally get to the courtroom, that judges give attorneys a rather short leash when it comes to conjecture. There’s still at least a little leash given, to be sure, but the farther away one gets from the concrete and provable, the less open-minded the judge becomes.