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 This usually applies to an unpublished work that is stolen and released before the author can do so.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.