A closer look at the OPPOSITION BRIEFS in the AXANAR LAWSUIT (Part 2)

Axaanr splash image2Last time, we took a look at what the plaintiffs had to say in their Plaintiffs Opposition to the DEFENSE Motion for Summary Judgment.  Now it’s time to flip over to the Defense Opposition to the PLAINTIFFS Motion for Partial Summary Judgment.  As I did yesterday, I’m going to conduct my review by gathering together some choice quotations from the filing and commenting on them individually, starting with this very important one…

Moreover, even if the Court were to construe Plaintiffs’ unsubstantiated and self-serving speculation that they could theoretically be harmed by Defendants’ Works as “evidence,” this would only create a factual dispute on fair use.

This shows that the defense isn’t just opting for a “We’re obviously right, and they’re obviously full of crap…” approach like the plaintiffs did.  (That’s not an actual quote from the plaintiffs’ filing, but it’s a pretty good summation.)

Instead, the defense is going to also cover their flank and protect themselves against the judge going with the plaintiffs.  In other words, yes, they’re saying “We’re right and they’re wrong,” but they are also saying, “But if you think they’re right, then we really need to let a jury decide.”  Summary judgments only happen if there is clearly NOT a factual dispute.  So pay attention to how many times the defense suggests that a the facts need to be brought in front of a jury.  The plaintiffs don’t do that at all.

Two legal teams…two different strategies.  Fascinating, ain’t it?  (Well, I think it’s fascinating, at least!)  So, let’s look at what the defense has to say…

Rather than set forth how each of the allegedly infringed works at issue in this action is actually substantially similar to Defendants’ Works, Plaintiffs impose upon the Court to make that determination by spending approximately 300 hours watching these television episodes and films. (“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”).

The plaintiffs really need to hope Judge Klausner is already a Trekkie because, yes, by their statement (which the defense quoted above), they are asking for the judge to watch a LOT of Star Trek!  Now, you might love it if your job was to watch 300 hours of Star Trek, but the judge might not appreciate the amount of homework he’s being given.

Fortunately for the plaintiffs (and the judge!) they did include more specifics this time–and photos!–to help guide the judge:

photos-in-the-oppositionIf this does end up going to court, what will probably happen is that the jury will be shown “Whom Gods Destroy” and Prelude to Axanar back-to-back and asked whether this Garth guy seems the same in both cinematic works.  Take a minute to picture both films in your head and imagine what the jury might think of the raving psychotic lunatic murderer versus the quiet and pensive Starfleet captain.  Are they”substantially similar” to someone who has never (or seldom) seen TOS before?

Fortunately, neither the judge nor the jury will need to review the lengthy “The Four Years War” supplement  for the FASA Role Playing Game.  Why?  Because it’s inadmissible…

Plaintiffs’ claim that Defendants took their plot from the subject matter of a supplement to Star Trek: The Role Playing Game, titled, “The Four Years War,” is wholly irrelevant to this lawsuit, given that Plaintiffs have not even named this as an allegedly infringed work.

This is true, folks.  The original amended complaint did not list the FASA RPG among the 57 alleged violations, and it’s too late to amend the amended complaint now.  This player is likely to be benched for the entire trial.

As for Garth (and Soval), the defense’s next point is one of the most important that I will cover…so pay close attention:

Plaintiffs have sought federal copyright protection for characters central to the Star Trek universe, such as Spock and Kirk.  Plaintiffs have not, however, sought federal copyright protection for either Garth of Izar or Ambassador Soval.

Let’s stop for a moment here and visit this web page from the U.S. Copyright Office and pull out the following quote:

Do I have to register with your office to be protected?

No. In general, registration is voluntary.  Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.

Yep, that last sentence is critical, folks.  I’ve been getting a LOT of comments from people either not understanding or not believing that one must first register a copyright before he, she, or they can sue someone for infringement.  Paramount did register the main central characters from Star Trek, like Kirk and Spock (which are now owned by CBS), but scores of minor characters are not registered and therefore cannot, according to U.S. law, be singled out specifically in a copyright infringement lawsuit.  (By contrast, Marvel–now owned by Disney–has registered literally thousands of characters.  Want to use Fin Fang Foom in your fan film?  Forget it!)

The defense hammers home this point about how minor Garth is by invoking none other than Star Trek Beyond director Justin Lin (a self-described longtime Star Trek fan) and J.J. Abrams himself:

Indeed, these characters are so minor and esoteric that Justin Lin and J.J. Abrams—Star Trek fans who are intimately familiar with the Star Trek universe—have admitted that they are unfamiliar with them or otherwise consider them unimportant. The director of the latest Star Trek movie, Justin Lin, despite being a Star Trek fan since childhood, testified that he had never heard of Garth of Izar.  J.J. Abrams, the producer and/or director of recent Star Trek films, testified that while he would consider Kirk, Spock, Bones, Uhura, Zulu [sic], Chekov, and Scotty to be central characters, he would not consider Garth of Izar a central character.

And while Defendants barely feature Soval in Defendants’ Works, the only concrete references to a character named Soval in the entire Star Trek oeuvre is a 2001 pilot episode of the television series Enterprise, and a couple of other brief appearances.

Actually, Soval appeared eleven times over the four seasons of Enterprise, but as it happens, only his first appearance counts.  A copyright claim stems from only the first use…all subsequent uses are derivative.  So even if the USS Enterprise NCC-1701 appeared in 79 TOS episodes, that doesn’t count as 79 violations.  It’s only one violation of either “The Cage,” “Where No Man Has Gone Before,” or “The Man Trap,” whichever episode the studios say came first.  As for Soval, the only episode that counts for him is his first appearance in “Broken Bow”…and of course, Garth only appeared on screen in “Whom Gods Destroy.”

Now, I can already hear some of you typing angrily and urgently about how wrong I am because both of those episodes that I just mentioned are registered copyrights and, therefore, anything that appears in them must ALSO be registered, right?

Well…not exactly.

Again, I’ll hand the microphone back to the defense attorneys (and I’m going to leave out all the case citations, but I invite to you read the full text starting on page 11 of the Defense Opposition brief:

The Ninth Circuit has explained that “not every comic book, television, or motion picture character is entitled to copyright protection.” Instead, “only those characters that are highly delineated with constant traits qualify for protection separate from the works in which they appear.” (“[T]he less developed the characters the less they can be copyrighted, that is the penalty an author must bear for marking them too indistinctly.”)

This means that, no, not every red shirt or navigator or sexy yeoman is automatically copyrighted.  Continuing…

In order to meet the “especially distinctive” standard, a character must be “sufficiently delineated” and display “consistent, widely identifiable traits.” Characters that have been “lightly sketched” and lack descriptions may not merit copyright protection.

Characters that have been found sufficiently delineated and distinctive to be protected by copyright are James Bond, Batman, Godzilla, and Rocky Balboa.

(The brief lists a whole bunch of specific legal citations to cases involving all four of those characters presented as examples.)

There are at least factual questions about whether the obscure characters of Garth of Izar and minimal use of Ambassador Soval, or any other use of an obscure character that can be classified as a certain species, meet the required threshold of distinctiveness that characters like James Bond, Batman, Godzilla, and Rocky Balboa have met to afford copyright protection. The differences between Garth of Izar and Ambassador Soval and the characters courts have found copyrightable are stark. James Bond, Batman, Godzilla, and Rocky Balboa are the main protagonists in a number of films spanning generations and are fixtures of popular culture recognizable by many, and the titles of the works bear the characters names. Conversely, Garth of Izar and Ambassador Soval are minor characters barely mentioned in Plaintiffs’ Works. These characters simply have not appeared often enough to have “consistent, widely identifiable traits.” Indeed, Plaintiffs have not copyrighted any of these characters, though they have copyrighted separately other central characters that are not used in any of Defendants’ Works.

Again, neither Garth nor Soval are registered.  And then there’s the question of whether or not Garth and Soval even are even copyrightable characters in the first place:

Moreover, to the extent that the characters of Garth of Izar and Ambassador Soval have appeared, they are not sufficiently delineated or differentiated to warrant copyrightability. Other than giving the characters names and noting the few instances in the Star Trek universe where those names have been referenced, Plaintiffs have, through their works, provided very little information on either of these characters, let alone information that would distinguish them. Garth of Izar is merely one of a large number of starship captains that happened to be a hero of Captain Kirk, appeared in only one episode, and never had an episode or film named after him. Ambassador Soval is merely one of a large number of Vulcans. This is largely all we know about either of these characters from Plaintiffs’ Works and Motion, and these lightly sketched descriptions do not meet the threshold required for copyrightability.

To translate: what do we really know about Soval other than he is a Vulcan and an ambassador?  What do we know about Garth other than he is a fellow starship captain and Kirk’s hero and won a major battle at Axanar (and gained shape-shifting powers that made him lose his mind)?  Are these limited facts about the characters enough to justify a copyright?

“But Soval is a Vulcan!  Kharn is a Klingon!  Those are aliens in the Star Trek universe!  Alec Peters can’t use a Vulcan or Klingon and claim he’s not ripping off Star Trek!”  (I’m just imagining that I’m hearing that shouted in the distance somewhere.)

Well, my friends, it turns out that things might not be quite that cut and dried…

In Plaintiffs’ two-page discussion of substantial similarity in their Motion, Plaintiffs simply repeat their broad allegation that Defendants took plots, characters, sequences, themes, mood, dialogue, and settings from Plaintiffs’ Works while failing to set forth exactly how Defendants’ Works are substantially similar to the forty television episodes, two full series, eleven motion pictures, and four novels that Plaintiffs claim have been infringed.

Get ready to watch 300 hours of Star Trek, Judge Klausner!

Furthermore, Plaintiffs cannot show substantial similarity as a matter of law by briefly mentioning a few specific examples of allegedly infringing elements. Defendants’ works are only a “derivative work” if they appropriate protected expression from the Plaintiffs’ Works. (“If there is no copying of copyrighted material, the fact that a work derived from, in the sense of being inspired or suggested by, a previous work does not make the second work an infringement of the first.”). Indeed, “[a] work is not derivative unless it has substantially copied from a prior work.”

In other words, Kharn may be a Klingon, but he was only inspired by Kang, by Gorkon, by Martok and others.  He was not directly copied from any one, specific Klingon.  And it might (might!) be the case that the “idea” of Klignons cannot be copyrighted, only specific expressions of that idea, such as Kang or Gorkon.  Can you copyright bumpy-headed warriors with bad teeth?  Or do you actually need a specific warrior character with a bumpy head and bad teeth?  I suppose we’ll find out…

Plaintiffs acknowledge that Defendants sought to create their own story about the obscure character Garth of Izar and general events surrounding him. Plaintiffs do not, however, offer any further details regarding how Defendants’ Works are substantially similar to Plaintiffs’ Works. It is well-established that “a defendant may legitimately avoid infringement by intentionally making sufficient changes in a work which would otherwise be regarded as substantially similar to that of the plaintiff’s.”

So here’s where I give you guys some homework (don’t worry; it’s optional).  Go back and read the PLAINTIFFS Motion for Partial Summary Judgment and the Plaintiffs Opposition (I did say it’s optional) and decide for yourself just how specific the plaintiff’s are being when they discuss exactly what elements of Star Trek that Axanar copied.  You see, THAT is going to be a huge part of what the jury will need to decide.  Have the plaintiffs done enough to explain EXACTLY what they’re so pissed about.  In the case of copyright infringement, you can’t just be generally pissed; you must be very specifically pissed.

And here’s a taste of how that will go if/when this gets to court:

Even if Defendants’ use of the elements alleged here by Plaintiffs is sufficiently substantial to be infringing, which it is not, each appearance of an element would, at most, extend to one infringed work (not 55). (any “[c]opyright in a … derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work”).

In other words, there are 55 (by my count, 57) alleged violations…or are there?  It could turn out that Axanar is only infringing on a small handful of specific Star Trek works:

  • Garth from “Whom Gods Destroy”
  • Soval from “Broken Bow”
  • The USS Enterprise, Starfleet and the United Federation of Planets from “The Cage” (or whatever is considered to be the first TOS episode)
  • The Klingon D7 from “Elaan of Troyius”
  • The Klingons (in general) from “Errand of Mercy” (their first-ever appearance)
  • The planet Vulcan from either “Amok Time” OR “Star Trek III” (not both–one or the other)

This list is just hypothetical on my part, but it illustrates how the number of alleged violations could drop from 50+ down to just 6 depending on specifics (or lack thereof).  And that could reduce Alec’s potential worst-case verdict from $8.5 million to $900,000 (still bad) or his best-case losing verdict to as little as $1,200 (pretty good!).

And remember that Alec would have to lose on ALL SIX violations (assuming that’s all that is left).  We’ve already discussed how Garth and Soval might be non-violations because they aren’t registered.  So with only four guilty counts, that could drop a verdict to as low as 800 bucks.  (Wouldn’t THAT be embarrassing for the studios!)  Alec could write the studios a check on the spot.

The defense continues to question the number of actual violations…

Plaintiffs’ Motion does not mention the exact number of infringements they are claiming and further fails to distinguish among Plaintiffs’ Works to show substantial similarity. Thus, there are factual disputes surrounding not only whether the requisite substantially similarity exists, but also how many infringed works there are for purposes of any statutory damages sought. These issues are closely tied to the question of any damages that must be decided by the jury, including that a jury may only determine statutory damages where Defendants’ Works are substantially similar to Plaintiffs’ Works.

And that brings us full circle back to my first point: the defense is covering their flank by telling the judge that, even if he agrees with the plaintiffs, this still needs to go before a jury and not be decided simply by a summary judgment.

I think this is a good place to end Part 2.  It looks like there’s gonna be a Part 3 after all, folks, as there’s still a lot to cover!  And I know it looks like I’m favoring the defense here (and yes, I am an Axanar supporter), but their legal team really has created a spectacularly dense and legally complex document with some really important points.

Had the plaintiffs submitted something as chock full of new and major issues to examine and explain, I would have given them a second part, as well.  But theirs was a much simpler, more direct document.

That doesn’t mean that one legal team did a better or worse job than the other…only that, if we want to understand what is likely to happen at trial, we’re going to need to take some extra time with the defense filing.  And so…

Next time, we’ll take a look whether or not it actually makes a difference that Alec Peters set up a “for profit” studio (and what is “profit” anyway?), whether Axanar serves as a “substitute” for real Star Trek (as the plaintiffs claim), if the studios’ prior lack of action against other fan films is relevant, and finally, are the plaintiffs trying to trample on Alec’s (and others’) first amendment rights?

62 thoughts on “A closer look at the OPPOSITION BRIEFS in the AXANAR LAWSUIT (Part 2)”

  1. Jonathan, you write; “The plaintiffs hammer home this point about how minor Garth is by invoking none other than Star Trek Beyond director Justin Lin (a self-described longtime Star Trek fan) and J.J. Abrams himself.”

    Yet in the document it’s the Defendants who hammer this point home, as it is their brief you’re discussing here.

    1. Quoting Admiral Kirk in Star Trek IV: The Voyage Home–“One little mistake…”

      Good catch, though, David! I’m glad people are actually bothering to read this stuff! 🙂

      Mischief managed; error corrected. Thanks, dude.

  2. Am I the only one who gets the feeling that the Plaintiff’s have deliberately submitted what I’m going to describe as “lawsuit-lite”, knowing that they are in a no-win situation with regards to the outcome. If they know that they are alienating fans (and how could they not, at this point?) and suspect that, even if they win it might just be a token or Pyrrhic victory, then might it be in their best interests to self-sabotage their own case? They can always blame their lawyers, who get paid no matter how it all turns out, and save face at the same time.

    1. In other words…malpractice? No, I don’t believe so. The plaintiffs’ attorneys are fighting this case MUCH harder than I imagine they ever expected to. And they’re actually doing a solid job of it. Personally, I think they’re opting for the “pit bull” approach (perhaps with a tad too much “bull”), but that’s a valid strategy. The defense is more nuanced and, overall, not as blatantly aggressive. Granted, Erin Ranahan is no pushover, and I would NEVER want to piss her off. But in the end, there is an element of irresistible brute force meeting a surgically precise immovable object going on. And what ultimately happens–and who gets to log this epic battle as a victory–is still very much an open-ended question. It’s anybody’s game!

      1. I tend to believe the ‘lawsuit-lite’ reference in that the plaintiffs seem to have overlooked or ignored vital elements, such as the FASO game property, that might actually have given their case more teeth. And this is not the only instance.

        It almost sounds like the lawsuit was intended to ‘scare’ Alec Peters into not making his film rather than actually taking him to court over it.

        But even when the shock wore off that Peters intended to fight the action against him in court, the plaintiffs don’t include in the amended complaint those rather important elements.

        Not having needed or used an attorney before, I’m certainly no expert. But, I’m pretty sure I would give my attorneys everything I could even imagine might help my case no matter how obscure it may seem. Then, my attorney(s) can figure out what will and what will not help my case. It appears, to me anyway, their attorneys are doing the very best they can with what they have but the plaintiffs have not given them the tools and information they could actually use to move the needle more in their direction.

        And again, Jonathan, excellent analysis of the defense’s response to plaintiff’s filing for summary judgement (which I also read every word of that wasn’t redacted!).

        One final question, though. Will the redacted parts of these documents eventually become public knowledge once the case is completed or will they be ‘sealed’?

        1. “One final question, though. Will the redacted parts of these documents eventually become public knowledge once the case is completed or will they be ‘sealed’?”

          If the judge doesn’t lift the confidentiality order, then the redacted parts stay redacted forever, IDIC. It’s possible the two sides will agree to lift some confidentiality designations (de-designate, I believe the correct term is) in order to present them to the jury. We’ll see.

          And yes, the original strategy of the plaintiffs was to scare the bejeebus out of Alec Peters and get him to fold like an origami crane. That strategy obviously didn’t work.

          The following is purely conjecture on my part, but I think that part of the problem the plaintiffs are running into is that their attorneys at Loeb & Loeb are primarily entertainment lawyers who also do intellectual property law. Winston & Strawn actually specializes in intellectual property first and foremost and then applies it to high-tech, pharmaceutical, patents, new media, and yes, entertainment. That is, I believe, why the defense filings are so much more nuanced and the plaintiffs’ filings more general and harder-hitting. Definitely two different ways to go…and neither is a guaranteed winner in all this. But my theory might at least explain the differences between the two approaches.

    2. Sounds like they are keeping the patient alive through artificial means, even if it is fiction they are fighting for.

  3. Well after reading all this, I have a question that comes to my mind.
    Let’s assume for a second, that Alec wins this case in the best possible way: Does that mean, that anybody can legally do a Star Trek movie, even with uniforms, klingons and vulcans (as clothing and the idea of these species is not copyrightable) and MAKE money with it as long as they don’t show the Enterprise or any of the main characters? And is it THAT what the studios fear to happen when they argue about financial damage?

    1. Excellent question! Keep in mind, though, that if Axanar wins, it means just that. CBS could go off and sue Star Trek Continues next. In their case, they DO use central characters like Kirk, Spock, and the rest. So this particular Axanar legal strategy would not likely work for STC. Also, they’d be unlikely to find a top law firm to represent them pro bono. That kind of luck tends to be ultra-rare.

      On the other hand, let’s say that Tommy Kraft decides to use this ruling to make “Federation Rising” after all…leaving out Archer and the Enterprise NX-01 crew entirely. Does he have a case using the same defense as Alec Peters did? Maybe…maybe not. Keep in mind that “Prelude to Axanar” was told in a “mockumentary” style. If Tommy Kraft goes for straight-up drama, then he might not tip the scales enough to meet the “transformative” fair use threshold. But if he changes to a talking-heads “mockumentary” style with lots of VFX sprinkled in, I think he’d have a shot at winning, too. But again, he’d be unlikely to find free legal counsel. So if he raised, say, $70,000 in a Kickstarter, I’d expect that all to go to legal fees just to get to where Alec Peters will (hopefully) arrive at. On the other hand, if CBS and Paramount lose the Axanar case and Tommy Kraft makes the same kind of mockumentary-style fan film, the studios might not want to risk losing again to the same exact legal argument because THAT would be humiliating.

      1. If Axanar does win (and probably even if they don’t) I’m certain that you’ll see CBS going thru the same process that Disney has for their Marvel characters (according to what Jonathan wrote above) of rushing to register copyrights for absolutely *everything* that’s ever been seen in a Star Trek episode or film (up to the limits of what the law says is copyrightable).

        1. Maybe, maybe not. Imagine a cost of about $600-$700 per character to register them (two hours in lawyer time–associate level–to collect all the info and fill out the individual paperwork on each character). You’ve just suggested a project that will cost the studio a half million to a million dollars (and that’s if there’s only about 1000-2000 characters in 700 episodes and 13 movies plus novels and comic books, etc.).

          1. Perhaps you’re right, perhaps it would be prohibitively expensive. But I would be very curious to hear what someone who works for a law firm that does this kind of thing would say about this. Because I wouldn’t be at all surprised to learn that the vast majority of the work on something like this doesn’t need to be done by lawyers, or even paralegals, and that the vast majority of the grunt work could be done by a room full of temp employees overseen by one or two lawyers. And I also don’t see why they wouldn’t shop around and get bids from various firms — there are always ways to negotiate deals when there are large contracts to give out.

            And who knows, perhaps they’ll consider the money well spent if it heads off a slew of future lawsuits and bad publicity?

            In any case, even if they lose, it doesn’t seem to me like CBS would just throw in the towel — even if there’s nothing they can’t register every character in Star Trek, they will no doubt do what they can to close off any loopholes in their IP protections.

            I guess I just feel that CBS has bungled this situation so badly — that there was so much potential for active fan engagement that would have served their interests so much better than a lawsuit — that I shudder to think of what they might do, how they might react towards other fan films, if they do lose.

          2. Possibly. There’s also a five-year period post publication that kicks in that limits the amount of judicial award a plaintiff can get in a successful infringement lawsuit. Nearly every Star Trek character would be past that “freshness date,” but at least they’d be registered. That said, Star Trek is a bit of a fading franchise (sorry, but it is). Registering hundreds or thousands of decades-old characters might seem like throwing good money after bad to the studio heads. But who knows?

      2. Ok, sure. But what if the jugde rules, in favor of Alec because the universe/multivers of Star Trek is not owned by CBS and only the content they registered is valid for suing someone. Remember that the plaintiffs are always claiming that Axanar is an independent Star Trek movie. Couldn’t that be harmful to them?
        Imagine a federal court ruling, that the Star Trek universe is not owned by CBS and Axanar is able to be made because it uses only the basics. Doesn’t that open the doors for e.g. Netflix to create its own show within the Star Trek universe and it is totally legal as long as they don’t use copyrighted/registered material? Does fair use still apply here? Is it even relevant?

  4. I look forward to the final “here’s where I was right and here’s where I missed it post” when this whole thing is over.

    Countersuit as well – I guess that comes later? I assume that if the studios lose big we’ll see the countersuit be an attempt to financially clean their clocks sufficiently for Alec to recoup personal expenses, fund Axanar, reward the attorneys for their effort and extract financial revenge on a “best served cold” plate.

    1. What Mr. Lane said.
      No doubt Mr. Peters would feel justified in doing so, however I choose to believe he has a bit more class than that.
      He is not just defending his prelude and his dream of making his movie, he is defending every one of us who has ever wanted to make our own Trek fanfilm.
      “Be humble in victory and gracious in defeat.”

      Win or lose, any aspiring fanfilm makers who are following this case will have a far greater understanding of what and what not to do so as to avoid the wrath of copyright holders.

  5. To borrow a couple of military analogies, it seems to me that the Defense has chosen a “defense in depth” strategy, to turn this into a “slogging match” over every point of contention, to frustrate the “short, victorious war” that the Plaintiffs (and their masters) were looking forward to.

    Just changing the order of the words of French Marshal Pierre Bosquet on the Charge of the Light Brigade, “It’s not war, but it’s magnificient”!

    1. Good analogy!

      And now you’ve got me wondering: Charge of the Lightspeed Brigade? Charge of the Warp Brigade? Charge of the Fan Brigade? Charge of the Redshirt Brigade? 🙂

  6. …nice analysis, as always! =)

    …the plaintiffs are not putting in the real work – they are waving their hands and saying: OBVIOUSLY Axanar is infringing! =P

    …WITHOUT actually “proving” their (half-assed) case! =D

    …now, a jury could be swayed by this B.S., but not if properly instructed by a fair and competent judge, which seems to be the case – bring it on!

  7. Well, that explains a bit more about your points in Part 1. I’m not sure, however, that you’re interpreting the copyright office’s FAQ correctly, as it talks about registering *works*, as opposed to registering characters, settings, etc… which are sub-elements of works. As CBS and Paramount absolutely hold all the copyrights to the relevant works, they can absolutely say “we own Broken Bow, and we think that this Soval character, who is part of this copyrighted work, is sufficiently delineated that he himself is protected by copyright, how dare you copy our character.”

    I’m pretty sure the dig at CBS not registering Soval was more intended to talk about whether CBS considered him delineated at the time they registered copyrights for ST:ENT. It’s absolutely a fair point to talk about whether Soval is copyrightable in the first place, (I personally think it’s an uphill argument, but I was impressed at how well they’ve made it so far, so they should absolutely keep going) and there’s certainly an argument to say that Soval is less delineated than some characters that have won infringement cases in the past. But the question is whether Soval meets the minimum standard for copyrightability, which it’s possible he does over his 11 episodes of Enterprise. (While the copyright to Soval himself is established with the copyright to Broken Bow, given CBS is the rightsholder for the other ten episodes, they could absolutely have alleged infringement on those… *if* they had listed them in their complaint. Another mistake by the plaintiffs in not being specific about which works were infringed and instead just listing the first episode of every season of Star Trek, I would say- I’d be curious in fact if it would be a valid strategy for the defense to check through all the pictures provided and see if they’re from episodes listed in the complaint… if they’re not, are they still allowed in the case? I would expect they’re not, but sometimes intuition about that sort of thing hits you wrong. It would very much hurt their case that Soval is an infringement if they’re limited to talking about Broken Bow, as Soval in Prelude and the Vulcan Scene is very different to Soval in Broken Bow, which would actually make the argument that Prelude is transformative for fair use much easier!)

    I was far more impressed with the Defense’s opposition brief than I was with the Plaintiffs’, as the Plaintiffs seemed to be relying basically on saying “look how much these pictures look alike” and being super-aggressive about their case rather than actually establishing that copyright violation under the law had occurred. In contrast the Defense really seems to know what they’re doing, and has only left one or two small elements of the Plaintiffs’ strategy unchecked, hammering away at every very significant point that they made and giving their counterview with some of the best arguments for fair use- I never found myself saying “why didn’t they mention this?” when reading the Defense’s brief, but frequently found myself questioning the Plaintiffs’ one. This probably just goes to the fact that I personally don’t prefer the debating style the Plaintiffs chose- it could well be a very effective one for getting a summary judgement, and they’ll change style a bit if the case goes to trial.

    It’s definitely a good avenue of attack to argue that Klingons aren’t copyrightable. I have no idea whose side the law would be on in that one, but it seems like the only way you can justify Kharn, (outside of the whole of Prelude being ruled fair use) so if Klingons as a category are copyrightable, that’s at least one infringement there, which means the ground would shift to whether it’s willful or not.

    I’m glad the defense has mentioned the “but the Plaintiffs actually benefit from fan films” argument, but they do need to be more specific about it. (this was likely a victim to the 20-page limit) Fan films are free marketing, and help fans of Star Trek stay engaged with the universe between official commercial releases, ensuring that they don’t forget about the universe and fail to watch/buy/etc… the rightsholder’s products. It’s also a great point that Axanar has in fact encouraged people to watch Star Trek Beyond and Star Trek Discovery. That should go to establishing that there was no intent to act as a replacement to official Star Trek, despite how the plaintiffs want to twist the marketing materials about the kickstarter campaign.

    1. My apologies in not having enough time to respond to all of your comments, Matthew (gotta finish writing Part 3, and there’s been a LOT of comments today!). So just a couple of short responses:

      1) When the copyright office says “works” that includes characters (they are considered “works” in the same way that books or art pieces or films are considered “works”). Please note how the defense quoted legal precedent that “[T]he Ninth Circuit has explained that ‘not every comic book, television, or motion picture character is entitled to copyright protection.'” And it’s not a given that just because Soval appeared IN an episode of Enterprise that he automatically comes WITH the copyright for that episode. There’s a LOT in that episode. Does CBS have a copyright on grain silos, too? Do they have a copyright on sexy women with frog tongues who dance while eating flying insects? Copyright law is designed to protect the creators but also to limit them so they can’t claim to own everything in one fell swoop.

      2) Even if Soval appeared 11 times, the plaintiffs only get access to one violation (usually the first appearance). To give a literary example, Willy Wonka appeared in both “Charlie and the Chocolate Factory” and “Charlie and the Great Glass Elevator” (and yes, I realize it’s not an American work of literature–pretend it is for a moment). Someone using Willy Wonka would not get dinged twice in a verdict for illegally using the candy maker. Only Willy’s appearance in the first book would count, as that work established the initial copyright. The sequel is a derivative work based on the first copyright.

      1. Of course you should be focusing on part 3, (or other aspects of your life!) no worries, feel free to reply to or ignore my comments as time and interest permits, lol. 🙂

        I’m not entirely familiar with what counts as a “work” for the US as I’m actually overseas, and our regime doesn’t require or even allow for copyright registration here in New Zealand. 😉 (you get the protections and right to sue automatically over here, as we’re generally a lot less litigious, so there’s less need to pre-register ahead of copyright cases) Some quick skimming online does suggest that if you have a registered US copyright for the work a character is part of, you have the right to sue for infringement and determine in court if the character is in fact copyrightable as a derivative copyright from your work. The main reason for separately registering copyrights for individual characters seems to be to clarify the sub-licensing situation where a character appears across different mediums or is sub-licensed for various works, so that for instance Marvel always owns the rights to Spider Man, even if they sub-license the right to make Spider Man films to Sony, rather than having an odd dual-ownership situation where Marvel owns Spider Man as portrayed in comics and Sony owns him as portrayed in films that might arguably occur if they fail to carefully sub-license and don’t own copyright over the character separately. Given that understanding, it actually makes a lot of sense for CBS not to have copyrighted a character like Soval, as he doesn’t appear in any films by Paramount, (yet) so there’s no need to clarify which company owns him, they can just rely on their copyrights to Star Trek: Enterprise. I would have expected the defense to have pointed it out in their opposition brief if CBS not registering a copyright for Soval actually meant that the Plaintiffs couldn’t legally include him in their suit, given that they’re very quick to seize upon any other mistakes that they’ve made around what’s actually in-scope for the case, as we saw with their catch regarding the Four Years War supplement.

        (http://www.ivanhoffman.com/characters.html and http://www.nolo.com/legal-encyclopedia/protecting-fictional-characters-under-copyright-law.html were reasonably enlightening, and both seem to suggest that copyrighting a character in the US is generally a derivative copyright of the copyright to the main work)

        You’re absolutely right that Soval’s appearance in Broken Bow doesn’t guarantee that owning rights to Broken Bow confers a copyright to Soval, as Soval could be ruled as too generic a character to copyright.

        I wasn’t talking about CBS owning eleven episodes with Soval as being eleven (12, if you want to count In a Mirror, Darkly) separate infringements- I understand copyright cases don’t work that way. What I was wondering ‘aloud’ is if, by only listing the first episode of each Star Trek season as the IP being infringed upon, the Plaintiffs have effectively given away the ability to cite plot points or character development that occurs in other episodes in terms of establishing similarity or in terms of establishing characters as copyrightable, or are the additional episodes still in-scope for the trial as “derivative works?” Because if they can only talk about the first episode of each season to establish similarity, that would make it very easy for many parts of Prelude to be ruled as not infringing copyright, as for instance Soval as of Terra Prime (which is essentially Soval as of Prelude) has very different attitudes and views compared to Soval as of Broken Bow or Shockwave, which are the two “first episodes” he appears in.

        1. Many EXCELLENT points, Matthew! I encourage folks who skim comments and focus mainly on my responses to take a closer look at what Matthew had to say.

          Your question about whether Soval is limited to just who has was in “Broken Bow” is really good, and I have an answer for you from a conversation I had about a month ago where I asked that same question. In short, the answer is no, it is not limited. Let’s take a look at James Bond. In his first-ever (film) appearance in “Dr. No” (1962), James Bond never actually says “Shaken, not stirred” when ordering his martini. (Seriously, go watch it. The waiter and Dr. No himself say it, but Bond never does.) The first time 007 would utter those words himself didn’t happen for two more movies (no martini in “From Russia with Love”) when he ordered his famous vodka martini “shaken, not stirred” in “Goldfinger” in 1964.

          In the copyright registration description of James Bond, his distinctive catch phrase is certainly included as part of his long list of distinguishing characteristics (along with ladies’ man, 007, MI-6 agent, impeccable dresser, licensed to kill, Walther PK, skilled in hand-to-hand combat, punster, cool cars and fancy secret gadgets, and I’m certain a whole bunch of other things). But many of those things weren’t evident in just his first film appearance in 1962 or even his first novelized appearance in 1953 (“Casino Royale”).

          So what does it mean, then, that only “Broken Bow” is counted for Soval? Basically, that comes on the verdict end of things if statutory damages are awarded. Soval appeared about a dozen times, but that doesn’t mean Alec Peters would get dinged 11 or 12 times (at $150K each) for using Soval. He’d get dinged once for the first appearance of Soval, as every subsequent appearance would be considered derivative of the first one. Does that make sense?

          1. It makes sense in terms of Soval’s case specifically, that every episode featuring him automatically comes into the case through Broken Bow being listed as an infringing work, as Soval originates in Broken Bow as a derivative copyright, and his subsequent appearances should count as derivative copyrights of his character given Soval is specifically listed as an infringing character.

            Looking through the complaint and other filings again quickly, it does look like both sides assume that the amended complaint includes all the TV episodes in the way it’s structured, (for instance, the Plaintiffs bring up the Federation Council appearing in These Are the Voyages…) which must mean that the other episodes of a season simply come in as derivative works of the initial episode, or can be brought in as evidence under the other relevant derivative copyrights listed in the complaint.

  8. Personally, I think the copyright ability of Garth is fairly obvious to be something that can’t happen under existing law. My concern would be with Soval, who as noted has appeared in 11 episodes of Enterprise and has had certain qualities made manifest in that time. Could that be enough? I actually think personally that CBS/Paramount only have 3-4 legit infringements to work with here. I hope the judge agrees. That would then make for an interesting trial. I don’t live in California, so I am ineligible for the jury pool, 🙁 As a lifelong fan of Trek and a writer as well, it is my hope that Alec and by extension Axanar is victorious in this matter, to the point that they are able to proceed forward with the project with minimal changes being needed to be made. I have believed from the time this started that CBS/Paramount was going in with a losing argument. Time will tell.

    1. As much as I like Gary Graham and his portrayal of Soval as a character, I just don’t think there’s enough substance to the character himself to warrant his own unique copyright. After all, is Soval really that much different than, say, Sarek? Both are Vulcan ambassadors to Earth who went from disapproving of humans and Starfleet to respecting them. Both have similar haircuts and pointed ears and eyebrows. Both are proud, stubborn, somewhat arrogant men who keep their emotions tightly in check. I’d argue that the only thing that makes Sarek at all distinctive is that he’s married to a human female and he’s Spock’s daddy. So really, Soval is even less distinctive than Sarek. But put the two side-by-side and show their scenes to casual viewers (not Trekkies) and see if they can tell you which is which. (Obviously, DON’T use the scene where Gav the Tellarite says, “And how do YOU vote, Sarek of Vulcan!?!” No names!) 🙂

      But as I say so often these days; we’ll see.

  9. I am dreadfully ignorant of legal matters, but does it not make sense simply for the defense team to also point out that many a fan film that already exist actually use and recast major (and undoubtedly copyrighted) characters that the studios have never gone after? Is it inappropriate to cite Phase 2/New Voyages and the lack of lawsuits against them? Or would it be considered throwing them under the bus? I’m genuinely curious. I really appreciate your syntheses of this case. Thanks for making it somewhat easy to understand!

  10. Seriously….

    For a “Fan Film” blog do you ever write abput anything but AXANAR.

    There are so many fan productions that could do with this sort of attention yet you who claim to “love” fan films etc write more about this nonexistent fan film than anything else.

    You have your priorities completely wrong.

    1. James, this is important stuff that affects *all* Star Trek fan films directly, all fan Star Trek fan projects of *any* kind slightly less directly, and sets precedent for every other kind of fan film, Star Trek or not. *This* is what matters right now and I, for one, am very grateful that Jonathan is spending so much time and energy reporting on it in such detail. These kinds of articles take a lot more work than the usual piece on someone’s fan project. Besides, this is *his* blog and he can write about whatever he damn well pleases, there are no other “priorities” here. No one is making you read this blog so if you don’t like it, don’t be a troll, just go elsewhere.

    2. Are you trying to divert Jonathan from the news of the day? Its no secret where you stand on the issue. He has up front about why he’s been focused on Axanar recently. I, as a fan of multiple fan film outlets (Star Trek, or otherwise), find this is a significant event that affects all fan films. All the legal maneuverings are happening NOW. NOW is the best time to pick them apart and talk about them. When there is a lull in the legal activities I’m sure Jonathan will be able to get to his backlog.

      1. Actually, I have some good non-Axanar stuff coming up, including something tomorrow about Starfleet Studios, another interview about Starbase Studios moving to Arkansas, and a fantastic interview with Aliza Peal about her upcoming Guinan “The Listener” fan series. Patience, my young apprentices. 🙂

        Actually, it’s pretty clear why James is bothered (at least it is to me) with all this Axanar coverage. The more I write, the clearer the defense strategy becomes. James wants this to be a simple “Alec Peters is guilty of everything” open-and-shut case. If things start getting more nuanced and complex, there’s a greater chance (in his mind) that Alec could possibly win this lawsuit or at least not get obliterated by it. This creates a cognitive dissonance for James, and it’s uncomfortable. The more I write about strong points in the defense’s favor (even if I’m also including a smattering of strong points in the plaintiffs’ favor along the way), the more uncomfortable James becomes. Even though this is just a summary analysis and not an actual prediction of what will ultimately happen, the points I make are still quite intriguing to consider. James likely doesn’t want people to consider my points because, if they do turn out eventually to be right, then he’ll end up being wrong. And no one likes to be wrong–I know I sure don’t! 🙂

        That said, this case can still go either way, and James could well have the last laugh or the last word or the last samurai (loved that movie!). For now, though, I’ll still talk about the filings when they come out because I really do think they’re important to discuss openly and thoroughly. And yeah, James doesn’t have to read anything about Axanar on this blog if he doesn’t want to.

        1. Just for the record, Trekfanproductions had nothing! to do with FFF, it did although have a lot to do with the attention that Axa gets that it does not deserve.

          As far as my bias you will notice my site has zero mention of Axanar or related things unless it is brought in an interview!.

          But thank you all for your feedback and comments it helps me in making sure I divert my attentions to where it is needed.

          1. Sorry, James. I saw the following on your About page:

            Our idea was born out of the current issues surrounding Fan Productions and those productions being pushed to the background due to people putting focus on a “certain production” all while forgetting that so many others are out there for them to enjoy and to be very honest this needs to change.

            Considering how much attention you give to FFF positing comments here critical of most things Axanar and my extensive coverage, I hope you can understand how I would assume you were talking about little ol’ me me…as there’s only one other blog dedicated exclusively to Star Trek fan films (besides yours, of course), and that’s Star Trek Reviewed…and they don’t focus much at all on Axanar.

            And I don’t think I called you biased. If I did, my apologies. I mean, you are biased–most of us are in one way or the other–but I don’t perceive your website to be carrying any sort of noticeable slant.

            I am curious to hear what other folks think about your blog, though, so I hope my readers will, in fact, give it a chance and check it out–and not just to bash it, people! The more fan film blogs we have, the more support and coverage fan films will get. It’s there’s something about James’ blog you like, tell him. And tell me. We can help make each others’ blogs better and better with good feedback.

    3. “You have your priorities completely wrong.”

      The same could be said of Star Trek fans that spend all their time disparaging other Star Trek fans. Talk about missing Gene’s point of the whole thing…

      Cura te ipsum!

    4. James Hams, As much as you don’t wish to acknowledge it, this case very important in relation to how all fan films will be produced in the future.

      Jonathan is the only regular fan film writer who is actually fair and just with the subject, in relation to other bloggers who seem to have a vendetta against Axanar and Alec Peters.

      I would question your priorities James. You spend most of your waking moment attacking Axanar and Alec Peters. Aren’t there any other fan films you want to talk about?

      1. Well, James Hams was trying to make the same point about me: “Aren’t there any other fan films you want to talk about?” Yes, there are. But it’s a balancing act. I can only cover so much news at once. In September and October, there were a dozen new fan films that got released, and it seemed I couldn’t cover them fast enough. And there were also the Axanar discovery controversies. I tried to give both an equal amount of attention.

        Right now in November, there is a LOT of Axanar stuff going on–REALLY important stuff–and fewer new fan films. So there’s more “time” available to focus on Axanar for the moment. But when there’s other fan film news, I’ll try to squeeze it in, too (as will happen tomorrow). Next week, though, it’s back to Axanar for the final legal responses before orals on December 19. In the interim, I’ll be covering Starbase Studios and The “Listener: Spectral Awakening.” Then there’s the judge’s rulings on summary judgement. Then there’s Christmas. In January, I’ve got an interview with the show-runner of “Star Trek: Secret Voyage.” Then there’s the actual Axanar trial beginning on January 31 (assuming it happens).

        Fan Film Factor might look like a duck gliding smoothly across a gentle pond. But under the surface, there’s a LOT of paddling going on! 🙂

      2. I invite you to go to trekfanproductions.com its my new blog and website aimed at doing just that.

        I’ve got blogs scheduled for every week between now and mid feb.

        All none Axa related showing the love for all fan productions that exist and not ones that are likely never to be made.

        1. You’re off to a nice start there, James. Looks much better now than it did when you started. You could still use a decent editor for typos (especially punctuation), but I tend to be pickier than most in that department because my mom’s been a teacher for 55 years. 🙂

          Anyway, welcome to the wonderful world of blogging. Good job so far. My hat is off to you and your guest bloggers. Carry on, mate!

  11. (Pretty long due to it being months of material) One of the statements above is vaguely reminding me of the company that that made candy crush trying to copyright the word “saga”. In terms of one of the plaintiffs other arguments there’s a little known animated series episode (it was pretty bad) where they adapted one of Larry Nivens Man Kzin Wars stories. Does the plaintiffs statements mean they own the kzinti? Or the Slaver race? The stasis box concept? After all it was a licensed trek episode. Or a more comical question of do they own the rights to earth? After all its a planet that apeared in star trek. I’m left to wonder how such poor arguments rattled their way to the judges desk….

  12. I’d have to agree with stratego, a trench war is exactly what I was thinking and have been for awhile. The defense is going to want to attack each alleged violation one at a time and really drag this thing out. Because that’s the only viable strategy for them IMHO INAL, everyone knows Alec set out to create new star trek. So arguing for the whole work is a lost cause, but take the allegations apart, contend with each one and find all the assumptions and exploit each one one at a time and the plaintiffs will lose alot of momentum slogging through the mud in the trenches. the plaintiffs on the other hand are looking for a swift all encompassing victory, arguing the single point that we own it therefore your violating us. The plaintiffs really don’t want to get down into the trenches with the defense because they risk losing alot of assumed copyright-able materials. So if it seems like their each playing a different game that’s probably why.
    Second you make a good point comparing Soval to Sarek, alot of people may be able to identify major characters suck as Spock and Kirk, but put a bunch of Vulcans or Klingons in a line up and see if they can pick out minor characters, can uninformed jurors tell Soval from Sarek. If not neither may be copyright-able, perhaps even the same with Vulcans and Klingons can a jury tell the difference between humans and vulcans in a lineup, or say klingons and ferangi in a lineup.

  13. Yeah, I have not seen the script of course, but it crossed my mind that the thing that stood most to delineate Soval as a character would have been the Axanar film itself via his battle to keep Vulcan in the Federation as indicated in the trailer.

    How ironic.

  14. I have a theory:
    Is it possible that Paramount/CBS are doing this because there were/are similarities between Axanar and Star Trek: Discovery. When Discovery was first being rumored I vaguely remember that Garth was perhaps going to be a central character of the story.

    If this has already been covered, I am sorry for rehashing the point.

    1. It’s possible, and fans have certainly been suggesting it in certain circles. But no one (including me) has any proof either way. Even my guy with a link to a higher up at CBS never mentioned this. SO if it is true, not even folks at CBS are discussing it.

  15. Well James, since you have decided to come hear and criticize, and offer up nothing constructive, I for one WONT be visiting your “new website blog” If it were up to me, I would have not let you post about your own site here. And if you think you’ll gain some followers from here with your “Axahaters Anonymous” 12 step program, think again. Get lost why don’t cha?

    1. I don’t see any reason not to mention James’ new blog here on Fan Film Factor. I’ve already got a bunch of loyal readers and, hey, I’m not in competition with anyone else, right? There’s a lot of great fan films out there, and lots of news to go ’round. I can’t cover it all (I try to, of course), so if James and/or others can fill in some of the blanks, all the better. I really do wish him well. It would be nice if he could return the favor and not disparage Fan Film Factor (either by name or implication), but I realize that’s asking a lot. After all, FFF is part of his blog’s back story. But even so, there’s no reason for me to be anything other than positive and supportive of a fellow blogger…especially one putting in so much time, heart, and effort. Any other reaction from me would be either rude, negative, or simply bad karma (or all of the above)…and who needs that, right?

  16. I don’t know if this has been addressed or not… The difference between TOS era and TMP-onwards Klingons. There are many differences between the two ‘creature’ designs. The Modern Klingon was first seen in a motion picture not a TV series. Does that alter any of the legal shenanigans?

    1. Nope. The Klingons count only as one infringement (if not found to be fair use) either based on their first appearance in “Errand of Mercy” or their modern (bumpy-headed) appearance in ST:TMP. That doesn’t mean they’re limited only to what was in those two appearances. All Klingon appearances are fair game, but they simply count–at verdict time–as only one infringement…not 400 different infringements.

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