MICHAEL ILASI, a dedicated AXANAR detractor, announced last month that he was planning to create a “parody” of Prelude to Axanar using actual footage from the fan film…re-edited to be “funny.”
But what Michael released wasn’t a parody so much as a mockery. It belittled ALEC PETERS and the other cast members of Prelude by showing their bloopers, adding banjo music, crickets, laughter, etc…and making it look like these were bungling idiots rather than actors trying to put in solid performances while flubbing the occasional line.
Michael called it a “fan film,” but I don’t think it qualifies. A fan film should celebrate and honor something a fan loves—Star Trek, Star Wars, Doctor Who, Harry Potter—not try to tear it down or cheapen it in some way. In fact, that’s sorta the OPPOSITE of a fan film.
Michael was using Axanar blooper footage released without permission last year by former Axanar marketing director turned vitriolic detractor TERRY McINTOSH, violating his non-disclosure agreement with Alec and Axanar Productions and releasing footage that was not legally his to release.
The arguments being employed currently by Michael and other detractors justifying the creation and release of this mockery film can best be summed up as follows:
- Alec can’t own the Prelude footage because it’s all Star Trek, and Alec doesn’t own the Star Trek intellectual property.
- Parody is protected speech under fair use. Alec can’t do anything to prevent Michael from enjoying his First Amendment rights.
- Axanar is”open source.” Alec even said so himself.
- Get over yourselves and laugh, fer cryin’ out loud! They’re bloopers, not KFC’s secret recipe of 11 herbs and spices. Lighten up.
You probably won’t be surprised to hear that I’ve got an answer to each of these attempts to justify and excuse what Michael did.
Does Alec Peters Own the Axanar Footage?
For this question, I shot an e-mail to one of my legal eagles. His/her response (yep, they still want to remain anonymous because they don’t want a bunch of detractors trolling their law firm) was this…
Jon, let’s say you and Wendy take Jayden to Disneyland. Jayden is wearing a Mickey Mouse T-shirt and mouse ears, and you go to see Mickey Mouse. You then film Jayden with Mickey Mouse. Does Disney own your video footage or do you?
You own it. Even though you’ve got all that Disney IP in the video, it’s still your video. Disney can’t stop you from posting it, and they can’t use it for their own purposes without your permission. And certainly, no one else can use your footage without your permission.
Just because Alec is wearing a Star Trek shirt, that doesn’t mean he gives up any rights to that raw footage of him wearing it. Same if any of you Trekkies go to a convention in your uniforms and take videos of each other. CBS/Paramount don’t own your videos. You do.
So make no mistake, folks: the Axanar footage—all the takes, outtakes, bloopers, VFX, behind-the-scenes, all of it—is the property of Alec Peters and Axanar Productions. People who worked on it were paid, which makes their participation work-for-hire. In other words, neither Christian Gossett nor Robert Meyer Burnett nor Tobias Richter nor Terry McIntosh nor any of the paid actors owns anything unless such rights were specifically granted in a contract.
CBS and Paramount can keep Alec from claiming copyright ownership over the finished fan films Prelude to Axanar, the Vulcan Scene, or the other two installments of the Axanar trilogy. But the raw footage belongs to Alec and his production company, just as my video of Jayden with Mickey Mouse belongs to me. I can’t claim ownership of Mickey, but I do own my video.
Parody, Freedom of Speech, and Fair Use
Freedom of speech is a great thing. You can say anything you want in America! Well, not anything. If you yell “Fire!” in the middle of a crowded theater, expect to be arrested for disturbing the peace, Bill of Rights or no Bill of Rights. And that’s because freedom of speech is not absolute. It has consequences if abused.
Yes, parody is protected speech. It’s not clear whether a judge would consider what Michael produced and released to be a parody or not. But as I’ll explain, the idea of copyright infringement is actually irrelevant in this instance. What Michael did was illegal in a different way…just as if he’d yelled “Fire!” in a theater.
There is a legal statute in most states known as Unlawful Use of Name or Likeness. (Here’s a long article that does a deep-dive into the concept.) In short, this law says that you can’t use someone else’s name or likeness without their permission. And the use doesn’t necessarily need to be commercial, it can simply be exploitive (done for a benefit to the person using the likeness without permission). In Michael’s case, he benefits from presenting Alec Peters in a bad or embarrassing light, getting laughs from his friends. Exploitive gain can be something as simple as that.
Now, there is an exception for purposes of news or critical commentary on a major world issue or event. But a fan film probably doesn’t rise to the threshold being newsworthy (despite this awesome blog site!). Also, it’s hard to see a collection of hastily edited bloopers conveying a carefully-considered critical or social commentary.
So basically, any of the actors whose faces and/or bloopers were shown in Michael Ilasi’s video could, if they chose, take legal action against him for Unlawful Use of Name or Likeness. I’m not saying they’d win or get much in a legal judgment award, but it’s unlikely the complaints would simply be dismissed as frivolous…meaning that Michael would probably have to pay a lawyer at least a retainer, if not significantly more. Is it worth it for a few hundred views on YouTube? I wouldn’t think so, but maybe Michael is rich and doesn’t care.
Axanar is “Open Source,” right?
Michael released his videos in a YouTube account named “Open Source Axanar – 30 Days Out!” Others have pointed out to me that Alec Peters himself said that Axanar was now “Open Source” in this blog post from last year.
Nice try, guys.
Here’s what Alec actually said:
One of the big changes we are making, in order to keep Axanar alive and thriving into the future, is to turn over as much of it as we can to fans. This includes the running of the Axanar Fan Group on Facebook, which has been turned over to a group of fans now running that group.
Fans are developing comic books, doing animation art and more, all celebrating Axanar. We love it, and are eternally grateful for all of your support. You all are what is keeping the Star Trek we know and love alive and well.
At no point did Alec say that anyone could use and re-edit the existing Axanar footage (in any of its versions…used or unused) and release videos of their own. He specifically said that Axanar was turning over the operation of the Axanar fan group on Facebook to fans (rather than running it internally), and also that he and the Axanar team welcomed the creation of original fan content based on Axanar—like comic books, art and animations, and short stories.
In case there is any doubt, Alec Peters is making it clear that the use of any footage from any of the Axanar fan film projects is not allowed without getting his permission.
Oh, Lighten Up Already!
Over on Fan Film Forum on Facebook, shortly after Michael released his video and began stirring up a tempest, one of our members posted the bloopers from Star Trek: Horizon, which are very funny. Another member chimed in, “The best part of Star Trek are the bloopers.” And then CARLOS PEDRAZA added, “You should see the old Hidden Frontier bloopers. They were classic. If you can’t laugh at yourself you’re not worth taking seriously.”
Okay, I get it. I get it.
And you don’t have to convince me. I’ve covered the hilarious Star Trek Continues bloopers on this very blog site. I love bloopers!
But the important thing to remember here is that TOMMY KRAFT was the one who released the Star Trek: Horizon bloopers for his fan film. VIC MIGNOGNA released the Star Trek Continues blooper reels, edited exactly how he wanted them to be, using the best blooper footage and allowing the fans to laugh with the actors, not at them.
Alec Peters is actually planning to release Axanar bloopers on the Special Edition DVD that will be distributed to donors after the trilogy is completed. Like STC and Horizon, these bloopers are going to be carefully and lovingly edited together to be funny but also respectful…using only those clips that the cast members would approve Alec using. If Gary Graham or Kate Vernon didn’t want to see a particular line flub, then it wouldn’t be shown. Respect.
Michael Ilasi, of course, didn’t bother to ask any of the actors what they did and didn’t want to include. Just like he didn’t ask any of them for their permission. One of the cornerstones of Unlawful Use of Name or Likeness is the assumption that an individual has a right to privacy and a right to control their own publicity, even professional actors. Michael is violating both of those rights for Alec and the other Axanar cast members.
Alec should be allowed to edit and present those bloopers as he and the cast see fit…not to mock but to celebrate and remember the fun they all had filming. Instead, Michael Ilasi is trying to steal that privilege away from both the Axanar cast and from their fans.
Shame on him!
Not commenting on the rest of it, but you might wanna double your facts on Terry’s supposed non-disclosure agreement. According to Terry he signed no such document.
According to Alec, he did. Considering that Alec made everyone, including me, sign such a document, and that Terry has a history of lying (including to me), I’d tend not to believe Terry on this.
Then can someone produce the NDA Terry signed? Why hasn’t it posted yet? Not even a redacted version?
Why is that important again? Even without an NDA, Terry publicly released footage that he did not own and had no permission to do so. As for producing the signed NDA, I’ll leave that to Alec.
IIRC, I remember hum saying he DID sign it, but he called it “weak-ass”.
Yes, I kinda remember that, too. Screen cap anyone? (Someone’s gotta have it. We Trekkies screen cap everything!) 🙂
I’m not going to get into whether this was in poor taste, but legally how is it any different than the many re-edited interviews that the late night talk shows do, always for laughs and only occasionally for political commentary? Same for tabloid stories. IIRC, celebrities lose a lot of protections when they become famous. (I can’t find this video so I’m just going by the article here)
The article I linked to gets into that. Using publicly aired interviews and the such is okay when it’s news or social commentary on major issue, and when it concerns very public figures. Alec isn’t a public figure—ask any random 1,000 Americans “who is Alec Peters?” and see if any of them know…Alec is only well known among a small segment of Star Trek fans who happen to like fan films…and that’s not the general public by a long shot.
I can’t name any second tier cast members of “How I Met Your Mother” but that don’t mean they aren’t public figures.
If Alec had no ambitions of being a “public figure”, why did he jump in front of every camera and press piece that would have him? Oh and uhh spending so much donor money going to conventions to self promote…?
Kanye West is a public figure. Brad Pitt is a public figure. Mitch McConnell is a public figure. Alec Peters? Only a public figure is you define “public” as “a small percentage of the Star Trek fan population.
One of the most toxic examples of the sense of entitlement that people have occasionally expressed in regards to celebrities was shown in the comments section of the thankfully failed “Save Gawker.Com” Kickstarter. The opinion expressed(In my eyes) the idea that if celebrities want to keep something private and then it goes public, then it is automatically the fault of the celebrity in question AND THEY DESERVE THE CONSEQUENCES OF THAT FAILURE, EVEN IT CAME ABOUT BECAUSE PAPARAZZI CAMPED OUTSIDE THEIR HOMES AND WENT THROUGH THEIR TRASH, ETC.
This viewpoint is frankly shocking and unbelievably malevolent. The detractors, while condemning Alec and Co. for doing wrong, seem to express no similar concerns of their actions. They seem to embody a “well, it’s okay when WE do it” mentality. I find this to be contradictory and self-serving. Frankly, I’m getting the impression that they won’t be happy unless Alec and Co. are put against a wall and shot in a public execution broadcast on live television.
They fought their battle. They won whatever pound of flesh they’re going to get. The case was decided IN COURT. The outcome WAS FOUND TO BE SATISFACTORY TO THE IP RIGHTS HOLDERS OF THE STAR TREK FRANCHISE. For a group that presents itself as SO CONCERNED with the rights of the franchise owners, they seem to be dismissive of the conclusion that those same owners DECIDED ON IN A COURT OF LAW. Why? Because it wasn’t “scorched earth” enough for them? Do they presume to know BETTER than those same rights holders?
They’re not righteous, they’re just self-righteous and their platform gets flimsier every day.
Oh, and here’s a link to that Kickstarter for those that are interested: https://www.kickstarter.com/projects/2136064924/save-gawkercom/description
Urgh, when will the Axanar detractors grow up?
I wonder whether your reply to the 2nd point can get made shorter by the fact that the bloopers have not been publicly released. From my understanding, to parody something under fair use, you need to actually have something to pass commentary on, i.e. publicly released footage. As you describe it, the footage that got used was private footage, and thus nothing exists in the public sphere to pass comment on.
As I said, if sued, the case likely would not be easily dismissed.
I can’t wait to see the finished film, it ought to be very funny! I do have to say that it’s easy to claim you are being wronged but proving it in a court of law is another thing. Axanar got spanked for the legal errors that were made (I don’t think there is any reason to state them again here, I think The Whole situation is pretty well known) and I don’t think any court is going to be willing to come out in support after all that has happened. Ilasi might be asked to apologize by some of the real professional actors but other than that nothing will happen.
What the heck, let’s have two versions and the fans can decide which one they like better.
The real world doesn’t work that way, Ed. If sued, Michael will have to retain legal counsel. That’s a $5,000 retainer right there. Then a trial is $10-20K per month. Even if the judge or jury rules in Michael’s favor, the money to defend him is still gone. Amusingly, that was originally CBS and Paramount’s strategy with Alec. They figured he’d never be able to come up with the money for a legal defense. And even if he did, he’d never be able to withstand a protracted court battle. No one expected Alec to find a top-level IP law firm to represent him pro bono.
Alec ‘found’ the money for the legal battle? Really? Where did he find it? I bet the short will be produced, we’ll all (those of us who can) will have a good laugh and nothing will happen. Shall we talk about the original Star Trek bloopers that we all loved and shared on video tape. No one was hurt and any legal problem that happened were swiftly forgotten. It’s easy to yell’ ‘I’ll sue you’, not so easy to actually do so. It’s funny again but I don’t see Alec’s pro bono legal firm actually still involved with Axanar…I could be wrong but I think they got as far away as possible after the case was ‘dismissed’
Nope, Winston & Strawn is still in the picture if necessary. There just hasn’t been anything to do since the settlement was finalized. If Alec decides to sue anyone over this unlawful use of image incident, however, he’ll use a different law firm, as it would be a separate matter. And when I said “newfound money,” (did I say that?), I was referring to the proceeds from the recent sale of his house in Florida.
Actually we only poked fun at Alec in our short. All of the other actors were spared. (And what’s wrong with banjo music? My uncle played the banjo, I’ll have you know!)
Just curious, Michael, what made you think it was okay to use unreleased Axanar footage without Alec’s permission? Were you simply not aware of the law against that?
Looks like we’ll never know as your account has been terminated. However, I have to ask what is your major malfunction here? I get you don’t Like Alec, but seriously, you and your fellow Axanar detractors are acting like spoiled children throwing a tantrum after not getting the shiny toy.
I went to watch the videos – and to make the complaint that he released copyrighted material – to find that the account “Open Source Axanar – 30 Days Out!” has been terminated for multiple reports of using copyrighted materials.
Yep. Apparently, it wasn’t just Alec who complained to YouTube. It’s good to know that they acted so quickly.
Actually the account hasn’t been terminated, just suspended. When the channel files counter notices Peters will need to file suit within 14 days otherwise the channel and videos will go back up. That’s how DMCA complaints work.
I’ll let Alec know. Thanks.
Would Alec not already know that?
I would have hoped he’d know what a DMCA request actually is and how it worked before he enacted one. I shouldn’t be surprised that he didn’t.
Excuse me, I should have added “Let me be flippant…” before I said anything. 🙂
Not getting into the legalities of it or if it’s parody or mockery, I welcome the videos simply because it’s more Axanar footage than Peters has produced since 2014.
Actually, it IS footage that Peters produced in 2014!
Yep, and it’s been sitting there for four years. Where’s the promised blooper reel or “making of” movie? At least this way fans of Prelude get to see the footage they donated for.
Not your call to make, Sandy…nor Michael’s. Do you also think that someone edit the unreleased ST:NV “Torment of Destiny” footage with Richard Hatch into an episode and release it without James Cawley’s consent? I donated to make that fan film, too, and never saw it. Why aren’t you complaining about that? Oh, never mind, I already know the answer. James Cawley’s name doesn’t have “Alec Peters” in it.
No, I’m not complaining about that because I know nothing about it, nor was I ever a donor to anything of his. Simple.
These guys are not gonna stop until they are forced to…
Maybe not even then! 🙂
My question: Why does Alec Peters and AXANAR have a DOUBLR standard?
IE – It’s okay for Alex and Co. to make use of anything copywritten by CBS/Paramount – even AFTER they swettled with CBS/Paramount – accepting terms the Mr. peters previously stated he would never accept and would take his case all the way to the Supreme Court…
Yet, when others take his group’s work and Parody it – they are now subject to DMCA and Copyright claims frpm Alec Peters…
^^^
Oh, and isn’t that a Settlement violation in itself in that part of the CBS/Paramount Settlement was that Peters and Co. wouldn’t and COULDN’T claim copyright for ANYTHING AXANAR?
It’s amazing how when Mr. Peters is on the receiving end, he cries like an 8 year old?
As you can see from today’s blog, reality is much different than how you paint it, A.
Alec has made the world of Axanar available to any fan who wants to play in that sandbox, including me with my short story and Trey McElwain with his Axanar comics. What is a no-no is using actual footage from Axanar without permission. In the same way, Alec never used actual footage from any Star Trek; he made his own…like so may fan filmmakers before and after. In that way, there is nothing hypocritical going on. In fact, Alec pretty much showed CBS and Paramount how THEY should do it: make Star Trek open source for fan films, just don’t let any fan claim ownership of actual Star Trek episodes, movies, or the Star Trek IP.
This bloopers YouTube hit piece is not the Axanar I donated to or want to see. It’s mean spirited and meant with malice aforethought. The fact the Carlos crowd thinks it justified further illustrates their lack of good character.
For 3? 4? years I’ve been waiting for the full Axanar feature to be released. It’s been at least 3 years since shooting was “30 days out”. It’s been more than a year since CBS settled with Peters. And yet, to hear Alec, “Axanar” (the movie that was never made, aside from a mediocre 2 minute greenscreen scene) is so hugely popular it has a following and fandom of its own, outside of the “regular” trek fandom.
What makes Axanar so popular when it has not even been made? The 20 minute Prelude directed by Gosset was great, don’t get me wrong here – but what’s stopping Peters from making the next two installments?
“but what’s stopping Peters from making the next two installments?”
Nothing is “stopping” him, but some things are delaying him. Obviously, the biggest challenge is funding the project without being allowed to do a Kickstarter or Indiegogo. Crowd-funders allow money to be raised relatively quickly. Without those tools, the process is much slower.
Alec also needs to find a competent (preferably a VERY competent) director willing to work for next to nothing (possibly nothing at all; I don’t know the details of the settlement agreement) who also knows Star Trek, visual effects planning, proper green screen lighting, make-up, etc. Even though it’s only two 15-minute films, this is still a very complex production and not easy to direct.
Then there’s the scheduling of the actors. In the case of J.G. Hertzler, that means filming can’t even begin until after November 6. Why? Because J.G. is running for Congress in the 23rd District of New York State. Can’t he take off a weekend from campaigning to film a few scenes in Georgia, you ask? Well, that’s not the problem. The issue is that J.G. decided to run “in character” as 19th century author Samuel Clemens (a.k.a. Mark Twain) and grew his hair out very long to play the part in his congressional run. (No, I am not making this up!) The Axanar character of Captain/Admiral Sam Travis has short hair, and J.G. won’t cut his hair and screw up his campaign strategy just to appear in a fan film…even one he supports. So J.G.’s scenes won’t be filmed until very late this year. That’s just the kind of crazy thing that happens sometimes, but it is a factor in this fan film not being shot yet.
Why not start filming everyone else’s scenes and just wait for J.G. to record his scenes later on? That’s actually a possibility. But keep in mind that scheduling shooting requires assembling a large team in a single location—not just the actor(s) and director but also the director of photography, assistant directors, make-up people, costume coordinator, prop manager, sound engineer, camera man, boom operator, lighting people, etc. It’s easier to film all of the green screen scenes over a few consecutive days with the whole team coming into Lawrenceville, GA and staying over than to try to re-assemble everyone again a few months later for one final actor.
I’m sure you understand. 🙂