Last time, we took a deep dive into the fascinating world of the Plaintiffs’ Reply to the Defense Opposition to the Plaintiffs’ Motion for Partial Summary Judgment in the AXANAR lawsuit. (Say THAT three times fast!)
This time, we look at the equally fascinating Defendants’ reply to the Plaintiffs Opposition to the Defendant’s Motion for Summary Judgment. This is the way the law works, folks, with each side being given a fair chance to rebut the other side’s arguments and then to reply to those rebuttals. It is important to know copyright law even when dealing with owned property. If you are interested in finding out more about copyright law, you might want to check out somewhere like Bonamark to learn more.
As I mentioned last time, the plaintiffs’ latest filing comes in like a wrecking ball, angry and indignant and looking for strong emotion to carry the day. They want justice…and they don’t get particularly specific in describing what aspects of their intellectual property was copied and how. They give some general descriptions, like Klingons being “…a fictional, war-like species, speaking Klingonese, hailing from the planet Qo’noS and are known for engaging in battles with the Federation.” But they don’t go much further.
As you’ll see in a few moments, the Axanar defense team utilizes a very different approach. Less emotional and more (dare I say it?) logical, they go much deeper into the precise elements of copyright law and legal precedent. (As such, yeah, this is gonna be another long blog, folks…sorry.)
It’s the hammer versus the scalpel, and it’s time to see how an intellectual property “surgeon” operates…
Right out of the starting gate, the defense filing separates itself stylistically and thematically from the plaintiffs’ brief. Whereas the plaintiffs begin with a hypothetical independent Star Trek film produced by a competing Hollywood studio that doesn’t use Kirk and Spock (and how that can’t possibly be considered acceptable), the defense begins by establishing certain facts about their creative works (Prelude and Axanar) and the law’s take on it (and to save space, I’m leaving out the case citations when I quote):
Plaintiffs have placed just two of Defendants’ works at issue: “Prelude to Axanar” and “[t]he Axanar Motion Picture.” Because the undisputed facts show that the “Axanar Motion Picture” does not yet exist, Plaintiffs cannot “demonstrate that the works are substantially similar in both ideas and expression.” It is simply not possible to determine from a superseded draft script, which has already been substantially altered, whether a future, potential film will ultimately be found to infringe.
They add this important footnote, as well:
Plaintiffs’ claim that the Axanar script is “locked” is belied by the undisputed evidence.
I should mention that the point the defense is making here is that any claims against the full Axanar movie should be thrown out because it doesn’t exist yet. And you can’t sue someone for something they haven’t actually done. Obviously, Alec Peters is planning to change the script so he doesn’t get sued again. So if he wins on fair use because (among other reasons) Prelude to Axanar is a mockumentary, then that’ll be the style of the sequel, as well. So really, the script in evidence is far from final.
And by this point, you might have noticed that it feels like the defense is writing a legal textbook…full of words that’ll make you break out the ol’ dictionary:
Defendants’ fair use defense militates strongly against consideration of Plaintiffs’ premature claim, for any infringement analysis that fails to consider fair use runs a grave risk of impinging upon the First Amendment.
“Militate” means “To have force or influence; bring about an effect or a change.” (Just thought you’d like to know.) And about that First Amendment comment, I’ve been researching this a bit, and it turns out that there’s an interesting push-pull debate about freedom of speech versus copyright law, as one kinda cancels out the other, of you think about it. And thus we have the concept of “fair use,” which keeps copyright protections from completely obliterating free speech.
So the defense reminds the judge of something VERY important:
“[fair use] exceptions…are at the heart of fair use’s protection of the First Amendment, as they allow later authors to use a previous author’s copyright to introduce new ideas or concepts to the public”). Among other things, “[f]air use requires a fact-intensive and context-specific evaluation” of the “purpose and character of the use… [in the] new work.”
In case you missed it, let me pull out the most important snippet from that last mini-lecture and bold it for you:
fact-intensive and context-specific evaluation
Remember that defendants are arguing first for the judge to completely drop the full Axanar feature from the complaint…limiting the trial solely to Prelude. (That’ll make things easier for the defense.) Well, if the judge is supposed to first do a “fact-intensive evaluation” of the full Axanar movie, well, that’s gonna be tough if it doesn’t actually exist yet (beyond a script that is not even close to finalized anymore).
Okay, next we dive into much more fun stuff! We leave the First Amendment in favor or looking at whether or not Axanar is “substantially similar” to Star Trek. Many of you might say, “Jeez, of course it is, Lane! They were even gonna call it Star Trek: Axanar until they decided not to! It’s got Garth, Soval, Klingons, Vulcans, the USS Enterprise, uniforms, planets, dilithium, transporters! How could Axanar possibly NOT be Star Trek, you idiot???”
So if that’s the mind-set you’re starting from, you’re in fine company. The studios and their attorneys can’t imagine Axanar being transformative either. They’re convinced Axanar is Star Trek. But is it really? Let’s find out. (I told you this was gonna be fun…)
The defense cites a Ninth Circuit copyright case from 2002 for the following important legal guideline:
Only if works are substantially similar when “taken as a whole” can there be infringement.
We need to spend a moment on this point, as it seems to be something that many–including the plaintiffs and their attorneys!–aren’t understanding. To quite literally illustrate what is being talked about, let’s take a look at this image I got from the University of Pennsylvania Law School website:
These are two rugs that, at first glance and, as a whole, look almost completely different from each other. If I said the one on the left was “substantially similar” to the one on the right (or directly copied from it), you’d probably scratch your head in confusion.
But look a little more closely. Do you see that “scarab” looking thingy just below the center on both rugs? It’s orange and yellow on the left rug and brown and gray on the right. And it’s flipped upside down, but it is the same design element in both rugs. This is also true of the gray things above the “scarab” that look like lizards crawling away diagonally up towards the left and right. And there are even more “copied” elements if you look long and closely enough.
So is one of these rugs guilty of infringement on the other? Well, if you look at the individual, fragmented elements, then yes. But the law realizes that if you get too picky with the details, you start to squelch creativity. The two rugs, as a whole, are very, very different. And that’s why the defense reminds the judge of the following:
Fragmented similarity is insufficient if it does not rise to the level of substantial similarity of the works taken as a whole: “[i]f no reasonable jury could find substantial similarity out of… fragmented similarity, summary judgment [for defendant] is proper.”
This is where the plaintiffs go one way (they claim the two rugs are substantially similar because the fragmented design elements are the same), and the defense goes the other way (the rugs, taken as a whole, are each original creative expressions…even though they feature similar and, at times, identical elements). Whom does the law say is right? Well, the defense brief states the following:
Plaintiffs fail to provide sufficient evidence to show that the works at issue “taken as a whole” are substantially similar. Instead, Plaintiffs argue that Defendants copied disparate “elements” of their alleged works. Not only is this insufficient as a matter of law to show infringement, but because the “elements” Plaintiffs point to are largely or entirely unprotectable, the Court must “filter out and disregard” them.
Oh, look, there’s actually yet another thing to consider. It’s not just about the “taken as a whole” concept, there’s also a question of whether or not the fragmented elements are even protectable by copyright in the first place!
Going back to that rug, just because the rug on the left is registered as a copyright, does that mean that the “scarab” thingy is also registered? Or does that design need to be registered separately? And even if it is registered separately, is that “scarab” distinctive enough to deserve copyright protection? Or–and this is super-important!–would granting a registration on that “scarab” risk preventing other artists from making scarab designs of their own because they would risk being too similar to something that should really be considered more generic?
It seems I’m writing a mash-up seminar on law and rug-design!!!
But hopefully, you get where I’m going with this because it’s really dead center of what this entire case is about and how it could affect nearly all fan films (and not just Star Trek!). So remember that you saw the rugs here first!
Back to the defense…and they have yet another important legal point to make from a Ninth Circuit case from 2003:
“[only] characters that are ‘especially distinctive’ or the ‘story being told’ receive protection apart from the copyrighted work.”
In my opinion, this eliminates Soval immediately. If you read Part 1, you saw my Soval/Sarek joint description. So Soval is almost immediately not especially distinctive (sorry, Gary Graham!). And despite appearing in eleven episodes of Enterprise, Soval was never the main character or main story in any of the episodes he appeared in.
Garth, on the other hand, was certainly the “story being told” in the episode “Whom Gods Destroy.” However, the question then becomes, if the defendants did copy Garth, how much did they actually copy? Certainly not the whole murdering psychotic lunatic with shape-shifting powers part. So what is left? According to the defense:
Moreover, even if there were anything distinctive about this minor character, Plaintiffs have not provided facts to show that Defendants copied anything more “distinctive” about him than his name, home solar system, and captain’s rank, none of which is protectable by copyright. (Garth is a common Welsh name; Izar is the name of a star in the constellation Boötes, the herdsman.)
So what about using Klingons and Vulcans? Glad you asked, because the defense has quite a bit to say on that:
It is simple common sense that no general group (such as “Vulcans,” “Federation officers,” or “Klingons”) can possibly be a “character” in any meaningful sense of the word—or have the sort of ‘especially distinctive’ qualities required to be a protectable character under copyright law. (Plaintiffs themselves argue that one of Defendants’ original characters is not original, but “simply a Klingon.”) Plaintiffs’ attempt to define the Vulcan “species” as a “character” is telling: “Vulcans are serious and contemplative and Vulcan men are usually depicted with pointy ears, upswept eyebrows, and straight, dark (or gray) hair cut in a ‘bowl style.’” None of these characteristics, either alone or in combination, is sufficiently particular to define a distinctive character.
Quick tangent, folks. Back in September, I wrote a blog editorial discussing what might possibly go wrong for the studios if they took this case further. This is one example of what I was talking about. Imagine if Judge Klausner issues a summary judgement agreeing that Klingons and Vulcans are not protectable under copyright law. What would that mean for fan films? For Trek licensing? For the career of the lawyer at CBS and/or Paramount who first thought it would be a good idea to sue a small group of Trekkies?
Okay, back to the brief…
Still less persuasive is Plaintiffs’ argument that Defendants infringe the Vulcan “species” merely because the same actor who appeared in a handful of Plaintiffs’ works also appears in Defendants’ works. Of course, Plaintiffs have no rights to actor Gary Graham’s identity or features. Once that patently unprotectable element is filtered out, all Plaintiffs are left with is an (unprotectable, unoriginal) bowl hairstyle, a pair of (unprotectable, unoriginal) pointed ears, the (ancient Roman) word “Vulcan,” and the (Hindi) name “Soval.” None of these elements, alone or in combination, make “Vulcans” protectable by copyright law.
And thus has the defense deconstructed Soval into his non-protectable, fragmented component parts (the scarab and lizards on the rug). Assuming the judge agrees, there goes Soval…
Next up, we switch gears to the idea of Axanar being transformative. I’ve tried to discuss this before, but now the Axanar legal team can do it for me:
Plaintiffs’ argument that there is “nothing transformative” about Defendants’ works because they were “created to function as [] Star Trek work[s]” is simply wrong. From Virgil’s Aeneid (based on a minor character from Homer’s Iliad) to John Gardner’s Grendel (retelling Beowulf from the monster’s point of view), and from Campbell v. Acuff-Rose to Suntrust Bank v. Houghton Mifflin Co., there is ample precedent for artistic works that “comment” on other artistic works.
Okay, quick reality check. The first two examples they just listed (Aeneid and Grendel) are derivative works stemming from non-copyrighted (ancient) epic poems. But the latter two examples are relevant. Both cases (feel free to look them up) established that parody qualifies as fair use.
But is Prelude to Axanar a parody? Well, it turns out that there’s also another way to qualify for fair use, something known as “comment”…
Plaintiffs’ crabbed interpretation of fair use lacks any basis in the Copyright Act or decisional law. Indeed, §107 expressly states that copying for purposes of “comment” may be fair use, without any limitation as to the type of comment or the target of the comment.
So Prelude to Axanar could comment on anything…not just Star Trek? It could comment on my taste in clothing? Apparently so…
“The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those… identified in the preamble to the statute.” As the Supreme Court has discussed, parody is but one form of fair use “comment or criticism.” (“less ostensibly humorous forms of criticism [than parody] can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”).
Okay, so Axanar does NOT need to be funny and does NOT need to comment critically on the original work (Star Trek). It seems that the bar has been significantly lowered. I say “seems” because, to be honest, it’s beginning to sound like almost anything could be considered fair use. All the infringer has to do is say it’s a parody or commentary. And actually, he doesn’t even need to do that:
It is irrelevant that Defendants may not have explicitly claimed fair use as “parody” or “satire” before Plaintiffs brought suit. “What is critical [in assessing transformativeness] is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece.” (“[defendant’s] testimony that he ‘[doesn’t] really have a message’” did not preclude a finding of fair use).
Wow…commentary is in the eye of the beholder, huh? My mind is kinda blown…and a little dubious (despite the legal quotes). Fortunately for the defense, Alec Peters did say something about his fan film all along that kinda shows Prelude to be transformative…
And in any event, here Defendants made clear in their promotional materials, crowdfunding campaigns, and through the works themselves, that they were presenting Star Trek in a manner that had never been seen before.
Alec did use to brag about that. But still, the plaintiffs were pretty adamant in their motion that Alec Peters had “faithfully recreated every possible element of the Star Trek universe, down to excruciating details.” The defense, however, sees it a totally different way (big surprise, huh?). But it really is as though they are talking about two entirely different fan films! Here‘s what the defense said about the amount allegedly copied…
For purposes of analyzing transformativeness, the relevant question is simply this: did Defendants take the material allegedly copied—names Plaintiffs borrowed from astronomy (Izar), Roman mythology (Vulcan), and Hindu culture (Soval); the idea of a “contemplative” alien species whose males are “usually” depicted with “pointed ears”; the merest sketch of a “hero” named Garth of Izar—and “transform” it into something that was not inherent in that source material? And does the new work, “at least in part, comment[] on [the prior] work[]?” Here, the answer to both questions is clearly: Yes. Because Plaintiffs provide no evidence to the contrary, the transformativeness of Defendants’ fair use should be deemed established.
About that last sentence, the plaintiffs forgot to do something important. The defense has argued in earnest that they transformed the original Star Trek into something new: they created new ships, new characters, expanded significantly on an existing character and thereby turned him into something new, and touched upon a previously-unexplored time period and major battle in Star Trek lore. All of this, according to the defense motion, was transformative.
The plaintiffs responded by saying over and over again that stuff was copied, but they never actually offered proof that things were NOT transformed. For example, the defense says that Kharn is a completely original character. The plaintiffs say that because he’s a Klingon, he isn’t original. That, as it turns out, might not be enough to prove that Kharn is not original.
So what about those alleged market damages from Axanar? Well, once again the defense opens up with full phasers set on “boring legal lecture”:
Plaintiffs also ask the Court to hold that, as a matter of law, a transformative, non-commercial fan work that adds richness and depth to Plaintiffs’ fictional “universe” will “inevitably” “effect” the market for their alleged works. This is pure speculation. The Ninth Circuit requires far more to show market harm. For example, in Perfect 10, Inc. v. Amazon.com, Inc., the Ninth Circuit disapproved the district court’s “reason[ing]” that users who could download images “free of charge…are less likely to pay for a download, and [that] the availability of [such]… images would harm [plaintiff’s] market” for licensing. This was insufficient: in the absence of a finding that users had actually downloaded such images for competing uses, “[t]his potential harm to [plaintiff’s] market remain[ed] hypothetical.” Similarly here, “there is no actual evidence of any [cognizable market] harm,” and “[t]hus, on this record…any market harm remains hypothetical.” Nor do Plaintiffs provide any evidence that Defendants’ non-commercial use “is competing in [an] actual market that Plaintiffs have already exploited.”
In other words, if the plaintiffs try to argue that fans donated to Axanar and therefore would NOT continue to financially support or consume actual Star Trek offerings and products from the studios and their licensees…well, the Ninth Circuit has already ruled that as hypothetical and insufficient.
Note that the defense team is meeting many of the plaintiffs’ general arguments with legally specific counters. This is why this case is not a slam dunk for the plaintiffs the way many think it will be.
For finish up, the defense make one final argument that, while not saving the best for last, is still pretty significant. They address a major claim that the plaintiffs use repeatedly that Alec Peters and his team took great pains to make Axanar as close and accurate to the original Star Trek works as possible. And according to the plaintiffs, that attention to detail should be damning to the defendant when it comes time to prove that he was NOT copying Star Trek when he so obviously was. Is there any way out of this seemingly rock-solid argument? Well, apparently there is:
Plaintiffs attempt to portray Defendants’ concern for accuracy—a necessity where one work comments on another—as somehow implying Defendants’ culpability and that Defendants’ copying is extensive. This cannot be the law: under Plaintiffs’ reasoning, only a slipshod work, or one lacking any relationship to the original, could possibly be a fair use—but in such a case, fair use would not even be at issue. Plaintiffs’ proposed test would preclude not only fan fiction, but parody and countless other protected forms of comment and criticism that “[further] the goal of copyright, to promote science and the arts.”
In other words, of course Alec and his team wanted to make their fan film accurate and true to Star Trek. That was necessary in order to make the commentary effective. If Axanar only bore the merest passing similarity to Star Trek, its impact would have been lessened or even eliminated completely as a commentary on Star Trek itself or else using Star Trek to comment on an aspect of the world in general.
Now, will any of this legal mumbo-jumbo actually work? As always, it’s hard to say. I’m not predicting a winner one way or the other with these blog analyses. I simply review and summarize the most salient and interesting parts of each filing and provide some commentary along the way of arguments I think might be either strong or flawed.
But I would like to say one important thing before I end this super-long blog. There are relatively few copyright infringement lawsuits that wind up in federal court. And that’s why you’re seeing the same dozen-or-so cases being referenced over and over again by both sides (because copyright cases are rare)…and each side cherry picks the parts of those rulings that support their arguments and leaves out parts that don’t.
But because major copyright infringement lawsuits are so rare, and each is decided on a case-by-case basis, it’s hard for an attorney to know precisely how to tackle them. As such, don’t just assume that the scalpel strategy is better than the hammer strategy…or vice-versa. Either could be the way to go, and this case is by no means “all-but-won” by either side.
So stay tuned (I say that a LOT!), as the next big event (and it’s HUGE) is only eight days away: oral arguments in front of Judge Klausner…a last chance to get him to rule in favor of one side or the other. Will this trial end before it even begins? We’ll know pretty darn soon!
First off…long blog in number of words? Yes Long blog in interest factor? No. Keep them coming!
Question: Are the oral augments in front of the judge done in open court where the public can view the proceedings?
I’m planning to be there, so yes. The only problem is that Wendy has a big meeting at 8:00am that Monday and can’t drive Jayden to camp that morning. We don’t have a regular sitter, and camp drop-off isn’t until 9:00…which is when the hearing starts all the way on the other side of town! I might have to bring Jayden to court (with an iPad and headphones!). We’ll see.
Jonathan, where can I find an unbiased discussion of the legal proceedings? I understand your bias but to me it seems both viewpoints need to be represented.
There’s no unbiased discussion of this case anywhere that I know of. But Carlos Pedraza pretty much balances things in the other direction (favoring the plaintiffs) on Axamonitor. Like me, he’s very thorough and does a lot of research (credit where credit is due). So if you feel like you’re getting just one side of things, go to Axamonitor for the other side and decide for yourself, my friend. 🙂
Wow, really? This is the legacy of Fox news — people don’t know what unbiased reporting looks like any longer. Unless something is slanted towards the side they approve of, they call it “biased.” In a world where no one trusts anything they don’t already agree with, how does anyone learn anything any longer?
As I said, since no blog about this case is truly unbiased, just read everything (if you have the time)and decide for yourself. I read Pedraza’s stuff frequently (not Hinman’s though), and when I have the time, I love to look over Janet Gershen-Siegel’s stuff:
http://www.semanticshenanigans.com
There’s a lot to take in, but in the end, the only opinions that really matter will be those of 6 to 12 people sitting in a jury room..or one old guy dressed in a black robe. 🙂
Calm yourself. I made a comment, get over it. In case you noticed, Jonathan answered me nicely and rationally
To quote Dr. McCoy to Khan, “I was just trying to avoid an argument…”
🙂
“It would be most effective if you would cut the carotid artery just below the left ear.”
I remember it well!
He’s a better man than me because there’s your bias and unbending attitudes are the reasons I blocked you on Facebook, Edward. And that came about after I tried to give you the benefit of the doubt AND encouraged a couple of other people to do so as well
Based on basic theory of knowledge “unbiased” reporting is a myth. All reporting necessarily selects data, consciously or unconsciously, and is laden with the previous experiences of the one doing the reporting. That is just the same in presumably “objective” sciences, where peer review is used as a checks and balances system to balance possible preconceptions and biased interpretation of data.
And no, Ayn Rand doesn’t qualify as a counter argument…
There is a substantive difference between ‘objective’ and ‘unbiased’. Reporting will almost always carry, and reflect, bias. Reporters are people, and people have bias. That’s not a bad thing. Murrow had a bias, and thus went McCarthyism. Cronkite had a bias, and thus went Vietnam. Bias isn’t always a bad thing.
What I look for in reporting is objectivity. Is the person telling me the story making an effort to expose opposing viewpoints and facts, even when they don’t support his or her personal bias? Are the conclusions reached at the end of the piece representative of all the relevant facts, or simply the items that support the desired narrative.
Thus far, these blog entries have been, on balance, objective. This is not to say that Jonathan isn’t shy about sharing his opinion. This is, after all, his blog. But he’s done a better job at overall objectivity than other blogs I’ve read about this issue.
I appreciate that, Kevin, thanks.
I swear this is “almost” as entertaining as the Mock-u-mentary and possibly the actual Feature. I hope that the “[Court] Battle for Axanar” – the documentary – can be released commercially when this is all over and make one trillion trillion bucks! Think about what CBS/Paramount would do then….heads would EXPLODE.
But seriously though Mr Lane are doing a EXCELLENT job.
“But seriously though Mr Lane are doing a EXCELLENT job.”
Tell that to Edward Darrow! 🙂
Hey, Tim! I agree with you 1000%! A feature documentary on this subject would not only be a fascinating film, but it would be an opportunity to explore much larger issues, such as copyright and IP in the internet age, how does fan fiction play into it, and, in a world where everyone has a 4k video camera on their phone and the technology for high-quality filmmaking is so accessible, what *is* a fan film in today’s world anyway? This film *has* to be made.
I would be willing to donate to get it made AND pay full price to watch it in IMAX
I also concur!
…interesting – especially the rugs! =)
…i still agree that the case against the (unmade) supposed Axanar “feature” is premature and should be dismissed. =)
…in my mind, Prelude qualifies as transformative (mockumentary), but is open to dispute. However, i have trouble seeing it as parody or (direct) commentary…?
Team Axanar Legal continues to do an EXCELLENT job IMO… if they don’t get it dismissed, at least they are giving the plaintiffs a hell of a lot of homework to do! =D
…also, nice allusion to consequences for studios / lawyers! =D
Who knows, Jayden might find the proceedings spark his interest in the law in one capacity or another. Or perhaps help him decide to avoid the law? One never knows until the “trial” is over!
I doubt Jayden’s mom will let him ever become a lawyer–she loves her son too much! 🙂
Actually, Jayden really wants to be president after Donald Trump. So an appreciation for law might be a good thing!
Jonathan: Where you say, “And that’s why the plaintiffs remind the judge of the following: Fragmented similarity is insufficient…”
That should be “why the DEFENDANTS remind.”
GREAT blog series, thanks!
Yeah, that’s kinda the reason this isn’t a slam dunk. Had the studios picked on New Voyages or Continues first, it would have been a totally different story.
It’s funny you mention Phase II/New Voyages, Jonathan. Their second episode reminds me so much of what the CBS lawyers are charging at Axanar. While I enjoy P2/NV “In Harm’s Way” used elements of several TOS episodes, depicted Vulcans and Klingons, had former Trek actors appear, one of whom reprised his role in a transformative way (Decker was shown as living a quiet suburban life instead of a revenge driven Commodore) faithfully recreated sets, featured the USS Enterprise, used Captain Pike and showed Starbase 12 where Pike was housed after his “accident”. I’m sure I’ve probably forgotten things as well but it really just shows the only real difference between the two productions was Axanar scared the bejeebers out of CBS/Paramount
NV also used Kirk, Spock, McCoy and the rest of the main characters…each of whom is individually registered as a copyright (unlike Garth or Soval). Had CBS (or Viacom) sued NV or STC, they would not have been able to use the same defense as Axanar. Interesting, huh?
I think an interesting analogy would be writing a series of mysteries about a minor character from the Sherlock Holmes stories (which the Doyle estate has fought tooth and nail to protect), and give that minor character a front-and-center major role, include Scotland Yard, maybe even street urchins, some of the action even takes place on Baker Street. But no Sherlock Holmes, no Watson, no Mrs. Hudson…
Similar, inspired by, yes, but infringing? Hmm.
Good catch, Everett! It takes a village to edit a blog, y’know. Thanks muchly…correction made!
“Cherry-pick” not cheery pick. Otherwise, good job as usual.
Man, two typos (this one and the one Everett found) in one 3,700-word blog! That’ll tach me to post at 2:30am!!! Thanks, Frank.
*teach?
Man! You’re getting it from all sides tonight!
LOL.
To quote Charlie Brown: “Good grief!” (I’m leaving this typo in.)
One of the things you mentioned in this blog (and have mentioned before) sparked a thought I had not considered before and might even be relevant.
[“Vulcans are serious and contemplative and Vulcan men are usually depicted with pointy ears, upswept eyebrows, and straight, dark (or gray) hair cut in a ‘bowl style.’” None of these characteristics, either alone or in combination, is sufficiently particular to define a distinctive character.]
Couldn’t this description, almost in its entirety, be used to describe ‘Romulans’? Doesn’t seem very distinctive to me. Romulans are definitely ‘serious’ in that they are confrontational at every encounter. Not so sure about ‘contemplative’ though the Romulan Commander in ‘Enterprise Incident’ seemed to possess that trait. But hell, ‘pointy ears, upswept eyebrows and straight, dark (or gray) hair cut in a bowl style’ … um, well, yea-aahh!
Perhaps I’m misreading this next part so feel free to correct me. You stated, and I quote, “Fortunately for the plaintiffs, Alec Peters did say something about his fan film all along that kinda shows Prelude to be transofrmative…” (No, I’m not talking about the spelling of transformative…) Did you mean the defense (or perhaps, Unfortunately)? Seems to me that if Alex said some things that showed ‘Prelude’ to be transformative, that would be good for his case. And I thought that’s what you meant.
Again, an excellent evaluation. You and I seem to interpret the points made by both sides in much the same way.
FOUR typos in one blog??? This is humiliating!!! Off to fix them now…
Thanks, IDIC
Certainly a description of Vulcans would fit Romulans, since Romulans are technically Vulcans to begin with…
Regarding this:
It is simple common sense that no general group (such as “Vulcans,” “Federation officers,” or “Klingons”) can possibly be a “character” in any meaningful sense of the word—or have the sort of ‘especially distinctive’ qualities required to be a protectable character under copyright law. (Plaintiffs themselves argue that one of Defendants’ original characters is not original, but “simply a Klingon.”) Plaintiffs’ attempt to define the Vulcan “species” as a “character” is telling: “Vulcans are serious and contemplative and Vulcan men are usually depicted with pointy ears, upswept eyebrows, and straight, dark (or gray) hair cut in a ‘bowl style.’” None of these characteristics, either alone or in combination, is sufficiently particular to define a distinctive character.
Let’s assume for a second that Vulcans, Klingons, or Federation Officers can be considered characters (I mean, that’s what the Plaintiffs are suggesting). I doubt they can, but for argument’s sake, let’s consider what that would mean. If an individual character has to be “especially distinctive” in order to be protectable, and if an entire species or group can be considered a character, I’d suggest that neither Klingons, Vulcans, nor Federation Officers can possibly meet that standard. Why? Because none of these groups are entirely homogeneous, at least not enough so that any given character from any of those groups automatically fits every attribute on some list of theoretically protectable traits. Let me explain.
Klingons
Of the three, an argument regarding homogeneity is probably the strongest with respect to Klingons, but not flawless. If a central trait of all Klingons is that they’re from Qo’noS, then what about the Klingons born elsewhere?
The Plaintiffs have already addressed the makeup issue regarding the differences between Klingons as they appear in TOS versus all other depictions, but they’re hardly the only aggressive, ill-mannered species in the canon with sagittal ridges. If you showed a juror a photo of a bald Klingon and a bald Kazon and gave them selections of dialogue, could they tell the difference? Heck, more often than not when it came time to create a new alien-of-the-week, it was a matter of adding ridges somewhere (no disrespect to Michael Westmore).
If they’re all warriors and war-like, what are we do to with Kurak, the Klingon warp field scientist from TNG: Suspicions. Or, what are we to do with Klingon lawyers like Kolos from ENT: Judgment. This is especially true when Kolos tells Archer: “My father was a teacher. My mother, a biologist at the university. They encouraged me to take up the law. Now all young people want to do is take up weapons as soon as they can hold them. They’re told there’s honor in victory, any victory. What honor is there in a victory over a weaker opponent? Had Duras destroyed that ship he would have been lauded as a hero of the Empire for murdering helpless refugees. We were a great society not so long ago, when honor was earned through integrity and acts of true courage, not senseless bloodshed.” And of course there’s Klingon physician Antaak, from ENT: Affliction and ENT: Divergence. There’s also the pacifist Klingons who live in a Romulan colony/prison in TNG: Birthright, who do everything to avoid conflict with their Romulan guards, even siding with them against Worf. You could argue that Shakespeare-loving High Chancellor Gorkon deviated somewhat from this mold too, as even his daughter Azetbur pointed out something about him was strongly atypical compared to most Klingons: “Many speculated about my father’s motives. There were those who said he was an idealist, others said he had no choice. If Praxis had not exploded, then quite possibly his idealism would not have found expression.”
As homogeneous as they might be, there are plenty of canon deviations that make it difficult to provide an all encompassing definition of a Klingon.
Vulcans
The idea that Vulcans are all one-note is much easier to dismantle. Their culture varies widely depending on “when” you’re sampling. We know from many canon sources that ancient Vulcans pre-Surak were violent and illogical, and really not all the different from modern Klingons. And we know that it isn’t that they have no emotions, but that they suppress them.
We know that even in the modern Trek era (ENT through VOY) that a standard definition of a Vulcan isn’t always applicable. If the Plaintiffs wish to insist that Vulcans are, “serious and contemplative,” then what are we to do with illogical, emotional, and humorous V’tosh ka’tur Vulcans like those the Enterprise crew met in ENT: Fusion. And there’s the central Vulcan plot-point of the V’tosh ka’tur featured in Star Trek: The Final Frontier…Spock’s brother Sybok.
And of course there are other factions, political and philosophical. There’s the hyper-militant followers of the Vulcan High Command in the ENT era, and their detractors, the more peaceful Syrrannites, as seen in ENT: The Forge and ENT: The Awakening. Ostensibly, the mind meld practice could be considered something attributable to Vulcans in some copyright definition, but even that is blurred when it was viewed with disgust during the centuries prior to and including the ENT era, but viewed as normal but esoteric by the TOS era, and as common knowledge by the TNG era. So it wouldn’t be something typical of every single Vulcan. It wasn’t even isolated to Vulcans, as there have been many species (including some humans) with such telepathic abilities: humans like Dr. Miranda Jones in TOS: Is There In Truth No Beauty? or Lieutenant Commander Gary Mitchell in TOS: Where No Man Has Gone Before, to Betazoids in TNG, to Remans in ST: Nemesis.
As to the physical appearance being distinctive for an entire species, I submit that if Erin Ranahan showed the jury a photo of actor Mark Lenard as Sarek from TOS: Journey to Babel next to a photo of Mark Lenard as the Romulan Commander from TOS: Balance of Terror, things would get interesting. Especially if she asked the jury to pick which one is a logical, emotionless, ambassador, and which is a passionate, desperate, black-ops tactician. Granted, Romulans are an evolutionary offshoot of Vulcans, but if Alec’s fan film had been a story set on Romulas, I doubt Paramount/CBS would be suing for infringing a Vulcan copyright…they’d be suing based on a Romulan one.
Besides, how do you put a species in a box who considers the IDIC one of the highest concepts of reverence? Okay, that probably wouldn’t be an admissible argument, but nevertheless.
Federation Officers
Finally, the hardest collective noun to defend would be Federation Officers. Can they be reduced to a single race/species? No, as they aren’t all human (not that humanity is copyrightable). Can they be reduced even to a group of species that are members of the Federation? No, not technically. Qo’noS isn’t a Federation member planet, yet we have a Klingon Federation officer in Worf. Ferenginar isn’t part of the Federation either, and yet we have a Federation officer in Nog. The same is true of Bajor and Ro Laren.
So what reducible, constant thing can be said of Federation Officers? You’ve said that uniforms can’t be copyrighted, so that’s gone. What else is central? Is it the code of conduct and Starfleet regulations? How many times as Picard lectured someone about how those are the things the Federation holds most dear (you read that in his accent, didn’t you)? To me, this would be the closest thing you could reduce a Federation Officer to, but that really wouldn’t help the Plaintiffs.
Why? Well, how many important Federation officer have we met that violated major laws or Federation ethics? Captain Ronald Tracey from TOS: The Omega Glory not only violated the Prime Directive, but very nearly committed genocide against part of Omega IV’s population (maybe he should have destroyed the script, as it might be the worst TOS episode). Former Starfleet cadet Captain R. M. Merik violated it during TOS: Bread and Circuses by helping the Roman-styled regime. Starfleet Academy professor John Gill culturally contaminated the planet Ekos with Nazism in TOS: Patterns of Force. While not necessarily for malevolent reasons, some officers have violated the Romulan Neutral Zone: Commodore Stocker did when he took command of the Enterprise in TOS: The Deadly Years; Captain Donald Varley and Captain Picard did to get to Iconia in TNG: Contagion. There’s Rear Admiral Erik Pressman who directly violated the Treaty of Algeron in TNG: Pegasus, and disparaged his former crew by accusing them of mutiny. Do we have to talk about what Sisko does in DS9: By the Pale Moonlight? Lieutenant Commander Tuvok, Lieutenant B’Elanna Torres, and Lieutenant Joseph Carey violated Sikaran law behind Captain Janeway’s back to take Sikaran transporter technology in VOY: Prime Factors. Vice Admiral Matthew Dougherty in ST: Insurrection colluded with the Son’a to kidnap the Ba’ku and steal their planet. And really, how many times did Kirk violate the Prime Directive??? This doesn’t even touch on Section 31’s various dealings, and I’m loathe to mention Admiral Alexander Marcus from the Kelvin Timeline, as I personally dislike most of the Abramsverse.
So all in all, the Federation Officers group is a patchwork of conflicting standards, species, ethics, rules, etc., that would be very hard to outline in a coherent, copyrightable, all-inclusive set of homogeneous descriptors. Instead, it would at best be a lengthy list of broad statements, full of caveats and incongruities.
Sorry for the length, but if making a species copyrightable requires a tightly defined set of parameters that apply uniformly across all characters and that are “especially distinctive”, then I don’t think these three groups really hit that high water mark. About the only species in all of Star Trek canon that could truly be considered utterly homogeneous and internally identical would be the Borg, and that’s if you forget disconnected Borg like Seven of Nine, Hugh, and the nameless Borg from TNG: Descent.
Man, Dexter, I gotta ask Erin whether it’s too late to file an amicus brief! That essay is friggin’ BRILLIANT!!!
Thanks Jonathan.
After reading it again, I realized two other points.
First, regarding the Vulcans…
Recall the proto-Vulcan species on Mintaka III in TNG: Who Watches the Watchers? If a jury were shown a photo of a real Vulcan alongside one of a Mintakan, could they tell the difference? Both act essentially the same as well, being largely stoic and logical. The episode essentially goes out of its way to say that Vulcan-like attributes are not necessarily indigenous to Vulcan or to Vulcans, as an example of convergent evolution.
And second, regarding Federation Officers…
Captain Archer actually attacks a weaker ship and steals an Illyrian warp coil in ENT: Damage, leaving a ship stranded without warp drive lightyears from Illyria. He leaves them some supplies, but we never found out if they survived or not. I suppose technically the Federation doesn’t exist yet at that moment, but the point still stands regarding a code of ethics for Starfleet officers.
I was gonna mention the Mintakans, Dexter. Also, you didn’t mention that Tuvok doesn’t have a bowl hair-cut (for obvious reasons) and that Captain Rudy Ransom of the USS Equinox wasn’t exactly one of Starfleet’s finest either…although everybody has a bad few years every once in a while. 🙂
Very true. I’m sure if we thought about it a bit more, we’d think of some more examples. In over 700 episodes and films, covering centuries of Star Trek mythology, there’s plenty of material to mine. As Spock once said, “history is replete with turning points.”
Stonn of Vulcan didn’t have a bowl cut either. 🙂
Frankly, Chris, I’m stonned to learn that! 🙂
Great points. 😀
Another thing I’m not sure was bought up, but can CBS/Paramount surely can’t copyright Planet Vulcan and Vulcan’s because it was used in other Sci-Fi stories prior to Star Trek. Same could be said of Romulans as well since they were based off Roman history of Romulus and Remus, the brothers who founded Rome. Though Klingons are harder to defend, though if Alex removed Kharn’s Klingon prosthesis and went with classic (augmented) Klingon, it would be easier to defend since there cannot be any copyright on “Mongoloid” features of a person in full make-up. That or he’s wearing a helmet (that outside of Star Trek: Into Darkness) never been seen.
Well, it’s too late to change Kharn now. Prelude has been out for two and a half years!
As for Vulcan, it’s not that they’re trying to copyright the entire planet, just certain aspects (expressions) of it. That said, I’m not sure you can copyright a mountain or a city. But hey, I’m gonna let all those nice lawyers handle it! 🙂
Really?
Do you research anything at all, or just spout the first thing that comes to your head?
“I’m not sure you can copyright a mountain or a city”…
You really should bother to do research… real research… not just be a spokesperson for Axanar.
Do you know why KFC changed their name, or why the Kentucky Derby is now called the “Run for the Roses”?
Because the Commonwealth of Kentucky trademarked their name.
MAYBE if you actually checked things you say, rather than just praise Alec Peters and Axanar, you might have noticed that your head is on backwards.
Axanar is going to lose, and lose hard.
And they should.
This is a copyright case, not a trademark case, Bill. Do you research anything at all, or just spout the first thing that comes to your head? 🙂
Speaking of research…
KFC changed their name from Kentucky Fried Chicken to “KFC” because the word “Fried” began to pick up some negative connotations during the 1980s as an unhealthy way to prepare food. By 1991, the corporate heads had decided to expand the menu beyond their traditional fried chicken, adding things like wings, and officially changed the name on all of their stores to the commonly-used abbreviation “KFC.” You can easily find this on the Internet in places like this news website:
https://business.highbeam.com/409700/article-1G1-10403447/kfc-shuns-fried-image-new-name
Oh, and the Kentucky Derby is still very much known as the Kentucky Derby, just check out their website:
https://www.kentuckyderby.com/
And it seems that you’re confusing the UNIVERSITY of Kentucky with the COMMONWEALTH of Kentucky, Bill. In 1997, the “Big Blue” University trademarked (not copyrighted) the word “Kentucky” for use on hats, T-shirts, mugs, etc. In 2015, a growing moonshine company called Kentucky Mist tried to trademark its brand name for hats, T-shirts, mug, etc. and was contacted by the university’s attorneys informing them that they owned the word “Kentucky” and demanding the moonshine company stop trying to trademark its company name or face a lawsuit. Trademark law (unlike copyright law) requires a mark holder to vigorously defend its mark, which is why the university was so aggressive.
Instead of giving up, the moonshine company sued the University of Kentucky, challenging its claim to the trademark. In late June of this year, a Federal judge threw out the case, not because the university had a valid claim but rather because the university has sovereign immunity from a civil lawsuit such as this. Kentucky Mist has indicated they plan to challenge the trademark directly with the U.S. Patent and Trademark Office, but that’s still to come. In the meantime, here’s a great explanation of when you can and can’t trademark a location–and for what specific purposes:
http://www.broadcastlawblog.com/2016/04/articles/can-you-trademark-a-states-name-can-such-a-trademark-affect-a-broadcast-program-title-or-other-product-names/
Of course, trademark cases are VERY different than copyright cases, but I’ve been telling you folks that for months. 🙂
Now, Bill, you could have saved me a lot of typing just now if you’d bothered to do some research first, but I guess I’ll just have to do your homework for you, dude. But seriously, dude, do you research anything at all, or just spout the first thing that comes to your head? (Man, it is fun to quote you!)
FFF: Computer, please run the EMH program.
EMH: Please state the nature of the medical emergency.
FFF: A visitor has a severe burn.
Clever, Dexter. Very clever. 🙂
The correct terminology would be, “A visitor has a SICK burn!”
Way to go, Dexter!
Hey, Erin! Us trekkies just might win this case for ya!
OK, I’m kidding a bit.
But dang!
Thanks IDIC! 🙂
Okay. So every time I read the Plaintiffs’ side, I feel they will win. Then I read about the Defendants’ side and feel they will win. Would really hate to be on the jury to decide which way is which. Although, say the Defendants’ win. Can the Plaintiffs’ appeal the decision or is it over at that point> The same goes if the Plaintiffs’ win.
All decisions (guilty or not guilty) can be appealed to the 9th Circuit Appeals Court in Pasadena (a longer schlep for me!). However, that court is VERY liberal and tends to rule against big corporations in cases against the little guy. Also, Erin Ranahan is 5-0 arguing in front of the 9th Circuit Appeals judges.
Wow! Thanks for the info Jonathan.
So I didn’t really get into your other reply post because I pretty much agreed with you, I do have a couple of notes on this one haha 😀
Firstly, great work taking us to school on “taking the work as a whole.” Those images of rugs were excellent examples, too, I noted that comment and thought it was a good point but hadn’t really understood the nuance until you explained it.
Secondly, I would note that whether the plaintiffs bothered to register derivative copyrights for certain characters in their works only really goes to the Plaintiffs’ thought processes and intentions, not whether they’re allowed to sue for those works. They’re still derivatives of the individual episode copyrights, so they’re absolutely fair game to go into the suit, and the decision on whether say, Soval or Garth are considered copyright violations is unlikely to rest on whether each had been registered as a copyright, the mention of their status as being unregistered is probably just the Defense trying to throw the kitchen sink at those examples, it’s far more likely going to be down to whether the judge is swayed by the Defense’s arguments that they’re insufficiently delineated to be copyrighted, or composed primarily of protected elements, or qualify as fair use anyway. (in fact, the mention of their unregistered status is likely only there as a supporting argument to the characters being insufficiently delineated, and thus not actually copyrightable, in a “see they didn’t even bother to register them yet” kind of accusation)
Thirdly, you’re right to be a bit skeptical of fair use applying in ways that don’t yet have strong precedents in copyright law, but they’re absolutely correct in what they’re saying that Fair Use isn’t limited to its defined meanings. It’s like the Bill of Rights- law lists some examples of fair use, but judges are entitled to claim rights exist that aren’t enumerated, in case legislators missed something important, or in case new rights become relevant before the law is next amended. Closed-off definitions of fair use are called “fair dealing,” any country that has fair use allows *potentially* anything to be fair use, so long as it serves one of the purposes of copyright law in the judge’s or jury’s opinion. Most Fair Use rulings in the past have been about education, criticism, or parody, so expect the defense to talk a lot about implied criticism and commentary, possibly even saying they’re drawing a blueprint to show the studios that a different type of Star Trek feature might be more popular. (which is of course, commentary and criticism) In this respect, the Defense’s strategy in trial could actually go back and mirror the Plaintiffs’ current strategy with their Motion to Dismiss, where they try to make it seem like there are an overwhelming number of reasons Axanar should qualify as fair use. (we’re beginning to see that with mentions of Mockumentary style and commentary on Star Trek, but they could easily add as many more as they think the judge will tolerate, especially if there’s precedents for each one that they can cite) That’s why this case is so worth following- there’s an outside chance the judge might actually decide to set a new or at least stronger precedent about what Fair Use means that makes way for more legal protection for fan fiction and derivative works.
The skepticism comes in because judges tend to be very conservative about setting new precedents along these lines, so that’s literally just the Defense trying to hit the ball out of the park rather than just winning, and is probably why Alec’s attorneys took the case pro-bono in the first place, on the outside odds that they might get some attention for successfully extending Fair Use rights. That skepticism, however, is precisely why we’re seeing the defense run parallel arguments, not just claiming they qualify for Fair Use but also preparing the grounds for the claims against their script being a “prior restraint” on their free speech rights, and that any other copyright violations were merely unwillful. They would really like the huge win of an expanded Fair Use ruling, but they’ll settle for a tiny loss of not getting any willful infringements as either one makes them look very competent.
Oh, it’s also worth adding that I’m a little surprised that YouTube as a publishing medium hasn’t come into this case yet! (and not only because of your very salient point about how neither Paramount nor CBS appear to have issued a take-down request for Prelude on YouTube, which they should absolutely have already done if they thought it was copyright infringement that hurt their profits, at least after downloading a copy to review for later evidence) The option to deliver free films via YouTube without competing for moviegoers is really critical to Axanar’s claim for fair use- they don’t require fans to go to a cinema or film festival to see their film, and spend time at a showing that can’t be a commercial Star Trek film. Instead they can easily watch Axanar on YouTube at home or on their phone, and get excited about Star Trek, and start purchasing Blue Ray discs, or maybe even resolve to watch ST:Beyond in the cinema. (I just realised you probably don’t call them cinemas, right? Hah.) The only thing really “competing” with Prelude in that particular space is anything CBS and Paramount try to monetize on YouTube or similar video services.
I think the best argument in Axanar’s quiver is that they were fair use because part of their intention was to promote interest in official Star Trek and encourage CBS and Paramount to provide more content similar to Axanar, and that in doing so they were in no way competing with any commercial content on YouTube or similar video/social-network sites. It’s novel in terms of fair use rulings and absolutely part of “what good fan fiction intends to do,” and it essentially kicks the Plaintiffs’ argument right in the teeth and steals its lunch money afterwards by saying “sure, these are your copyrights, but even if we did use them, we actually did you a favour.” It also has the advantage of having a legal principle on its side that some crimes need to establish damage to be a crime, so if a copyright violation actually helps the copyright owner, is it still a violation under the law? (Depends how the judge or jury feel about “moral rights” vs practical concerns)
And again, it’s worth bringing in YouTube here to show that the Defendant’s intent was purely non-commercial: Neither Prelude nor the Vulcan Scene were monetized as far as I understand, so this establishes that there was no possible profit from the works that have already been published. Even if these videos “compete” with official CBS or Paramount trailers or promotional materials, those likely also aren’t monetized, as their purpose is to market the products that are. In which case, Axanar likely only has a complementary effect, possibly even redirecting its viewers afterwards to videos that ARE official promotional materials. Again, the plaintiffs benefit, rather than being damaged.
It’s probably down to the space limits on all these motions so far that the means of publishing hasn’t come up. I expect to hear a lot about YouTube if this goes to trial!
Space is, of course, the final frontier, Matthew. So yes, the limited number of pages per brief likely kept out too much about Youtube. But also, if you think about it, it’s not relevant. It’s undisputed that Prelude was posted to Youtube to view for free and that many promotional videos for Star Trek are also posted there. It’s not really necessary to wake another sleeping giant. 🙂
Also, remember that the studios are not necessarily arguing for immediate damages but rather for future ones. Khan appeared in one episode and then became iconic in a later motion picture. Who’s to say that someday Garth of Izar won’t do the same? Maybe he’ll even appear in Star Trek: Discovery. The studios are saying that it’s their right to control how their intellectual property appears in public, and their decision how to license it and/or whether to license it at all. (See, folks? I do understand both sides in this case.) 🙂
As always, Matthew, excellent points! My favorite, and I’ve just forwarded it to Erin, is the following:
“Most Fair Use rulings in the past have been about education, criticism, or parody, so expect the defense to talk a lot about implied criticism and commentary, possibly even saying they’re drawing a blueprint to show the studios that a different type of Star Trek feature might be more popular. (which is of course, commentary and criticism)”
I actually think that one could win the case for them! Thanks muchly.
On your second point:
Somewhere in this blog Jonathan cited copyrightlaw, wich stated you can only sue for infringement if you previously registered your copyright. That said, plaintiffs should, at least in my understandig, be able to sue for infringement for the episodes where someone/thing first appeared. The question to answer next is, is the subject such an integral part of this episode that copyright could be infringed.
And if yes, is the subject used in a derivative way. If again the answer is yes, the final question must be, is the the use of the subject in defendants works subtatial enough to be infringing. Only if the answer is yes to all of these questions is yes there would be a need to discuss Fair-Use or talk aboubt the aproach being to fragmented.
Please feel free to correct me if I misunderstood or misread something.
Nope. You said in one paragraph what took me twenty! 🙂
Just a thought, which I am not aware has been touched upon, if so I apologise for repeating, but on the subject of Vulcans, and the description sited by the plaintiff; such a description, less any use of name, or specific locale, could be seen as hugely similar to that of an Elven race… Do the plaintiffs plan to next turn their eyes to any “pointy eared hobgoblins” in the sci-fi/fantasy universe? (Drawing upon your rug analysis). Having read most of what’s out there I am wondering if the Plaintiffs are actually trying to win at times; are they assuming that as they are the big guys they don’t have to try hard (see how that panned out for Goliath). As said before, long in words, but gripping stuff so keep it coming please!!
Nick
Well, Elves don’t come from the planet Vulcan, so there is a difference. Also, arrows versus lirpas.
Truth to tell, Vulcans and Elves are also lie the feudal Japanese…if you want to go back that far (just remove the pointy ears). But the question is, when you put all the generic stuff about Vulcans togehter with the specific stuff–from another planet, mind melds, neck pinches, pon farr, etc…are Vulcans as a concept, as an alien race, copyrightable? And if they are, did Axanar “steal” enough of them to justify a violation. After all, nowhere in Axanar was there a mind meld or a neck pinch or pon farr. The legal concept of “de minimis” use means the alleged infringer used the minimum that he had to in order to create his parody or commentary.
Heya Jonathan,
I have a question. You seem to know Alec and indeed the entire Axanar history quite well. In one of your replies here you mentioned Axamonitor. So I decided to check it out and see what’s what. I had a very deja vu feeling reading their content. It reminds me heavily of the entire courtcase; two sides very far apart and both having almost complete opposite views on the same subject.
Anyway; they mentioned a couple of times when some PR things weren’t handled well and mostly hold that against Alec himself as well as Axanar as a project. Now I am a fan who just really wants to see Axanar get made so we can all enjoy it and being a romantic I do love a story to end with the scrappy underdog winning the courtcase against the high and mighty corporation. It did get me wondering though; how many people were working on Axanar before the lawsuit? Now I don’t mean all individual cameramen etc, but I don’t suppose Alec was handling all PR by himself, was he? Was there a team or person behind maintaining the Axanar Facebook and Twitter pages? Could you expand on that a little? Much appreciated!
Actually, I’m gonna ask Alec to post an answer here. But yes, there was more than one person handling Axanar publicity, but Alec was very much the nexus and the source of most of the social media and web-based information dissemination. That was a big part of his job, and he did it well…worth every penny he reimbursed himself! 🙂
Hey Abyssinian.
We have a PR team made up of two long time industry pros, Mike Bawden and Morey Altman. They are the ones driving all the great press we have gotten and do it all as volunteers. Because of them, we have been covered by every major industry publication, as well as everyone from The Wall Street Journal to CNN to Forbes and Newsweek. (We had a 4 page spread in the Newsweek Star Trek 50th anniversary edition – something we are pretty proud of.) The one PR mistake we made was when Mike Bawden posted that Axanar was “officially sanctioned” on the PR website he maintains for Axanar. This was when Mike first came on board and he simply didn’t know better. As soon as I found out, I told Mike and he took it down. A simple mistake that has zero to do with this copyright case.
We also had someone handling our Twitter account for the longest time and she got our followers over 100,000, which is pretty awesome. Sadly she has been fighting cancer and so hasn’t been able to manage the account lately.
Overall, over 100 people have worked on Axanar. We have a large group of professionals and volunteers that are all waiting for resolution in this case so they can get back to work on making Axanar, in whatever form that may be. But remember, a year ago, when we were sued on December 30th, we were a month away from principle photography, so we had staffed up pretty well.
I hope that answers your question!
Alec
Thanks for taking the time to answer this Alec! It fully answers my question. Amazing and incredible to hear that so many people put in so much effort. All the best and I hope you and the entire Axanar team will win this court case and have all your efforts be worth it. May fortune favor the bold!
…in whichever fleet we end up serving. 🙂
After this is all done there need to be a kickstarter campaign to fund a film documenting all of this. John thank for the mention of axamonitor. I read through his material, seems like some people have an axa(nar) to grind.
Oh, Axsolutely! It’s funny, but I was having a conversation earlier today about Axanar and Carlos Pedraza’s latest “exposé” on the “secrets” and “twisted path of ownership” of Industry Studios (as though there were something nefarious going on). Really, you guys should check this out because Carlos spent a LOT of time making a VERY pretty picture!
http://axamonitor.com/doku.php?id=industry_studios
I of course laughed heartily out loud when I saw the amount of time he put into this hit piece. I mean, granted, I also spend a lot of time writing MY blog analyses, so maybe I’m being a bit of a pot to Carlos’ kettle, but–MAN!–this just seemed obsessive to me! So anyway, I was chatting with a friend who also follows me and Carlos online, and we were debating whether Carlos Pedraza is Captain Ahab to Alec Peters’ Moby Dick (my friend’s metaphor) or Inspector Javert to Alec’s Jean Valjean (my metaphor) from Les Miserables. I really think he’s Javert. Ahab was obsessed with revenge only. The Great White Whale took Ahab’s leg, and the captain just couldn’t let it go (so to speak). He wanted revenge for a wrong against him personally.
But Carlos wasn’t wronged by Alec directly. I feel that Carlos, like Javert, sees the law as being absolute. And whether you steal a loaf of bread to feed your starving family or steal Garth and Soval to make your fan film, the fact is that you STOLE, and justice must be done! The law will not be mocked!!! Just as Javert pursues Valjean for decades across France, believing him to be an irredeemable criminal, so too does Carlos hound Alec Peters and Axanar relentlessly, believing only the worst in any given sitaution. Alec Peters can do no right in Carlos’ mind, and the Inspector Pedraza must find everything he can to criticize and shine a light on any and all of Alec’s alleged misdeeds. There is never any benefit of the doubt given–at least that I can see (just look at that article and try to find an example that isn’t almost immediately negated in the next sentence)–and in fact, Carlos tries to dig as deeply as he can to find anything and everything he can to make Alec and Axanar look as bad as possible.
Javert was like that, as well. All the good that Jean Valjean did as mayor, all the people he employed and helped, was ignored by Javert. When Valjean finally revealed himself in court to Javert so that an innocent man wouldn’t go to prison unjustly, all Javert could see was his quarry at last! The fact that Valjean had just willingly and nobly sacrificed his freedom was completely lost on the inspector. At the end, only when Valjean spared Javert’s life in order to help the wounded Marius did the obsessed inspector finally realize the truth that he had not allowed himself to see for all those years.
Now, this isn’t to say that I expect Carlos Pedraza to toss himself off a bridge into the Seine as he completes an emotional operatic aria or that Alec Peters is some kind of self-sacrificing, born-again Catholic with a great singing voice who will someday be played by Hugh Jackman. But it is interesting to look at the purpose of Axamonitor. The name itself says it. Axanar must be monitored–like the entrance to a secured facility or a prisoner under house arrest. The word “monitor” implies surveillance to detect and therefore hopefully prevent something bad from happening. A heart monitor is usually attached after a coronary episode to detect irregularities. A hall monitor at school is there to prevent kids from sneaking out of their classrooms without a hall pass from the teacher.
So the implication, even the assumption behind Axamonitor is that there could be something bad about Axanar (and Alec Peters) and that this site will watch for it…and report any suspicious activity it sees–no matter how minor–and then let its readers decide whether the building should be evacuated for fire or not. It’s an interesting assumption to start from: that something might be wrong and the project must therefore be properly watched. And it’s a similar assumption to what Javert thinks about Valjean: “A man like you can never change!” And of course, in Javert’s world, the righteous walk free; Javert need not pursue the good people as they are always good…just as Carlos doesn’t “monitor” any other fan production–only Axanar.
Anyway, it’s apropos of nothing, really. I just thought it was a really interesting take on the inherent bias of Carlos Pedraza–his assumption that Axanar must be monitored–and his relentless pursuit of the singular goal of reporting thoroughly on everything about the production and its producers that could possibly be indicative of a problem or misdeed. And as I said, I’m admitted similarly biased on the pro-Axanar side…although I support all fan films, not just one. I believe in praise and not condemnation. If I wanted to pick apart this or that fan film, I certainly could. I simply choose not to. Carlos chooses to pick apart one and only one fan film and producer…just as Javert pursued only Valjean.
Who am I? 2-4-6-0-1!!!
Another very clear piece here Jonathan. I agree that Axamonitor is biased, focussing on negative aspects and not expanding on them in certain parts to paint a worse picture. Not saying you aren’t, but at least you report both sides of the argument and report every new development.
The image itself made little sense to me so I started reading the article underneath it. There is mainly speculation going on and then going off based on that. Example; “It’s unclear who exactly owns Industry Studios” they then go on stating that “if Alec was a member of the investors’ group, then he would have an interest in Axanar Productions, contrary to Bawden’s claim.” To which a nice little quote comes to mind; “Yeah, and if my grandmother had wheels she’d be a wagon.” A follow-up comment such as that only puts light on the negative possibility, while ignoring the positive possibility.
The entire article would be a lot better if they’d first have gotten answers on who the owner(s) are or, failing that, at least would call on people to look for the truth there rather then state the negative possibility if the assumption is true.
What I also find a shame is that at the bottom of the article they refer to “the utter failure” of the Ares Digital software. Now it was my understanding that after some initial problems, which, as a film maker who has no previous experience with suddenly having to deliver badges and more to an incredibly wide scaled audience, in my eyes is only logical, more recently Ares 2.0 was launched and shipping had started for people who donated to the first campaign. So while it was perhaps slightly delayed, again, rather logical in my eyes, delivering on the promise is under way. However, there is no mention of any of that on Axamonitor. Why haven’t they reported on that or at least included that in their comments? It’s because they prefer to let people see a more negative image of Axanar.
Because I have time and care, I tend to read this and what’s on the Axanar website. More recently I found Axamonitor and while I had some initial questions; those were answered fully by Jonathan and even Alec himself. I find it a shame that Axamonitor wants to put a bad light on Axanar and I can only hope that people don’t just take their (or any one source for that matter) as gospel. Read many sources and read past the emotions and stick to factual statements. Be logical. Be more Vulcan.
There’s a joke I’ve told before (using either Michael Hinman or Carlos Pedraza), but I think it’s appropriate to tell again with Carlos Pedreza as the protagonist…
Carlos is sitting on the shore, typing away on his laptop, when he notices Alec Peters out on on the lake in a rowboat. Suddenly, the boat starts to sink, and even though Alec is rowing feverishly back to shore, the boat is taking on water way too quickly. Seconds later, the boat is entirely submerged. As Carlos watches, he sees Alec stand up and begin calmly walking along the surface of the water back to shore. A minute later, once again on dry land a crowd gathers around Alec having just witnessed this miracle. Carlos, having seen it all himself, as well, brings up a new browser window on this laptop, ready to post what he’s just seen for all of his readers on Axamonitor.com. Carlos excitedly types up the headline: “WITNESSES SEE PROOF THAT ALEC PETERS CAN’T SWIM.”
So, yeah, Axamonitor isn’t really about covering the news on Axanar. It’s about leaving out certain facts while only reporting others. When you only tell half of a story (or less), it’s pretty easy to turn it into whatever you want it to be.
I have a supposition on the Marketing aspect to make that works either way for Plaintiff or Defendant:
1. If I understand Marketing and Royalties correctly, big studios usually have clauses in the contracts that actors / actresses sign when television shows / movies are created / made / released in that Studios get percentage and said actor / actress receives (hopefully!) from such marketing; re: their “Likeness” as a particular character. In as such, is that “character” a Copyrighted item, or sold only based upon the Trademark? In such case, “if” the character of Soval of Vulcan as portrayed by Gary Graham be a copyrighted item or just a Trademarked item, as it has been said this case is NOT about Trademark issues.
2. Monetarily – where would CBS/Paramount lose from a “Fan produced movie” that is not offering ANY merchandise for direct profit, but is offered as a reward for making a specified monetary contribution to the fan production (i.e. hat, shirt, etc.)?
In point 1, one could argue for the Plaintiff that Gary Graham cannot reprise a role from a professional production in a fan produced production because his contract *might* have specified he would receive a Royalty for any marketing items released. However; for the Defendants – such portrayal of Mr. Graham in a fan produced production *could in fact* actually benefit CBS / Paramount in such a way as Fans would go and find collectibles of say – were they produced and marketed – a Soval figurine. The Defendants won’t profit from that – only the Plaintiff.
In point 2, I myself being a huge fan of starship models – be it Star Trek, Star Wars, Battlestar Galactica, et. al. Nowhere does it appear that the Defendant is attempting to create models for sale – be it figurines or model starships from this production – to make a profit from, thus no copyright or Trademark infringement, past that of the appearance of the Soval character. And frankly, I would think that the Defendant knows that such an idea cannot be done because of the Copyright law. Now, does that stop home model makers from building likenesses of said starships? No. Would the Plaintiff be willing to track down every last home model maker to sue? I personally doubt it as it would be financial irresponsibility on their part to their stockholders. Previous copyright holders of the franchise never went after those small companies producing “enhancements” to the original AMT model kit of the U.S.S. Enterprise, nor follow-up models for infringement. Why? Because those like me NOT SKILLED in actual “building from scratch” models would go out and buy more of the AMT kits (equating to more money for the then copyright / trademark holders!) to build the various versions of said U.S.S. Enterprise models throughout the production of TOS.
Just a view from someone who enjoys fan made productions as much as professional productions of Star Trek in all iterations simply because I believe the message of hope for Humanity in the future.
In your Gary Graham example above, the studios could not contractually prevent him from working on a Star Trek fan film (and even playing Soval) without violating California Business and Professions Code 16600:
“Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”
Thank you for that piece of information. I am not in any way involved with the film industry nor in law, so my understanding is as a fledgling at best.
Hey, fledglings are people, too, Ken! 🙂
Seriously Jonathan? You haven’t blocked that troll from the group yet? I did not long after Dave H made the suggestion. Almost forgot about him. I guess I have a low tolerance for haters.
I don’t block or ban unless someone ignores all warnings. But having an opinion that’s different than mine is not a criminal offense around here. 🙂
I was going to bring this up, when a facebook link to our group popped up moments ago about this very thing.
http://abcnews.go.com/Business/wireStory/redstone-firm-calls-off-cbs-viacom-merger-proposal-44142526
Yikes, I wonder if this vainglorious lawsuit has anything to do with putting the kibosh on the proposed
Merger. Seems Viacom had sued Star Trek fans some decades ago, and maybe don’t want to be seen as the villain once again?
Nah, I doubt this lawsuit has anything to do with the merger being called off. That would be like stopping your speeding car because of an ant crossing the road. These are multi-billion dollar publicly-traded corporations. Star Trek is a worn-out 50-year-old franchise with a mostly-aging fan base and limited success at the box office with recent efforts. The lawsuit is, at worst, gonna cost a couple hundred thousand dollars…which isn’t even a rounding error for CBS. They probably spend more on coffee for actors and crews on the sets of their various shows.
We Trekkies like to think we’re more important than we are. Trust me, I’ve worked with Viacom. We really don’t matter much. Sorry to break the news to all of you.
This affair of using existing characters reminds me some exercise given at school, where we had to imagine the sequel of a story.
For that purpose, it is obvious using existing elements is needed to have the link between the initial story and the sequel to be created. Then, two possibilities:
– to keep the whole frame identical with characters, places, and just go forward on possible outcome.
– to develop a different story, with grand-children in a world that had changed for example, with some references to the past.
It is obvious that references are needed to form the link as a sequel because it is how the general background is already set and used as a shortcut to go directly in the new content. On this aspect, the ratio new content/reference content represents the extent of use of first works.
For Axanar, the deal was to create a prequel, so the use of reference content is by nature limited to what could be supposed to be the ST world in a seldom mentioned period. The analysis of the use of existing (copyrighted) material shows a really scarce amount compared to the potential development of a full duration film. On this basis, Axanar is really far behind other shows in matter of using copyrighted material.
And yet remains the fact that the film itself does not exist, that Alec Peters asked directly to CBS if there was any problem, that there were no reasons to believe there would be a problem (willful/non-willful).
The angle used in Prelude To Axanar is very novative since the medias are rather absent in the franchise, as well as the interview/testimony mode (and that is different from the trials shown in some episodes). The story could perfectly be told as a documentary by a war correspondant with field footage, seems rather transformative…
At this stage, there is no “innumerable”offenses as the Plaintiffs claimed at first, the shifting of arguments tends to go off limits of the initial filing.
By the way, are the school teachers incitating pupils to infringe copyrighted works with the sequel exercises ? What is to be thought of a practice that is taught in schools ?
Separate matter, maybe Viacom is rich enough not to bother for the effects and cost of this lawsuit, but it is as bad a business behavior as for CBS to sue its shows fans. Such a strategy can only lead to counter-productive anarchy gangrene. Businessmen should be kept under control, but businessmen must not be replaced by lawyers (nor accountants). This has nothing to do with just ST fans, but with clients. And it is an absolute law that no one should mess-up with clients, regardless of the business size.
“By the way, are the school teachers incitating pupils to infringe copyrighted works with the sequel exercises ? What is to be thought of a practice that is taught in schools ?”
Educational use, especially where no revenue is involved, is protected under fair use in the U.S., Nicolas.