Editorials – Page 17 – Fan Film Factor

Take that, DR. SEUSS; TREK MASH-UP is legally FAIR USE!

I’ve been watching this case closely for nearly two years, fascinated by the question of whether a”mash-up” of two separate intellectual properties (in this case STAR TREK and DR. SEUSS) could be successfully defended against a copyright infringement lawsuit using a defense of FAIR USE.

And yesterday, we discovered that the answer is officially “YES.”

For a more complete history of this case, check out any of my previous 15 blogs on the subject (I told you I was watching it closely!). In short, DAVID GERROLD (the creator of the tribbles) and TY TEMPLETON (award-winning comic book artist) set out to create a Seuss/Trek mash-up book called Oh, the Places You’ll Boldly Go!

Together with their publisher ComicMix, they set up a Kickstarter in late 2016 to fund a run of 5,000 printed copies of the book to sell through ThinkGeek. They raised about $30,000 when Dr. Seuss Enterprises (DSE) contacted Kickstarter with a DMCA takedown notice. The money was never collected.

Six weeks later, DSE sued the mash-up team for both copyright and trademark infringement. The case was an emotional rollercoaster ride for both sides, with the judge at one point dismissing the trademark claims and then later (after a re-refiling by DSE) reinstating the trademark claims.

On the copyright complaint side of things (different than trademark), the judge was ready to dismiss the case outright on grounds of Fair Use, but she gave DSE one chance to prove market harm by Team Mash-up. DSE was able to make a strong enough argument for financial damages that the judge allowed the case to move forward. That was 14 months ago.

The case has been complex, to say the least! And it had the potential, according to Ninth Circuit Federal Judge Hon. JANIS SAMMARTINO, to quite literally determine the fate of nearly all mash-ups well into the future. Would this new art form die in its infancy? Was it even a true art form? All of her rulings were carefully considered, and nothing was rushed.

After more than two years of legal wrangling, filings, responses, discovery and evidence and testimony, and motions for summary judgement, it all came down to pre-trial oral arguments made in Judge Sammartino’s San Diego Courtroom five weeks ago on February 7.

So what exactly happened, and is this case finally over…?

HOLY $#@*! When did CBS suddenly learn to make STAR TREK???

SPOILERS? HOW COULD THERE NOT BE SPOILERS?

I wasn’t gonna blog about this week’s episode. I really wasn’t. We were at Disneyland all day Friday and Saturday, and that’s usually my prime reviewing time. But OMF-ingG! What did I just watch????

It was STAR TREK. REAL Star Trek. The kind of Star Trek that gets me all excited and emotionally engaged and dying to see more. It was the kind of Star Trek that has me caring about the characters and not giving a crap that the uniforms are all shiny or the Tellarites now have tusks or the lens flares are multiplying like tribbles. Who cares??? This was a friggin’ STAR TREK!

If you hate Discovery or refuse to watch it or you stopped watching it in (or after)season one…I totally get and respect that. I spent nearly the entire first season kvetching, feeling angry and frustrated and even a little betrayed as a fan over CBS “ruining” this thing that I’d loved for the entire five decades of my life.

And honestly, I went into season two doubting that they could pull the rabbit out of their butts and fix things. Some “true believers” made the argument that TNG and DS9 weren’t exactly firing on all thrusters in their first seasons either, and they all got a lot better. But in my mind, Discovery was so far down into the hole that I didn’t think they would ever make it back into the light.

So if you’re wondering if Jonathan has been brainwashed by the CBS Talosians and tricked into typing a blog that raves about the eight episode of Discovery‘s second season, I invite you to check it out for yourself—just this one episode “If Memory Serves”—and see if you feel as surprised (and impressed!) as I do.

This was the kind of episode that I used to watch back in college…where it ended and I just wanted to TALK about it with other fans! And that’s why I’m writing this even though the episode aired three nights ago.

The right captain at the right time – WHY WE LIKE PIKE! (Discovery editorial)

I usually write my weekly STAR TREK: DISCOVERY review editorials on Fridays and Saturdays after the new episodes premiere on Thursday night. But the family and I are leaving on tonight for the weekend. So I’ve decided to pre-write my weekly blog—not about the latest episode—but about a character who is rapidly becoming my favorite starship captain in Star Trek: actor ANSON MOUNT’s portrayal of Christopher Pike.

It was literally the last thing I expected going into season two. I mean, I hoped that the show would course-correct after the disappointing and often frustrating season one (at least in my opinion, but I’m not alone). I was curious to see how they’d handle Pike and some of his crew—Number One, Dr. Boyce, Yeoman Colt, and of course good ol’ (young) Spock. But never in a million years would I have predicted falling in love with Captain Pike and having him rapidly take his place as my favorite Starfleet captain!

Granted, it’s still early. We’ve only had 7 or 8 episodes featuring Pike…versus a hundred hours of Kirk, nearly twice that for Picard and Sisko and Janeway, and about the same amount for Archer. Upcoming episodes could ruin the character or make me start counting the minutes until Pike goes back to the Enterprise.

But I doubt it.

Part of the reason I like Pike (and so do MANY others) so much is the outstanding performance of Anson Mount. He really is an amazing talent…and if you haven’t watched his previous series Hell on Wheels, then you are missing some amazing television and yet another awesome character.

But it’s not just that Pike is being played by a top notch actor. William Shatner, Sir Patrick Stewart, and the others are all stellar performers portraying iconic captains. So why have so many fans (even ones like me who couldn’t stand Discovery a year ago) fallen in love with Captain Pike so quickly?

I think I know…

Keep on SPOCKIN’ me, baby! (STAR TREK: DISCOVERY editorial review)

FORECAST: Moderate chance of SPOILERS

In season one, many readers wondered if I was just a “hater” and wouldn’t like anything I saw on STAR TREK: DISCOVERY no matter how good it was. But so far in season two, Discovery has been batting .667 with me, with four positive reviews and only two episodes so far that I felt warranted criticism.

So now that we’ve reached the halfway point of season two and the search for Spock has finally moved into the “found him!” stage, what did I think of the seventh episode, “Light and Shadows”?

I’ll let Spocko sum up my feelings…

Yep, I loved this episode. For a second week in a row, I watched through the entire episode without stopping or stepping away. I was completely engrossed, and the episode seemed to pass so quickly!

Of course, I should note that this was also the SHORTEST episode of the season so far, with a run-time of just 40 minutes. For comparison, the season premiere was a full hour, episodes 3-5 were about 50-52 minutes each, episode 6 was 56 minutes, and only episode 2 was under 50 minutes (only 44 minutes). So this latest episode was definitely a short one (which also means less expensive to make…but don’t tell anyone!).

Okay, before I get to reviewin’, I wrote some song lyrics after watching this episode—as a tribute to Michael Burnham’s “trek” through the two seasons of Discovery. If you don’t want spoilers or have any loyalty whatsoever to the Steve Miller Band, skip this next part…

I went from Shenzhou to the Disco all the way to the Mirro…
then Kaminar down to Vulcan and more…
Section 31 where the things they have done are taking me to Talos IV.
So keep on Spockin’ me, baby! Keep on Spockin’ me, baby!

Ahem. Okay, let’s dive in…

ALEX KURTZMAN finally brings HOPE to STAR TREK: DISCOVERY! (editorial review)

SPOILERS…GET YER SPOILERS HERE!

Okay, before I get to my review, please indulge me as I provide my own introduction to the sixth episode of STAR TREK: DISCOVERY‘s second season, “The Sounds of Thunder.” And if you haven’t seen the episode yet, you totally will NOT understand this…

Faster than a speeding human…
More powerful than a Ba’ul wrist restraint…
Able to take command when Pike or Lorca aren’t around…
Look, up on the bridge!
It’s a kelp!
It’s a tall, thin alien!
It’s SARUPERMAN!
Yes, it’s SARUPERMAN…
Strange fugitive from another planet
Who came to Starfleet and proceeded to learn 90 different languages.
SARUPERMAN…
Who can sense the coming of death…
Crush ominous floating robots in his bare hands…
And who, disguised as Commander Saru,
Mild-mannered first officer of the USS Discovery,
Fights a never-ending battle for balance, blueberries, and the Starfleet way.

Okay, now that’s out of my system. On to the review…

Ever since last June when Discovery show-runners Gretchen Berg and Aaron Harberts were reportedly fired because of cost overruns and also for mistreating the staff writers, fans have been waiting to see what new showrunner and Trek Tsar Alex Kurtzman would do to the series. Would he be the savior who finally straightened out all of the problems with Discovery that made it feel, to many fans, like the show was NOT Star Trek?

Or would Kurtzman proceed to screw things up even worse? Does Kurtzman even “get” Star Trek (as he claims to be a true Trekkie)? After all, this was one of the three writers of Star Trek Into Darkness, a film many fans felt was the worst and weakest of the three reboot Trek movies.

Was Kurtzman to be Discovery‘s salvation or ruination? We would all find out with the sixth episode of season two, Kurtzman’s first episode as showrunner….

DISCOVERY’S fifth episode of season 2… far from perfection! (editorial review)

SPOILERS UP THE WAZOO!!!

Oh, well.

After four very positive reviews from the guy known for his generally critical reviews of STAR TREK: DISCOVERY‘s first season, some of my readers were beginning to wonder if Jonathan had been replaced with an alternate universe doppelgänger.

Not this time, though. “Saints of Imperfection” was just that: imperfection. Now, it’s not that I expect every episode of Discovery to be” perfect”—that starship sailed long ago!—but this one was far from it. In fact, it regressed into a lot of what I used to complain about often in season one: sloppy and lazy writing, rushing to “hit the beats” without giving characters or viewers a chance to emotionally process all that’s hurtling at us, unbelievable plot contrivances, predictability, and a host of other annoyances (at least in my book).

Granted, this was the final episode produced under the supervision of former show-runners Gretchen Berg and Aaron Harberts, who were reportedly fired because of cost overruns and also for mistreating the staff writers. Both reasons are very evident in this episode. Although the VFX looked gorgeous and could easily win an Emmy later this year, I can understand why the budget for Discovery was blown. And while I love watching exciting VFX, I much prefer a good story with characters I care about.

And that brings us to the writing, which surprised me because the writer, Kirsten Beyer, wrote the strongest episode of season one, “Si Vis Pacem, Para Bellum” (the one on the forest planet where Saru freaks out), and is also the only staff writer who has several published Star Trek (Voyager) novels. In other words, Kirsten knows her Trek and her writing. So what happened to so totally derail this episode and backslide into many of the old problems of season one?

Star Trek’s DISCOVERY RECOVERY continues! (editorial review)

Admiral, there be SPOILERS here!

At first, I was going to title this blog “Has STAR TREK: DISCOVERY Finally Got Its Groove Back?” Then I realized that it never really had a grove during season one…at least for me.

But the series does seem to have found a new groove that began with the first episode of season two and has continued now into its fourth episode, “An Obol for Charon.” And for anyone wondering what the heck that means, an Obol is an ancient Greek coin that was put in the mouth of a corpse before burial to be taken down to the underworld and used to pay Charon, the Ferryman, for a trip across the River Styx. (Speaking of which, how awesome was this song from 1982?)

Now, the episode itself wasn’t as good the second episode of season two, but it was better than the third episode. And it felt infinitely more Star Trek-like than nearly the entire first season. In fact, let’s take a look at how Star Trek is working its way back into Discovery…

NO TRUCE with DR. SEUSS on FAIR USE! (Part 2)

Yesterday, I updated you that on Thursday at 1:30pm Pacific Time, the two parties in the DR. SEUSS/STAR TREK mash-up lawsuit will meet in Federal Court in San Diego, CA. The original complaint was filed more than two years ago, and after countless motions, discovery, and an emotional rollercoaster of rulings from the judge, this hearing is likely the last time the two parties will appear before the judge until the trial begins.

Assuming there is a trial.

Barring a surprise last-minute settlement (which, I think, is highly unlikely), Thursday’s hearing could very well result in either the case being dismissed by the judge or else sticking a knife into the defense team to make the lawsuit all-but-impossible to win.

But assuming the case goes before a jury, and if I were a a juror, what argument(s) would be most likely to persuade me that Oh, The Places You’ll Boldly Go! deserves the freedom to be published?

For me, there was one thing that was mentioned—only very briefly by the defense attorney in a previous filing—that in my opinion would weigh most strongly on me as a juror. It was a surprisingly simple question:

What exactly should the defendants have licensed?

Think about it. If the book had been The Cat in the Hat Knows a Lot About Star Trek, then the answer is straightforward: they’d license The Cat in the Hat. If their story was Mr. Spock Meets the Grinch, then they’d license the Grinch, Max, and maybe Cindy Loo Who. But which Dr, Seuss character did David Gerrold, Ty Templeton, and ComicMix use without permission?

The best that the plaintiffs could come up with is the “boy” (their word) who appears on the cover and throughout the original Go! book. However, as with other characters in the Boldly book, this “boy” has been transformed. He wears a TOS command tunic and black pants instead of pajamas. Is that still the same character? The two Zaxes were turned into Spocks. The guy with the Sneeches’ star-machine was turned into Scotty with a transporter.

When does a copyrighted character get changed enough that he becomes a new creation? It’s an intriguing question!

NO TRUCE with DR. SEUSS on FAIR USE! (Part 1)

This Thursday at 1:30pm Pacific Time, the two sides in the ground-breaking DR. SEUSS/STAR TREK mash-up lawsuit will meet in front of Ninth Circuit Federal Judge HON. JANIS L. SAMMARTINO in courtroom 4D of the Edward J. Schwartz Courthouse in San Diego, California.

Last month, I reported the hearing date as January 31. But the lawyer for the defense caught the flu and requested, and was granted, a one-week delay (which is not all that unusual).

In a previous blog, I discussed the history of the case, and what each side is asking the judge to do. In short, the defense wants the judge to end the case before it begins next month…in favor of the defense, of course. This would mean her ruling that their mash-up Oh, The Places You’ll Boldly Go! should be considered (as a matter of law) to be FAIR USE and therefore protected speech. Therefore, any copyright claims would be nullified, and Team Mash-up (DAVID GERROLD, TY TEMPLETON, and their publisher COMICMIX) would be free to publish their book without legal liability. Also, the defense wants the remaining two claims of trademark infringement (different than copyright) dismissed because it is not reasonable to trademark an artistic “style” nor the look of a typographic font.

The plaintiffs, DR. SEUSS ENTERPRISES (DSE), are trying instead to convince the judge in this case to do the same thing that was done in the AXANAR lawsuit: declare that the mash-up is not Fair Use and, therefore, cannot be defended as such. Likewise, they want the judge to rule that, yes, it is reasonable to hold a trademark on an artistic style and a font. This wouldn’t necessarily end the case (unlike the defense motion,) but a favorable summary ruling by the judge would make the lawsuit all but unwinnable for the defense…as happened previously with Axanar.

So why have I given this case so much attention?

STAR TREK: DISCOVERY makes a major KLINGON KOURSE KORRECTION! (editorial review)

SPOILERS? WE’VE GOT A FEW. BUT THEN AGAIN, TOO FEW TO MENTION…

Along with much of the United States this past week, hell has frozen over yet again as Jonathan Lane writes a THIRD consecutive mostly-positive blog about STAR TREK: DISCOVERY! Granted, my first blog of season two was more noncommittal…yet hopeful. But my second blog was 100% raving praise.

So what about the third episode, “Point of Light”?

I wasn’t prepared to like it. In fact, after watching the manic first three minutes where the camera NEVER ONCE STOPPED MOVING (seriously, watch it again), I was feeling carsick…or maybe starship sick. I knew the Klingons were coming this episode, and I really hated them and their incessant subtitles in season one.

So I was prepared to write a blog titled “Two Out of Three Ain’t Bad…” or “Well, that Didn’t Last Long…” full of disappointment that Discovery had stumbled and slipped back into the same old problems. I began to mentally compose my opening complaint that saying, “Attention: trainee half-marathon approaching!” should NEVER be followed by turning OUT the lights so you can’t see what’s coming! “Starfleet stupidity or just idiotic writing?”

Yep, I was totally gonna write a blog like that—but then Amanda happened…