A federal judge in Los Angeles is expected to rule literally any day – or even hour – now on motions that could summarily end a copyright infringement lawsuit involving an “independent” Star Trek fan-film.
In the meantime, however, the defendants in the case – Axanar Productions and its principal Alec Peters – have asked the judge that if a trial must start next month, it do so without the use of the phrase “Star Trek.” Which might be considered odd, because the plaintiffs in the case – CBS Studios and Paramount Pictures Inc. – claim Axanar is unlawfully taking their Star Trek property to use as their own.
As part of a number of motions filed over the last few days by both sides to limit evidence, Axanar attorney Erin Ranahan says that if the court allows CBS and Paramount to talk about Star Trek, this would become a trademark case, not a copyright one. And it would ultimately just confuse the jury.
“In an effort to color, cloud and confuse the views of the court and the jury in this case, plaintiffs repeatedly and consistently refer to defendants’ actions in terms of the Star Trek brand or franchise, as though the suggestion that defendants’ works are ‘Star Trek films’ is sufficient to show substantial similarity and, therefore, copyright infringement.”
The issue that might stop this motion dead in its tracks, however, is not just that CBS and Paramount claim Axanar took from their Star Trek intellectual property, but that Axanar and Peters had created (or was in the process of creating) productions known as Star Trek: Prelude to Axanar and Star Trek: Axanar. Even after the lawsuit was filed nearly a year ago, Axanar continues to use “Star Trek” in its branding at convention appearances, online, and other places.
Ranahan also said the title Star Trek: Prelude to Axanar was “incorrect,” claiming that Axanar doesn’t “currently” use the name. However, Axanar has used “Star Trek” as part of the Prelude to Axanar name from the very beginning, including on its Kickstarter page that raised more than $100,000 for its production.
By calling it Star Trek: Prelude to Axanar, Ranahan argues it could influence a jury to think that Prelude was somehow related to Star Trek, part of the claim CBS and Paramount are making.
Ranahan didn’t stop there, however. She also wants to exclude any “non-original” elements CBS and Paramount have included in their complaint, like the appearance of Vulcans, and even names like “Klingons,” “Axanar,” and character names from past Star Trek episodes like Garth of Izar.
The judge in the case. R. Gary Klausner, already ruled against Axanar on a similar motion posed last summer, saying the elements like “pointy ears” and the Klingon language would remain – not because they are copyrightable, but because they are individual elements in a substantial similarity analysis, which would need to be conducted if this case does indeed go to trial.
That analysis examines not the individual elements that are used, but how they are expressed. An example observers have used time and again is how a song is copyrighted. Individual notes in the melody and individual words in the lyrics cannot be separately copyrighted. However, grouping those notes and words specifically, like to create a song, can be copyrighted.
Yet, in order to show infringement, the intellectual property owner would need to show the individual notes and how they are collected.
The same could be said about the non-original elements Axanar is trying to prohibit. While no one could copyright pointy ears, raised eyebrows, logical aliens or even the word “Vulcan” individually, if those elements are brought together to create the Vulcan race as depicted in Star Trek, it could indeed be copyrighted.
Finally, Axanar’s attorneys don’t want Paramount and CBS to bring up the “quality” of Prelude to Axanar or what Star Trek: Axanar intended to be.
“The fact that technology has reached a point where fans and individuals that are not huge corporations are able to create new, original works that appear to be high quality on a low budget is not the type of conduct that plaintiffs have the ability to halt through copyright law. Plaintiffs attempts to conflate amateur works with non-infringement and high-quality, professionally made works as infringing has no basis or support in law.
“A work may qualify as fair use and non-infringing regardless of the quality or the skills and experience that went into creating it.”
The motion is a bit confusing, because only Axanar has brought up quality of its works in the past – not necessarily Paramount and CBS. Peters and some of his supporters have been quoted on multiple occasions in social media and interviews claiming they were targeted by the studios because the quality of their production rivaled their own.
However, part of a typical copyright case involves market confusion – when a consumer struggles to tell the difference between an authorized use of intellectual property and an unauthorized use. The growth in quality thanks to improving technology and the lax approach to fundraising has allowed fan-films to grow from basement home movies to studio-quality productions.
CBS and Paramount sued Axanar and Peters in December 2015 after the “independent” fan-film raised $1.4 million and opened a studio just outside Los Angeles intended not just for Axanar, but for other commercial projects as well.
The case is set for trial at the end of January.
h/t Jody Wheeler
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