If and when a jury finally sits down to decide a copyright infringement suit case against a so-called “independent” Star Trek fan-film – they’ll have a very simple job.
Are Star Trek: Axanar and other related shorts substantially similar to Star Trek itself? If the answer is yes, then CBS Studios and Paramount Pictures will score a complete victory after a federal judge rejected nearly all the defense offered by Axanar Productions and its principal Alec Peters.
R. Gary Klausner issued his order Tuesday, but was finally made public Wednesday, popping in Star Trek Easter eggs like famous Vulcan sayings, and even names of Star Trek episodes like “A Private Little War” and “The Way to Eden.”
Essentially, Klausner denied both sides their motions for summary judgment, meaning that unless there’s a settlement in the next few weeks, the Axanar case goes in front of a jury at the end of the month. However, in doing so, the judge gutted just about anything Axanar’s attorneys could use to defend the fan-film, leaving just the substantial similarity decision to the jury.
“There is no dispute that plaintiffs have ownership of copyrights to the Star Trek copyrighted works, and that defendants have access to these works. Thus, the copyright infringement claim can live long and prosper if the Axanar works are substantially similar to the Star Trek copyrighted works.”
CBS and Paramount filed the lawsuit against Axanar and Peters more than a year ago, attacking the fan-film project that raised more than $1.4 million, and resulted in just a couple of shorts as well as what they claimed was a commercial studio Axanar built just outside of Los Angeles. It was the first time the studios ever took legal action against a fan-film, a community that has grown over the years thanks to works like Star Trek: New Voyages and Star Trek Continues.
While those projects were allowed to raise money and distribute episodes online for free, Axanar took it several steps too far, CBS and Paramount claimed. Not only was there a studio constructed that could be rented out to other productions, but Axanar tried to license their Star Trek through products, and even an attempt to get Axanar on Netflix.
Axanar’s attorneys tried to claim the fan-film was protected by the First Amendment of the U.S. Constitution as parody, and that main characters like Garth of Izar from the original Star Trek were far too obscure to protect by copyright.
Klausner rejected all of that, concluding Garth of Izar was indeed entitled to copyright protection, not just from the 1960s episode he appeared in, but also from a 2003 novel published through a Paramount subsidiary.
The judge also said despite Axanar’s protests, character races like the Klingons and Vulcans are indeed protectable. As are specific costumes, like the one that was repurposed from the actual Klingon uniform worn by Christopher Plummer in Star Trek VI: The Undiscovered Country.
Klausner applied his own substantial similarity test to Axanar, comparing what the fan-film was looking to create and what is considered part of the Star Trek universe. Under his test, he concluded Axanar was indeed seeking to “create an authentic and independent Star Trek film that (stayed) true to Star Trek canon, down to excruciating details.”
“Indeed, defendants use and reference so many distinctive and widely recognized elements from the Star Trek universe that the Axanar works invoke Star Trek in the minds of viewers. Together, these elements are ‘qualitatively important’ enough for finding of substantial similarity, even if they are ‘relatively small in proportion to the entire work’ (which they arguably are not).”
The other major argument Axanar’s attorneys made was that the free distribution of a fan-film not only doesn’t hurt the Star Trek brand, but it can actually help it. They also maintained that because there was no actual profit to be made – despite people like Peters collecting salaries and having personal expenses paid from donor money – Axanar was not a commercial project.
Klausner rejected all of that, deciding that Axanar was creating a Star Trek project without paying CBS and Paramount a license fee, and that Peters and other members of the Axanar team hoped to use their Star Trek project as a way to land other paying job opportunities outside of Star Trek.
All of that fit what the court called the “exploitation of the copyrighted material without paying the customary price.”
Finally, Klausner denied Axanar’s defense that their fan-film was “transformative,” because they were parody in the form of a “mockumentary.”
“For the purposes of copyright law, however, parody must use some elements of a prior work to create a new work that criticizes the substance or style of the prior work.”
“Here, the court has difficulty discerning from the Axanar works any criticism of the Star Trek copyrighted works. This is not surprising since defendants set out to create films that stay faithful to the Star Trek canon, and appeal to Star Trek fans.”
The final decision on whether Axanar is indeed substantially similar to Star Trek will now be left to a jury, Klausner said. If the jury does not find substantial similarity, then Axanar did not infringe, and everything else will be moot. However, if the jury finds in favor of CBS and Paramount, it’s game over, because Axanar has no other defenses it can use … the case would then move to damages.
CBS and Paramount have asked for either actual damages, or statutory damages, which could equate to as much as $150,000 per infringement.
Damages could ultimately reach seven digits – money Axanar may not actually have. According to court documents provided by CBS and Paramount, none of the $1.4 million raised by Axanar is left.
Those damages could be limited if a jury, however, finds that Peter was not “willful” in any decision that he infringed on copyright. The judge said he wouldn’t decide personally whether Peters was willful in his actions, saying some of his statements surrounding the Axanar production contradicts past emails he would send to CBS claiming other fan-films were infringing on copyright.
The ruling could fuel renewed settlement talks between the sides, heavily in favor of CBS and Paramount. If there is no settlement, the case goes in front of the jury beginning Jan. 31.
This story was updated at 12:42 p.m. to include more details on the damages phase of the trial.
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