The copyright infringement lawsuit against the “independent” fan-film production Star Trek: Axanar is a little more than two months away. But now both sides are waiting to find out if their remote chances of ending (or mostly ending) this case before trial will be granted by the judge.
Erin Ranahan, the attorney representing Axanar Productions and its principal Alec Peters, told the federal court in filings Monday that so far, CBS Studios Inc. and Paramount Pictures – the owners of Star Trek – have failed to prove not only that Axanar unlawfully infringed on Star Trek, but that the studios suffered any harm from it.
In fact, Ranahan said, Axanar uses characters so obscure, even the two most recent Star Trek film directors J.J. Abrams and Justin Lin didn’t know who they were. And more, Ranahan says Axanar is considered “fair use” under copyright law, because it’s a parody thanks to its so-called “mockumentary” setting. That style, the attorney said, was part of a short Peters created called Prelude to Axanar, and would have most likely carried over to the planned feature-length film the group was trying to create.
“Prelude (and potentially Axanar) uses a unique ‘mockumentary’ style previously unused in plaintiffs’ works to tell an original story. A ‘mockumentary’ has been defined on Wikipedia as a ‘parody.'”
Ranahan has described the Axanar works as a “mockumentary” almost from the beginning. However, in earlier filings, including two motions to dismiss filed in March, the lawyer defined the term differently. In those filings, Ranahan used the definition from Dictionary.com that she said described “mockumentary” as “a movie or television show depicting fictional events, but presented as a documentary.”
The British definition of the word, included in the same Dictionary.com listing, does use the word “parody,” but the parody is of documentaries, not of the subject matter of which it’s portraying.
Lawyers for CBS and Paramount told the judge in their own filings that there’s nothing transformative about what Axanar is doing. And even the current claims that it’s a parody of some kind were made only after the lawsuit was filed, and conflict with the numerous public statements Peters and his company made before last December.
“The Axanar works do not ‘transform’ plaintiffs’ intellectual property into any new or different medium. Defendants intended to, and did, create audio visual Star Trek works. Defendants have expanded upon a Star Trek story, and they have set that story a few years before the timeline of the original Star Trek television series.
“Defendants have not cited a single case in the history of copyright jurisprudence that finds this kind of activity ‘transformative,’ or that would permit what defendants are attempting to do here.”
CBS and Paramount sued both Axanar Production and Peters last December for copyright infringement, after Axanar raised nearly $1.5 million for a planned feature film. Although Axanar maintains that it would have offered the film free to fans, similar to what other Star Trek fan-films have been allowed to do in the past, Axanar also used funds to seed a permanent studio just outside Los Angeles.
That studio, according to CBS and Paramount, was intended to create a profit center for Peters and his company, not only using it to film Axanar, but then to rent it out to other productions.
The studio, according to CBS and Paramount, also is home to Propworx, a for-profit auction company that shares the same name, ownership and business structure as one Peters put through Chapter 7 bankruptcy protection in 2012 before shutting down.
The Axanar story would revolve around Garth of Izar, a character who appeared in the 1969 Star Trek episode “Whom Gods Destroy.” The character was intended to be played by Peters himself, reportedly using the actual costume worn by the late Steve Ihnat in the episode.
Axanar attorney Ranahan says CBS and Paramount can’t cry foul over the featuring of that character, because he was simply a very minor character in a very vast Star Trek creative universe. Even Vulcan ambassador Soval, portrayed by Gary Graham in a second short released by Axanar known as the “Vulcan scene,” features a minor character. Soval was a recurring character in UPN’s Star Trek: Enterprise, played by Graham, and appearing in 12 episodes of the series, including the show’s pilot.
CBS and Paramount, however, claim that it’s more than just Garth and Soval that have been borrowed. And that even “original characters” purported to be in Axanar are part of the overall universe they hold the copyright to.
“Defendants have not merely taken a smattering of unprotectable elements and combined them. Instead, defendants have faithfully recreated every possible element of the Star Trek universe, down to excruciating details.
“Further, while defendants assert that they have included additional ‘original’ characters in the Axanar works, these additional characters are by no means ‘original’ – they are Klingons, Vulcans and Federation officers and are, therefore, not ‘original’ to defendants.”
A hearing on the motions for summary judgment is scheduled for Dec. 19, although the judge could rule on the motions before the hearing takes place. The trial itself is set to get underway Jan. 31.
(h/t Jody Wheeler)
Updated to clarify the Propworx auction company, that the current company has the same name, ownership and business structure as a previous company that underwent Chapter 7 bankruptcy protection, but they are not technically, in fact, the same company.
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