A California federal judge will now have to decide whether to allow a Star Trek copyright infringement case to go to trial in January, or to rule right now in favor of either the two studios that own Star Trek, or an “independent” fan-film the studios claim went too far.
Both sides presented their case for summary judgment in their favor Wednesday with the hopes of getting a victory before really stepping inside a courtroom for an actual trial.
At stake is not only the fate of Star Trek: Axanar, which producers raised some $1.5 million to create, but also potentially the future of fan-films themselves, and if studios can really protect intellectual property from those looking to celebrate it in whatever way they want.
CBS Corp. and Paramount Pictures had filed the copyright infringement suit last December, claiming Axanar Productions and its principal Alec Peters crossed the line in trying to create Star Trek: Axanar. Peters and his group not only produced a short and a trailer, but they also opened a permanent studio just outside Los Angeles where they hoped to not only film Axanar but also make it available for other productions, including reportedly commercial ones.
The motions come after months of discovery from both sides, including depositions from all the key players. While many details found in discovery are still locked under judge-approved confidentiality, some new details about Axanar’s plans have emerged – including what could have been Peters’ motivation to create the fan-film in the first place.
Christian Gossett, the director of Prelude to Axanar – a short used to promote the larger feature-length film during fundraising early in the process – told lawyers during a deposition Oct. 22 that Peters was hoping to use Axanar as a stepping stone to becoming a producer on a future Star Trek television series for CBS.
Gossett told Peters the best way to get CBS’ attention was to create his own intellectual property and show it to them, according to the deposition. Peters, however, wanted to remove the subtlety and make his intentions with the company that owns the television rights to Star Trek very clear.
“And my response immediately, as someone who has been – who had worked in independent intellectual property and corporate intellectual property – my first counsel to him was, ‘Well, what I would do is create my own intellectual property, and I would produce a short, a concept, a proof of concept to show that you can produce live-action television or live-action entertainment. And then I would show them, ‘Hey, look, I produced this.'”
It seems, however, Peters’ ambition may have gone even beyond that. According to Terry McIntosh, an associate producer on Prelude who also handled the technological side of the administration, Peters was bringing his Star Trek ideas to the doorstep of streaming media companies like Netflix.
In an online message exchange between the two dated Aug. 27 and released by the plaintiffs, Peters reportedly told McIntosh he would eventually be working at CBS as the “third guy” Peters would hire after Gossett and announced Star Trek: Axanar director Robert Meyer Burnett. That was two weeks after Peters told McIntosh he had an “in” at Netflix.
McIntosh asked Peters to clarify what that “in” was for, Axanar or “the future for-profit efforts.” And if it were for Axanar, how that would work since Netflix is a for-profit company.
“Star Trek. Let Netflix deal with CBS. We would produce.”
CBS and Paramount believe the case is open-and-shut for them because, according to their filings, Axanar and Peters admit their fundraising and production was to support their Star Trek project, and they knew it was owned by someone else. And when it comes to “fair use” protections under copyright law, which might give Axanar a legal license to use Star Trek, CBS and Paramount attorney David Grossman says it wouldn’t apply and that Axanar never intended for it to apply before the lawsuit was filed.
“It is beyond dispute that defendants’ works were not created for purpose of criticism, comment, news reporting or teaching. Similarly, the Axanar works do not constitute either parody or satire, and (prior to this lawsuit) defendants never claimed they were. Indeed, defendants expressly set out to create an authentic and ‘independent Star Trek film’ that stayed true to Star Trek canon down to excruciating details.”
Axanar, however, claims the narrative used for Prelude and plans for the feature film that was never produced would be considered “transformative” under copyright law – meaning that while there might be aspects pulled from existing intellectual property owned by someone else, the new use was so different from the previous versions, it can be considered a new creation protected under its own copyrights.
Erin Ranahan, an attorney with Winston & Strawn who is representing Axanar pro bono, said the lawsuit has never been anything more than two large corporations’ attempts to “squash the very creativity that copyright law was designed to protect” by “suing one of Star Trek’s biggest fans.”
“While defendants have used elements that have appeared in the Star Trek universe, defendants works are transformative – going where no man has gone before. Indeed, defendants’ works present new insights, featuring numerous original characters, original dialogue, a unique plot and an unexplored timeline.”
Prelude, Ranahan argued, was presented in a “mockumentary” format interviewing characters in a newsreel style that, while never done on Star Trek, was instead something featured in other shows, including Babylon 5 and a popular episode from the fourth season of MASH called “The Interview.”
That episode, which aired in February 1976, told the MASH unit’s story through newsreel interviews, as if it were actually being produced by a news outlet during the Korean conflict. In portions of his released deposition from Oct. 19, Peters told lawyers the inspiration for Prelude‘s narrative came not from Star Trek, but from this particular episode of MASH.
“I had watched the TV show MASH when I was a kid, and I remembered an episode called ‘The Interview,’ which won an Emmy for best screenplay, which was about a newsreel crew that went to the MASH 4077 and did interviews with all the characters. And it was brilliant, because all the characters were basically out of their element talking to a camera doing an interview. And so it came off as a documentary, as a newsreel documentary.
“So one day I pitched Christian Gossett on the idea, and he loved it. He thought it was brilliant. And I wrote the script for that, and which Christian and I then rewrote. And that’s when we then pitched in our Kickstarter campaign of March 2014.”
Although MASH was nominated for and won a number of Emmys during its long run, “The Interview” from writer Larry Gelbart was never nominated for an Emmy, let alone won. It did, however, win a Humanitas prize in 1976 for its work in promoting human dignity, meaning and freedom.
Axanar, Ranahan claimed, borrows from “numerous other sources, using the minimum amount of existing material from the expansive Star Trek universe to tell a unique story about an obscure character that appeared in a single Star Trek episode in 1969.”
On top of that, Ranahan once again pointed out that CBS and Paramount supposedly laid claims to various individual elements that they cannot copyright. Like pointy ears, a logical alien, or a creature with a ridged forehead.
“Once these non-protectable elements have been filtered out, it is apparent that plaintiffs’ works are not substantially similar to any of defendants works.”
But CBS and Paramount attorney Grossman argues that is a sham argument.
“Defendants have argued that protection cannot lie for individual elements such as ‘pointy ears’ or ‘spaceships,’ but this argument is a disingenuous straw man. Plaintiffs do not seek protection for generic elements. While ideas are not protectable under copyright law, the expression of those ideas is protected.”
Other documents provided by Axanar show that both Star Trek: Beyond director Justin Lin and Star Trek director J.J. Abrams also faced attorneys during depositions last week. Details of those depositions were not released in the documents, which had some portions redacted because a judge had ruled them confidential.
Lin and Abrams had famously expressed their support for Axanar last May during a fan event promoting Beyond claiming that Paramount and CBS, on their insistence, would end the lawsuit.
Judge R. Gary Klausner, who is presiding over the case, could rule on both motions during a scheduled hearing Dec. 19. If neither motion is successful – they rarely are – trial is scheduled to begin Jan. 31.
(h/t Jody Wheeler)
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