U.S. District Court Judge R. Gary Klausner on January 3 denied the motions for summary judgment by defendant Alec Peters of Axanar and plaintiffs CBS/Paramount, saying the issue of “subjective substantial similarity” needs to be decided by a jury. However, the judge ruled that the Axanar production company can’t claim fair use, and that there is an “objective substantial similarity” between the Axanar works and the studios’ copyrighted Star Trek works.
(Read the full decision here.)
Applying the law’s four-factor test, the court rejected Axanar’s claim that material it has drawn from the Star Trek universe is protected by the fair use doctrine. (Citations omitted.)
1. Purpose and Character of the Infringing Use
The first factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). This factor asks “whether and to what extent the new work is transformative,” in other words, whether the new work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message,” or merely “supplant[s] the original.”
Defendants intentionally use or reference many elements similar to those in the Star Trek Copyrighted Works to stay true to Star Trek canon down to excruciating details. Viewed as a whole, the Axanar Works do not have “a further purpose or different character, altering the [Star Trek Copyrighted Works] with new expression, meaning, or message.”
On the other hand, Defendants want the Axanar Works to supplant the Star Trek Copyrighted Works. Peters “was interested in creating alternative ways for fans to view Star Trek.” He wanted to create “a whole new way that fans can get the content they want, by funding it themselves.” The Axanar Works are not transformative.
But the inquiry does not end here. An integral part of the first factor is determining “whether [the infringing] use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1)
…Here, it is undisputed that the Defendants did not pay Plaintiffs for a license.
It is undisputed that Peters hoped to derive non-monetary benefits, for example, other job opportunities, from the Axanar Works…. The Axanar Works are commercial.
Defendants argue that the Axanar Works are not commercial because they are, and will be, distributed for free. This argument is unpersuasive because, even though Defendants do not profit directly from distributing the works, “common experience suggests that [Defendants] stood to gain at least indirect commercial benefit from the [viewership] boost which [they] had reason to hope would (and in fact did) result from the” Axanar Works. The successful fundraising campaign leveraging the popularity of Prelude is an example of such indirect benefit.
Defendants also argue that the Axanar Works are transformative because they are mockumentaries – fictions presented in a documentary form – a form of parody according to Wikipedia. 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.
Thus, the Court finds that the first factor weighs in favor of Plaintiffs.
2. Nature of Copyrighted Work
The second factor, “the nature of the copyrighted work,” also weighs in favor of Plaintiffs. …The creativity in these Works and their status as published works are not disputed. They are the type of works that are given broad copyright protections.
3. Amount and Substantiality of the Portion Used
The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3).
While it is difficult to quantify the amount of the portion used in relation to the Star Trek Copyrighted Works as a whole since “the portion” involves many recurring elements in the Star Trek universe and the Star Trek Copyrighted Works are numerous, it is fair to say that elements of the Star Trek Copyrighted Works pervade the Axanar Works. For example, every scene involving a Klingon or a Vulcan can conjure up Star Trek in the minds of fans. The same is true of Federation spaceships, Klingon battlecruisers, transporters, phasers, and so on. The elements from the Star Trek Copyrighted Works that Defendants use are qualitatively important because they give the Axanar Works the Star Trek feel and enable Defendants to stay true to the Star Trek canon. Thus, the third factor weighs in favor of Plaintiffs as well.
4. Effect of the Use upon the Potential Market
The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4).
Here, the prequel depicted in the Axanar Works is the kind of potential derivatives Plaintiffs “would in general develop or license others to develop.” Id. Plaintiffs have already developed a 2003 novel and licensed a role-playing game based at least in part on Garth of Izar and the Battle of Axanar from one episode of The Original Series….
Defendants’ attempt to treat the Battle of Axanar as a private little war is unpersuasive.
Defendants further argue that there is no evidence that the Axanar Works have acted as market substitutes to the Star Trek Copyrighted Works. However, this lack of evidence is understandable given the nature of the existing Axanar Works. Prelude is intended as a promotional piece to the feature-length Axanar Motion Picture. Prelude in that sense cannot be a market substitute of Star Trek television series or motion pictures, just as a trailer does not substitute for a feature-length film. The Axanar Motion Picture has not yet been made or released and its script is not yet released. Hence it cannot have any market impact. On the other hand, Defendants have successfully raised over a million dollars from Star Trek fans at Defendants’ prompting of funding the Axanar projects instead of “dumping hundreds or thousands of dollars a year on . . . cable channels” on which the Star Trek Copyrighted Works are shown. Peters “was interested in creating alternative ways for fans to view Star Trek” – the way to Eden perhaps. He wanted to create “a whole new way that fans can get the content they want, by funding it themselves.” Defendants used “a fully-professional crew – many of whom have worked on Star Trek itself – [to] ensure Axanar will be the quality of Star Trek that all fans want to see.” Peters also sought to distribute the Axanar Works on Netflix.… Defendants promoted an August 2015 draft of the script “the best Star Trek movie script ever!” on their Facebook page. Under these facts, Defendants evidently intend for their work to effectively function as a market substitution to the Star Trek Copyrighted Works. There is little doubt that “unrestricted and widespread conduct of the sort engaged in by [Defendants] would result in a substantially adverse impact [of market substitution] for the [Star Trek Copyrighted Works].”
…Thus, the Court finds that the fourth factor also weighs in favor of Plaintiffs.
Alec Peters as Axanar’s Garth of Izar .
Defendant Alec Peters has released an official response to the decision:
This morning, Judge Klausner made a ruling that the case will go to Jury Trial to determine if Axanar is “substantially similar” to the CBS copyrighted works. If it is, then the jury will have to find if the infringement is “willful” or “non-willful”, and Judge Klausner already stated that “Peters’ actions demonstrate a respect for Plaintiffs’ intellectual property that makes a finding of willfulness on summary judgement inappropriate.” If the jury does not find “substantial similarity” then the case will be dismissed.
Depending on the outcome of the trial, Axanar may choose to appeal the verdict to the Ninth Circuit, where Erin Ranahan is 5-0. The Ninth Circuit Court of Appeals is also known to favor artist rights.
So the story of Axanar continues…
More Reading: Carlos Pedraza of Axamonitor ends his excellent post about the decision by identifying all the judge’s subtle Star Trek quotes and references.
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Pedraza’s analysis missed one Star Trek reference in the court’s ruling, playing off the episode title “A Private Little War.”
Heh – the references are cute, and normally I find cuteness in a legal opinion a little irritating, but in this case I wonder if it wasn’t also meant as a nudge at the defendants along the lines of “Please don’t bother with really stupid arguments that would only seem plausible to someone who’s not particularly familiar with Star Trek. This court is familiar with Star Trek.”
A Court would as I see it would have to invalidate the rights of Paramount to decide who and who does not make creations within the Trek metanarrative. Axanar is clearly using elements copyrighted by Paramount to creat their story.
It’s no different than someone deciding they can use the setting and characters of say Niven’s Ringworld setting and characters to base a novel on. Yes they can place it on a ringworld, but not his Ringworld.
This is my total lack of surprise. Despite the fevered imaginings of fans, there was really no chance that fair use would apply in this situation.
My prediction is a complete curbstomp of Axanar in favor of the Plaintiffs.
Take a look at these statistics and tell me what the difference is between Axanar and hundreds of thousands of fan fiction stories.
Glee – 106,000 stories
Supernatural – 100,000 stories
Buffy the Vampire Slayer – 55,000 stories
Sherlock – 53,000 stories
NCIS – 39,000 stories
Vampire Diaries – 33,000 stories
Stargate: SG1 – 30,000 stories
CSI – 27,000 stories
Criminal Minds – 26,000 stories
House, MD – 21,000 stories
Once Upon a Time – 21,000 stories
Merlin – 20,000 stories
Bones – 19,000 stories
Stargate: Atlantis – 18,000 stories
Castle – 17,000 stories
Gilmore Girls – 16,000 stories
Degrassi – 16,000 stories
Torchwood – 16,000 stories
Gray’s Anatomy – 15,000 stories
Smallville – 15,000 stories
One Tree Hill – 14,000 stories
Charmed – 14,000 stories
Law & Order: SVU – 13,000 stories
Teen Wolf – 13,000 stories
Hannah Montana – 12,000 stories
CSI: New York – 11,000 stories
Lost – 10,000 stories
X-Files – 10,000 stories
Angel – 10,000 stories
Star Trek: Voyager, 8 K. Walking Dead, 8 K. Mentalist, 7.5 K. Austin & Ally, 7 K. Firefly, 7 K. House of Anubis, 7 K. Heroes, 7 K. CSI: Miami, 7 K. Dark Angel, 6.5 K. Pretty Little Liars, 6.5 K. Rizzoli & Isles, 6 K. ER, 5.5 K. Battlestar Galactica: 2003, 5 K. Downton Abbey, 5 K. Alias, 5 K. West Wing, 5 K. JAG, K. Friends, 4.5 K. Life With Derek, 4.5 K. Wizards of Waverly Place, 4.5 K. Hawaii Five-0 5 K. Star Trek: Enterprise, 4 K. Law and Order: CI, 4 K. True Blood, 4 K. NCIS: Los Angeles, 4 K. Big Bang Theory, 4 K. Psych, 4 K. Primeval, 4 K. Veronica Mars, 4. Numb3rs, 4 K. Roswell, 4 K. Chuck, 4 K. Star Trek: The Next Generation, 3.5 K. White Collar, 3.5 K.
Fringe, Sanctuary, Leverage, Xena: Warrior Princess, Rookie Blue, Skins, South of Nowhere, Lizzie McGuire, Office, Queer as Folk, 24, Highlander, That ’70s Show, Sons of Anarchy, Warehouse 13, Pretender, Farscape, Prison Break, Andromeda, Arrow, MI-5/Spook, Game of Thrones, Lie to Me, EastEnders, Scrubs, Without a Trace, How I Met Your Mother, Suits, Sarah Connor Chronicles, American Horror Story, Lost Girl, Star Trek: Deep Space Nine, Babylon 5, Mutant X, Sentinel, Agents of S.H.I.E.L.D., Being Human, Ugly Betty, Covert Affairs, Law and Order, Person of Interest, Dawson’s Creek, Burn Notice, Frasier, Crossing Jordan, Tudors, Eureka, Hannibal, Nikita, New Girl, Good Wife, In Plain Sight, etc.
@Carl Slaughter
The story tells you what Paramount thinks the difference is. If you don’t agree with their analysis then say why.
@Carl Slaughter
And there’s the ‘minor’ matter that a lot of money was raised too pay for salaries and such. It’s a very, very far cry from someone writing a fanfic. And think how long it’d take it’d take an IP holder to react if one of these fanfics was published by a trad publisher such as Tor. Axanar is fanfic, plain and simple.
Not that you needn’t worry as no trad publisher would think of publishing a work using such IP unless they were licensed to do such as Dark Horse was with the Star Wars IP or Tor with the Halo IP. And none of them would think of using fanfic.
Size, scope, and money. Every fanfic author opens with a disclaimer along the lines of “this is just for fun, out of love, I don’t have deep pockets, please don’t sue.” Axanar ran a seven-figure Kickstarter campaign (actually, a six-figure KS and a six-figure Indiegogo). Nature of the work–commercial versus non–is always a big deal in the analysis.
Further, much as fans may love the Trek tie-in novels, Paramount is absolutely going to care a lot more about movies being made than about stories being written.
Finally, when Axanar got challenged, its answer was to claim that Paramount couldn’t and didn’t own Star Trek. That’s the whole “these elements are uncopyrightable” thing. And now we’re into the Chicago Way: Paramount (and every other member of the content creation industry) saw no choice but to kill that argument ASAP.
@Carl Slaughter: None of those fanfics presold a million dollars worth of DVDs (yes, I know they said that they were simply accepting donations and giving out DVDs for free as rewards for those who donated, but there’s literally no way to make a non-semantic distinguishment between those two).
Axanar claiming fair use is like someone trying to use the “take a penny, leave a penny” jar as an excuse for emptying the cash register out at gunpoint.
@Carl Slaughter Oddly enough, I thought the judge answered that question in his statement.
when this whole thing started I wrote a piece pointing out that the last time someone was told “no”, they could not play in the popular universe, the creators said “fine, I’ll do my own thing” and out popped Star Wars.
I’m guessing here, but I’m thinking that a large part of the defense strategy was to turn the fan world against the studios…and that just doesn’t seem to have happened. There’s a vocal minority, but as soon as you explain that a decision in favor of Axanar would largely gut copyright law, most seem to think about things a little harder……
@steve davidson:
Not to mention that much of the commentary I first heard of this when it started to explode involved just about everybody else in fanfiction and fan movies glaring at Axanar and going ‘shut up, you idiots, you’re just going to make it worse for the rest of us!’
The folks behind Axanar burned a lot of their bridges with the fan world pretty early with the way they front-loaded their defence strategy, as the smarter people realized pretty quickly that Axanar was forcing Paramount to react, and that reaction was unlikely to be pretty.
Once you put it that way, I realize that the Axanar crew are the Leeroy Jenkins of the fanworks world.
@Darren Garrison:
Excuse me while I catch my breath after laughing so hard… I really hadn’t thought of it that way, but yes, it kind of works.
I think another reason that the fans might not be lining up behind Axanar is that it came out in the discovery phase of the trial that Axanar has already blown through all of its Kickstarter and Indiegogo money without even beginning principal photography. Even if Paramount dropped the lawsuit tomorrow and said, “Hey, knock yerself out,” Axanar has nothing to show for all the fan dollars they took. That kind of burns out your goodwill pretty quickly.
Yeah there is a pretty strong fan feeling regarding trying to make money off fanfiction and most of that feeling is very negative (saying this as a fanfiction writer myself who shares those feelings) even if we set aside the much more obvious fact that the only real thing in common between the average fanfic and Anaxar is the use of copyrighted and/or trademarked characters. Much like a folded paper ship and schooner are both boats 😛
@John Seavey: I think another reason that the fans might not be lining up behind Axanar is that it came out in the discovery phase of the trial that Axanar has already blown through all of its Kickstarter and Indiegogo money without even beginning principal photography.
How?? On what?? D: Is there a link to read about this?
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