Tag Archives: AxaMonitor

Court Delivers Another Setback to Axanar

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star_trek_axanar_u_s_s_korolev_wallpaper_2_by_stourangeau-d6thmbiU.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 .

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.

Pixel Scroll 7/1/16 I Have No Mouse And I Must Fafhrd

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(1) A BOOK OWNER’S LIFE. Locus Online’s Mark R. Kelly writes a personal blog, and his newest post is a memoir, “15 Ways of Buying a Book, Part 1”.

Way #1:

The first books of my own, that I bought with my own money and at my own selection, were purchased through a classroom Scholastic Books catalog, in the 6th grade, that is, in 1966-1967. My family lived in Reseda, California, and I attended Vanalden Elementary School, a few blocks from our home. The school was a set of bungalows, separate structures holding two classrooms each, raised off the ground with a crawl-space below and a short set of steps up to the classroom door. A few times a year, pamphlet catalogs were passed out to all the students, listing a selection of titles and prices. We would take the catalogs home, consult with our parents, then return order forms to class with appropriate payment. The books cost 35 or 50 cents each. They were typically special Scholastic editions, short little paperbacks the size of old Ace Doubles, or larger thinner paperbacks for nonfiction. Everyone’s orders would be consolidated into a single order for the classroom, mailed in, and three or four weeks later, a big box would arrive in class and the selections eagerly distributed. (You can imagine: the box would have three copies of this book; five of these; one of this…)

Always being rather obsessive about keeping lists, I have maintained detailed purchase (and reading) records since I was 15 years old (on sheets of paper, later copied to logbooks, later copied to databases), and at some point reconstructed such lists from before that age. So I know exactly which books I bought when.

The three I remember from this 6th grade classroom source, and still have, are Martin Gardner’s Science Puzzlers, Isaac Asimov’s Environments Out There, and Howard Pease’ Mystery at Thunderbolt House. The Gardner likely reflected my interest in puzzles from that Things to Make and Things to Do volume I’ve described in that earlier post; the Asimov, a thin book about the solar system, from my recently discovered interest in astronomy. (My first interest in astronomy was seeing a stack of textbooks, called A Dipper Full of Stars, in a cabinet in my 6th grade classroom, and asking to borrow one. I’ve alluded to this in previous posts.)

(2) FINDING WAYS TO DONATE. Here’s a signal boost for JJ’s answer in comments to Tasha Turner’s wish for “a nationwide and worldwide Internet place to go and see places in need.”

One of the commenters on Greta’s blog linked to this:

DonorsChoose.org. Support a classroom. Build a future. Teachers all over the U.S. need your help to bring their classroom dreams to life. Choose a project that inspires you and give any amount.

search by science fiction

You can also search for projects in the highest poverty areas, nearest to being completed, closest to the deadline date, a specific age/grade range, or projects in or near your current location or your hometown.

(3) UNKNOWN CHRISTMAS COMPANION. ScreenRant says who is a mystery: “Doctor Who 2016 Christmas Special Features ‘Different Guest Companion’”.

Though his newest companion, Bill (played by newcomer Pearl Mackie) has already been introduced, speaking to Doctor Who Magazine, Moffatt has confirmed that her debut will be at the start of Season 10 in 2017, and the Doctor will have a different guest companion for the Christmas Special:

“We’ll introduce [Bill] in the first episode of 2017, and she’ll run through that series. She’ll not be in Christmas [2016], because that would blow the series launch … So there’ll be somebody else – a different, guest companion – this Christmas, like how River Song played the companion role in last year’s Special.”

Of course, this now leads everyone to wonder who might join Capaldi in the TARDIS.

(4) EXEC COMMENTS ON TREK FAN FILM GUIDELINES. Axamonitor has a thorough article covering what a CBS representative has said about interpreting the new guidelines.

John Van Citters, CBS vice president of product development for CBS Consumer Products appeared on the hour-long program, Engage: The Official Star Trek Podcast, which was released June 28, to explain the studios’ intent behind the guidelines, why they’re guidelines instead of rules and to clarify some of the guidelines’ specific restrictions regarding run-times, audio dramas, props and costumes…..

An Arms Race

AXANAR MEETING Van Citters was one of two CBS officials who met with Axanar producer Alec Peters in August 2015, followed by a warning of possible legal action.

Van Citters observed that fan productions had spiraled into something “larger and larger,” that had become “something of an arms race about how many Hollywood names could be attached. … That’s not really in the spirit of fan fiction.”

The guidelines, by prohibiting that kind of competition for involving industry professionals, level the playing field for newer and smaller fan productions, he added.

Not the End of Fan Films

Van Citters disputed some characterizations of the guidelines as a means to end fan films. Instead, he said they mark the first time a major copyright holder has ever given any guidelines for unfettered use of a major piece of its intellectual property with just guidelines.

He noted that while the guidelines’ restrictions may seem counterintuitive, they are meant to protect fan films for the long term, and to “cure some abuses that have been out there, and to refocus this around the fan experience … and around creating more stories rather than this kind of arms race about talent and fundraising.”

(5) PACKING IRON. Richard Foss is quoted in KCET’s story about “The Culinary Historians of Southern California”.

With the Cook Bear as their mascot–the only other place he has appeared is in the Pan-Pacific Cookbook published in 1915–CHSC keeps to their mission statement, “Dedicated to pursuing food history and supporting culinary collections at the Los Angeles Public Library”, by taking the money raised from membership dues ($30 a year), fundraising dinners and regular cookbook sales (typically after the events) and giving it to the library. To date the group has donated over $100,000…..

Special Events Chair Richard Foss, who also lectures regularly on a variety of food history topics, sees interest in the subject growing. “The Culinary Historians of Southern California is a club for anyone with any level of interest in food and food history,” said Foss, a journalist, food historian, and author of two books, “Rum: A Global History” and “Food in The Air and Space: The Surprising History of Food and Drink in the Skies”. “It’s as much about anthropology as it is about history and it’s really about food as a transmittor of cultural values.”

 

Richard Foss, a CHSC Board Member, demonstrates how to use an antique waffle iron during a talk on dining in California during the Victorian era at the Workman-Temple Homestead Museum in the City of Industry earlier this year. || Image provided by Richard Foss

Richard Foss, a CHSC Board Member, demonstrates how to use an antique waffle iron during a talk on dining in California during the Victorian era at the Workman-Temple Homestead Museum in the City of Industry earlier this year. || Image provided by Richard Foss

(6) HOWARD AWARDS. Black Gate has the winners of the 2016 Robert E. Howard Foundation Awards, announced in June at the REH Days celebration in Cross Plains, Texas.

(7) COSTUMERS AHOY! Costume-Con 36 (2018) in San Diego has picked its hotel and set a date. The con will take place May 11-14, 2018 at the DoubleTree Hotel in Mission Valley. The hotel is adjacent to the Hazard Center Mall (which offers several restaurant options) and it is across the street from the San Diego Trolley.

(8) TOLKIEN AT WAR. On the anniversary of the first day of the Somme, Joseph Loconte muses about “How J.R.R. Tolkien Found Mordor on the Western Front”. Loconte’s book A Hobbit, a Wardrobe, and a Great War: How J. R. R. Tolkien and C. S. Lewis Rediscovered Faith, Friendship and Heroism in the Cataclysm of 1914-1918 was released a year ago.

IN the summer of 1916, a young Oxford academic embarked for France as a second lieutenant in the British Expeditionary Force. The Great War, as World War I was known, was only half-done, but already its industrial carnage had no parallel in European history.

“Junior officers were being killed off, a dozen a minute,” recalled J. R. R. Tolkien. “Parting from my wife,” he wrote, doubting that he would survive the trenches, “was like a death.”

The 24-year-old Tolkien arrived in time to take part in the Battle of the Somme, a campaign intended to break the stalemate between the Allies and Central Powers. It did not.

The first day of the battle, July 1, produced a frenzy of bloodletting. Unaware that its artillery had failed to obliterate the German dugouts, the British Army rushed to slaughter.

Before nightfall, 19,240 British soldiers — Prime Minister David Lloyd George called them “the choicest and best of our young manhood” — lay dead. That day, 100 years ago, remains the most lethal in Britain’s military history.

Though the debt is largely overlooked, Tolkien’s supreme literary achievement, “The Lord of the Rings,” owes a great deal to his experience at the Somme. Reaching the front shortly after the offensive began, Tolkien served for four months as a battalion signals officer with the 11th Lancashire Fusiliers in the Picardy region of France.

(9) TRACKING MALZBERG’S COLUMN. Mike Resnick wanted to be sure I understood what really happened:

I’m told that File 770 ran a piece saying that Galaxy’s Edge, the magazine I edit, had pulled Malzberg’s column on Judy Merril due to protests. Nope. We pulled the entire May-June issue in which it appeared at the end of June 30, so we could post the July-August issue on our web page on July 1 (today). This has been our practice since the first issue, 4 years ago. Anyone who wants to read the May-June 2016 issue (#20) is welcome to buy it in epub, .mobi, or paper. Honest.

Thanks to a commenter here, I had already posted the correction by the time Mike reached out to me on Facebook. However, I’m happy to repeat the explanation and clear up the impression created by yesterday’s report.

(10) MALZBERG READERS. Today there were more reactions what Barry Malzberg said about Judith Merril in Galaxy’s Edge.

(11) TODAY’S BIRTHDAY BOY

  • July 1, 1899 – Charles Laughton. When Ray Bradbury went to Disneyland for the first time it was with Captain Bligh and the Hunchback and Doctor Moreau. Bradbury also originally wrote the play “Merry Christmas 2116” as a vehicle for Laughton and Elsa Lanchester.

(12) SEARCHING FOR FANNISH MUSICAL LYRICS. Rob Chilson left a comment in the About area asking for help.

I wonder if you or your readers can help me.

40 years less 2 months ago, at MidAmeriCon, I sat in on a reading of a musical version of “The Enchanted Duplicator” — my intro to the classic. It was MCed by Filthy Pierre (Erwin Strauss) who if I recall correctly adapted it to the stage. The others sang the songs and I mumbled along low enough not to disturb them. I’ve now spent a couple of hours on the net looking for one song that started: “Roscoe gave fan an arm of iron to help him pub his zine” and had the chorus, “But for a quarter or a loc, somebody else cranks the damn machine. For a quarter or a loc, a quarter or a loc. A quarter or a three-line ell-oh-cee.” Or words to that effect.

Can anyone point me at the lyrics?

One thought — is there anything like this in “The Mimeo Man”, which dates to that era?

(13) AT LIS CAREY’S LIBRARY. Posted the other day, Lis Carey’s review of an audio version of the Hugo-nominated novella: “Binti, by Nnedi Okorafor (author), Robin Miles (narrator)”.

….Except that Binti has won a scholarship to Oomza University, a very distinguished school–and on another planet. Her family is shocked at the very idea that Binti would actually accept it and go–but their dreams are not her dreams, and she does. And on her way there, the ship she’s on is attacked and boarded by the Meduze, an alien species that has a very real and serious grievance against Oomza University…..

(14) ANTICIPATION? A writer for the Huffington Post contends “A Dystopian Novelist Predicted Trump’s Campaign Slogan in the ‘90s”.

….Whatever the case, it seems sci-fi writer and unofficial Queen of the Galaxy Octavia Butler predicted the slogan a couple of decades ago. Nearly 20 years before Trump trademarked the term, she wrote about a character named Senator Andrew Steele Jarret, a harbinger for violence in her 1998 book Parable of the Talents.

You can see an excerpt outlining Jarret’s use of the phrase “make American great again” below:

(15) ILVERMORNY INK. It wasn’t only Elizabeth Warren having fun, says Entertainment Weekly — “J. K. Rowling’s Ilvermorny inspires excellent jokes from Massachusetts’ government officials”

Later, Governor Charlie Baker’s office even gave a good-natured statement to The Boston Globe about Ilvermorny, which has supposedly resided on Mount Greylock for hundreds of years without detection.

“The governor believes that small businesses are the backbone of the economy whether they are owned by witches or mortals, and because the institution has operated for nearly 400 years without incident, the administration plans to revisit the matter sometime in the next century or two,” Baker’s office told the paper in a statement. “The Department of Revenue’s spell-detecting technology procurement will be in its final stages at that time.”

The Boston Globe also talked to John Dudek, manager of Mount Greylock State Reservation’s Bascom Lodge, who said that the mountain’s weather does sometimes create a supernatural effect.

“It’s a little bit like The Shining here when you’re alone at night,” Dudek said. “There are days when we’re just locked in clouds and you can’t see anything.”

(16) WHAT IT MEANS TO GROW. Bishop O’Connell writes about “Growing as a Writer, and as a Person” at A Quiet Pint.

Yes, I’ve improved as a writer, but for me, being a better writer is inextricably tied to being a better person. Unfortunately, growth and improvement is never a singular, instantaneous event. It happens over a long period of time, sometimes so slow that, like the proverbial frog in the pot of slowly warming water, it goes entirely unnoticed until you have some context. When it happens, it can be embarrassing (see above, and we’re still not talking about it) but mostly it’s wonderful to see, clearly and starkly, just how much progress has been made. In this post I talked about how much I learned about the tropes and stereotypes I’d blindly fallen into and how I work to rise above them. I say work not achieved, because I still have a long way to go. This fact was brought into harsh relief as I was editing The Returned.

(17) 48 HOURS. Here’s a bulletin of interest from The Onion that should keep parents everywhere concerned: “Investigators: First 48 Hours Most Critical In Locating Missing Children Who Entered Portal To Fantastical World”.

“As soon as we learn a child has disappeared down a pool of light underneath their staircase or through a strangely shaped attic door they had never before noticed, we must act fast to assemble search parties and cover as much enchanted territory as possible,” said investigator Joe Phillippe, who urged parents to contact authorities immediately if they believed their child had passed into a gleaming world of crystal palaces or been transported back in time to the age of King Arthur. “If they’re not found within that critical 48-hour window, children typically become disoriented in the thick fog and dense forest of a land where it’s always night, or they’re led astray by a well-dressed fox who promises to take them to a place where kids can play all varieties of games. At that point, they become almost impossible to locate.”

[Thanks to Rose Embolism, Cat Rambo, Steve Davidson, and John King Tarpinian for some of these stories. Title credit belongs to File 770 contributing editor of the day Daniel Dern.]

CBS and Paramount Issue Trek Fan Film Guidelines

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Despite J.J. Abrams’ announcement that the copyright infringement suit would be dropped, Axanar Productions and Paramount and CBS are still sparring. On May 23, Axanar filed an answer and counterclaim with the court (as reported here), and on June 15 the studios filed their reply (which can be downloaded here). And today, the studios issued The Star Trek Fan Film Guidelines, which promise “CBS and Paramount Pictures will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines….”

Some of the key restrictions are:

  • All participants must be amateurs, cannot be compensated, or have been previously employed by any Star Trek franchise.
  • Limited fundraising for production is allowed – no more than $50,000.
  • The production can have no more than two episodes; a single episode limited to 15 minutes, or a combination limited to 30 minutes in length.
  • It must be distributed free, and only online.

It’s not unlikely some Trek fan film production groups operate within these parameters already, but the guidelines will cut the legs from under the best-known of the genre. In comparison, the team behind Axanar raised more than $1.2 million through a crowdfunding campaign, and were planning to pay workers on a professional basis.

Guidelines for Avoiding Objections:

  1. The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.
  2. The title of the fan production or any parts cannot include the name “Star Trek.” However, the title must contain a subtitle with the phrase: “A STAR TREK FAN PRODUCTION” in plain typeface. The fan production cannot use the term “official” in either its title or subtitle or in any marketing, promotions or social media for the fan production.
  3. The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. If non-Star Trek third party content is used, all necessary permissions for any third party content should be obtained in writing.
  4. If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products.
  5. The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.
  6. The fan production must be non-commercial:
  • CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease.
  • The fan production must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue.
  • The fan production cannot be distributed in a physical format such as DVD or Blu-ray.
  • The fan production cannot be used to derive advertising revenue including, but not limited to, through for example, the use of pre or post-roll advertising, click-through advertising banners, that is associated with the fan production.
  • No unlicensed Star Trek-related or fan production-related merchandise or services can be offered for sale or given away as premiums, perks or rewards or in connection with the fan production fundraising.
  • The fan production cannot derive revenue by selling or licensing fan-created production sets, props or costumes.
  1. The fan production must be family friendly and suitable for public presentation. Videos must not include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content. The content of the fan production cannot violate any individual’s right of privacy.
  2. The fan production must display the following disclaimer in the on-screen credits of the fan productions and on any marketing material including the fan production website or page hosting the fan production: “Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use.  No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.”
  3. Creators of fan productions must not seek to register their works, nor any elements of the works, under copyright or trademark law.
  4. Fan productions cannot create or imply any association or endorsement by CBS or Paramount Pictures.

CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion. These guidelines are not a license and do not constitute approval or authorization of any fan productions or a waiver of any rights that CBS or Paramount Pictures may have with respect to fan fiction created outside of these guidelines.

Immediately after the Abrams announcement Alec Peters of Axanar had tried to line up support from other Trek fan filmmmakers for his own “Proposed Star Trek Fan Film Guidelines,” perhaps hoping to forestall the strict rules now laid out by the studios. Peters’ draft aligned with the new guidelines only in a few minor respects, and differed on major points by setting no limit on donations (although banning the use of crowdfunding sites), allowing payment of professional cast and crew (but not “any of the principals”) and permitting a 50-minute film length.

Meanwhile, litigation continues. The Axamonitor site ran an in-depth analysis of the studios’ latest filing with the court.

In their eight-page response, CBS and Paramount generally denied Axanar’s claims, especially challenging Axanar’s assertion that “until this lawsuit, Plaintiffs, or any predecessor claiming to own copyrights in the Star Trek universe, had never filed a lawsuit against any Star Trek fan in connection with that fan’s efforts to contribute to the wealth of Star Trek fan fiction that currently exists.”3) Instead, the plaintiffs replied:

[Plaintiffs] admit that they have not sued with respect to all uses of the Star Trek Copyrighted Works, but deny that they have not previously sued to enforce their intellectual property rights in the Star Trek Copyrighted Works.4)

Tolerated Use

The plaintiffs disputed Peters’ claim that given his “extensive history with CBS,” he believed he was “operating within the tolerated realm of Star Trek fan fiction,” and that he “reached out to CBS on multiple occasions in an effort to seek guidelines about the production.”5) Instead, they stated:

[The plaintiffs] deny that Defendant Alec Peters “reached out to CBS” on multiple occasions, admit that Defendant Alec Peters spoke to [CBS officials] Bill Burke and to John Van Citters, but state that Mr. Peters was never given permission to use Star Trek Copyrighted Works, nor was he provided with “guidelines” regarding ways in which he could use Plaintiffs’ intellectual property for his Star Trek film projects, for either commercial or non-commercial use, nor was he told that his use of such Star Trek Copyrighted Works would be tolerated.

If the case is not settled, trial is scheduled for January 2017.

[Thanks to Stephen Granade for the story.]

Axanar Takes One Step Forward, Two Steps Back

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Director Justin Lin and Axanar's Alec Peters after the May 20 announcement that the studio suit would be dropped.

Director Justin Lin and Axanar’s Alec Peters after the May 20 announcement that the studio suit would be dropped.

Even after J.J. Abrams told the world on May 20 that Paramount and CBS would drop their lawsuit against Axanar fan filmmaker Alec Peters, legal maneuvering and controversy has continued — initiated by Axanar.

Three days after Abrams’ announcement, fans were surprised to read Axanar filed a 28-page response and counterclaim with the court. Fan Film Factor received this explanation from Axanar attorney Erin R. Ranahan.

We filed the counterclaim only to preserve Axanar’s rights in the event that Paramount and CBS do not dismiss their claims as J.J. Abrams and Justin Lin stated they would, do not issue reasonable guidelines, or the parties are not able to reach a settlement.

CBS both confirmed the settlement discussions and said they were “working on a set of fan film guidelines” to Buzzfeed reporter Adam B. Vary immediately after Abrams’ announcement.

The relief Axanar requested from the court in its May 23 filing is summed up in two points at the end:

Defendants pray for the following relief on their Counterclaim:

1. That the Court declare the rights and obligations of Plaintiffs and

Defendants under the Copyright Act, and declare that Prelude to Axanar and the planned Axanar scripts and film are not infringing;

2. That the Court award attorneys’ fees and costs to Defendants as permitted by law; …

(Read the original here.)  

Attorney Ranahan said Axanar had been required to file in order to meet the case’s deadline for counterclaims. She described the counterclaim as non-provocative:

While we have included a single claim for declaratory relief, this claim is not “upping the ante” given that we are not seeking any monetary damages, but simply a declaration of fair use or non-infringement in the event that the case is not resolved, which we intend and hope that it will be.  Of course, if CBS and Paramount dismiss their claims against Axanar, or we are otherwise able to resolve these claims, we have no intention of pursuing the declaratory relief claim, and would agree to dismiss it as part of any settlement.

Perhaps seeking to influence CBS, Alec Peters drafted his own proposed guidelines and tried to enlist the producers of other Star Trek fan films to support them.

Several accepted his invitation to look at his draft, though not all: James Cawley of Star Trek: New Voyages said no without even hearing a proposal.

“Hubcap Dave” in his post “Forging Fan Film Guidelines”, citing Peters as his source, listed these producers as participants in a conversation about the draft:

As a starting point, Alec created some suggested guidelines which he forwarded to Todd Haberkorn of Star Trek: Continues, John Broughton of Farragut,  John Atkin of Yorktown, Nick Cook of Intrepid, Michael King of Valiant, Scott Johnson of Starbase Studios (who produce their own fan production as well as let other productions use their facility), Greg Lock of Star Trek Ambush, plus an unnamed representative of Star Trek: Renegades. “Everyone I sent this to agreed to at least look at the draft, and half of them became part of the ongoing discussion. As for the guidelines themselves, “It is still very much a work in progress, but we hope that we can at least have something to send to CBS so they appreciate the concerns of the fan film makers.”, said Peters.

AxaMonitor’s Carlos Pedraza made Peters’ draft public:

PROPOSED STAR TREK FAN FILM GUIDELINES

  1. There must be the following disclaimer at the end of each episode and in all promotional and marketing materials, on all fan production websites:

Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan made film intended for recreational use. No commercial exhibition or distribution is permitted.

  1. Fan productions may not sell, or give away as perks, any item with a Star Trek mark, logos or character, including, but not limited to, the words “Star Trek,” the Enterprise insignia chevron, images of the U.S.S. Enterprise, or any Star Trek trademark.
  2. Fan Productions may not use Kickstarter, Indiegogo, or any other commercial crowdfunding platform to raise money.
  3. Fan productions may take donations, but all donations must go to the production of the fan film and may not be used to pay any of the principals.
  4. Fan Productions may pay professional cast and crew for their time working on the production.
  5. If a production uses a SAG member, it must become a SAG New Media Signatory.
  6. Finished fan films may be no longer than 50 minutes in length, the approximate duration of TOS episodes.
  7. Fan film makers give to CBS an unlimited, unrestricted license to use their films, or any portion thereof, in any format CBS should deem appropriate.

In the end, the idea has backfired on Peters. Most other Trek fan film producers stayed quiet throughout the Axanar litigation, but in the past couple of days many have issued public statements distancing themselves from Peters and his guidelines.

The spokesman for Star Trek: Excelsior, which was not invited to the talks, wrote a long, negative comment on Facebook. (James Heaney is Executive Producer of Star Trek: Excelsior, however, the comment was unsigned.)

For the past few months, there’s been a drama playing out across the whole community of Star Trek fan productions. We at Excelsior have stayed out of it, but we are no longer able to do so. This is a long post, and it has absolutely nothing to do with what this page is actually about — making new episodes of Excelsior for you to enjoy — so, if you want to skip it, get out now….

Ever since Axanar was served papers, Mr. Peters has done all in his power to either (a) rally other fan productions to his cause or (b) throw them under the CBS/Paramount bus. None, to my knowledge, has rallied to Axanar, and so Axanar has done an awful lot of bus-throwing instead. For example, Peters and Axanar have consistently argued that what Axanar did is not significantly different from what other major fan productions do. These claims deliberately tried to use other, innocent productions as “human shields” against CBS/Paramount. Even if the claims were true, this would constitute a serious breach of the trust and respect between fan producers. And they were not true; it is categorically false that other major productions pay their principal producers a salary or set up coffee-licensing deals.

Fortunately, CBS, which has always been profoundly generous to fan productions, held its fire, refusing to kill off the other shows Mr. Peters offered as bait. There was one major casualty — the people behind the brilliant Star Trek: Horizon were asked to cancel a planned fundraiser for a sequel — but CBS’s easiest path in December would have been to send cease-and-desist orders to ALL fan projects in one fell swoop. That they did not is a profound testament to CBS/Paramount’s steadfast support of the Star Trek fan community… even when it makes things awkward for them, even when they do not get much credit for it in the media, and, yes, even when the fans themselves do not recognize how good we have it. (For goodness’ sake, CBS has tolerated *Kickstarters* for the past several years! That alone shows how much CBS trusts and respects Star Trek fans, especially compared to other studios.)….

However, yesterday, news broke (story below) that Mr. Peters is trying to organize Star Trek fan productions to support a set of proposed “fan film guidelines” that he has created, apparently in the hope that he will be able to represent his proposal to CBS/Paramount as having widespread support among fan producers as a sort of “compromise” between CBS and Axanar. This apparent attempt by Axanar to speak on our behalf forces us to break our silence and publicly clarify our position.

Neither Mr. Peters nor anyone at Axanar Productions has contacted Excelsior Productions or any of its principals about any proposed guidelines. However, even if we had been contacted, we would have refused to participate in discussion of Axanar’s proposal, and we hereby publicly repudiate any proposal Axanar Productions purports to make on our behalf. CBS/Paramount has not, to date, asked for any fan input into any potential fan film guidelines, and we do not presume to offer any to them without their express invitation. Even if CBS/Paramount *were* to invite fan input, we would not consider Mr. Peters a trustworthy, reliable, or community-minded representative. We encourage other fan producers to join us in this firm repudiation, so that Mr. Peters’ presumption that he speaks for the fan film community is rightly discredited in the eyes of the public, the media, the court, and CBS/Paramount….

Starbase Studios, which did take part in the group chat, also released a statement on Facebook:

It has been reported in several articles today that Starbase Studios is part of a group put together by Alec Peters of Axanar, to draft a set of fan film guidelines to be submitted to CBS studios as part of the lawsuit settlement. Scott Johnson, one of the studio owners, was contacted and agreed to view the proposed guidelines but never responded or submitted an opinion on them.

The articles published this morning seems to imply that Starbase Studios, and fan productions that film at the studio, have joined Peters and Axanar in their defense against the CBS/Paramount lawsuit. The names of the individuals and groups who have agreed to preview the proposed guidelines was released without consent. It would appear the reason for releasing the names is to create a false appearance of support for Peters and Axanar as a means to strengthen their negotiating position.

FOR THE RECORD: Starbase Studios has tried to remain publicly neutral on the Axanar lawsuit. We are now forced to state that we are in full support of CBS and Paramount on this matter and have always been willing to comply with any statements, rulings, guidelines they may issue. We have no doubt that CBS/Paramount are the true copyright owners of the Star Trek franchise and respect their ownership of the property. We are also grateful to CBS/Paramount for allowing us to support the Star Trek franchise in our own way.

In an effort to keep any productions filmed at the studio from overstepping bounds of fan films, we have publicly listed a set of guidelines on our website that we insist the productions follow. These guidelines were issued by a former crew member of New Voyages/Phase 2 and have served well so far but we will adapt to whatever new guidelines CBS/Paramount sees fit to issue.

Another inaccuracy in the article states that the studio produces several fan films. The studio itself produces only one film but invites any other productions to use our sets. These other productions are not under control of the studio and although we insist they follow the set guidelines, we can not be responsible for their releases or anything added after filming at the studio is complete.

Michael King of Starship Valiant, another chat participant, made this response:

Yes, I was invited to participate in building guidelines that I felt would help the fan film community overall as a group and although the actual guidelines listed in this article were completed and forged without my input, (as I was sick during the process), I did in fact make a few suggestions as to two of the seven listed. Then I was messaged by a friend this morning and told that our “private” discussion had been made public. Apparently, someone in the group cut & pasted our discussion and shared it with another person that I personally have never heard of, to the bewilderment of myself and my good friend Scott Johnson. Honestly, I feel that the group of people in this “chat” were used and manipulated and I am not and will not be a part of any legal dealings with Paramount/CBS vs. Axanar. To this end, I am publicly stating that Starship Valiant will play by any rules that the powers that be make. I am very thankful that Valiant has been allowed to play in the trek universe. The below article was printed without my consent and I was not asked to be a part of it or to be mentioned in it.

Greg Lock of Star Trek: Ambush, who was on the talk, was supportive of Peters:

…Firstly, I am not involved in anyway as having talks with CBS/Paramount regarding any future guidelines for Star Trek Fan Films. Alec had some ideas for potential guidelines and invited me into a Facebook discussion group to see what my thoughts were. Somehow the entire message thread was leaked to some sources, especially Axanar Haters and damming articles followed. This message leak was a breach of confidentiality and we are all very angry about this. I did not feel that Alec’s actions were unreasonable; he was not telling CBS what to do in my opinion and, if anything, it seemed as always that he wanted to help in anyway he can to facilitate the continuation of fan films. It was quite clear that he was not going to “storm” into the offices of CBS and make demands, far from it. He was also taking advice from his own legal team, still representing him pro-bono who have nothing but Axanar’s future in their interests. I therefore did not feel that Alec putting feelers out to see what kind of guidelines we would be happy with to be unjustified.

I did not feel that the guidelines were unreasonable, for starters if guidelines like those are imposed they will not affect what I have planned for Ambush at all, and would allow me not to worry about possible repercussions. I also felt that the guidelines would not drastically change the plans of much larger ongoing fan films I know of. I will adhere to any guidelines that CBS impose, whether they are drawn from Alec’s input or not. My thoughts were that if those were the kind of guidelines we would have, I would be okay with that…

AxaMonitor has a roundup with statements from many more producers — Star Trek Continues, Starship Intrepid, Star Trek: Renegades, The Lexington Adventures, Melbourne, Project NCC-1703, Starship Ajax, Starship Farragut, and Star Trek Phoenix.

Newsweek’s article on the Axanar controversy, which Alec Peters commended on Facebook, says changes have been made to the proposed guidelines due to the negative reactions:

This week, Axanar Productions’ Peters circulated a set of suggested guidelines to other fan film producers, which included proposed language for disclaimers, limits on the length of fan productions, and a clause granting CBS an “unlimited, unrestricted license” to the fan films. An early version of the guidelines included a ban on crowdfunding, something Peters had earlier said he would “certainly be concerned about” if it was part of studio-provided guidelines. Peters dropped the proposed crowdfunding ban after getting negative feedback from other fan filmmakers; an Axanar spokesman says Peters sees a crowdfunding ban as “objectionable but inevitable.”

One notable omission from the proposed guidelines: any reference what kind of intellectual property license the studios would be granting to filmmakers, something likely to be part of any studio-authored rules. As attorney [Peter Kang, a partner at the law firm Sidley Austin] puts it: “In order for guidelines to provide what I assume everyone wants, which is some level of predictability, intellectual property licensing issues are going to have to be fleshed out.”