Dawn of (In)Justice?

A little while ago a shockingly good Star Trek fan film hit the web. Legal shenanigans ensued.

The film was made by a guy named Alec Peters and portrayed the build up to the Battle of Axanar (the last battle of the first Federation/Klingon War) in a documentary-style series of interviews and CGI sequences as depicted by the Federation’s Historical Society. It was good. So good, it led to a successful kickstarter campaign to get a full film treatment and the creation of Axanar Productions, Inc.

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Then it got sued.

For those of you who know about the Axanar Project and its troubled history, I’m writing to give an update on the status of the case and the pleadings so far. For those unfamiliar, well, go watch Prelude to Axanar.

On December 29, 2015 Paramount and CBS sued Axanar Productions, Inc. and Alec Peters for Copyright Infringement, Contributory Copyright Infringement, Vicarious Copyright Infringement, and Declaratory Judgment. Apparently Paramount, who normally lets fans make all sorts of films, felt threatened enough by this project to take some action.

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Paramount also names several “John Doe” Defendants, in its complaint – mainly the crews of the Axanar films. That’s important to note – they’re not just suing the company, they’re suing the individuals who work for it.

The first Complaint is not bad and details the history of the franchise. David Grossman is the lawyer for the Plaintiffs and you can tell he’s not a fan of the franchise. The requested relief is pretty harsh though. Paramount asks the Court to award it the statutory $150,000 for each copyrighted work that the short film infringes on, and attorney’s fees and costs. Paramount also asks for an injunction (order) prohibiting all of the Defendants from making any more Star Trek stuff and removing what they’ve already produced from the public.

A bit of opinion here: If Peters is, in fact, profiting or intends to profit from making the Axanar film, then he deserves to get sued and should be heavily fined. But if this is just honest-to-goodness-labor-of-love fan film, then I think Paramount/CBS should back the hell off.

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However, this clearly isn’t your typical fan film. It raised a cool million dollars online, which was clearly enough to get the studios’ attention. That million dollars is going in someone’s pocket, and the whole situation kind of blurs the line between fan films and professional ones. It’s a tough issue, and while I understand why they sued, I also see Peters’ point of view.

A stipulation (agreement) was filed extending the time that Axanar, Inc. and Peters had to respond, and it also says that no filming is being conducted while the case is pending, sadly.

In response, Axanar, Inc. and Peters filed a Motion to Dismiss and to Strike, which basically means that they aren’t acknowledging the allegations in the complaint, but rather taking issue with the way they are made. Axanar’s and Peters’ attorney, Erin Ranahan, hits pretty hard here. I’ll summarize her motion as best as I can:

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First, she claims that the Axanar short film is just a “mockumentary,” but in a footnote defines that term as a documentary depicting fictional events.

She then makes some noise about how Paramount has failed to say which copyrights have been violated, which is a good point. The Complaint just says that there are “thousands” of episodes of television with distinct elements that Axanar is copying. It doesn’t say what elements link to which episodes, or what copyright number is being violated by either film.

Ranahan makes a good point here by noting that the request of damages of $150,000 per violated work could lead to a crazy result here, especially if Paramount is claiming that the Axanar films violate all of the Star Trek copyrights.

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Notably, Ranahan throws a little jab at Paramount in a footnote that says Paramount never bothered to say anything to the folks at Axanar, Inc. until they filed suit.

She also points out that the longer Axanar film has yet to be made, and that an Order preventing them from making it would be an invalid prior restraint on their speech. That’s important, since it links up to a Freedom of Speech issue. Basically, you can’t take away someone’s voice because their words might infringe on your copyright. But if those words do infringe, you can always sue them after. She uses this same argument to say that the case is unripe (not ready) to be decided by the Court since it hasn’t been made.

Lastly, she argues that there is no evidence or allegation that anyone has profited, or intends to profit, off of either Axanar film.

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All in all, it’s a pretty darn good Motion. She makes a lot of good points, so much so that Paramount didn’t oppose the motion and their complaint got booted. The Rules, however, allowed Paramount to file an amended complaint that fixes the issues that Ranahan so skillfully pointed out. Courts will typically give Plaintiffs a couple of chances to do this, but they don’t let it go on forever.

So on March 11, Paramount and CBS filed their Amended Complaint. This time, they actually did some homework and listed every Star Trek novels that Garth of Izar appears in: Garth of Izar (owned by Paramount), Strangers from the Sky (owned by CBS), and Infinity’s Prism (owned by CBS).

They also added a Facebook photo of Alec Peters, the writer/director, holding his completed script for the longer film. It’s kind of hilarious… I can’t tell you how many times my clients’ use of social media has gotten them in trouble. Anyway, they use the photo to claim that the script itself is a violation of the copyright, as well as the film it will be based on.

There’s even a neat chart with photos comparing the appearance of various elements from the Axanar short film and Star Trek works. It’s below.

Grossman basically asks for the same damages/relief as before.

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The intrepid Ms. Ranahan, not to be deterred by a few fancy charts, filed another motion to dismiss. She claims that Paramount and CBS are claiming ownership over the entire science fiction genre, and that they can’t claim a copyright for things like pointy ears and triangular metals. There’s an even an entire section titled “Geometric Shapes Are Not Protected By Copyright.”

Even though the amended complaint is a much more solid pleading than its predecessor, Ranahan really turns up the heat in this motion. Here’s a few snippets with some of my favorite language:

“A species with ‘pointy ears’ is not original to Star Trek, and has appeared in many fictional fantasy works depicting imaginary humanoid species predating Star Trek, including, but not limited to, vampires, elves, fairies, and werewolves, as well as in many animals in nature.” Motion to Dismiss Amended Complaint, p. 19.

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“Phasers are also known as Heat-Ray weapons, which have existed in science fiction since H.G. Wells’ “War of the Worlds” in 1898.” Motion to Dismiss Amended Complaint, p.20

“The Klingon language itself is an idea or a system, and is not copyrightable.” Motion to Dismiss Amended Complaint, p.29

She also makes the really good point that the specific copyrighted novels that Plaintiff brought up are not the original mention of Garth – rather they were works derived from the TOS episode in which he appears. It’s really odd that Grossman didn’t cite that episode and its copyright… maybe because neither Paramount nor CBS owns it? Anyway, she argues that the copyright protects the original/new elements of a derivative work, not the old ones, since they already have their own copyright. Therefore, portraying Garth in either Axanar film would not violate any of the copyrights that Grossman listed. I don’t know much about copyright law so I couldn’t tell you if this is true or not.

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So, that’s where things stand. Paramount, CBS, and their lawyers have already had one bite at the apple, and if the Court grants Axanar, Inc.’s motion , they may get one more, but I wouldn’t count on much more leeway than that. However, the Amended Complaint is a ton more detailed than the original one, and it may be enough to get the case into full litigation.

If her motion is denied, Axanar, Inc. and Peters will have to file an Answer, which admits or denies the truth of the allegations in the Amended Complaint. Then they will begin discovery, which will likely be a very long and expensive process for everyone. (guess we know where that kickstarter money will go!)

Reading Ranahan’s responses, I was quite impressed with a lot of her arguments. Considering that this is about as blatant copyright infringement as you can get, she’s really fighting the good fight on this one. Assuming that Axanar’s people don’t actually intend to profit off of the film, I kind of hope that she wins.

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On a side note, I had more fun in the 60 or so minutes I took to review these pleadings than I did in all 151 minutes of Batman v. Superman. A hearing on this motion is tentatively set for May 9, 2016. I’ll be in touch after.