‘Star Trek’ Mockumentary Maker Boldly Resists Copyright Infringement Claim

November 18, 2016 by

On Wednesday, a federal judge was told that while Paramount Pictures and CBS have produced a “limited number” of Star Trek television episodes and films, “they do not not own a copyright to the idea of Star Trek, or the Star Trek universe as a whole.”

The proposition comes from Alec Peters’ Axanar Productions, which put out on YouTube a 20-minute “mockumentary” titled Prelude to Axanar and was in the midst of pursuing a feature-length version touted as a professional-quality Star Trek fan film before being hit with a copyright lawsuit. The litigation survived an initial motion to dismiss, and despite some hopes expressed by Star Trek Beyond director Justin Lin that all this would go away, Paramount and CBS are marching forward in their lawsuit.

Now, after both sides have conducted depositions with the likes of Peters, Lin and J.J. Abrams, and also gathered scholars to opine on the nature and impact of Prelude to Axanar, summary judgment motions have been filed. U.S. District Court Judge R. Gary Klausner will soon have the opportunity to weigh just how far in this galaxy Paramount’s grip on the Star Trek franchise extends. The Star Trek rights-holders have long tolerated and even encouraged fan-made work, but have drawn the line on what defendants have made, and for the first time in the sci-fi franchise’s history, a judge will be articulating whether some of Star Trek’s fans have crossed the neutral zone.

Peters is defending a work that features some back story on Garth of Izar, an obscure character that appeared in a 1969 episode of the original Gene Roddenberry series. The character is described as a “war veteran with psychological issues resulting from his traumatic experiences during the Four Years War between the United Federation of Planets and the Klingon Empire,” and “otherwise abandoned by Plaintiffs in their more recent episodes and films.”

Most of the other characters in Prelude to Axanar are original, but there are features like Vulcans and the Klingon language that will be instantly recognizable to Star Trek fans. The work at issue is said to be inspired by works such as M*A*S*H, Band of Brothers, Babylon 5, The Pacific and The Civil War.

In a summary judgment motion, the defendants argue that copyright claims made over a feature film are “premature” since the work is evolving and a direction or style hasn’t been set in stone. They also assert that Axanar isn’t substantially similar to what Paramount and CBS actually own under copyright.

“Third, even if the Court reaches the merits of Plaintiffs’ claims, Defendants’ Works fall squarely within the protection of fair use,” write defendants’ attorney Erin Ranahan. “There is no evidence whatsoever that Defendants’ Works have caused any negative impact on Plaintiffs’ market. While Defendants have used elements that have appeared in the Star Trek universe, Defendants’ Works are transformative – going where no man has gone before.”

Paramount and CBS obviously disagree.

In their own summary judgment, the plaintiffs highlight the “professional, commercial” nature of Axanar, talking how the production had raised $1.5 million and had “professionals working in front and behind the camera, with a fully-professional crew–many of whom have worked on Star Trek itself.”

It’s also revealed for the first time that Peters “attempted to meet with Netflix to become a producer of Star Trek productions.”

As to the contention that its ownership over Star Trek is limited, the plaintiffs say that the Klingon and Vulcan races, Ambassador Soval, and Garth of Izar were “sufficiently delineated” in various works to merit copyright protection. Not just in films, but also in works like a 2003 published novel titled Garth of Izar and the Four Years War supplement to Star Trek: The Role Playing Game. And nodding to a recent 9th Circuit Court of Appeals decision over the Batmobile, Paramount and CBS assert that the U.S.S. Enterprise, Vulcan Ships and Klingon battlecruisers also constitute copyrighted characters.

That said, plaintiffs’ attorney David Grossman writes that arguments over protection of “pointy ears” and “spaceships” is a “disingenuous straw man”; that Peters has “intentionally appropriated the entire Star Trek universe for the purpose of creating an authentic “professional” and “independent Star Trek film.” Defendants’ copying did not consist only of characters, costumes, and space ships. Rather, to create their “professional independent Star Trek film,” Defendants took their plot about Garth of Izar and The Four Years War from the Star Trek Copyrighted Works and attempted to flesh out a Star Trek story about events that were discussed in The Original Series. Defendants also took characters, sequence, themes, mood, dialogue, and settings from the Star Trek Copyrighted Works. Far from merely taking unprotectable ‘ideas,’ Defendants infringed specific, creative and original expression from Plaintiffs’ copyrighted works.”

Paramount and CBS says fair use has no application to these facts.

“It is beyond dispute that Defendants’ works were not created for purposes of criticism, comment, news reporting, or teaching,” states the summary judgment memorandum. “Similarly, the Axanar Works do not constitute either parody or satire, and (prior to this lawsuit) Defendants never claimed they were.”

They even point to testimony from Christian Gossett, the director of Prelude.

Asked whether his work infringed upon Star Trek property, Gossett answered, “Yes… In that it is an unlicensed filmed entertainment that uses countless elements of the Star Trek fictional world without – yeah, unlicensed.”

The amount of Star Trek taken, and the purpose and character of use, are but two of the factors that Judge Klausner will be considering when determining whether Axanar is a fair use.

What was the effect of the use upon the potential market?

“While there is no evidence of a negative market impact on Plaintiffs’ Works, there is evidence of increased and continued enthusiasm for Plaintiffs’ Works stemming directly from Defendants’ Works because Defendants’ Works provide free promotion for Plaintiffs’ franchise,” states the defendants’ brief. “Moreover, Star Trek fans have produced and disseminated fan fiction for over 50 years, without complaint, and rather with encouragement from Plaintiffs. Plaintiffs have benefitted from the unpaid and often unacknowledged labor of fans, who have helped to maintain engagement in Plaintiffs’ Works during leaner years in Plaintiffs’ cycle of production.”

In turn, the plaintiffs say that by creating a derivative Star Trek work, Peters is by definition causing market harm.

According to Paramount and CBS, “If other producers were permitted to create their own ‘independent Star Trek films’ with paid actors, directors and crew members, and incorporated copyrighted elements and characters into those films, as Defendants have done here, the damage to Plaintiffs’ market would be manifest.”

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