Fair Use… The In Conclusion Frontier?

The Central District of California Court volition listen on Dec xix both parties inwards the Paramount v. Axanar case. Plaintiffs Paramount Pictures as well as CBS Studios are here as well as here) that Paramount Pictures as well as CBS Studios are suing Axanar Productions as well as Alec Peters, “one of Star Trek’s biggest fans” (Defendants motion p. 7), claiming that the brusk painting Star Trek: Prelude to Axanar as well as the full-length painting titled Star Trek: Axanar, which Defendants conception to unloose soon(ish), are infringing unauthorized derivative industrial plant of the master copy Star Trek works.

Defendant’s brusk painting is a prequel to the master copy telly serial as well as movies. Defendants telephone outcry upward it a “mockumentary, ”with direct interviews of characters, inwards “a mode never earlier used past times either Plaintiffs or inwards whatever other Star Trek fan fiction” (Defendants’ motion p. 10). It features Klingons, Vulcans, as well as another characters originally created for the CBS telly series. Axanar is a battle betwixt the United Federation of Planets as well as the Klingon Empire which was won past times i of Captain Kirk’s hero, Starfleet Captain Garth of Izar. CBS volition premiere inwards 2017 a novel Star Trek series, Star Trek: Discovery, which volition travel a prequel to the master copy series, taking house most 20 years earlier Captain Kirk took ascendance of the U.S.S. Enterprise.

Let’s showtime Federal Reserve annotation that both of the Defendants’ movies are crowd-funded. The number of whether the individuals who contributed to finance these movies, as well as the crowdsourcing platform, could travel sued for contributory infringement would brand a fun “additional question” inwards a copyright police exam.

As the full-length Axanar painting has non been made yet, allow solitary released, Defendants are claiming that Plaintiffs‘claims amongst honor of the total length painting are premature, every bit the Court cannot compare the 2 industrial plant for similarities to determine whether or non at that topographic point is infringement. The movie’s script is withal evolving, as well as thence the dispute is non ripe. Defendants call inwards their motion several cases where courts refused to review drafts to determine substantial similarities (Defendants’ motion p. 15).

Copyright Infringement Claims

Plaintiffs are claiming that Defendants’ industrial plant are substantially like to the master copy Star Trek industrial plant as well as that Defendants‘works are non fair use. Plaintiffs claim that these industrial plant are non “fan films” but rather unlicensed professional person productions, as well as that they stimulate got house inwards the “alien star systems created past times Plaintiffs, on spaceships belonging to the United Federation of Planets, on Klingon battlecruisers fighting the Klingon Empire, as well as on planets such every bit Qo’nos, Vulcan as well as Axanar” (Plaintiffs’ motion p. 21 as well as 22).
Defendants are argument that their industrial plant are non substantially like to Plaintiff’s industrial plant as well as that Plaintiffs, field owning a limited number of Star Trek episodes as well as films, “do non ain a copyright to the thought of Star Trek, or the Star Trek Universe every bit a whole” (Defendants’ motion p. 7). Defendants farther struggle that Plaintiffs cannot claim copyright inwards “the full general mood as well as subject of scientific discipline fiction; names as well as words used inwards Plaintiff’s Works; elements inwards the populace domain as well as nature; the Klingon language; Scènes à Faire [for in i lawsuit spelled correctly, I tip my chapeau to Defendants’ attorneys]; most specific characters; as well as the full general costuming as well as appearance of, or shapes affiliated with, characters inwards Plaintiffs’ Works.” Once these unprotectable elements are filtered out, Defendants claim that both Plaintiffs as well as Defendant’s operate are non substantially like (Defendants’ motion p. 17).

Characters
Plaintiffs claimed that Defendants infringed on the Star Trek characters which are protected past times copyright. They cited the Ninth Circuit DC Comics v. Towle case, where the Court constitute the Batmobile to travel a grapheme protected past times copyright (see here). The Court set out as well as then a three-part attempt out to determine whether a item grapheme is protected past times copyright: the grapheme must stimulate got "physical every bit good as conceptual qualities," the grapheme must travel "sufficiently delineated" to travel recognizable every bit the same grapheme whenever it appears, as well as the grapheme must travel "especially distinctive" as well as "contain to a greater extent than or less unique elements of expression.”
Defendants argued that such elements every bit “pointy ears” cannot travel protected but, every bit noted inwards Plaintiffs’ motion, though ideas are non protectable past times copyright, the seem of these ideas tin travel protected. Plaintiffs claim that Defendants stimulate got copied the exact Star Trek characters inwards their movie. Defendants acknowledge that Plaintiffs ain the copyright inwards the Spock as well as Captain Kirk characters, but that its industrial plant practise non include them, “or whatever other characters to which Plaintiffs ain dissever copyright” (Defendants’ motion p. 9). Defendants also noted that the withal unfinished script of the full-length painting features fifty master copy characters out of 57 characters inwards total.

Is Prelude to Axanar Fan Fiction?

Defendants are claiming that their operate is fan fiction, made “to celebrate their honey of Star Trek” (Defendants’ motion p. 9), as well as is protected past times fair use. They Federal Reserve annotation that at that topographic point is a “longstanding tradition of Star Trek [f]an [f]iction” as well as that Star Trek’s creator, Gene Roddenberry, encouraged fan fiction (Defendants’ motion p. xiii as well as p. 14). As at that topographic point is no “fan fiction” provision inwards the Copyright Act, fan fiction is non infringing if it is fair use. Is it the example here?

Plaintiffs claim that the work of the Star Trek characters, setting as well as plots are non fair use, every bit they are non a parody or a satire, nor were they created for purposes of criticism or teaching, as well as thence furthered the goals of the Copyright Act. They also struggle that the work is non transformative plenty to travel fair use, but that, instead, Defendants stimulate got “meticulously replicate[d]” the Star Trek works. For Plaintiffs, but setting the activity of the painting inwards a unlike fourth dimension is non transformative enough, every bit the “creation of a derivative operate that is set upward inwards a (slightly) unlike fourth dimension than the master copy does non constitute a “transformative use” (Plaintiffs’ motion p. 19).

Defendants are argument that their industrial plant “are transformative-going where no homo has gone before” [ah!), as well as characteristic “numerous master copy characters, master copy dialogue, a unique plot, as well as an unexplored timeline” (Defendant’s motion p. 8). Also, “the styling of Prelude [to Axanar] as a brusk mockumentary featuring first-person interviews makes it peculiarly unique as well as distinctive from Plaintiffs’ Works”(Defendants’ motion p. 22).

Plaintiffs claim that Defendants’ plot is direct taken from the master copy Star Trek telly demonstrate episode which introduced Garth of Izar as well as also took storey elements from a Star Trek role playing game book. For them, the outcome on the market, which is i of the four fair work factors, is significant, every bit Defendants damaged Plaintiffs’ potential marketplace for derivative industrial plant (Plaintiffs’ motion p. 23). Defendants are argument instead that their industrial plant stimulate got no outcome on the potential market, but instead “offer gratis promotional value to Plaintiffs (Defendant’s motion p. xix as well as p. 20).They “do non human activity every bit a substitute for Plaintiff’s work.”

Defendants are claiming that their industrial plant “are non intended to travel commercialized” as well as that “Defendants stimulate got no ambitions of competing against Plaintiffs’ Works inwards painting theaters, on television, over premium streaming services or to otherwise sell their [w]orks for profits” (Defendant’s motion p. 11). In the eyes of the  Defendants, their industrial plant are protected past times fair use.

I stimulate got to acknowledge that I am wishing for to a greater extent than episodes of this Paramount v. Axanar saga. And you?

Star Trek encompass courtesy of Flickr user Tom Simpson nether a CC BY-NC-ND 2.0 license.

Captain Kirk as well as Spock courtesy of Flickr user Rooners Toy Photography nether a CC BY-NC-ND 2.0 license.