Jordan Oslin is the legal counsel for ScienceFiction.com as well as an attorney at The Bloom Firm. As a fellow fan of the genre, we asked for his expert opinion regarding the CBS/Paramount vs Axanar lawsuit:
There has been a great deal of wailing and gnashing of teeth concerning the Star Trek fan film “Axanar,” mostly due to the well-documented efforts of the rabid Star Trek fan base, a rather staunch media lobby which in recent years hissed at the efforts of J.J. Abrams and others to lift the Star Trek intellectual property (“IP”) into modern television and film through the delightful use of seizure inducing lens flares.
Shockingly, counter to the recent trend, the lamentations concerning Axanar come from the powers-that-be over at Paramount Pictures and CBS, and not from the hysterical mass of fanboys (and girls). There is one reason for this: marketability.
You see, in stark defiance of the Abrams mainstream, the aforesaid denizens of conventions and maternal basements have funded an impressive Star Trek film complete with professional actors, legitimate graphic rendering, and a screenplay worthy of Shatner’s sputtered delivery. It is exceptionally marketable, and decisively more threatening to the IP than the occasional piece of fan fiction imagining Spock getting it on with Dr. Crusher. It is also 100% copyright infringement.
Loeb & Loeb, on behalf of Paramount Pictures and CBS Studios, Inc. filed a federal lawsuit in the United States District Court for the Central District of California on December 29, 2015, alleging outright copyright infringement, contributory copyright infringement, and vicarious copyright infringement. For my non-legal types, Paramount/CBS is saying, “You did the bad thing, you helped him do the bad thing, and you supervised the helping and the doing of the bad thing!” The plaintiffs seek, among other things, a declaration from the Court that the defendants did actually infringe the copyright. They are also seeking statutory damages, attorney fees, costs associated with the suit, and an injunction preventing all production and distribution of Axanar. The amount of money at issue in this suit is in the millions, and would require experts to calculate. Smaug, the Greatest and Chiefest Calamity of Our Age, would certainly hoard the damages.
The issue here in my mind is not whether infringement of the Star Trek IP has occurred. It clearly has. As Paramount and CBS’s complaint points out, “[t]he Axanar Works infringe Plaintiffs’ works by using innumerable copyrighted elements from Star Trek, including its settings, characters, species, and themes.” The complaint goes on to point out that Axanar uses the Vulcans, the Klingons, the Andorians, Sarek, Spock’s father and the legendary ambassador from Vulcan, and Richard Robou, the eventual captain of the U.S.S. Kelvin; just to name a few of the copyrighted characters and races from the Star Trek IP, all of which are individually copyrighted, and the use of which can be considered a separate and distinct infringement. The issue is whether the actual use of the IP falls within one of the defined exceptions to the law regarding copyright infringement, such as the so-called “Fair Use Doctrine.”
For those of you who require a refresher in United States Copyright law, as per 17 U.S.C.A § 101 et seq., especially § 106, the owner of the copyright in question has the exclusive rights to do and to authorize reproduction, preparation of derivative works (i.e. Axanar), distribution, performance, display, and audio transmission. There are caveats, developments, specifications, and rulings to this maxim, including further jurisprudence. Generally, however, if you violate this law, woe to you. The copyright police are coming for your home and first born. If you are really unlucky, though, so-called “copyright trolls” will slither in from under their respective bridges to drain your bone marrow while you sleep. I believe they actually reside in Circle 4 of Canto 7. Look it up.
Anywho, the Fair Use Doctrine basically states that some uses of an IP are not infringement. These include “…purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” There is a balancing test of factors that the courts use to determine if the use actually falls within the doctrine. These factors include 1. The purpose and character of the use, including whether such use if of a commercial nature or is for nonprofit educational purposes; 2. The nature of the copyrighted work; 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. The effect of the use upon the potential market for or value of the copyrighted work. Again, there are specifications, caveats, rabbit holes, matrices, inceptions, and alternate universes for each of these factors which influence the balance.
Also, “parody” is not a magic word. If one more dude selling Hello Kitty gear claims “parody” to me, I’m going to lose it. The Hello Kitty grilled cheese press is not “parody,” Mike.
Here’s the rundown for Axanar: as a preliminary matter, the project does not fall within any of the statutorily defined categories. 1. Commercial nature-used for commercial purposes (presumably); 2. Fictional and creative in nature, so afforded more protection to IP owner (sorry I didn’t explain this one much, but I needed room for jokes); 3. Arguably fullest amount possible used-entirely based on Star Trek IP; 4. Publication rivals actual CBS/Paramount use of the IP, which means it degrades the market for the IP, which means Axanar is in big trouble like “Big Trouble in Little China,” but not awesome and filled with Kurt Russell’s glorious mullet.
So why, then, are there murmurings about Paramount/CBS dismissing the suit? Why have they published guidelines for fan films? Well, what I can tell you is that the publication of these guidelines in no way, shape, or form means that Axanar is not infringing conduct or that Paramount/CBS in some way relinquishes its rights to pursue actions against infringers. I can also tell you that even if you were to become an enterprising (See what I did there?) filmmaker who sought to do something as foolish as repurpose nearly 100% of the Star Trek IP, and even if you followed Paramount/CBS’s guidelines to the letter, Paramount/CBS would still be able to prosecute you. That bears repeating: even if you followed the subatomic particle that made up the atom that made up the molecule that made up the letter of the fan guidelines, Paramount/CBS could nevertheless put you in stocks in the town square and throw tomatoes at your head! I mean prosecute you for copyright infringement!
They won’t, though, because my delightful Trekkie compatriots are vocal, irritable, and extremely particular with their money. An affront to something they support is an affront to their support in general and could further erode the stream of their sweet, sweet Federation credits into the Paramount/CBS coffers.
Resistance is futile.