Canada: Star Trek Fan-Fiction Copyright Suit Tests ‘Fair Use' Defence

Last Updated: January 17 2017
Article by Lisa R. Lifshitz

Not all space battles these days are being fought on the big screens.

If you have already seen Rogue One and are looking for more space action, there is currently an ongoing pitched legal battle between Axanar Productions Inc., a Star Trek-focused fan-fiction production company, and its president, Alec Peters, on one side versus Paramount Pictures Corp. and CBS Studios Inc., owners of the copyrights to the Star Trek motion pictures and the television series and related books, games, merchandise, documentaries, etc., on the other. At issue is the scope of the "fair use" defence in United States copyright infringement law.

Avid Star Trek fans have been (obliviously) making fan fiction movies for decades that stayed free of copyright disputes and were ignored by Paramount. However, all this changed with the entry of Axanar Productions into the fray. Thanks to its history of using professional actors (including some who actually appeared in previous Star Trek series), lavish attention to detail, high production values and a proposed production budget of just under US$2 million for its latest feature (with over US$1.1 million raised through Kickstarter and Indiegogo fundraising campaigns), Axanar's activities clearly hit a nerve with the studios.

In 2014, the company released a 20-minute glossy documentary-style film entitled Prelude to Axanar about the Four Years War, the war between the Federation and Klingons that (allegedly) occurred 21 years before the original Star Trek series. Buoyed by their success and positive fan reaction to a short clip entitled Vulcan Scene, Axanar had planned to release a feature-length film in 2016 called Axanar about Garth of Izar (mentioned in one episode of the original series), a Starfleet captain and hero of Captain Kirk and the battle of Axanar. This was clearly too much for CBS and Paramount.

The fight officially began in late December 2015 when Paramount and CBS sued Axanar for copyright infringement, asking for damages of up to $150,000 for each separate Star Trek copyrighted work infringed from Prelude to Axanar as well as an injunction to stop the production and distribution of the new Axanar movie. The copyright infringement suit was allowed to go forward by a U.S. federal judge in May 2016 even though the feature film hadn't yet been written or filmed.

In the U.S., "fair use" is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the U.S. Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses — such as criticism, comment, news reporting, teaching, scholarship and research — as examples of activities that may qualify as fair use. Section 107 calls for consideration of four factors in evaluating a question of fair use: (i) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (iv) the effect of the use upon the potential market for or value of the copyrighted work.

Peters has argued that the various Axanar works, including the script of the new movie and Prelude to Axanar, are actually "transformative" — adding something new to the work allegedly infringed, with a further purpose or different character, altering the original work (and not just repackaging it). Since the Axanar works feature new characters, original storylines, original dialogue, etc., they are transformative and protected under the U.S. copyright doctrine of "fair use."

Paramount and CBS weren't buying Axanar's "transformative" arguments, given Axanar's extensive (and intentional) use of some pretty familiar-looking Starfleet insignia, costumes, hair styles, logos, Klingon battlecruisers, actual Star Trek characters and the occasional pointy-eared Vulcans, all of which are elements that Paramount and CBS maintain are protected by their copyright interests and cause Axanar to infringe (even with its tweaks).

On March 11, 2016, Paramount and CBS filed a First Amended Complaint against Axanar and Peters alleging copyright infringement, contributory copyright infringement and vicarious copyright infringement. Paramount moved for liability and injunctive relief while Axanar moved for summary judgment, and on Jan. 3, the United States District Court, Central District of California, denied both motions.

The court found that the Axanar works use copyright-protected Star Trek elements and had objective "substantial similarity" to the copyrighted Star Trek works and wanted a jury to ultimately decide whether there is "subjective" substantial similarity. The court also examined whether the defendants could claim their copying fell within fair use and examined the four factors in the U.S. Copyright Act described above. It found the Axanar works to be commercial because even though they were distributed for free, the defendants hoped to gain indirect commercial benefits for the movies i.e., job opportunities, publicity, etc. Axanar also intentionally used elements from the Star Trek copyrighted works to create works that stay true to the Star Trek canon "down to the excruciating details," in the words of the court. Accordingly, U.S. District Judge R. Gary Klausner was unpersuaded by Axanar's arguments that it was entitled to use the fair use defence and ordered that the copyright lawsuit should move forward.

Another consequence of the lawsuits is that CBS and Paramount Pictures felt compelled in June 2016 to release extensive "Fan Films" guidelines. In support of "reasonable fan fiction and fan creativity," Paramount and CBS state that no legal action will be taken against Star Trek fan productions that are "non-professional and amateur" (and that meet some pretty strict criteria). For example, any fan production must be less than 15 minutes long for a self-contained story, be no more than two segments/episodes not to exceed 30 minutes in total and have no seasons, parts, sequels or remakes. Actors must be unpaid amateurs and cannot have currently or previously worked on any Star Trek series, films, DVDs or with any of CBS's or Paramount's licensees. The fan production must be non-commercial; i.e., any fundraising for the production cannot exceed US$50,000, and it must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue (no distribution via DVD or Blu-ray either). Needless to say, the planned Axanar film would fail most of these guidelines quite spectacularly and other fan productions may also be similarly impacted.

The Axanar civil trial is set to begin on Jan. 31. Engage!

Originally published by Canadian Lawyer Online - IT Girl Column.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Lisa R. Lifshitz
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