Monday, January 11, 2016

Character Insight No. 173: Legal Geek Breakdown of Axanar Copyright Suit [also Legal Geek No 60]

This is the latest installment in a series of "Character Insight" articles regarding the rich history of characters in the Star Trek universe. An audio version will appear on the This Week in Trek podcast, available for direct download here 

Welcome back to Legal Geek, I mean, Character Insight! This week, we take a look at the reasons for the copyright lawsuit against the Star Trek fan film Axanar and provide analysis of the merits of the claims for both sides. For those not familiar with my Legal Geek segments, if you enjoy hearing rapid breakdowns of trending topics where the nerd world meets the legal landscape, check out my segments like this every week on the Current Geek show by Frogpants. Now, let's dive in,...

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(Star Trek stuff, courtesy CNN)

As Mike and Darrell covered last week, Paramount and CBS, who jointly own IP rights to Star Trek, sued Axanar Productions and Alec Peters for copyright infringement. Why did this fan film production get singled out over others like Red Shirt Diaries and Star Trek Renegades?

It probably comes down to two factors: money, and the upcoming active use of the IP by both companies: Paramount with Star Trek Beyond, and CBS with the unnamed 2017 TV series. Axanar has raised $1.3 million, which is significantly larger than what other similar film projects have produced. For reference, Star Trek Renegades is the only thing in the ballpark money-wise, having recently Kickstarted for $400,000, but there's a ton of original Star Trek actors reprising roles in that production which may favor against stopping it with a lawsuit. That being said, I wouldn't be comfortable as Star Trek Renegades given what is now happening to Axanar, as it always comes down to money in the legal world. Otherwise, there's no reason to waste valuable resources on litigation. 

But how will that all come out? Not well for Axanar, in my view. 

First, Axanar is unabashedly infringing some Star Trek copyrights, including several characters like Garth of Izar and General Chang, the starship Enterprise, and several Klingon ships. That's enough to make a few actionable copyright claims, with damages of potentially $150,000 per creative item infringed. 

Peters first noted that when his team met with CBS prior to production, the network would not offer any specific guidelines for what would make an acceptable fan film project. CBS apparently indicated he couldn't make money off the project, and Peters argues that he is not making money off the project so it has to be allowed. Copyright infringement and fair use is not such an easy equation, unfortunately. Merely making money or not does little to decide the issue. 

Peters also argues that fan films like Axanar are fair use permissible despite the copyrights. Fair use is a four factor balancing test and it is possibly the most complex test in intellectual property law. 

One factor is the purpose and character of the use, and fan films are more like disfavored commercial products than favored works like parody and commentary. Another factor is the nature of the copyrighted work, and specific film characters and specific starships in a fictional work is a highly creative work rather than less creative and less protected things like collections of facts. A third factor is the amount and substantiality of the portion taken, and with respect to the characters it's an absolute copy of all of the creative expressions and features of the character. The final factor is the effect of the use on the potential market for the original, and while Axanar argues this improves the market for Star Trek, it's a gray area when the original is also coming back on the market. 

So all told, the first three factors strongly favor Paramount and CBS, and the final factor cuts down the middle. Even though Fair Use can be hard to predict, this seems like a rare clear-cut case where Fair Use does not apply. 

The Bottom Line: Fan films are usually fun for consumers, but creators have rights that must be respected, and without the protections of Fair Use, Axanar is likely doomed unless a settlement on a license can be negotiated. If CBS and Paramount were willing to bring the lawsuit, it's not likely to make an easy settlement. 

Character Insight will be back to normal next week, but if you enjoyed this, check out Legal Geek on the Current Geek show!

Feedback can be sent to me with future segment suggestions on Twitter @BuckeyeFitzy.

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