Axanar meets legal resistence from CBS

Ovinomancer · Jan 5, 2016

Except fair use doesn't apply here. Fair use only applies for limited uses, such as to comment or criticize, and for transformitive works -- ie, completely changing the nature of the work. A new Trek story is not comment or criticism, nor is it a transformitive work -- it's the same format and purpose as the original work.

As for trademarks, yes those are an issue, but this can be a copyright claim because Axanar is taking much of the established, and copyrighted, lore for their film. This would be like saying that it's not a copyright issue to take the world of Middle Earth and write your own stories in it. It would still be a copyright issue, even if you don't directly take portions of previously written stories because the world is part of the copyrighted work. Umbran's 'substantial use' analysis from above is apt, even if using the fair use isn't proper.

I found a copy of the filing. CBS is suing everyone involved, including set builders, costume designers, directors, writers, etc. They've thrown a wide net. This has to be the first volley in a plan to destroy fan made Trek work, as I cannot see how the allegations they've making here don't apply to any and all Trek fan work. The only real defense Axanar has is the long existence of other fan projects under the same set of conventions that Axanar is using. Suing instead of issuing a C&D, especially given the ties CBS has with some of the people involved (who they've named as Doe defendants to boot) is a seriously duck move (ducks, as you well know, are the absolute jerks of the bird world).

Axanar is dead. Even if they win the lawsuit, the trial will be so expensive that they'll have to shut down anyway. Given the nature of the suit (no warning, both barrels, widest net possible) it's clear that CBS wants to shut this project down with prejudice, and they don't even have to both winning the case to do it. The US legal system is punishment enough without a verdict to do that.

Ryujin · Jan 6, 2016

Someone on the Axanar Facebook page managed to dig up a link to the suit:

https://docs.justia.com/cases/federal/district-courts/california/cacdce/2:2015cv09938/636636/1

Umbran · Jan 6, 2016

Janx said:
Still Axanar would be clear if they renamed everything.

Then it would just be a sci-fi movie. All the uniforms and props are different from any TV. The ships are obviously derivative, so that might be a problem.

They'd need to rename everything, and change all the visual designs, yes - uniforms, ships, insignia, all of it. I haven't watched Prelude, but some of the images I see have those uniforms as pretty solidly derivative.

Basically, you'd have to be able to watch it and not be able to point at something and say, "Hey, that's Trek!"

MarkB · Jan 6, 2016

Out of curiosity, what, if anything, is Youtube's liability if they continue to host Axanar videos at this point? Certainly, they must be aware of the alleged copyright infringement. Are they okay so long as nobody officially reports a copyright violation to them, or would they be guilty of illegal distribution if Axanar lose the case?

Ryujin · Jan 6, 2016

MarkB said:
Out of curiosity, what, if anything, is Youtube's liability if they continue to host Axanar videos at this point? Certainly, they must be aware of the alleged copyright infringement. Are they okay so long as nobody officially reports a copyright violation to them, or would they be guilty of illegal distribution if Axanar lose the case?

"Prelude to Axanar" was an original work, posted by the producers, so I would think that Youtube has a bit of protection there. If CBS gets an injunction and then sends a simple email to Youtube, I suspect that "Prelude" would be taken down in minutes. There are plenty of actual trademarked/copy written works already up on Youtube and they do seem to be taken down, when reported.

Ovinomancer · Jan 6, 2016

MarkB said:
Out of curiosity, what, if anything, is Youtube's liability if they continue to host Axanar videos at this point? Certainly, they must be aware of the alleged copyright infringement. Are they okay so long as nobody officially reports a copyright violation to them, or would they be guilty of illegal distribution if Axanar lose the case?

They have no responsibility to look for violations and police them on their own. If CBS asks them to take it down and cites copyright infringement, though, they have to take steps. I'm currently a bit confused as to CBS' legal strategy in that they are suing, but not issuing routine DCMA requests to pull the material.

Ryujin said:
"Prelude to Axanar" was an original work, posted by the producers, so I would think that Youtube has a bit of protection there. If CBS gets an injunction and then sends a simple email to Youtube, I suspect that "Prelude" would be taken down in minutes. There are plenty of actual trademarked/copy written works already up on Youtube and they do seem to be taken down, when reported.

Axanar isn't an original work, it's a derivative work. It infringes the Star Trek IP pretty clearly. You're right, though, in that YouTube has no responsibility absent a takedown request from CBS.

Umbran · Jan 6, 2016

Ovinomancer said:
I'm currently a bit confused as to CBS' legal strategy in that they are suing, but not issuing routine DCMA requests to pull the material.

It is interesting. I'm guessing that it is less a legal strategy question than a business strategy one. Perhaps, in essence, they want to put the kibosh on big-crowd-funding, professionally-staffed infringing major projects. "Prelude to Axanar" itself really isn't what will do the damage, so they don't feel a need to insist it go away right now, and insistign might well cheese fans off *even more*. It is the larger Axanar work that could become a distressing precedent, that they need to deal with, and better to do that before it ever hits youtube.

Ryujin · Jan 6, 2016

Ovinomancer said:
Axanar isn't an original work, it's a derivative work. It infringes the Star Trek IP pretty clearly. You're right, though, in that YouTube has no responsibility absent a takedown request from CBS.

Of course you're right, from the standpoint of legal terminology, but I was simply trying to set it apart from all of the actual broadcast programming and movies, that are posted to Youtube wholesale. It's not a complete and copywritten work that someone has appropriated, then posted.

MarkB · Jan 7, 2016

Umbran said:
It is interesting. I'm guessing that it is less a legal strategy question than a business strategy one. Perhaps, in essence, they want to put the kibosh on big-crowd-funding, professionally-staffed infringing major projects. "Prelude to Axanar" itself really isn't what will do the damage, so they don't feel a need to insist it go away right now, and insistign might well cheese fans off *even more*. It is the larger Axanar work that could become a distressing precedent, that they need to deal with, and better to do that before it ever hits youtube.

And I guess, to some extent, having the video out there so they can metaphorically point to it and say "this is clearly a copyright infringement" may be more useful to them in the publicity war than outright banning it.

Ovinomancer · Jan 7, 2016

MarkB said:
And I guess, to some extent, having the video out there so they can metaphorically point to it and say "this is clearly a copyright infringement" may be more useful to them in the publicity war than outright banning it.

Yeah, no, not really. By not asking for a DMCA takedown (which is heavily slanted towards copyright owners), they're introducing evidence that the damage the video does to the IP are small and/or negligible. By doing so, they're essentially devaluing their copyright claims, especially when asking for damages. It's hard to show that you've been harmed when you don't even take advantage of the immediate and trivial legal recourse to halt the infringing material. It doesn't necessarily weaken their claim of infringement, or damage their ability to have the infringement enjoined (legalese for court order to stop doing that right now and never do it again), but, yeah, it doesn't help it either.