Axanar meets legal resistence from CBS

[Janx]

Technically speaking, CBS/Paramount could shut you down at any point in this supposition. In practice they would likely use your distribution method, Youtube, against you by filing a claim that would immediately halt monetization, with a likely eventuality that they would assume control of it and monetize it themselves. It happens and there are plenty of Youtubers who are unhappy about it, especially when their videos actually fall within "fair use" guidelines.

Another question directly related to the Axanar thing is, "What if I am actually a professional myself, who has a bunch of professional friends, and want to make a fan film?"

The IP holder has an absolute right to their IP, provided it isn't being used under "fair use" guidelines. If the IP is being used straight-up and not for parody, review, or educational purposes, then you're pretty much hosed if the take a dislike to you.

Bear in mind, YouTube is chock full of Star Trek "episodes" that are blatant IP violations like Star Trek Continues (that's how I watched it). So Paramount has knowingly or unwittingly allows a number of these to slide. They are clearly not reviews, parody or educational purposes.

Your example of the "we're professionals and we have pro friends who will volunteer to help do this for free in Bradd Pitt's basement" being another variation of the kinds of "have we crossed the line past 2 friends shooting a crappy video" for Paramount to care about.

Here's my basic understanding of IP, Trademark and Copyright. If you don't demonstrate effort to enforce it, you lose it.

By allowing Star Trek Continues and some others (Renegades, New Voyages, etc), Paramount/CBS has tacitly given approval to using their IP.

This may be the real legal battle Axanar was gunning for (remember, their leader IS a Lawyer, they do stuff like this). By coming in as "yet another IP infringer", Axanar may be trying to force Star Trek out of Paramount's hands by way of their lack of consistent enforcement on the other projects.

I of course could be wrong. But when the metric for "now Paramount will sue you" is fuzzy and we're left guessing where the line is based on conversations like this, that seems like ripe grounds for an argument to sway a jury.

The darn shame of it is that Axanar itself looks like a really cool project. Outside of the legal wrangling, I suspect the people making it really care about Star Trek and are trying to make a good product. Thus, I take exception to Wheaton calling them bad names. I think it's more complicated than that.

 

[Dannyalcatraz]

You don't have to sue everyone; you can be inconsistent in enforcement. IP holders are not required to scour the Internet looking for violators. No court is going to say to an IP holder that they lost their rights because they didn't enforce their rights on X% of the millions of IP violators who downloaded their stuff illegally, or thousands who made Youtube vids with their IP.

 

[Janx]

You don't have to sue everyone; you can be inconsistent in enforcement. IP holders are not required to scour the Internet looking for violators. No court is going to say to an IP holder that they lost their rights because they didn't enforce their rights on X% of the millions of IP violators who downloaded their stuff illegally, or thousands who made Youtube vids with their IP.

Good to know.

I've heard of some older trademark cases that ended up getting "lost", but the internet changes the mechanics by a larger margin that it may be infeasible for an IP Holder to truly be aware of most violators.

 

[Morrus]

You don't have to sue everyone; you can be inconsistent in enforcement. IP holders are not required to scour the Internet looking for violators. No court is going to say to an IP holder that they lost their rights because they didn't enforce their rights on X% of the millions of IP violators who downloaded their stuff illegally, or thousands who made Youtube vids with their IP.

And - correct me if I'm wrong - enforcing your IP does not have to mean "sue the living bejeezus about of somebody". It can mean reaching out to them and either guiding them into compliance or reaching an agreement. There's no obligation to sue people or lose your IP. Is that correct?

 

[Umbran]

Good to know.

I've heard of some older trademark cases that ended up getting "lost", but the internet changes the mechanics by a larger margin that it may be infeasible for an IP Holder to truly be aware of most violators.

That's trademark. CBS is using *copyright* law here, which is different.

 

[Ryujin]

And - correct me if I'm wrong - enforcing your IP does not have to mean "sue the living bejeezus about of somebody". It can mean reaching out to them and either guiding them into compliance or reaching an agreement. There's no obligation to sue people or lose your IP. Is that correct?

I have enforced my own ownership of IP (photographs) in just this way. I've never had to sue anyone and, given the tiny level that the damages would rise to, it would be rather pointless to take it any further than small claims court. In only one case have I had to take it further than a friendly request to either pay or remove pictures from a website, and that resulted in me having the person's provider kill the offender's website.

 

[Janx]

That's trademark. CBS is using *copyright* law here, which is different.

yes and no. Granted for us laymen, we use the phrase Intellecutal Property (IP) to cover all the bases of trademark, copyright, patent, etc. We'd need Danny to set us straight in lawyerful terms. Personally, I have more experience in patent IP than the others.

That said, trademark is more likely to apply to concepts like Romulan, Star Trek, and Klingon in this Axanar case than Copyright, which as I understand generally covers specific text, speech, music, art, video. This is akin to TSR trademarking Nazi, and how you can't copyright protect game rules only the implementation of the text explaining them (thus the Player's Handbook is copyrightable, the rules to 3e are not).

Unless Axanar steals footage or a script from Paramount, it's not a straight up copyright case (as in plagiarism kind of copyright violation).

If using the words Klingon, etc are indeed covered under some copyright law, obviously I don't know that. However it smells exactly like trademark infringement.

As both patent and trademark have rules about failing to enforce them, I suspect copyright has similar clauses. We'd need Danny to confirm or refute that hunch.

 

[Dannyalcatraz]

And - correct me if I'm wrong - enforcing your IP does not have to mean "sue the living bejeezus about of somebody". It can mean reaching out to them and either guiding them into compliance or reaching an agreement. There's no obligation to sue people or lose your IP. Is that correct?

Yep.

 

[Janx]

And - correct me if I'm wrong - enforcing your IP does not have to mean "sue the living bejeezus about of somebody". It can mean reaching out to them and either guiding them into compliance or reaching an agreement. There's no obligation to sue people or lose your IP. Is that correct?

in a more friendly world, you bet.

I imagine that in most cases, the victim of a violation doesn't take kindly to it, and their initial feeling is not positive enough to let them slow down and try to talk to the perpetrator. After all, they have no responsibility to do so, they are the victim.

Consider if I was making unauthorized add-on material to WOIN. And you found out. Would you shoot me a polite email saying "hey, um, legally, you can't do that, but if you work with me, I may be able to guide you into compliance with my rights, so I won't have to sue the stuffing out of you."

Or is it easier to just send the idiot named Janx a C&D and be done with it.

 

[Dannyalcatraz]

Something can be covered by multiple forms of IP protection. So, Copyright AND Trademark might apply in a given case, and loss of one does not extinguish the other.