Axanar meets legal resistence from CBS

[Mallus]

Axanar has gone from being free publicity that keeps the franchise alive in the lean times, to something that they see as actual competition.

Maybe it's my ignorance talking, but I just don't see how a crowdfunded production that raised, in total, 1/5 of the average cost of a single 1 hour pilot episode can be seen by network executives as competition. To a franchise that has a $150,000,000 feature film coming out in the summer, plus another multi-million dollar spend on the new series.

I mean, maybe if you factor in a few decades of coke-fueled paranoia on the part of the executives, but I'd rather not cast aspersions on the good people at CBS .

 

[Janx]

Note that part of determining Fair Use is not just the potential damages from one instance, but the consideration of what would happen if a particular form of use became common. If it would become damaging if common, then it is not fair use.

So, what would happen in million-dollar, high quality, professionally staffed fan-funded productions of Trek became common? What would that do to the value of the property to CBS/Paramount? I think we can say it would reduce that value quite a bit. Thus, not fair use.

I doubt CBS really cares if they get paid damages in this particular suit - I suspect the request for damages is pro forma.

I am beginning to think that there's a difference between a fan production, and a fan-funded production. Specifically, if there's professionals on the project getting paid, then they aren't really working as fans. There comes a point when enough fo these sorts of people on the project make it no longer be a fan production.

Fair point, though the questions is, would it?

Right now, the market can bear a lot of star trek, because there isn't that much out there. Trek fans would watch nothing but trek if there was new content streams of it to fill their time.

Possibly the danger is that CBS's product may not be as good/liked as well as the competition. Which if we were talking about other sci-fi vs. Star Trek in a big studios only made stuff world, then Paramount would have to suck it up and make a better product or die.

Basically Paramount's concern is that they shouldn't have to compete with their own IP. Which is true. But maybe they should have been delivering more and better product so fans wouldn't seek out alternative sources.

 

[Janx]

basically yet another attempt to argue "The cops didn't stop THAT guy from stealing a TV so I thought it was legal..."

When it comes to trademarks, you have to litigate to protect. If you fail to demonstrate taking steps to protect your trademark, you can lose it.

Thus, by not sending C&D/takedown letters on these other Trek projects that lifted everything including the kitchen sink if they could see it in an episode to replicate, Paramount is in danger of setting a precedent that they do not care to protect their trademark, thus abandoning their right to it.

I can't say that's how this case will work out, but part of this concept is at stake, and it is part of the point Gerrold is making.

I'd need a lawyer like Danny to explain it better (and correct a few bits of my explanation). But the gist is, if you let too many people use your stuff without lifting a finger to even say "hey don't do that", a court can rule that you've abandoned it to public domain.

 

[Ryujin]

Maybe it's my ignorance talking, but I just don't see how a crowdfunded production that raised, in total, 1/5 of the average cost of a single 1 hour pilot episode can be seen by network executives as competition. To a franchise that has a $150,000,000 feature film coming out in the summer, plus another multi-million dollar spend on the new series.

I mean, maybe if you factor in a few decades of coke-fueled paranoia on the part of the executives, but I'd rather not cast aspersions on the good people at CBS .

Maybe because it has a story in addition to 'splosions & stuff, rather than instead of?

It could be that magic $1M mark they passed that flipped their switch, despite their really being no home in Hollywood for the $1M movie.

 

[Umbran]

Fair point, though the questions is, would it?

Right now, the market can bear a lot of star trek, because there isn't that much out there. Trek fans would watch nothing but trek if there was new content streams of it to fill their time.

Actually, no, they wouldn't. *Any* market can get saturated, and franchise fatigue is an issue.

Possibly the danger is that CBS's product may not be as good/liked as well as the competition. Which if we were talking about other sci-fi vs. Star Trek in a big studios only made stuff world, then Paramount would have to suck it up and make a better product or die.

Except, no, they don't. Because *THEY OWN IT*. We *DO NOT* get to say, "I like it, and I can do it better, so I will take it away from you." That's exactly the behavior that copyright prevents.

Basically Paramount's concern is that they shouldn't have to compete with their own IP. Which is true. But maybe they should have been delivering more and better product so fans wouldn't seek out alternative sources.

That sounds really great, when you are the one doing the stealing. It sounds a lot less good when you're the one being stolen from. I know it is not technically theft, but really, dude, you're advocating, "I get to take your stuff when I feel like it." I know it feels like it is okay when the "underdog" does it to "big business", but the ethical quality really doesn't change that much. Taking things you don't own generally isn't cool.

Think about that for a minute - how far are you willing to go to justify behavior if, done in the other direction, you'd decry as being unconscionable behavior?

 

[freyar]

Something I don't understand about this (and hopefully a lawyer like Danny will pop in and explain): how can this be a copyright issue? I can understand that Star Trek (and logos, etc) would be trademarked, but my understanding is that Axanar is a new script. In that case, how would CBS/Paramount have a copyright claim? Are broad similarities or overarching ideas are enough for copyright protection?

 

[Janx]

Actually, no, they wouldn't. *Any* market can get saturated, and franchise fatigue is an issue.



Except, no, they don't. Because *THEY OWN IT*. We *DO NOT* get to say, "I like it, and I can do it better, so I will take it away from you." That's exactly the behavior that copyright prevents.



That sounds really great, when you are the one doing the stealing. It sounds a lot less good when you're the one being stolen from. I know it is not technically theft, but really, dude, you're advocating, "I get to take your stuff when I feel like it." I know it feels like it is okay when the "underdog" does it to "big business", but the ethical quality really doesn't change that much. Taking things you don't own generally isn't cool.

Think about that for a minute - how far are you willing to go to justify behavior if, done in the other direction, you'd decry as being unconscionable behavior?

I don't think you understood what I said.

For instance: when you replied "Except, no, they don't. Because *THEY OWN IT*. We *DO NOT* get to say, "I like it, and I can do it better, so I will take it away from you." That's exactly the behavior that copyright prevents. " it was in response to my point that CBS would have to compete better if we were talking Star Trek vs. non-star trek properties.

I am not actually advocating theft of Star Trek IP. Technically, none of this fan stuff should exist. But CBS has under served star trek fans such that they have created an alternate source of media. Barring copyright law getting in the way, this is an economics problem.

Meaning, that CBS is free to exercise their legal rights. But they might not have to if they tried to solve the problem the fans are solving.

 

[Janx]

Something I don't understand about this (and hopefully a lawyer like Danny will pop in and explain): how can this be a copyright issue? I can understand that Star Trek (and logos, etc) would be trademarked, but my understanding is that Axanar is a new script. In that case, how would CBS/Paramount have a copyright claim? Are broad similarities or overarching ideas are enough for copyright protection?

I would bet this is really a trademark issue, not copyright. Axanar isn't plagiarizing text or footage from a Star trek show or movie.

But they are basing it on the star trek universe which should have tons of trademarked terms like Star Fleet and Klingon for instance.

As you said, this is where Danny is needed...

 

[Umbran]

how can this be a copyright issue? I can understand that Star Trek (and logos, etc) would be trademarked, but my understanding is that Axanar is a new script. In that case, how would CBS/Paramount have a copyright claim? Are broad similarities or overarching ideas are enough for copyright protection?

From Title 17 of the United States Code:
" In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is 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."

I've read that one issue at hand here is in point 3. While the amount of copyrighted material referenced may not be large in comparison to the overall Star Trek body of work, it may be *substantial* - meaning of great substance. When you start talking about phasers and warp nacelles and transporters and starfleet and klingons and referencing canon history and you use visual symbology established in copyright protected works, etc, these things add up. If you take, in essence, "the heart of the work", then you're likely not in fair use, even if those things you take are not trademarked.

For fan works, this means that if you take enough of the setting and dressing such that folks know without you explicitly saying that it is Star Trek, you're probably not in fair use, and are relying on the IP owner's good wishes.

 

[Janx]

From Title 17 of the United States Code:
" In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is 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."

I've read that one issue at hand here is in point 3. While the amount of copyrighted material referenced may not be large in comparison to the overall Star Trek body of work, it may be *substantial* - meaning of great substance. When you start talking about phasers and warp nacelles and transporters and starfleet and klingons and referencing canon history and you use visual symbology established in copyright protected works, etc, these things add up. If you take, in essence, "the heart of the work", then you're likely not in fair use, even if those things you take are not trademarked.

For fan works, this means that if you take enough of the setting and dressing such that folks know without you explicitly saying that it is Star Trek, you're probably not in fair use, and are relying on the IP owner's good wishes.

Good catch. That was the kind of thing I was hoping Danny would clarify for us as they aren't copying sentences, but props, sets, and names of things (trademarkable).

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.

Whereas, the other projects are actually copying star trek TOS sets, uniforms, props, characters, etc. You can't easily reskin that to avoid a lawsuit.