Judge Says Copyright Case Against Star Trek Fan Film Can 'Live Long' And Possibly 'Prosper'

from the resistance-is-futile dept

Tue, May 10th 2016 2:09pm — Mike Masnick

Just yesterday we filled you in on the latest in the copyright fight over a professional-level "fan film" in the Star Trek universe, dubbed "Axanar" (along with a short film "Prelude to Axanar.") The makers of that film tried to get the case dismissed, arguing that Paramount Pictures and CBS failed to state an actual claim of copyright infringement. Specifically, they were arguing that Paramount/CBS highlighted a bunch of things related to Star Trek, some of which they may hold a joint copyright over, but failed to state what specific copyright-covered work the Axanar productions were infringing. And, of course, there was a side note in all of this that one of the many things that Paramount and CBS tossed against the wall claiming copyright was the Klingon language itself.

This morning, the court released two short rulings, with the first one dumping the amicus filing over whether or not there was a copyright in the Klingon language. That one was short and sweet and just said that at this stage of the game the court has no reason to explore whether or not languages can be covered by copyright and "therefore, none of the information provided by Amicus is necessary to dispose of the Motion to dismiss."

As for the main show, Judge Gary Klausner also denied the motion to dismiss, saying that Paramount and CBS had certainly presented enough details to state a credible claim of copyright infringement, and the case should move forward. Klausner also did not miss his chance to have a little fun with the PACER entry about his ruling:

If you can't read that, the key part states:

Although the Court declines to address whether Plaintiffs' Claims will prosper at this time, the Court does find Plaintiffs' claims will live long enough to survive Defendants' Motion to Dismiss.

Har har. Can't wait for all the Star Trek references in the eventual ruling, right? But in denying the motion to dismiss, things are pretty straightforward. Basically, Paramount/CBS has at least shown enough to state a copyright claim, and then the case can move forward from there to determine whether that claim is real.

The Court finds the Complaint sufficiently provides Defendants notice of the allegedly infringing elements at issue. For example, Plaintiffs allege that the Starship U.S.S. Enterprise, which first appears in the pilot episodes of The Original Series and is consistently portrayed throughout the franchise’s episodes and films, appears in Defendants’ Prelude to Axanar.... This provides Defendants with notice that their use of the U.S.S. Enterprise is potentially infringing each Star Trek Copyrighted Work in which the U.S.S. Enterprise appears. Further, Plaintiffs allege that Soval, a character first seen in an episode of the Star Trek Enterprise television series and later seen in other Star Trek Copyrighted Works including the 1979 Motion Picture, appears in Defendants’ Prelude to Axanar wearing a copied costume and portraying himself as the same Soval character as in the Star Trek Copyrighted Works.... This provides Defendants with sufficient notice that their use of Soval in the context of Prelude to Axanar is potentially infringing each Star Trek Copyrighted Work in which Soval appears.

The Axanar filmmakers had also argued that because the complaint's claims were all "on information and belief," that was insufficient to state a copyright claim, but again, Judge Klausner rejects that argument:

Here, Plaintiffs’ allegations based on “information and belief” are bolstered by specific facts and many allegations gleaned directly from comparing the works at issue and from Defendants’ public postings on social media. For example, Plaintiffs include a screenshot of Defendants’ Facebook post of a photo of Defendant Peters posing with a “fully revised and locked script.” ... Plaintiffs’ copyright infringement allegations as to the Axanar Motion Picture are based on this script, along with the Vulcan Scene.

As for the big question about whether languages, uniforms, triangular uniform badges, etc. are even subject to copyright in the first place, the judge takes Paramount's argument that when put altogether, there is something protectable:

Defendants contend that non-protectable elements include the following: (1) costumes; (2) geometric shapes (e.g., the Starfleet command insignia); (3) words and short phrases (e.g., the names of planets or races); (4) elements of works derived from nature, the public domain, or third party works (e.g., Vulcans’ appearance with pointy ears or the concept of warp drive); (5) the Klingon language; (6) the mood or theme of “science fiction action adventure”; (7) scenes-a-faire elements (e.g., staples of science fiction such as starships and medals on uniforms); and (8) characters identified by Plaintiffs (e.g., Garth of Izar, Soval, and Robau). The Court finds that Defendants’ argument mischaracterizes the scope of Plaintiffs’ copyright claims.

When viewed in a vacuum, each of these elements may not individually be protectable by copyright. Plaintiffs, however, do not seek to enforce their copyright in each of these elements individually. Rather, Plaintiffs’ copyright infringement claims are based on the Star Trek Copyrighted Works as a whole. The Complaint clearly defines the works at issue (the Star Trek Copyrighted Works), and includes the copyright registration numbers for the motion pictures and the first episode of each television series. The Court finds it unnecessary to analyze whether the allegedly non-protectable elements of the Star Trek Copyrighted Works are eligible for copyright protection because Plaintiff describes these elements in the Complaint solely in an effort to demonstrate how the Axanar Works are substantially similar to the Star Trek Copyrighted Works

A separate question was raised over the fact that the feature length film hasn't even been made. The Axanar folks argued that it was premature to claim copyright infringement, but kind of messed up their own case by announcing on Facebook that the script was "fully revised and locked." The judge basically takes that as an admission that it's written and thus could be infringing:

Taking Plaintiffs’ allegations as true, the Court finds it plausible that Defendants have completed a final script of the Axanar Motion Picture. The Court will be able to analyze substantial similarity based on the script and the already disseminated Vulcan Scene.

The court also rejects Axanar's assertion that this would be prior restraint, noting that Paramount hasn't even asked for an injunction blocking the making of the fan film:

Finally, Defendants argue that it would be an impermissible prior restraint for the Court to allow Plaintiffs’ claims based on the Axanar Motion Picture to proceed. This argument is unavailing. Plaintiffs have not yet filed a motion for injunctive relief and Defendants are not restrained by the filing of this Complaint. Rather, Defendants are on notice that Plaintiffs allege certain copyright infringement allegations against them. This ruling does not affect Defendants choice to proceed with the production of the Axanar Motion Picture.

That part feels like a bit of a stretch, because obviously this kind of case could serve as significant disincentive to proceed, and lots of courts have found mere barriers to publication of content to be a form of prior restraint. For example, there was a case that once found a tax on paper and ink to represent a First Amendment violation.

However, at this point, the Judge has seen enough to say that the case should move forward and that Paramount/CBS have stated at least enough of a claim to move forward.

892ca30e-315b-4c6a-8169-873718357b9b (PDF)892ca30e-315b-4c6a-8169-873718357b9b (Text)

0174332a-0c27-4bf2-80bc-017b691919f8 (PDF)0174332a-0c27-4bf2-80bc-017b691919f8 (Text)

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Filed Under: axanar, copyright, fan film, klingon, star trek
Companies: axanar productions, cbs, paramount, paramount pictures

28 Comments

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Ehud Gavron (profile), 10 May 2016 @ 1:04pm

typo
"Parmaount and CBS"
Parmaount --> Paramount

Cheers

E
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MDT (profile), 10 May 2016 @ 2:30pm

Not really a surprise...
Seriously, this is pretty standard motion practice in an IP case. It's a very low hurdle to keep a lawsuit alive, you just have to convince the judge you have made some argument that, if he assumes everything you say is true and nothing the defendant says is true, will win.

If you've got decent lawyers on each side, initial motions to dismiss are very hard to get.
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Ryunosuke (profile), 10 May 2016 @ 2:30pm

I have to amend my statement from yesterday, given facts that have been presented here.

Characters (as in specific characters), ships, etc. and apparently specific uniforms are copyright-able. This is partially why you have the Tom Paris/Nicholas Locarno disparity, even though they are essentially the same person, in different series.

HOWEVER:

When viewed in a vacuum, each of these elements may not individually be protectable by copyright. Plaintiffs, however, do not seek to enforce their copyright in each of these elements individually. Rather, Plaintiffs’ copyright infringement claims are based on the Star Trek Copyrighted Works as a whole. The Complaint clearly defines the works at issue (the Star Trek Copyrighted Works), and includes the copyright registration numbers for the motion pictures and the first episode of each television series. The Court finds it unnecessary to analyze whether the allegedly non-protectable elements of the Star Trek Copyrighted Works are eligible for copyright protection because Plaintiff describes these elements in the Complaint solely in an effort to demonstrate how the Axanar Works are substantially similar to the Star Trek Copyrighted Works.

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Personanongrata, 10 May 2016 @ 4:18pm

Calling the Ghost of Gene Roddenberry
Judge Says Copyright Case Against Star Trek Fan Film Can 'Live Long' And Possibly 'Prosper'

If Gene Roddenberry were still around it would be interesting to hear his thoughts on this case.

The paragraph below is excerpted from Gene Roddenberry's book "Star Trek: The New Voyages" which was found on the intertubes at Fanlore's Gene Roddenberry page

...We were particularly amazed when thousands, then tens of thousands of people began creating their own personal Star Trek adventures. Stories, and paintings, and sculptures, and cookbooks. And songs, and poems, and fashions. And more. The list is still growing. It took some time for us to fully understand and appreciate what these people were saying. Eventually we realized that there is no more profound way in which people could express what Star Trek has meant to them than by creating their own very personal Star Trek things. Because I am a writer, it was their Star Trek stories that especially gratified me./

http://fanlore.org/wiki/Gene_Roddenberry

The parasitic copyright rentiers of the film industry are biting the hand that feeds them -- the fans.
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Anonymous Coward, 10 May 2016 @ 6:04pm

A mundane copyright case survives a motion to dismiss? Shocking! Funny how the judge didn't narrowly focus on whether the Klingon language is copyrightable and instead focused on the broader actual claim and the applicable legal standard. Keep tilting at windmills and make-believe maximalists, my friend.
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CharlieBrown, 10 May 2016 @ 7:29pm

It Is Written!
And so it was written, but not made public, so it could be infringing.

Well if anything I write could already be covered by somebody else's copyright, somebody else can get stuffed!
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Anonymous Coward, 10 May 2016 @ 8:27pm

Language
So languages are copyrightable? And little things put together can be copyrightable?

Sounds like it's time to for me to take out copyright claims on sentences and the English language. Perhaps even numbers too, since they're the sum of their parts.
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K`Tetch (profile), 10 May 2016 @ 9:38pm

oh, some factual issues
"Further, Plaintiffs allege that
Soval, a character first seen in an episode of the Star Trek Enterprise television series and later seen in
other Star Trek Copyrighted Works including the 1979 Motion Picture, appears in Defendants’ Prelude
to Axanar wearing a copied costume and portraying himself as the same Soval character as in the Star
Trek Copyrighted Works."

first seen in Enterprise? The enterprise that aired between September 26 2001 and may 13 2005? So the character was FIRST seen there, THEN also in the 1979 movie?

Who wrote this brief? Crewman Daniels? I expect a ruling from Temporal Investigations on this soon.
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Anonymous Coward, 10 May 2016 @ 10:59pm

Re:
Yawn-o-Rama do you actually have anything to say or just going to try to shit on people who actually do something for a living?
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Anonymous Coward, 11 May 2016 @ 1:16am

The new film can be considered to be a long and scripted comic-con. The studios never objected to home made (and non commercial) costumes before, never fought the development of the Klingon (which they most assuredly do not own) .. Maybe they are butt hurt because what they do was done far better and cheaper than they could do it... What I would give to create something that would bring so many fans to my property..... And make me even more money
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Bergman (profile), 11 May 2016 @ 1:28am

Re: Calling the Ghost of Gene Roddenberry
It's also worth noting that part of Roddenberry's contracts specifically public-domained any possible trademarks on things like tricorders -- the man didn't want to inadvertently prevent the creation of a real tricorder with a trademark on a fictional one.

I wonder what that does to certain copyrights the studios are claiming?
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Synonymous Howard (profile), 11 May 2016 @ 5:33am

Booooo
That amicus brief was a work of art.
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Derek (profile), 11 May 2016 @ 5:48am

Live Long and Prosper
I wonder if the phrase "live long and prosper", being just 4 words, is either copyrighted or or trademarked. And if so, whether someone is now going to sue the judge.

That, I think, would be funny.
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DannyB (profile), 11 May 2016 @ 5:49am

How far does copyright extend?
How trivial of a reference can you use that would not run afoul of the C-word? (I meant copyright this time, not censorship.)

As the Narn, the Minbari and Vorlon were turning to leave, Luke Skywalker raised his hand with his fingers parted and said "Live Long and Prosper".
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Anonymous Coward, 11 May 2016 @ 6:48am

Rather, Plaintiffs’ copyright infringement claims are based on the Star Trek Copyrighted Works as a whole.

Ah, the batmobile attack. The script? The court should recognize that the script is words. Unless Paramount can show that some of those words fall under their copyright, the case is unripe. And a "look and feel" argument isn't going to do that. Techdirt has discussed ideas and copyright previously.

The movie itself, when made, of course, is a different matter. But that's not of ... paramount importance yet.
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Anonymous Coward, 11 May 2016 @ 7:05am

Re:
Sounds like someone needs a change of underwear after he jizzed in them...
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Anonymous Coward, 11 May 2016 @ 8:22am

Re: oh, some factual issues
Maybe they're using the timeline within the show itself since the events on "Star Trek Enterprise" are set before the events of "Star Trek The Motion Picture".
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Anon, 11 May 2016 @ 9:44am

Esperanto is a good example of a made up language that nobody speaks as a native but is still recognized as a "real" language. You can't make up "speak Klingon" then claim every word you utter violates copyright.
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Anonymous Coward, 11 May 2016 @ 11:22am

Bob
I'm thinking about writing a story about a humanoid character named Bob, on a planet in space named Earth orbiting a star named Sun, who goes around getting into various situations, dramas and adventures with other humanoids on that planet. Then I'll wait until someone copies my "character" or "idea" and sue the pants off them. Yeah, I'm starting to like copyright better already.
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John85851 (profile), 11 May 2016 @ 11:57am

Re:
That's what a lot of people think, especially since Paramount's "Star Trek Beyond" probably costs $200 million to make but the trailer looks like "Fast and Furious". Yet "Axanar" was made for a few million and has a lot more fan support.

How else can Paramount/ CBS explain why they went after Axanar? So no other production tried to make money? What about productions made before crowdfunding websites? Were there really no movies made in the 1980's that went around the convention circuit and slipped below Paramount/ CBS' radar?
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Wyrm (profile), 11 May 2016 @ 7:47pm

Re:
"Ah, the batmobile attack."
This calls for the Chewbacca defense.
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Wyrm (profile), 11 May 2016 @ 7:53pm

"Defendants contend that non-protectable elements include the following: (1) costumes; (etc...) The Court finds that Defendants’ argument mischaracterizes the scope of Plaintiffs’ copyright claims."
Each of those are "words" used to tell a story.
Mere ideas that are not copyrightable.
And those are used by the fans to tell a different story, a different expression that the studio didn't have copyright on.

Let's remind them that copyright covers a specific expression of an idea, not all the different variations one might imagine next.

I might only concede that the specific unauthorized use of the Enterprise and a few characters might constitute a valid claim... that the studio should have graciously allowed in the first place. This would have been good for their image.
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Anonymous Coward, 11 May 2016 @ 8:00pm

Re: Bob
What about SpongBob SquarePants or Bob the Builder or Sideshow Bob or Dr. Bob Gordon or Bob Stookey? They have already beaten you to a pulp fiction so you might have some sort of problem here.
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BernardoVerda (profile), 11 May 2016 @ 8:14pm

Actually, there's at least a couple thousand native Esperanto speakers.

Most of them are children of parents who didn't have the same native language (often they met at international Esperanto events) who ended up living and working somewhere where neither parent's mother tongue was the dominant language.

Esperanto: Like a Native
https://www.youtube.com/watch?v=UzDS2WyemBI

In my corner of the world I've been aware of two such families. The one I (briefly) encountered, the parents were Norwegian and Korean, and of course the local language here Western Canada) is English.

It's worth noting that the first "popular" IAL (International Auxilliary Language), Volapuk
https://en.wikipedia.org/wiki/Volap%C3%BCk
was an explicitly proprietary language -- it failed in part because its initiator and "owner" refused to give up control over the language's use and development.

Esperanto has been far more successful
https://en.wikipedia.org/wiki/Esperanto
-- and this was in part because its initiator explicitly gave up any proprietary "rights" and control over the language.
It has even been argued that Esperanto was actually the world's very first "Open Source" project.
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Anonymous Coward, 12 May 2016 @ 7:30am

(3) words and short phrases (e.g., the names of planets or races); ...(6) the mood or theme of “science fiction action adventure”;

Hasn't the court's playful dismissal infringed those elements it deems protected by copyright? Surely to goodness it is not above the law? Unless His Honour thinks he's Judge Dredd...

I would also point out that all science fiction adventures are substantially similar to one another, e.g. Star Wars began the "lived-in future" trope, Alien and Babylon 5 continued this.
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Wendy Cockcroft, 12 May 2016 @ 7:33am

Re: Calling the Ghost of Gene Roddenberry
Surely to goodness it would have been better for the rightsholders to have invested in the fan film to get a share of the profits. The resultant goodwill would have guaranteed bums on seats as well as merchandise sales for future films, etc. But hey, let's not waste an opportunity to control-freak the hell out of something over false notions of the meaning of the word "property" where copyright is concerned!
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Ehud Gavron (profile), 21 May 2016 @ 6:48pm

Paramount to dismiss case
http://io9.gizmodo.com/paramounts-lawsuit-against-axanar-productions-star-trek-1777959978

'J.J. Abrams announced that Paramount Pictures’ lawsuit against Axanar Productions was “going away.”'

Apparently directors who are fans convinced the corporation who are asshats to let the fans have their fun.

Ehud
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sparrow, 16 Dec 2017 @ 9:46pm

Star Trek copyright pictures law suit
Now that they went after the fanfilm
their next step is going after the art
I won't be surprised at all
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