CBS & Paramount Finally Settle With Fan Film Axanar

from the took-'em-long-enough dept

A little over a year ago, we first wrote about the unfortunate situation in which CBS & Paramount had sued a group of people trying to make a fan film in the Star Trek universe, called Axanar. Beyond the basic legal questions, there was a bigger issue here. Paramount has actually been pretty good about allowing fan films. The difference with Axanar was that it was shaping up to be a really good fan film, with professional level actors, sets and staff. And that was what set off Paramount and CBS, who jointly hold the copyrights on Star Trek. The big question then is what's the line between a fan film... and an unauthorized derivative work? This wasn't necessarily a question in the past, but today with the ease of making films (and funding them through platforms like Kickstarter), it becomes a much bigger question.

Something of a wrench was thrown into the proceedings last May, when JJ Abrams and Justin Lin -- who are involved in the official new Star Trek films -- claimed on stage that they were quite upset with Paramount for going after Axanar, and claimed that they'd gotten word from the company that it was going to settle the lawsuit. Of course, in the intervening months, no settlement showed up, and the filings back and forth between the parties got more and more rancorous. Things were finally heading towards a trial in just a few days... but now a settlement has finally been reached.

Paramount Pictures Corporation, CBS Studios Inc., Axanar Productions, Inc. and Alec Peters are pleased to announce that the litigation regarding Axanar’s film Prelude to Axanar and its proposed film Axanar has been resolved. Axanar and Mr. Peters acknowledge that both films were not approved by Paramount or CBS, and that both works crossed boundaries acceptable to CBS and Paramount relating to copyright law.

That last bit is the most interesting, but not very surprising. Just before the trial, the judge in the case had ruled against Axanar, saying that they couldn't claim fair use -- which basically killed any shot they had of winning. So, with their back up against the wall, the best they could do was to come to a settlement admitting they'd gone too far and agreeing to make significant changes to the planned film:

Axanar and Mr. Peters have agreed to make substantial changes to Axanar to resolve this litigation, and have also assured the copyright holders that any future Star Trek fan films produced by Axanar or Mr. Peters will be in accordance with the 'Guidelines for Fan Films' distributed by CBS and Paramount in June 2016.

While not surprising, this is unfortunate on multiple levels. First, we wrote about those "Guidelines for Fan Films" when they came out: they're awful. They basically make it close to impossible to make a decent fan film. Even worse, many of the conditions in the guidelines go directly against what's allowed under fair use.

But the reason this is most unfortunate is this: the world will now never get to see what might have been a really good film. I know that some people like to attack Techdirt and me and claim that we're somehow "anti-creator" or "anti-artist" but we're not. We believe strongly in creators and enabling the best creativity possible -- and this kind of lawsuit shuts that down. It directly kills off plans to produce what appeared to be really good content. That's a cultural loss and it's too bad. The existence of Axanar doesn't take anything away from "real" or "authorized" Star Trek films with their huge budgets, special effects and stamp of authenticity from the studios. But thanks to this lawsuit, such creative content will no longer be made. And that's sad.

Filed Under: axanar, copyright, derivative work, fair use, fan film
Companies: cbs, paramount

Is A 'Fattened' Version Of A Famous Jorge Luis Borges Story Artistic Re-Creation, Or Copyright Infringement?

from the authorship,-appropriation,-and-interpretation dept

Next month, a rather unusual court case involving copyright will get underway in Argentina:

The novelist and poet Pablo Katchadjian is facing trial for "intellectual property fraud" after publishing a reworking of Borges's 1945 story The Aleph. The Fattened Aleph -- originally published by a small press in 2009 -- extended Borges's work from its original 4,000 words to 9,600.

Most of the alterations consist of the addition of adjectives and descriptive passages and do not change the original plot, which revolves around "a small iridescent sphere" in a Buenos Aires basement, through which a person can see the entirety of creation.

As the Guardian reports, the legal action has been brought by the widow of Borges, María Kodama. Theoretically the case could lead to a six-year jail sentence for Katchadjian, although nobody seriously expects him to end up in prison if he loses. Kodama's lawyer is unimpressed with the argument that "The Fattened Aleph" is just another of Katchadjian's literary experiments. Previously, the author rewrote an epic 19th-century poem about gauchos called "Martín Fierro," by placing the poem's lines in alphabetical order. "Martín Fierro" is also the name of a 1920s Argentinian literary magazine that published work by Borges, amongst others.

But Katchadjian's most interesting connection with Borges is to be found in a short story published by the latter in 1939:

"Pierre Menard, Author of the Quixote" is written in the form of a review or literary critical piece about Pierre Menard, a fictional 20th-century French writer. It begins with a brief introduction and a listing of Menard's work.

Borges' "review" describes Menard's efforts to go beyond a mere "translation" of Don Quixote by immersing himself so thoroughly in the work as to be able to actually "re-create" it, line for line, in the original 17th-century Spanish. Thus, Pierre Menard is often used to raise questions and discussion about the nature of authorship, appropriation, and interpretation.

Rather like "The Fattened Aleph," in other words. It's a pity that Borges' widow doesn't see it that way.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: argentina, copyright, derivative work, jorge luis borges, pablo katchadjian, the aleph, the fattened aleph

Copyright Takes Down High-Profile Translation Of Thomas Piketty's Comments On Germany & Greek Debt

from the because-copyright dept

Here we go again with copyright taking content away from the public, rather than the other way around. You've probably heard about everything going on in Greece these days, with the big vote and the fight over Greek debt and how it will deal with it. Leading up to it, my social media stream suddenly filled up with people linking to a story at Medium with an English translation by Gavin Schalliol of an interview famed economist Thomas Piketty gave to the German publication DIE ZEIT. Whether you like/agree with Piketty or not (and I'm in the camp that thinks he's overrated), the interview itself was pretty interesting, making a key point that has gotten lost in much of the debate: that for all the pressure that Germany has been putting on Greece to repay its debts, Germany itself didn't repay its debts after World War II (or earlier wars). Lots of people have been talking about it, and tons of English-language news reports wrote up the story, with nearly all of them linking to Schalliol's translation. Just for example, here's the Washington Post, the Huffington Post, Quartz, Slate, Business Insider, Fortune, Marketwatch, and Vox, all of whom link to Schalliol's translation on Medium.

But, if you visit it now, you will not see the translation. Instead, you see this: If you can't read it, it says:

I am currently in touch with DIE ZEIT to ensure my compliance with German copyright law. Updates will follow very soon. The original German interview with Thomas Piketty can be found here.

To be fair, it's quite likely that Schalliol's translation violated the copyright in the original. While some may debate whether or not a translation should ever really be subject to copyright (nothing is actually copied), it is pretty widely set in stone that translations are derivative works, and as such are subject to copyright. However, the simple fact is that DIE ZEIT did not choose to publish an English translation, and even if it now chooses to do so, it will happen after the big vote happened, rather than before, when Schalliol initially published his translation.

It's that translation that spread the interview far and wide and made it a big part of the public discussion over how Greece should deal with the German-led EU proposal, which it eventually voted down. I'm sure the copyright system supporters among you will leap to the defense of DIE ZEIT and the fact that, by law, its "rights" were violated. But, if you take a step back and look at the overall situation, it's difficult to see how the world is better off under such a result. If Schalliol had never been able to publish his translation, it's likely that Piketty's comments would have had a much smaller and more limited audience, limiting the role it played in the overall discussion. It wouldn't likely have had much of an impact on the end result, but at the very least, it helped provide a lot of context to people around the globe.

And, it's difficult to argue DIE ZEIT was somehow worse off. First, most of the articles actually linked back to the original as well, likely driving some amount of traffic. But, more importantly, it's difficult to argue that Schalliol's translation was a substitute for the original, given that even considering the small population that speaks both languages, it's likely that Schalliol's translation was almost entirely read by an audience that did not see the original and could not read it even if they wanted to.

If the intention of copyright is to better encourage the dissemination of ideas and knowledge, as we're often told, then shouldn't that kind of thing be encouraged, rather than discouraged? Instead, we get yet another story of copyright stepping in to stifle a public discussion of ideas.

Filed Under: copyright, debt, derivative work, gavin schalliol, germany, greece, thomas piketty, translation
Companies: die zeit

Jeweler Sues Rap Artist Drake For Copyright Infringement; Drake Fights Back Saying Design Is 5,000 Years Old

from the build-unto-Drake-a-statue-of-ridiculous-proportions! dept

It's not too often you find a 5,000-year-old symbol at the center of a copyright infringement lawsuit, but that's the golden age of copyright for you. [Lifetime + golden years.] Canadian rap artist Drake was sued by jeweler Baden Baden Inc. back in August of last year for allegedly producing knockoffs of an owl pendant created specifically for him by Michael Raphael, CEO of the Baden Baden.

Here's the pendant in question, as pictured in Exhibit A of the company's August 2013 filing. (Complete with tasteful paper towel backdrop.)

Sometime after Drake purchased this $50,000 piece of jewelry, Baden Baden noticed a stream of photos from Drake's Instagram account showing identical pieces being worn by fans and friends, like the one below. (Complete with tasteful bird-flipping.)


It was this supposed copyright infringement that prompted Baden Baden's lawsuit. In December 2013, Drake's lawyers responded with a motion to dismiss, based on the assertion that Baden Baden couldn't copyright the design because its source was in the public domain -- namely, the Egyptian hieroglyph for the letter M, which dates back 5,000 years.


Drake's legal rep even quoted a Disney lawsuit to make the point that derivative works must contain a certain amount of unique features to be protectable, which it argues Baden Baden's owl pendant doesn't (with the hieroglyphic being the original work).

The Second Circuit’s opinion in Durham Industries, Inc. is particularly instructive, and demonstrates why the Owl Pendant Work is not protectable. 630 F.2d 905. In that case, the Second Circuit analyzed whether three-dimensional dolls of various Disney characters (Mickey Mouse, Donald Duck and Pluto Dog) constituted protectable derivative works of the original copyrighted designs for these characters. Id. at 908. The Second Circuit explained that only those non-trivial, original features, if any, in a derivative work are afforded copyright protection. Id. at 909. Applying this standard, the court held that the dolls at issue were not protectable because “one look at . . . [the] figures reveals that, in each, the element of originality that is necessary to support a valid copyright is totally lacking.” Id. at 908-909. In reaching this conclusion, the court rejected the argument that “the originality requirement of copyrightability can be satisfied by the mere reproduction of a work of art in a different medium, or by the demonstration of some ‘physical’ as opposed to ‘artistic’ skill.”

This argument is stretched a bit here, but it's always entertaining to see Disney's arguments used to defend against copyright infringement claims. (And Disney's attitude toward the public domain would certainly align with Drake's legal rep's -- the public domain is free to use by anyone. Disney, of course, tends to undermine its "support" of the public domain by continually preventing anything else from entering it…)

Drake's lawyer also argued in the filing that Baden Baden offered no more proof of infringement than screenshots of other people wearing owl pendants without any evidence that Drake created or sold the alleged knockoff pendants.

Despite this all occurring months ago, the story has resurfaced thanks to oral arguments being made recently in reference to Drake's motion to dismiss. The basic premise seems solid (it's a 5,000-year-old symbol) but whatever was actually deployed by Drake's legal team apparently didn't work. The motion to dismiss was denied and Baden Baden is free to continue pursuing this alleged infringement.

Drake may or may not be crafting "knockoffs" of the Baden Baden pendant, but the plaintiff's statement of "upon information and belief" seems to rely almost completely on the latter. The evidence presented is nothing but screenshots of Drake's instagram account. A quick search of the web finds many more owl pendants being offered by a number of resellers, none of which are Drake's OVO (October's Very Own) shop.

As for the argument that you can't copyright the public domain -- well, that's not entirely true. The use of public domain material simply prevents anyone from claiming exclusive rights. Drake can make owl pendants and so can Baden Baden (and a host of others, apparently) but none of these entities can keep anyone else from using the Egyptian M as the basis for their creations.

Certain design elements can be copyrightable but the copyright registration listed in Baden Baden's filing (VA0001858166) describes nothing more than an "OWL Pendant" and the photo shows nothing distinctive other that the eye/nose shape which presumably spells out "OVO." What doesn't help Baden Baden's case is the fact that Drake has been using the hieroglyphic as a logo for quite some time already, so if anyone can make the claim that the symbol "belongs" to anyone, it's probably Drake.

Baden Baden's case seems pretty weak. It must have some merit as Drake's motion to dismiss was denied, but as far as the paper trail goes, Baden Baden seems to be operating on the assumption that Drake is crafting knockoffs. Of course, if I was Baden Baden's legal rep, I'd take the motion to dismiss as an implicit admission of guilt. After all, if Drake isn't making knockoffs, then there's no reason to point out the public domain origins of the pendant. The defense would be more interested in proving Drake isn't in the knockoff business. But that "admission" by Drake's legal rep came more than three months after the original filing.

Unfortunately, the conclusion the judge reached during oral arguments is still unknown. All we have right now is the fact that Drake's motion to dismiss has been denied. It will be interesting to see where this leads. The recent Richard Price decision shows how little needs to be altered to be considered a protected derivative work. How the court will apply that to a source potentially in the public domain remains to be seen.

Filed Under: copyright, derivative work, drake, public domain
Companies: baden baden