Fan Dance – Sound, Fury, and Axanar

Sound, Fury, and Axanar

Background of the Case

Sound, fury – there’s been a lot of both lately.

Within the deepest recesses of the fandom, you kind of have to have been living under a rock to not know about this one. In late December of 2015, Axanar and its principal, Alec Peters, were sued by CBS/Paramount. The complaint alleges copyright infringement and notes the complainants own the rights to Star Trek. More on that later.

The matter has been covered in numerous locations online and I will not repeat the facts. In fact, we went over it three times. The first time was for our 218th show, Axa-Uh-Oh, and then for our 219th show, Shipload of Trek News, and then for our 220th show, Haters Gonna Hate. In fact, we even interviewed Peters in 2013.

Instead, I’d like to present my opinion. But first you might be wondering, who the heck I am, and why you should even care.

My Background

Aside from being jespah, the social media director for the show, and being a Star Trek fan and both a fanfiction writer and a published author of original work, I am also a retired attorney. I won’t just tell you I’ve got credentials. Here, I’ll show them to you.
In 1983, I graduated from Boston University.

Sound, Fury

Boston University Diploma 1983

Between 1983 and 1986, I attended Widener Law School in Wilmington, Delaware. While there, I became a member of the Delta Theta Phi law fraternity.

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Widener Delta Theta Phi 1983

I also wrote a problem for first year students which was my means of being admitted to the Moot Court Honor Society.

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Widener Moot Court 1986

In 1986, I graduated from Widener Law School.

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Widener Diploma 1986

In July of 1986, I took and passed the New York State Bar Examination. I then passed the Ethics portion of the Bar (a requirement which included another examination and an interview with a wonderful elderly attorney who made me tea as I recall) and was admitted on December 10, 1986.

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NY Certificate To Practice 1986

That picture is a little fuzzy (sorry, it’s the phone camera) but this closeup should help make it easier to read the particulars. The November term is just the name of the Second District’s session where a bunch of us were sworn in.

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Detail – NY Certificate to Practice, 1986

I practiced between 1986 (once I was admitted of course) and June of 1990, when I felt unfulfilled and left the practice, retiring. I remain in good standing with the Bar. If I ever wanted to return to practice, I would have to make up for some lost pro bono work and pay back active dues (you don’t pay much in dues if you’re retired. And, yes, you can be retired from the practice of law at age 27, which I was at the time). But I don’t want to return. I am currently getting my Master’s degree in Interactive Media (Social Media) from Quinnipiac University.

While practicing, I did insurance defense. My main concentrations were product liability and construction matters. I also defended a ton of trips and falls and automobile accidents, as those are the bread and butter of insurance defense. I was never an ‘ambulance chaser’ – that term actually describes plaintiffs’ attorneys. In the interests of full disclosure and transparency, I will make it abundantly clear right now:  I was never an intellectual property lawyer.

I repeat: I was never an intellectual property lawyer.

Whew. I’m glad that’s all out of the way. Aren’t you?

Why Did CBS/Paramount Sue Axanar?

The easy answer is: copyright infringement. The case seems to be rather clear. According to the American Bar Association (a voluntary organization for American lawyers), the elements of copyright law are as follows:

“An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’”

The link further states,

“Ownership of a valid copyright consists of:  ‘(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.’ …  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4). ”

It adds,

“Copying involves a factual question of whether the defendant actually used the plaintiff’s work in order to create his or her own work.  … More commonly, however, copying is demonstrated, through circumstantial evidence establishing (1) access to the plaintiff’s work and (2) probative similarities between the works.  From this evidence, it can be inferred that, given the defendant’s opportunity to copy the plaintiff’s work by having access to it and given certain similarities between the works, it is more likely than not, that the defendant copied the plaintiff’s work.”.

Notice that profit is not an element to this cause of action.

Let’s start with the copyright registration certificates. There are actually several. But two stand out. First is the episode introducing Garth of Izar and Axanar, which is called Whom Gods Destroy copyright catalog (motion picture photoplay by Paramount Pictures Corporation and Norway Corporation; Copyright Claimant: Paramount Pictures Corporation). The second is the Garth of Izar copyright catalog (book by Pamela Sargent and George Zebrowski).

Since copyright is established, the question comes down to one of the copying of constituent elements of the work that are original. This matter has been hashed out online in several places but it comes down to two original constituent elements which are perhaps the easiest to prove:

  1. The character of Ambassador Soval of Vulcan. The character, the species, and the planet are all original constituent elements of Star Trek. Furthermore, Soval is being played by Gary Graham, the actor who originated the role and reprised it in the Prelude to Axanar film and the short Vulcan scene.
  2. The Klingon species, which is also owned by Star Trek and is an original constituent element thereof. The character of Kharn, played by actor Richard Hatch, is a Klingon. His costume is either an alteration of the costume originally worn by Christopher Plummer in the Star Trek VI: The Undiscovered Country film, or it is a close replica copy thereof. The makeup is close. The role is referenced as being the ‘Klingon Supreme Commander Kharn’.

It would seem that copying of original constituent elements is proven.

To add to the mix, Axanar raised over $1,000,000 dollars in combined crowdfunding from Kickstarter and Indiegogo. It was clearly no longer a quickie fan film created on the cheap in someone’s basement. It referred to itself repeatedly as an ‘independent Star Trek production’. The intention was to create a competing product with a professional, commercial sheen. The million dollars, while not dispositive, had to have raised questions at Legal.

C’mon, that’s not why Axanar was Really Sued!

I have seen this argument, and it is specious at best. Why shouldn’t a copyright holder sue in order to retain the purity and quality of its own possession?

This has nothing to do with ‘jealousy’. Is Axanar put together well? Yes, it is. I will concede that it’s got heft behind it in terms of visuals. This is actually one of the issues, that the production is close enough that it can confuse a layman. This is not a statement intended to make anyone sound dumb; rather, it is a concession that there are degrees of fandom and there are future fans. Not everyone is hip-deep in Star Trek, and you need not be in order to be a ‘true fan’, which in my opinion has always been a specious appelation. For a lot of people, a quick flip through Google, YouTube, or Instagram could give rise to confusion if Axanar and canon Star Trek were delivered as search request results with no metadata or other differentiating information.

But is CBS/Paramount ‘jealous’ of Axanar‘s quality or its popularity? Hardly. The film copies outright a number of original constituent elements. It piggybacks on another’s intellectual property without permission. The $1 M raised is a drop in the bucket compared to the value of the overall Star Trek IP, the budget for any of the films, etc. Viewings of the Prelude to Axanar film on YouTube look impressive until you compare them to the viewings of the Star Trek: Beyond trailer. The numbers are far higher for Beyond, and they were attained far more quickly.

But even if they are, even if it is eating them up inside and giving them nasty ulcers, so what?

Jealousy isn’t a defense to a copyright infringement claim, and the motivation behind a lawsuit being brought does not matter one whit when the lawsuit is a meritorious one. This one is, on its face.

This argument is sound, fury, and not much else.

Star Wars Allows Fan Films!

Yes, they do. They are a different IP and can handle their possessions differently. Furthermore, check out their rules.

1. CONTEST PHASES

THIS CONTEST IS BEING CONDUCTED IN THREE (3) PHASES, AS FOLLOWS:

PHASE 1 (“SUBMISSION PHASE”):
DURING THE CONTEST PERIOD, YOU MAY COMPETE FOR THE CHANCE TO WIN ONE (1) OF SEVEN (7) AVAILABLE PRIZES (SEE BELOW FOR MORE DETAILS) BY CREATING AND SUBMITTING ATUK.STARWARS.COM (IF A LEGAL RESIDENT OF THE UNITED KINGDOM), DE.STARWARS.COM (IF A LEGAL RESIDENT OF GERMANY) OR WWW.STARWARS.COM (IF A LEGAL RESIDENT OF ANY OTHER ELIGIBLE COUNTRY LISTED ABOVE) (COLLECTIVELY, THE “WEBSITE”), YOUR USER-GENERATED VIDEO (USING THE FOLLOWING FORMATS: .AVI, .MOV, .MP4, .MPG, AND .M4V.) OF NO MORE THAN FIVE (5) MINUTES ….

Emphasis mine. Axanar is, of course, planned to be way over 5 minutes long. Prelude is longer than that. It’s only the Vulcan scene which fits this necessary condition of a different IP, anyway.

This argument is a red herring. Once again – sound, fury, and not much else.

But I heard the Beyond trailer was panned! Look at what Simon Pegg said! C’mon! Axanar is so much better!

This is, of course, purely opinion, but the Beyond trailer is still racking up a lot more views. Furthermore, many trailers are not indicative of the plot or quality of the final product. Let’s look at some real numbers, shall we?

According to 1701 News, the profit margins for the two most recent films are, admittedly, not the best when adjusted for inflation.

Most Profitable Star Trek Films, Domestic – Adjusted For Inflation (revenue, profit margin)

9. Star Trek (2009)    $280.7 million    84%
10. Star Trek: Insurrection (1998) $100.6 million 21%
11. Star Trek: Into Darkness (2013)    $228.8 million    >20% 

Further, again per 1701 News (many thanks to Michael Hinman for the great research),

Most Profitable Star Trek Films, Worldwide – Adjusted For Inflation (revenue, profit margin)

8. Star Trek (2009)    $420.2 million    176%
9. Star Trek V: The Final Frontier (1989) $132.5 million 152%
10. Star Trek: Into Darkness (2013)    $467.4 million    146%

Well, doesn’t this prove Beyond is going to tank?

Of course it doesn’t prove anything of the sort. Rather, yes, the two JJ Abrams films were not the enormous moneymakers you might think, when adjusted for inflation. But they aren’t money losers, either (hello, Nemesis in the domestic market). As for the new director, Justin Lin, according to The-Numbers.com, here are some of the numbers associated with him, in bold (the Fast and the Furious films he was not associated with, as a director or executive producer, are presented for contrast):

Sound, Fury, and Axanar

Lin/Fast and the Furious numbers

 

Sorry for the size of the image – click on it to get to the source material. Below is the table except for worldwide box office totals.

Release Date Movie Production
Budget
Domestic
Opening
Weekend
Domestic
Box Office
Jun 22, 2001 The Fast and the Furious $38,000,000 $40,089,015 $144,512,310
Jun 6, 2003 2 Fast 2 Furious $76,000,000 $50,472,480 $127,120,058
Jun 16, 2006 The Fast and the

Furious: Tokyo Drift

$85,000,000 $23,973,840 $62,514,415
Apr 3, 2009 Fast & Furious $85,000,000 $70,950,500 $155,064,265
Apr 29, 2011 Fast Five $125,000,000 $86,198,765 $209,837,675
May 24, 2013 Fast and

Furious 6

$160,000,000 $97,375,245 $238,679,850
Apr 3, 2015 Furious 7 $190,000,000 $147,163,560 $351,032,910
Apr 14, 2017 Furious 8 $0
Totals $759,000,000 $1,288,761,483
Averages $108,428,571 $73,746,201 $184,108,783

Not too shabby, eh?

Of course, just like with financial instruments, past performance is no guarantee of future success. Perhaps the movie really will tank. If it does, though, then that’s hardly due to Axanar‘s existence.

But What About the Upcoming TV Series? Isn’t That Threatened by Axanar?

I have heard this argument, too, including a spin on it that CBS was planning a series set in the same timeframe, same universe, etc.

If they are, then so what?

They own it. They can do that.

What Could Be Axanar‘s Possible Defenses?

Not many that I can see. There is no mistake and no accident here, particularly after all the on-record statements and writings saying that Axanar isn’t a fan film but, rather, an ‘independent production’. And even without them, the two clearly copied original constituent elements seem to be too steep a hill to get over. Axanar will have to think outside the box.

Fair Use

One idea is under the doctrine of ‘fair use’. According to Stanford University libraries,

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.

Axanar does not appear to be either.

What about fanfiction as fair use? Skip Oliva, on his wonderful blog, tackled this exact question. He writes,

The problem for Axanar is its works directly copy characters from the source material and not just “ideas” or general settings. The most notable example of this in Prelude to Axanar and the “Vulcan scene” is Ambassador Soval, a character first seen on the television series Star Trek: Enterprise, and played by the same actor in both that series and the unlicensed Axanar works. That takes Axanar outside the realm of “fan fiction” …

Why is there no more from Mr. Oliva? He intimated he was pushed to stop reporting on the matter and he deleted his posts. I do not wish to speculate about that. But it’s unfortunate.

Indiegogo Impleader

An impleader is essentially adding another party to a case. The idea is to try to either share or pass along fault and/or the damages payout. The most logical party to bring in is Indiegogo (Kickstarter less so although that is not entirely without merit).

There’s not much that Axanar can argue here, and it is probably not in their best interests to do so, anyway.

About the only thing Axanar can argue is that they would not have been targeted without the $1 M crowdfunding total, and they didn’t get there without Indiegogo’s help. They can also potentially argue that Indiegogo made money off the Star Trek IP. Essentially, this means throwing Indiegogo under the bus, and shouting the old Scooby Doo villain catchphrase, “I would have gotten away with it, if it wasn’t for those meddling kids (at Indiegogo)!”

That’s hardly a defense, although it could potentially share some of the liability and damages load. Still, Peters in particular might not want to do this. If he wishes to crowdfund again in the future, impleading Indiegogo means, most likely, that Peters would have a very hard time finding a crowdfunding platform.  He wouldn’t necessarily be utterly blocked from using, say, Patreon or GoFundMe, but an impleader would potentially make it a lot harder for him to do so.

Which is better? Bringing Indiegogo to the table now means there is a possibility of some money, even a token kick in of funds to the cause. Possible future crowdfunding ventures might never happen. Peters would do well to perform a cost-benefit analysis regarding this and draw his own conclusions.

As for impleading other companies which profited along the way, there probably is no way to share liability with them (e. g. these would be the creators of the articles being distributed as donation rewards, and companies like them) although, again, they might be able to kick in a few dollars if it came down to that. Again, a cost benefit analysis would be necessary in order to determine whether impleading them would do much good, or whether it would irreparably harm any future relationships. That is another consideration for Peters.

Whatever else comes up, counsel has her work cut out for her.

Why Aren’t Other Unofficial Productions Being Sued?

There is no reason why they might not be in the future. CBS/Paramount is under no obligation whatsoever to sue all such productions in one big case. The Axanar matter can easily serve as precedent anyway.

The money is certainly a factor; Axanar has a deeper pocket than the other productions do. Making a profit or crowdfunding are not necessarily dispositive of anything here, but the money does lend credence to the idea of this being more than a mere fan film. Despite whatever it has been called or will be called, the budget numbers are close to other independent releases.

Continually referring to themselves as an ‘independent production’ could not have helped matters. Working with Graham to reprise his actual canon role was another problem area, and there are other productions which do similar role reprisings. Recasting canon characters is not necessarily the answer, but it does take some of the teeth out of the layman confusion argument.

What is the Future Takeaway?

Hard to say. While I don’t have a crystal ball, here are a few ideas I have.

  • There still won’t be any ‘official rules’ for unofficial productions. CBS/Paramount do not want to appear as if they are sanctioning these productions. The only notice of infringement many of them will get (if at all) will be in the form of either a Cease and Desist letter or a legal complaint or both.
  • Profit and crowdfunding will only matter in the sense that the bigger they are, the more a production will stop looking like a fan endeavor and more like an independent effort intended to directly compete with CBS/Paramount in the marketplace.
  • Crowdfunding sites would do well to be more careful when vetting new projects. In particular, because Indiegogo reportedly courted Axanar, they should be performing more due diligence in this area.
  • Film festivals should be more careful when accepting entrants, and also perform more due diligence.
  • As better quality movie making becomes ever more affordable, the confusion argument will raise its head again and again.
  • The retaining of professional actors reprising their exact canon roles further adds to the confusion argument. Productions would do well to hire new actors for these roles and/or to offer only non-canon roles in their productions.
  • Companies providing ancillary goods and services, such as printing custom coffee bag labels or creating patches, or even engaging in fulfillment activities, would be well advised to investigate copyright a little more closely.
  • Donors interested in pursuing refunds could take the matter up with Axanar directly; or with Kickstarter or Indiegogo; or their payment type (e. g. Paypal, Visa, etc.), or even the Attorney General’s office of the State of California. Or they could band together and bring a class action suit. I can’t comment on the chances of success for any of these methods. Indiegogo and Kickstarter in particular are likely to refer to the risks listed in their Terms of Service (documents which also don’t allow crowdfunders to use copyrighted IPs unless they have permission to do so). This information is being provided as an FYI to donors and for no other reason.
  • Donors would do well to exercise more prudence and demand more transparency and accountability from all.

Thanks for reading!

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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too.

She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show.

We understand that she can be bribed with pie.
Follow Me

Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too. She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show. We understand that she can be bribed with pie.

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