Judge Takes Phaser off “Stun,” Disintegrates “Fan Film’s” Flimsy Fair Use Defense

Stephen Carlisle January 12, 2017

On January 3, 2017, a Federal Judge granted the majority of Paramount Pictures grounds for summary judgment in the one year old lawsuit against supposed Star Trek “fan film” Axanar. ¹ This blog has previously twice reported on this dispute. ² While most Star Trek fans would instantly recognize the oft-repeated command to “set phasers to stun,” the Judge instead set his phaser to “disintegrate” broadly ruling against Axanar and its principal, Alec Peters, on a number of points. In sum, the Judge ruled:

• The fact that a final shooting script had been rendered gave the Court sufficient grounds to determine whether Axanar was substantially similar to the various expressive elements found in the Star Trek series of television shows, motion pictures, and novelizations. ³
• Axanar used protectable elements from the Star Trek properties. ⁴
• Axanar was extrinsically substantially similar to the Star Trek properties. ⁵
• Axanar is not entitled to the defense of fair use, ruling that all four factors favored Paramount. ⁶
• That Alec Peters, the producer of Axanar and the principal of Defendant Axanar Productions, Inc., was both contributory and vicariously liable for the copyright infringement committed by Axanar Productions. ⁷

The only respite from total annihilation enjoyed by the Axanar defendants was that the Judge left the determination of whether Axanar was intrinsically similar to the Star Trek properties to a jury. His ruling on this point was not because there was any doubt as to the fact, but his reading of existing 9^th Circuit case law mandated that this determination had to be decided by a jury. ⁸

The most damaging part of the ruling was that Axanar was not entitled to a defense of fair use. Absent the protections of fair use, there can be no doubt that Axanar copied liberally from the Star Trek properties. Not only are they shackled by their own declaration that “Axanar feels like Star Trek,” ⁹ but so expansive was this copying that the Judge several times noted that the copying was done in “excruciating detail.” ¹⁰

Factor One: The Purpose and Character of the Use

Given the wide expanse of territory given by the courts to the “transformative use” test, it is no surprise that the Axanar defendants attempt to pitch their tent here. The Defendants argument is that Axanar is somehow a “parody” of Star Trek in that they are in fact “mockumentaries– fictions presented in a documentary form – a form of parody according to Wikipedia.” ¹¹

First of all, you are seriously citing Wikipedia to a Federal Judge for a point of law? Second, there is nothing about Axanar that mocks or “sends up” Star Trek in any way, shape or form. The Court dismissed this argument in several places:

“[T]he Court has difficulty discerning from the Axanar Works any criticism of the Star Trek Copyrighted Works. This is not surprising since Defendants set out to create films that stay faithful to the Star Trek canon and appeal to Star Trek fans.” ¹²

“…Defendants want the Axanar Works to supplant the Star Trek Copyrighted Works. Peters ‘was interested in creating alternative ways for fans to view Star Trek.’ (citation omitted) He wanted to create ‘a whole new way that fans can get the content they want, by funding it themselves.’”…The Axanar works are not transformative. ¹³

Despite the protestations that Axanar was to be distributed for free and thus not a work of a commercial nature,” the court had no trouble finding otherwise, primarily due to the Defendant’s own public statements.

“‘The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.’ (citation omitted) The customary price can include licensing fees; (citation omitted) and ‘non-monetary calculable benefits or advantages.’ (citation omitted) Here, it is undisputed that the Defendants did not pay Plaintiffs for a license. (citation omitted) It is undisputed that Peters hoped to derive non-monetary benefits, for example, other job opportunities, from the Axanar Works. (citation omitted) Defendants ‘profit from exploitation of the copyrighted material without paying the customary price.’ (citation omitted) The Axanar Works are commercial.” ¹⁴

Exactly. As recounted previously on this blog, Peters used some of the funds raised through crowd-funding to construct soundstages for future productions, paid himself (and his girlfriend) a salary, as well as paying sums to all actors and crew members. ¹⁵ Not to mention that Axanar Productions is registered in California as a “for profit” corporation. ¹⁶

Factor Two: The Nature of the Copyrighted Work

A slam dunk:

“[T]he Star Trek Copyrighted Works include thirteen motion pictures and six television series set in a fictional universe. These works have transported the hearts of a legion of fans to the Star Trek universe. The creativity in these Works and their status as published works are not disputed. They are the type of works that are given broad copyright protections.” ¹⁷

Factor Three: The Amount and Substantiality of the Portion Used

Again, this is no contest:

“While it is difficult to quantify the amount of the portion used in relation to the Star Trek Copyrighted Works as a whole since ‘the portion’ involves many recurring elements in the Star Trek universe and the Star Trek Copyrighted Works are numerous, it is fair to say that elements of the Star Trek Copyrighted Works pervade the Axanar Works. For example, every scene involving a Klingon or a Vulcan can conjure up Star Trek in the minds of fans. The same is true of Federation spaceships, Klingon battlecruisers, transporters, phasers, and so on. The elements from the Star Trek Copyrighted Works that Defendants use are qualitatively important because they give the Axanar Works the Star Trek feel and enable Defendants to stay true to the Star Trek canon.” ¹⁸

Factor Four: The Effect of the Use on the Potential Market or Value of the Copyrighted Work

Here is where the whole fair use arguments falls flat. If anyone can make a Star Trek movie, then what does the concept of a copyright even mean? Does copyright even exist in a realistic form? For the Court to rule here that Axanar was fair use, would mean that anyone could make movies about Star Trek, Star Wars, James Bond, The Lord of the Rings or a host of other movie and literary properties. The copyright in those works would effectively become meaningless, and worth nothing. The values of these copyrighted works would not just be damaged, they would be destroyed. This is not fair use.

The Court takes up this point:

“Peters…sought to distribute the Axanar Works on Netflix. (citation omitted) Defendants promoted an August 2015 draft of the script “the best Star Trek movie script ever!’ on their Facebook page. (citation omitted) Under these facts, Defendants evidently intend for their work to effectively function as a market substitution to the Star Trek Copyrighted Works. There is little doubt that ‘unrestricted and widespread conduct of the sort engaged in by [Defendants] would result in a substantially adverse impact [of market substitution] for the [Star Trek Copyrighted Works].’ (citation omitted) The fact that Defendants distributed Prelude and the Vulcan Scene for free online and intend to likewise distribute their future works may likely increase the risk of market substitution as fans choose free content over paid features.” ¹⁹

Since the Judge has now ruled that all four factors of fair use favor Paramount, fair use cannot be used as a defense to intrinsic similarity, the only major point that remains.

So, is Axanar intrinsically similar to Star Trek? Let’s see what the Defendants have to say on the subject.

“Axanar feels like Star Trek.” ²⁰

“[I] was interested in creating alternative ways for fans to view Star Trek.” ²¹

“Axanar will be the quality of Star Trek that all fans will want to see.” ²²

“The best Star Trek movie script ever!” ²³

I think we can all guess the answer to that question.

Yet this does not solve the question of what might the potential damages amount to.

For his part, Alec Peters has contended that Paramount explicitly or impliedly gave him permission to proceed with the Axanar project. Paramount has vehemently denied this. While copyright infringement is a strict liability cause of action, it does have an impact on whether his infringement was “willful” for the purposes of calculating statutory damages under section 504 (c), the upper limit of which is $150,000.

Further complicating matters is what constitutes “one work” for the purposes of awarding statutory damages. Is all of the Star Trek properties “one work,” or do they constitute multiple smaller works? The Klingons appear in many television episodes and motion pictures of Star Trek, but not all of them. Are the Klingons a separate work within Star Trek, or are they simply an element of one large work which is Star Trek?

In the old days, we would say “don’t touch that dial.” Today, perhaps, we should say “stay tuned.”