By: Sharon Urias, Esq.
On July 26, 2014, a fan-made Star Trek associated short film entitled “Prelude to Axanar” made its public debut at the San Diego Comic-Con convention. The film’s production was funded through a crowdfunding campaign, which ultimately raised over $100,000.00. “Prelude to Axanar” is a documentary-styled film set in the Star Trek universe. The film quickly gained accolades for its “Hollywood-style production” and for having the look and feel of a “real” Star Trek film. A subsequent crowdfunding campaign raised over $1,000,000.00 for development of the feature film “Star Trek: Axanar.”
It should be noted that there has been a long-standing history of tolerance of fan-produced Star Trek projects by CBS and Paramount (the “Studios”); however, on December 29, 2015, the Studios filed a copyright lawsuit against Axanar Productions, Inc. (“Axanar”), maker of the fan-produced Axanar projects. In the lawsuit, the Studios allege Axanar uses countless copyrighted elements of Star Trek in its works, and that Axanar uses these copyrighted elements to produce professional-quality productions aimed to look and feel like authentic Star Trek films. Axanar believed the Studios would not interfere with the new project if the movie remained noncommercial and contained only minimal elements of the Star Trek universe. There was immediate outrage—not only by the Star Trek fan community, known for its passionate and enthusiastic support of the franchise—but also from Star Trek producer J.J. Abrams and current Star Trek director Justin Lin, both of whom apparently believe a lawsuit is not an appropriate way to deal with fans.
Allegedly due in part to the backlash, the Studios began looking to end the entire matter quickly. It is believed there were productive settlement discussions and that the Studios were working on guidelines for amateur, nonprofessional filmmakers to help avoid similar disputes in the future. However, by November 2016 no deal with Axanar had been reached and the litigation continued.
One major area of dispute between the parties is whether Axanar’s works fall under copyright law’s “fair use doctrine.” Axanar contends that its new creative work, “Star Trek: Axanar,” borrows from the original work of Star Trek rather than steals from it, and therefore is protected by the fair use doctrine. On the other hand, the Studios maintain that Axanar has not simply created a fan film under fair use; rather, Axanar has created infringing works using numerous copyrighted elements of Star Trek as well as recreating much of the Star Trek universe owned by that franchise, such as characters, stories, sets, costumes, dialogue and themes. Furthermore, the Studios claim that Axanar created the infringing works for financial gain with the stated intention of creating a market substitute for the Studios’ products. Axanar has argued that the Studios are unable to prove they have been harmed or will be harmed from the Axanar film projects and that it will not have a negative impact on the Studios’ market.
Last week, Axanar received a blow to its position in the case when a federal judge sided with the Studios and ruled that “Star Trek: Axanar” was the kind of derivative work barred by copyright law, not a new creation permitted by fair use. In addition to finding that Axanar’s project was not a transformative parody or criticism (two concepts that would have a stronger chance of being protected by the fair use doctrine), the court determined that Axanar set out to create films faithful to Star Trek criterion, and as such, unrestricted and widespread development of Axanar’s projects could result in a market substitution for Star Trek copyrighted works.
This decision now paves the way for the case to move to trial. Axanar’s fate will likely rest with a jury, unless the parties are able to reach a settlement. An important takeaway from this case is that if you believe you are permitted to use copyrighted materials for a particular use, it is recommended that you first consult with an attorney to examine whether such use actually is protected by the fair use doctrine or some other consideration, particularly before investing and developing a project.
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