Home » Copyright/Intellectual Property, PG's Thoughts (such as they are) » ‘Star Trek’ Fans Want Paramount, CBS to Do Better Job Explaining Franchise to Court

‘Star Trek’ Fans Want Paramount, CBS to Do Better Job Explaining Franchise to Court

24 February 2016

From The Hollywood Reporter:

Later this year, Star Trek will celebrate its 50th birthday. Before that happens, though, Paramount and CBS are being challenged to provide more ownership information about their franchise as well as discuss the nuances of the multiple television series and the many films that have resulted from Captain James T. Kirk’s original five-year mission aboard the U.S.S. Enterprise.

This is happening because Alec Peters and other Star Trek fans put in motion a studio-quality film titled Axanar with money raised from Kickstarter. In reaction, Paramount and CBS brought a lawsuit in December alleging that the producers of this crowdfunded movie were “using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes.”

But according to a court filing on Monday by the defendants, that’s nowhere near enough to survive dismissal.

The first thing that the defendants request is more specificity about which of the “thousands” of copyrights relating to Star Trek episodes and films are being infringed — and how.

Taking issue with a complaint that lumps the entire Star Trek universe together, the dismissal motion points out that the original series featured a certain adventure aboard the U.S.S. Enterprise — one involving fictitious species such as the Vulcans and the Klingons — whereas The Next Generation had new captain (Jean-Luc Picard) and “revealed a universe with previously unexplored dimensions.”

The defendants also nod to new characters, sets and plots in Voyager and Deep Space Nine and the various films (including the upcoming series and film) to arrive at the argument that Paramount and CBS aren’t doing an adequate job recognizing the vast differences between the films and television episodes nor meeting minimum pleading standards. Producers of the crowdfunded film argue they shouldn’t be left guessing about what they’ve infringed nor should they be required to sift through each movie and TV episode to determine the claims against them.

“Plaintiffs do not allege that Defendants are engaged in wholesale copying of each Star Trek motion picture and television episode, or even that Defendants lift substantial material from each of Plaintiffs’ alleged works,” states the motion. “Plaintiffs’ conclusory allegations do little to put Defendants on adequate notice of the claims against them.”

. . . .

There are other cases, though, that stand for the proposition that since expression and not ideas are what’s copyrightable, plaintiffs shouldn’t be allowed to sue before a court can actually see the allegedly infringing work in question.

Link to the rest at The Hollywood Reporter and thanks to Chris for the tip.

PG notes that the owners of Hollywood franchises have never hesitated to stretch copyright and trademark laws to sometimes ridiculous dimensions.

This case raises an interesting issue about whether a given tv/movie/literary property can become so sprawling that the boundaries of protection become difficult or impossible to define with specificity. Absent use of specific Star Trek elements, what’s a Star Trek movie and what is just another space opera that uses tropes found in Star Trek as well as dozens of other science fiction books and movies that predate Star Trek?

Copyright/Intellectual Property, PG's Thoughts (such as they are)

45 Comments to “‘Star Trek’ Fans Want Paramount, CBS to Do Better Job Explaining Franchise to Court”

  1. I’m not a lawyer, and I hope their movie happens at some point, but…

    Innumerable or not, it seems like calling it “Star Trek” ought to be pretty high on the list of copyrighted elements. No?

    • Paramount wasn’t bothered by Star Trek: New Voyages (which actually should have gotten dinged, as it infringed on an anthology title), Star Trek Continues, Star Trek: Renegades, or at least ten other fanmade video productions which were TV show-length or feature-length.

      And let’s not even get into all the fanmade Star Trek audio dramas.

      The Axanar people blame the lawsuit on Paramount feeling threatened by their promised “high quality,” but that’s pretty silly as several fan productions have included people in the industry or even actual professional Star Trek actors.

      The usual suspect is a new executive being shocked, and wanting to make his mark by “cracking down” on something normal and nice that’s been going on for years.

      • I wonder if the difference isn’t the crowdfunding/Kickstarter element. That brings an entirely new element of attention to it that wouldn’t have been possible even a few years ago. That allowed it go achieve a certain amount of press very early in the process.

        And if Paramount/CBS doesn’t challenge it, don’t they risk losing the protection copyright provides?

        Like, the production folks who Kickstarted it didn’t get a license to do so, did they? If you don’t have the license, you can’t use the world, mostly, right?

        I don’t see how this is any different from the fact that you can’t just jump on Kickstarter and try to crowdfund your own Superman movie.

        • Exactly, I thought the financial threshold Axanar crossed with Kickstarter was precisely the reason for Paramount’s objection. If I remember, the guy who made the movie never established in writing what parameters Paramount would allow, and that failure has come back to bite him. He just made assumptions about what would be acceptable.

          I’m not convinced Paramount is in the wrong here, even though I am curious about Axanar now. Maybe the filmmakers could salvage this by retroactively paying a license fee. Seems like it would be fair, under the circumstances.

        • > And if Paramount/CBS doesn’t challenge it, don’t they risk losing the protection copyright provides?

          no, you are thinking trademarks.

          Trademarks must be defended or you run the risk of them being declared invalid or generic.

          But Copyright can be completely unenforced for decades and then you can go after people. The only argument against it at that point is if the defendant can claim that you sort-of-approved them doing something, but someone else doing the same thing after that would not have the defense.

          • That’s fair. Thanks for that elaboration. But isn’t Star Trek, as a brand, trademarked and the property of Paramount?

            PG said

            Absent use of specific Star Trek elements, what’s a Star Trek movie and what is just another space opera that uses tropes found in Star Trek as well as dozens of other science fiction books and movies that predate Star Trek?

            Which is fair, but I mean, I think calling the film Star Trek: Axanar doesn’t help.

            https://www.kickstarter.com/projects/194429923/star-trek-axanar

            I confess I wasn’t into Star Trek: Axanar in the first place (I’m not into the franchise/property), but the more I read about the production and lawsuit the more in the wrong I think Axanar as a production company, and Alec Peters, as a producer, are. I mean, if you read Peters’ response, it’s basically “Well but other people did it, so we should be able to, too.” And he seems to think that having worked on productions within the franchise world means he should have more, rather than less, leeway or something. That “industry professionals” are involved.

            You’d think that industry professionals would know better than to try to use intellectual property to which they don’t have rights — and apparently for which they never sought a license (nevermind having been granted one).

            • Their Kickstarter doesn’t really look much like a fan project. In particular, they are selling pre-orders of the film and other merchandise as perks. This looks less like a legitimate fan project and more of a commercial film using someone else’s IP.

              I notice that some things have been removed from their website since I first checked it. I recall seeing a mention of using the studio that they are building for other commercial projects afterwards.

          • PS, here’s that response from Peters:

            http://www.axanarproductions.com/cbs-and-axanar/

  2. It looks like Leslie Klinger’s successful combat with the Estate of Arthur Conan Doyle is being referenced here.

    Axanar is of course based on a single line of dialogue from a single Original Series episode. My understanding is that it’s set in a time that is between the Original Series and the prequel Enterprise series. There may be some characters involved which appear in the series, but it would seem that they were trying to put in as much “new” material as possible.

    So if somebody isn’t making money off it, and it’s not actually using anything except a vague connection to the setting… why would it be deemed to rise to the level of infringement? It’s an interesting argument.

    The other thing is that fanfiction has now risen to such a level of societal acceptance that PBS has spent three years running a commercial (“Downton Abbey Inspires”) about a girl with Tourette’s who wrote a fanfic about Downton Abbey, and thus found a gateway into writing. Fan videos for all sorts of things are kicking around, and even Paramount was okay with a lot of them. What’s different about Axanar? (Other than newly employed executive, probably.)

    • “What’s different about Axanar?”

      Haven’t seen it, but the scuttlebutt I heard was they did ‘too good’ a job at making it, one that Paramount will be hard-pressed matching/beating, so it’s easier to kill it than admit it doesn’t cost millions to make a good movie. (a bit like how self publishers are showing you don’t have to submit the the qig5 in order to put out a good story.)

      • Paramount will be hard-pressed matching/beating, so it’s easier to kill it than admit it doesn’t cost millions to make a good movie.

        That’s what happens when you don’t pay the actors and directors millions of dollars for a few weeks’ work.

      • It’s not the quality; it’s the merchandising. Their Annual Report was quite illuminating on that score; they were essentially selling DVDs, ship models, had even announced a series of book tie-ins. Not to mention that several of the people involved were taking a salary from the production – and as far as I can see, that was almost certainly the sticking point for Paramount. They’ve actually been very good with fan films up till now, and my worry is that this could spoil it for the others – all because one group decided to push it too far.

  3. “What’s different?” My guess is that when they let those other projects happen, it was at a time when they didn’t have half-a-billion dollars worth of new/current Star Trek stuff to promote.

    They have a new TV show coming, and they also don’t want an alternate universe feature film to compete with their current alternate universe feature films.

    Also, the internet is a far more viable source of competition today that they likely saw it as a few years ago.

    • Paramount’s announcement of the upcoming TV series was not met with universal joy in the fan community. The principal names attached are not the most beloved of certain vocal segments of fandom. I saw several comments online in the manner of “Oh, no. Not those two. At least we have Axanar to look forward to.”

      Feelings may have been hurt.

      • Interesting. Who are the producers?

        • Bryan Fuller who was a writer (20 episodes), story editor, and co-producer on ST: Voyager.

          Alex Kurtzman who was co-writer and executive producer of Star Trek (2009) and co-writer and producer of Star Trek Into Darkness.

          Heather Kadin who doesn’t have a Star Trek history.

          Interestingly Fuller has done some very fine work since playing in someone else’s yard with Voyager, being creator, writer, and executive of Dead Like Me, Wonderfalls, and Pushing Daisies.

          • Thanks. Sounds like a good creative mix. That works for me.

            My problem is that I don’t want to pay money to live stream anything else on CBS.

            I wish we could safely speed up the process of getting rid of money before the actual 23rd century rolls around.

            You know… if you do the math… cell phones came out about 25 years after the communicator debuted. Smart phones and tablets came out about 35 years after the tricorder…

            Maybe we’re closer than we think.

          • Bryan Fuller also created Pushing Daisies and Dead Like Me. Those shows were awesome, and combined they lasted like 5 seasons.

  4. Fascinating, PG.

  5. I think that Paramount/CBS are absolutly correct that this infringes (based on the name, and I’ll bet the fonts/styles used, etc)

    But I also think that the defendants are doing the right thing by forcing them to be specific in what they are infringing

    I’m glad that they are spending their money to force the studios to meet the letter of the law in their claims.

    A copyright case requires that the copyright owner specify exactly what is being copied, and then the defendant can either claim that they are not copying, or raise other defenses (such as fair use, which may actually have a small shot in this case)

    But if they are never told what they are accused of copying, they can’t prepare a proper defense.

    I think that Paramount/CBS would have an airtight infringement case if they were going after them for trademark instead of copyright (although their lack of enforcement in the past could mean that even though their trademark is being infringed on, they can’t collect any damages)

    • Personally I think they will lose but yeah studios should be required to explain what is protected and not.

      On YouTube lately there’s a lot of copywrite strikes for very dubious infringement by studios and their automated systems. The studios are using copywrite to bully anyone critizing their movies.

      In one example the YouTube show is set in a car outside a theatre discussing the movies. No clips are shown. But they still get copywrite strikes.

      • Nostalgia Critic apparently has been one of those who have had to fend off copyright complaints, even though it’s clearly using the clips as part of its commentary and reviews.

  6. The thing is, for all that the Axanar bunch style themselves as fans making a fan film, they’re going at it like a professional production company, not a bunch of guys in their back yard.

    Never has there been a thinner fig leaf than a bunch of guys raking in a million bucks on Kickstarter, setting up a production studio, and hiring industry professionals calling themselves a “fan production” just because they’re fans of the show. That’s not a “fan production,” that’s a bunch of guys wanting to make a fully-professional Star Trek movie without permission. They even call use the adjective “professional” themselves.

    The fundamental problem here is that if they do win, it’s going to have the same kind of chilling effect on fan productions as Kirtsaeng had on international e-book pricing. Studios who own IP and might have been inclined to look the other way are suddenly going to start casting a gimlet eye at fan films because if they don’t, they might well endanger their ownership of their IP. It might even extend all the way to fan fiction, who knows?

    Frankly, that worries me. As much as I might enjoy getting to see Axanar if it got made, I’m afraid the cost might just be too high to fandom in general if it should win.

  7. When it comes to Star Trek inspired fiction, “Never give up, never surrender!”

  8. The problem Paramount trying to do this now, is that they have encouraged Fan-made projects in the past.

    How can you let all the other ones slide (as long as they credited Paramount as the owner), and tag this one as being ‘too much’?

    • Largely because all the other ones went at it like fans, rather than like well-funded professionals who want to bogart someone else’s IP while wearing a fandom fig leaf.

      • Maybe, but that is splitting legal hairs.

        • The following legal hairs are intentionally split, and there is no shampoo or conditioner on the market that can mend them or give you a fuller, bouncier head of hair in the face of this kind of damage (no doubt made worse by the Los Angeles sun… and air quality).

          Regarding the copyright claims: I think them largely invalid, but for reasons that those of us who split legal hairs for a living largely think are splitting things too finely. At a theoretical level, the problem is that art/production is a process, while copyright is about things. There are inherent contradictions and conflicts, especially when trying to determine whether something that is not a literal copy is a derivative work… and, more to the point here, an infringing derivative work that is beyond the scope of fair use. And at a practical level, I’ve been there before, across the v. from Paramount concerning this very property, but the settlement agreement prohibits me from saying more.

          Regarding the trademark and unfair competition claims: The law requires this kind of legal hairsplitting. Paramount has a tenable — and probably winning in the Ninth Circuit (string cite omitted to avoid boring y’all) — argument that it objectively did not believe that the various fan efforts were in the stream of commerce, but that the Axanar project is in the stream of commerce. Since trademark law explicitly includes “in the stream of commerce” as an element of a claim of infringement, Paramount can excuse its past nonprosecution of fan efforts on the grounds that they weren’t in the stream of commerce without jeopardizing the validity of its mark(s)… until someone sues in the Eleventh Circuit (Alabama, Florida, and Georgia), where what constitutes the “stream of commerce” for entertainment activities has a much more elastic definition…

          Whether all of this makes sense: Blame the common law and the drafters of the Lanham Act for establishing a one-size-fits-all allusion statute that does not apply to the arts, and applying it to the arts anyway. After all, one doesn’t worry an awful lot about derivative silver serving spoons!

          What should have been done instead: The public does not and cannot know what correspondence was exchanged prior to filing suit (I haven’t seen it, but some has been described to me from a very limited perspective). That said, I would have been much more inclined to emulate the Jack Daniels letter regarding the book cover design approach… except that I’m not a corporate-drone lawyer who is trying to satisfy an egotistical studio executive who understands one aspect of “brand identification” without understanding its legal limits. And I also don’t know if the Axanar folk were, umm, intemperate in their response.

          • Does Axanar sell shampoo for split hairs? They seem to be selling unlicensed merchandise for everything else.

    • Again, the devil is in the details. I thought it was the fact that they raised a lot of money through Kickstarter that was the issue.

      Then Richard Tongue (above) says:

      Their Annual Report was quite illuminating on that score; they were essentially selling DVDs, ship models, had even announced a series of book tie-ins. Not to mention that several of the people involved were taking a salary from the production.

      That’s not just crossing the line; that’s leaping into outright theft.

      The whole idea behind fan-made films is that nobody’s profiting off their labor, and they’re giving away the final product. That keeps it well within non-commercial lines and should be OK to do.

      I thought raising money for it might be dubious, but if at the end of the road you release the movie and donate the rest to a charity and account for every cent publicly, that’s still OK.

      But if you’re charging people for DVDs, paying salaries and setting up a production company with the profits? That’s old-fashioned piracy.

      • > That’s not just crossing the line; that’s leaping into outright theft.

        um, no.

        it’s not theft to make things, sell things, or create tie-ins.

        One thing I have learned from watching high profile Copyright cases over the years (starting with the SCO case), is that the details matter.

        just because you make something similar to what someone else has made doesn’t mean that you are infringing their copyright.

        Now, I don’t know a lot about this movie (mostly from what’s been posted here), but let’s look at a few things

        1. use of the name Star Trek (and fonts for rendering it)

        Copyright seldom covers things this short. Trademark is what would apply here. I think they would have a good trademark case (except for the possible defense that they have allowed others to do things).

        2. Use of the saucer and nacelle silhouette.

        Copyright doesn’t protect concepts, just specific implementations. The design of the 1960’s Enterprise doesn’t give them control over anything of vaguely the same shape. Again, this is a case for Trademark, not Copyright.

        3. Use of the setting (UFP competing with other galactic powers). This is a bit trickier. They may have some standing here, but the concept itself is pretty old and generic. It will depend on exactly how much detail they go into. While there have been court cases that have called one book or movie a derivative of another on this basis, most of those cases are either clear-cut (they copied lots of specific details) or notable for being odd, outliers in Copyright cases.

        4. The name “United Federation of Planets”

        Again, Trademark, not Copyright.

        5. As I understand it, they don’t use any of the existing footage, props, characters. etc. so they are on safe ground here.

        6. ship designations (USS X, NC-XX), Paramount copied those from others, they don’t own the concepts.

        Now, I don’t know the details of the proposed movie, so it’s very possible that they are infringing on Copyright somewhere, the defendants are correct that CBS/Paramount have the burden of proof here, and are required to say explicitly what is being infringed. They can’t just say “you know what you did wrong, justify it”, they have to say exactly what is being infringed, and then the defendants can either dispute that they are copying those items, or claim one of the other valid defenses (fair use, etc).

        Someone making a story about a Detective in Victorian England who has a Doctor as a roommate and is a stickler for noticing details isn’t necessarily infringing on the Sherlock Holmes copyright (even ignoring expiration dates for the moment), even if the stories have a similar flavor. What matters is the details of exactly what is being copied, and showing that the things being copied are owned by the person suing. You can’t win a copyright case over details of Victorian England, because you didn’t create those details.

        Yes, a lot of Copyright suits are ‘won’ by default by people using these sorts of things, but we have all seen lots of stupid claims made about IP that would not stand up if challenged.

        As you can see from my list above. I am pretty sure that they are infringing on Trademarks, but Copyright is not as open and shut, and even if it was, the law requires that they specify what is being infringed. Which is what the original article says that the defendants are asking for.

        • Regarding points 3 and 5 … from IMDb: Garth, the legendary Starfleet captain, and his crew during the Four Years War with the Klingon Empire.

          So, borrowing your Sherlock example, this is a story of an uncanny detective (we’ll call him Slylock) with a doctor sidekick who wears a deerstalker cap, lives at 212 Baker Street and fights Moriarty.

          I think Axanar would be on firmer ground if: 1) They’d paid a license fee, or 2) used aliens that were never named and aren’t strongly connected to the franchise.

          There was an arc in Star Trek: TNG that involved aliens infiltrating Starfleet officers (the aliens were parasites or something) and the episode ended with the discovery that the aliens sent a homing beacon somewhere. That thread was never explored, but I think if Axanar had gone down the untraveled roads in that franchise they would get away with this.

        • it’s not theft to make things, sell things, or create tie-ins.

          Er. Isn’t it if you don’t have the right to do so? Like, you can’t just up and publish a new Harry Potter book — or set yours in the same universe, regardless of whether you don’t use any characters or settings from the books already published.

          Someone making a story about a Detective in Victorian England who has a Doctor as a roommate and is a stickler for noticing details isn’t necessarily infringing on the Sherlock Holmes copyright (even ignoring expiration dates for the moment), even if the stories have a similar flavor.

          Wouldn’t it be if you tried to tie it to Holmes and included “Sherlock Holmes” in the title?

          Holmes is likely not a great example — no offense to your example — as it’s almost public domain at this point, and its standing as such is currently in question. How about you can have a dude in blue tights and a red cape who fights a bald supervillain, but don’t put “Superman” in the title.

          Because that’s about how it works, right?

          Further, besides including “Star Trek” in the title, the actual Kickstarter:

          Axanar takes place 21 years before the events of “Where no Man Has Gone Before”. It tells the story of Garth of Izar, the legendary Starfleet captain who is Captain Kirk’s hero and the role model for a generation of Starfleet officers. Garth charted more planets than any other Captain and was the hero of the Battle of Axanar. His exploits are required reading at Starfleet Academy.

          This is the story of Garth and his crew during the Four Years War, the war with the Klingon Empire that almost tore the Federation apart, and whose resolution solidified the Federation and allowed it to become the entity we know in Kirk’s time.

          It is the year 2245, four years into the war with the Klingons.

          “This is Star Trek”. That was what Star Trek legend David Gerrold said when he first read the script for Axanar last year. David, who wrote “The Trouble With Tribbles” and worked on both TOS and TNG, knows Star Trek better than anyone, liked Axanar so much he signed on as Creative Consultant.

          They’re explicitly stating it’s Star Trek. And related to the characters therein. For whose use they never obtained a license.

          • >> it’s not theft to make things, sell things, or create tie-ins.

            > Er. Isn’t it if you don’t have the right to do so? Like, you can’t just up and publish a new Harry Potter book — or set yours in the same universe, regardless of whether you don’t use any characters or settings from the books already published.

            No, it’s not theft, it’s Copyright infringement or Trademark infringement. That’s not the same as theft.

            > They’re explicitly stating it’s Star Trek. And related to the characters therein. For whose use they never obtained a license.

            The question is if they need a Copyright license or a Trademark license.

            I have no doubt that they are using the Trademark, but this lawsuit (or at least the legal filing this article is about) is about Copyright, not Trademark.

  9. So sorry, but I haven’t been following this dust-up much, not being a rabid Trekkie.

    But I do believe in and support Intellectual Property rights. Yeah, many of the Pirate Pinheads who say that “everything should be free” sure don’t depend on getting paid for what they create. Probably because they don’t create much of anything… except mindless, moronic blather.

    Harlan Ellison is right. Pay the writer. And pay all creative persons for their creations. Paramount is on the right side here, IMHO.

    The Axanar ripoff artists could have easily avoided any Star Trek references when making their movie, but they wanted to piggyback on the Star Trek brand for pure financial gain. They deserve to be slapped down and slapped with a lawsuit.

    • Brand is Trademark, not Copyright.

      A Copyright lawsuit requires that you copy something (and it needs to be something fairly significant), not just piggyback on a brand.

  10. Given the number of lawyers who frequent TPV, I am not the only one who sees this as a routine answer to a complaint. “Vague. Lacks specificity. Yadda, yadda.”

    But it’s pretty, though. Well-written, signs of good research and experience. Says that Axanar Productions and Alec Peters hired themselves some serious legal muscle. Ain’t gonna be no pushover for CBS.

    You can beat the rap, but can you stand the ride?

  11. Reading the Heilein Forum and this thread, the thought occurred to me that the conflict lies between the Hollywood perceptions of copyright and trademark and the science fiction writers’ perceptions of the commons of ideas.

    RAH believed that sf tropes — dilating doors, teleporters, vat-grown meat — belonged not to the writer but to the sf community. Anyone could use them, no matter who used a device first.

    Contrast that with Star Wars which has a lock on the word “Droid.” Copyright it. Trademark it. Lock it down, and exploit it. That’s the Hollywood way.

    Even though many of the Axanar buccaneers came from the Hollywood environment, they behave like sf writers. “It’s all good. It’s all part of the commons.” If they made errors, they made them by 1) meeting with CBS before they started and 2) not memorializing the conclusions of the meeting. “If you don’t have minutes, you didn’t have a meeting. It was just a coffee klatsch.”

    It’s fun to watch from a distance. My bias is strong toward the sf writers’ commons, so I’m rooting for Axanar Productions to win and cannot even analyze this case impartially.

    • So many people in this thread seem to be acting as if the Axanar people are just trying to make a generic SF movie that happens to be too similar to Star Trek. But that’s not what they’re doing at all.

      They’re making a movie with Star Trek in the name, set in the Star Trek universe, specifically about a character who appeared in a Star Trek TOS episode, covering events mentioned in that episode.

      So, no, this is not a case of them wanting to use “generic SF tropes,” this is case of them explicitly saying they’re making a movie set in the Star Trek universe, and fooey on CBS and Paramount for being such wet blankets about it.

      Where does all this confusion come from?

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