CBS/Paramount sues to stop Axanar

[Tom]

check out the above from upstream this thread...

Does not matter, he is not a 501c3, and will not be, whether he has applied for it or not. He is being sued by a major corporation, he is not going to be approved as a 501c3. Lets say he some how 'miraculously' gets approved for a 501c3, it does not retroactively change anything, so the whole point is mute. It also has no bearing on the IP case at hand.

 

[muCephi]

Axanar is not a 501c3, so moving on... no need to speculate about it IMO.

there is also this, Alec saying in December that someone is 'working on' the 501(c)3 application. It pretty definitively states they are doing it:
http://www.axanarproductions.com/captains-log-dec-9th-2015/

and this, a proposal from an Axanar group member to create a 501(c)3 "Star Trek Heritage Foundation":
https://www.facebook.com/StarTrekAxanar/posts/833450726769452

I suppose the application wouldn't have to state that they are doing anything with Trek specifically. Whether the IRS would weigh that activity I am not sure, but the application does have to speak about "past and present activities", so the lawsuit could throw a pretty big kink in it.

There is also the absence of representing Axanar/Ares as nonprofit in the fundraisers (at least I have never noticed it in those pitches). If you were intending to create a nonprofit, why wouldn't you say so?

 

[SuperSpaceMan]

"... the Enterprise,..

Except the Enterprise plays a pivotal role in Axanar... :/

 

[CaptGrumpy]

If Axanar wanted to make a bold defense and not care what happens to the rest of the fan industry, it could say that it was at least making attempts to distinguish itself from "Star Trek" and was using only "bits and pieces" of the "most general, obscure, or secondary" IP, as opposed to the fan films that featured violations of the most prime Trek IP: Kirk, Spock, McCoy, the Enterprise, faithful reproductions of uniforms, equipment, and sets. CBS allowed these even as they became more and more well done and numerous, only occasionally stepping in. Everyone in fan films gets a certain amount of notoriety from what they do. It can open business opportunities for any of them outside of "Star Trek". In many ways, Axanar is no different in that respect, but was more blatant about saying it. In Axanar's defense, I would say that if it has to shut down for IP violations, then all fan films must stop. There can be no middle ground any more..

The problem here is that CBS is suing about the Axanar projects, which includes Prelude. In Prelude, Gary Graham reprises his role as Soval, a character that appeared many times in Enterprise. So, it's not just peripheral or obscure IP theft. He used a character seen many times on tv, and used the same actor.

 

[CorporalCaptain]

Except the Enterprise plays a pivotal role in Axanar... :/

Yeah, IIRC, the rollout of the Constitution-class was discussed as a plot point for the Axanar film.

 

[stampersand]

Yeah, IIRC, the rollout of the Constitution-class was discussed as a plot point for the Axanar film.

It's a plot point in the Axanar full film, as well as in the Prelude film (where at least a couple Constitution-class heavy cruisers are shown in drydock in various states of construction, including the Enterprise nearly fully completed on the exterior at the 17m30s point of the short film).

 

[SuperSpaceMan]

Does not matter, he is not a 501c3, and will not be, whether he has applied for it or not. He is being sued by a major corporation, he is not going to be approved as a 501c3. Lets say he some how 'miraculously' gets approved for a 501c3, it does not retroactively change anything, so the whole point is mute. It also has no bearing on the IP case at hand.

Considering that he runs Propworx out of "Ares Studios" which he pays for, out of the checkbook for Axanar Productions, the entity he is trying to get 503C status for, I don't think he has a snowball's chance in hell to get tax exempt status.

 

[Franklin]

The problem here is that CBS is suing about the Axanar projects, which includes Prelude. In Prelude, Gary Graham reprises his role as Soval, a character that appeared many times in Enterprise. So, it's not just peripheral or obscure IP theft. He used a character seen many times on tv, and used the same actor.

Yeah, IIRC, the rollout of the Constitution-class was discussed as a plot point for the Axanar film.

Agreed. In a black and white world, it's wrong to probably even have a tribble in your movie. That said, Soval was a recurring character, and he's being played by the same actor (which should mean Graham is in trouble too, right?). However, the characters used in other fan films are truly iconic no matter who plays them. In a manner of degree, to crack down on the use of Soval and turn the other way on Kirk, Spock, and McCoy seems inconsistent. Hell, I didn't even remember Soval until this thread.

Again, in their defense, in the broader scope of IP violations, I'd contend that the rolling out of the Enterprise at the end of the movie is hardly the same as setting entire episodes of fan films on the ship.

I just think the defense will try to say that any IP violations by Axanar regarding content of the film itself are not at all different, and maybe even of a lesser scope, than other fan films. Perhaps selling coffee and such is more problematic, but does that merit the punishment of shutting down the film? That would be a topic for settlement talks.

The way Axanar really gets into trouble is if CBS can reasonably prove Axanar intended to use CBS IP to make money to build a studio to make future movies, therefore using CBS IP without compensation as publicity to raise money to build a company. In that logic, Axanar is not a fan film, it's the ultimate payoff to donors who contributed ostensibly for the making of the film, but in reality for the construction and launching of a permanent professional movie company. CBS would have to convince a judge or jury its IP was bait for that project and the studio itself became the real goal, with the film becoming merely being a means to that goal. Otherwise, as well produced as it may be and no matter the scope, Axanar is just another fan film violating CBS IP rights.

 

[SuperSpaceMan]

I just think the defense will try to say that any IP violations by Axanar regarding content of the film itself are not at all different, and maybe even of a lesser scope, than other fan films. Perhaps selling coffee and such is more problematic, but does that merit the punishment of shutting down the film? That would be a topic for settlement talks.

But that is irrelevant... copyright enforcement can be selective... CBS could chose to sue potempkin, and not say Axanar... It's their copyright, it's their choice.

 

[CaptGrumpy]

The way Axanar really gets into trouble is if CBS can reasonably prove Axanar intended to use CBS IP to make money to build a studio to make future movies, therefore using CBS IP without compensation as publicity to raise money to build a company. In that logic, Axanar is not a fan film, it's the ultimate payoff to donors who contributed ostensibly for the making of the film, but in reality for the construction and launching of a permanent professional movie company. CBS would have to convince a judge or jury its IP was bait for that project and the studio itself became the real goal, with the film becoming merely being a means to that goal. Otherwise, as well produced as it may be and no matter the scope, Axanar is just another fan film violating CBS IP rights.

I disagree. The way Axanar really gets into trouble is for using elements of the Star Trek IP at all. As stated many times in this thread, profit isn't necessary to prove copyright violation. However, the potential may, imo, be the reason that suit was filed. CBS/Paramount can sue fan film producer they want, whether they are for profit or not.

 

[stampersand]

As far as Prelude, would they not be able to get away with that short film using CBS/P IP due to it being transformative? Prelude is edited as if it were a documentary, a bunch of talking heads, thus may be transformative just enough to fall under Fair Use. The full Axanar film, on the other hand, is not transformative in any way that I can discern, nor is it parody, or any of the other Fair Use categories that I can discern.

 

[Franklin]

But that is irrelevant... copyright enforcement can be selective... CBS could chose to sue potempkin, and not say Axanar... It's their copyright, it's their choice.

I disagree. The way Axanar really gets into trouble is for using elements of the Star Trek IP at all. As stated many times in this thread, profit isn't necessary to prove copyright violation. However, the potential may, imo, be the reason that suit was filed. CBS/Paramount can sue fan film producer they want, whether they are for profit or not.

This is all true, but I'd think a judge would want to know why CBS chose to enforce its copyright in this case. Maybe all they have to say is, "Because we want to," and that would be sufficient. But there has been a lot of speculation in this thread about why in this case, and it seems to revolve around the scope and money involved, profit or not. That it boldly goes where no fan film has gone, before. And for CBS, that's too far this time.

I guess the thing I was trying to do was separate Axanar from the other fan films that just as blatantly violate CBS IP. And that point of separation was using CBS IP as bait to raise funds to make the movie, which then evolved into the construction of a permanent movie studio. I think that pisses CBS off more than the use of Soval. I don't know too much of the background of this, but I think quite a while back, CBS did put a shot across Axanar's bow about there displeasure with the direction the project was going. If they had throttled it back then and shot the film in an existing studio or the parking lot of a Wal-Mart, maybe they wouldn't be in the fix they're in now, even if they kept Soval and Garth.

But I'm just spit-balling, really. We see how it really unfolds when the sides start to reveal their hands.

 

[muCephi]

Considering that he runs Propworx out of "Ares Studios" which he pays for, out of the checkbook for Axanar Productions, the entity he is trying to get 503C status for, I don't think he has a snowball's chance in hell to get tax exempt status.

ya, there is that.. using "presented as nonprofit to the IRS" resources like the office space to operate a for profit Propworx could be a red flag. Tho they might try to say part of the facility is for the nonprofit and part is not.

Not trying to drive this into the ground. Agree the lawsuit doesn't pertain to these claims. its more reaction to the ongoing nature of the nonprofit claims. "show us your peanuts", to quote Mr. Oliver.

 

[Amaris]

As far as Prelude, would they not be able to get away with that short film using CBS/P IP due to it being transformative? Prelude is edited as if it were a documentary, a bunch of talking heads, thus may be transformative just enough to fall under Fair Use. The full Axanar film, on the other hand, is not transformative in any way that I can discern, nor is it parody, or any of the other Fair Use categories that I can discern.

Someone said it way back in the thread, but Prelude isn't transformative because it's a fictional documentary that documents the purely fictional history of an established IP's universe. It would be like making your own alternative universe Transformers film using everything from the Transformers universe, but with a different ending than was established in the films.

 

[CaptGrumpy]

This is all true, but I'd think a judge would want to know why CBS chose to enforce its copyright in this case. Maybe all they have to say is, "Because we want to," and that would be sufficient.

My understanding (and, let me say that I'm not a lawyer or a legal professional) is that "because we want to" is sufficient for a copyright case. A copyright is granted, showing who owns the IP. They don't have to defend a copyright unless they want to.
It's a trademark that has to be defended or lost (if I understand correctly). This is a copyright infringement case and not a trademark case.

 

[Franklin]

My understanding (and, let me say that I'm not a lawyer or a legal professional) is that "because we want to" is sufficient for a copyright case. A copyright is granted, showing who owns the IP. They don't have to defend a copyright unless they want to.
It's a trademark that has to be defended or lost (if I understand correctly). This is a copyright infringement case and not a trademark case.

Two non-lawyers going back and forth over law together. What can go wrong?

I guess in a nutshell there are two real violations of CBS IP here: 1) it's use as a promotional tool to raise money for the movie/studio; and 2) the movie itself. I'm just wondering if that's how CBS will approach it. If it's about the movie as much as anything else, I'd think the production of all Trek fan films would be in peril. I certainly wouldn't want to pilot a fan film boat in the waters after this case. I'd be rudderless without a compass.

 

[dahj]

This is all true, but I'd think a judge would want to know why CBS chose to enforce its copyright in this case.

Why?
"OJ got away with murder, so I thought killing people is ok" is not a valid defense.

 

[muCephi]

Someone said it way back in the thread, but Prelude isn't transformative because it's a fictional documentary that documents the purely fictional history of an established IP's universe. It would be like making your own alternative universe Transformers film using everything from the Transformers universe, but with a different ending than was established in the films.

that would be me among others, mentioned because I also was saying it didn't make sense to say its a documentary, another exemption for fair use, because they are making up the details they are documenting. And how do you do a documentary about the events in a made up story at all.

 

[SuperSpaceMan]

This is all true, but I'd think a judge would want to know why CBS chose to enforce its copyright in this case. Maybe all they have to say is, "Because we want to," and that would be sufficient. But there has been a lot of speculation in this thread about why in this case, and it seems to revolve around the scope and money involved, profit or not. That it boldly goes where no fan film has gone, before. And for CBS, that's too far this time..

As far as the judge is concerned, it's irrelevant, because selective enforcement of copyrights is the law.

I mean the simple reason, is that the only fan film that has come even close to the scope of the size of this project was Renegades, and that was sold as a "Pilot" even though it was more of a pitch, to CBS.

As far as the speculation? Yes, we have speculated, and yes it has all come back to money, because there *IS* a reason, CBS decided to go after Axanar, but that is speculation into CBS's motives, not the legal realities of CBS case.

 

[CaptGrumpy]

Two non-lawyers going back and forth over law together. What can go wrong?

I guess in a nutshell there are two real violations of CBS IP here: 1) it's use as a promotional tool to raise money for the movie/studio; and 2) the movie itself. I'm just wondering if that's how CBS will approach it. If it's about the movie as much as anything else, I'd think the production of all Trek fan films would be in peril. I certainly wouldn't want to pilot a fan film boat in the waters after this case. I'd be rudderless without a compass.

What I've gleaned from this discussion, and others on this subject is that CBS only has to prove that a) they own the IP, and b) that it was used without their permission. If I'm right in my understanding (and, hey ), CBS/Paramount wins