CBS/Paramount sues to stop Axanar

[mkstewartesq]

IRationalizations abound here, little guy vs. corporation, etc. But those arguments I think are not so important as the key matter of coming face to face with the fact that how Axanar has behaved must be interpreted as having crossed way too many boundaries.

Here's my take on it - from a totally common-sense, non-legal perspective.

When I was little, I remember playing with my friends. Sometimes we would play in my yard, sometimes in my friend's yard. Occasionally, and without thinking too much of it, we would wander and find ourselves playing in some other neighbor's yard. A bit surprising to me looking on it with age, but most of my neighbors were pretty cool about it - other than maybe a "don't step in the begonias", they just let us keep playing - because we weren't harming anything or causing any problems.

But if they did tell us to stop playing in their yard, we would say "okay, yes ma'am (or sir)" - and we would comply. We wouldn't argue with them, and we certainly wouldn't be so graceless as to stand our ground and say "make us leave" - or, worse, "hey, I have a right to play in your yard."

"Star Trek" is C/P's yard. Fan films that play in it that do so under C/P's good graces - and they should not be bratty or combative when asked - or told - that they can't play in C/P's yard any more. It's that simple. To do otherwise demonstrates why people - and corporations - eventually put up fences and "do not enter" signs on their "yards".

(And, putting my legal hat back on - and extending the "yard" metaphor to the law - there is a very real, very old doctrine in real property law called "adverse possession", which states that, if you let someone be on your land and don't take action to evict them when their presence is "open and notorious" and they claim they have the "right" to stay there, you eventually give up ownership of that part of your land to that person. So, IMHO, everything we see in Axanar - from the production crew to the "fans" - claiming they have a right to use C/Ps "yard" because they "don't like what C/P is doing with it" is ultimately only forcing C/P to take stronger measures to "evict" them, because not doing so could result in C/P losing some of its rights in its property.)

M

 

[mkstewartesq]

Edited to add: And we absolutely did not say, when told to leave: "hey, I have a right to play in your yard. AND I'm opening my own lemonade stand and coffee bar on this very spot."

M

 

[HMS Ark Royal]

Here's my take on it - from a totally common-sense, non-legal perspective.

When I was little, I remember playing with my friends. Sometimes we would play in my yard, sometimes in my friend's yard. Occasionally, and without thinking too much of it, we would wander and find ourselves playing in some other neighbor's yard. A bit surprising to me looking on it with age, but most of my neighbors were pretty cool about it - other than maybe a "don't step in the begonias", they just let us keep playing - because we weren't harming anything or causing any problems.

But if they did tell us to stop playing in their yard, we would say "okay, yes ma'am (or sir)" - and we would comply. We wouldn't argue with them, and we certainly wouldn't be so graceless as to stand our ground and say "make us leave" - or, worse, "hey, I have a right to play in your yard."

"Star Trek" is C/P's yard. Fan films that play in it that do so under C/P's good graces - and they should not be bratty or combative when asked - or told - that they can't play in C/P's yard any more. It's that simple. To do otherwise demonstrates why people - and corporations - eventually put up fences and "do not enter" signs on their "yards".

(And, putting my legal hat back on - and extending the "yard" metaphor to the law - there is a very real, very old doctrine in real property law called "adverse possession", which states that, if you let someone be on your land and don't take action to evict them when their presence is "open and notorious" and they claim they have the "right" to stay there, you eventually give up ownership of that part of your land to that person. So, IMHO, everything we see in Axanar - from the production crew to the "fans" - claiming they have a right to use C/Ps "yard" because they "don't like what C/P is doing with it" is ultimately only forcing C/P to take stronger measures to "evict" them, because not doing so could result in C/P losing some of its rights in its property.)

M

Jespah, whats your thoughts on this... this statement?

 

[Jay]

Edited to add: And we absolutely did not say, when told to leave: "hey, I have a right to play in your yard. AND I'm opening my own lemonade stand and coffee bar on this very spot."

M

Or, hey, I'm going to sell apples from the tree in your hard. Because *I* am better at selling these apples than you.

 

[CaptGrumpy]

Or this one...

Oddly enough. he's who I think of when I hear Fat Tony

 

[jespah]

By when?

I think the 21st of March but I admit I am unsure.

 

[JD]

^Me too. I didn't even know there was a real life Fat Tony.
EDIT: This was a response to CaptGrumpy.

 

[jespah]

Here's my take on it - from a totally common-sense, non-legal perspective.

When I was little, I remember playing with my friends. ...

But if they did tell us to stop playing in their yard, we would say "okay, yes ma'am (or sir)" - and we would comply. We wouldn't argue with them, and we certainly wouldn't be so graceless as to stand our ground and say "make us leave" - or, worse, "hey, I have a right to play in your yard."

"Star Trek" is C/P's yard. ...

(And, putting my legal hat back on - and extending the "yard" metaphor to the law - there is a very real, very old doctrine in real property law called "adverse possession", which states that, if you let someone be on your land and don't take action to evict them when their presence is "open and notorious" and they claim they have the "right" to stay there, you eventually give up ownership of that part of your land to that person. So, IMHO, everything we see in Axanar - from the production crew to the "fans" - claiming they have a right to use C/Ps "yard" because they "don't like what C/P is doing with it" is ultimately only forcing C/P to take stronger measures to "evict" them, because not doing so could result in C/P losing some of its rights in its property.)

M

I like the adverse possession analogy quite a bit. It's one of those things in the law where, if you're allowed to keep doing it, doing it, doing it, then you end up with some rights. Easements can be like that, quasi-contracts can sometimes be like that. I think @mkstewartesq and I are seeing similar things and we are both seeing the division between Axa and the other unofficial productions pretty clearly. The money. The merchandising. The 'we're an independent Star Trek film/we're not a mere fan film' statements. The salaries (small as they may be). The studio.

Those are bright-line distinctions, I feel.

 

[mkstewartesq]

I think @mkstewartesq and I are seeing similar things and we are both seeing the division between Axa and the other unofficial productions pretty clearly. The money. The merchandising. The 'we're an independent Star Trek film/we're not a mere fan film' statements. The salaries (small as they may be). The studio.

Those are bright-line distinctions, I feel.

That’s exactly my view, jespah, thank you.

If we are going strictly on copyright infringement grounds - i.e., which fan production copied more copyrightable subject matter owned by C/P - then Axanar actually lags a bit behind other productions such as Star Trek Continues, which appropriates wholesale characters, settings, designs, graphic works (such as costume designs) and other copyrightable elements. In fact, if you took a screenshot from a Star Trek Continues episode - say, a scene in a briefing room, sickbay or bridge, it would likely look virtually identical to a screenshot from TOS other than the actors’ faces being different. Certainly much closer, when viewed in the aggregate, to the copyrightable subject matter protected by copyright in TOS than Axanar.

But STC is not sued, while Axanar is. I think that can be chalked up squarely to all of the “off-screen”/”on the side” activities of the Axanar team that put them on a direct collision course with C/P and, IMHO, made C/P feel that their hand had been forced. And not just “forced” from a public relations standpoint - but “forced” in the sense of Axanar willfully colliding with C/P’s other legal rights that, to my knowledge, STC and other films continue to respect - such as using copyrightable subject matter to market ancillary products (the coffee). Such as engaging in unfair competition by free-riding on C/P’s intellectual property and then openly touting “Axanar’s Star Trek product” as being superior to “C/P’s Star Trek product”. Such as, if allegations are to be believed, free-riding on C/P’s intellectual property as a springboard for a competing film production facility.

This is, again, my “yard” metaphor. Axanar had the same chance STC has to play nicely and respectfully in someone else’s yard and then, later, to leave and go back home when asked. They did not do either of those things.

Mike

 

[CaptGrumpy]

Not sure I understand the adverse possession aspect too much. From the original description, it sounds like all fan film makers are the "kids playing in the neighbor's yard". Does this mean that all the "kids" should get the right (under the argument) to make a film? Or is each kid playing in the yard considered seperatley?

 

[Jedi_Master]

This is, again, my “yard” metaphor. Axanar had the same chance STC has to play nicely and respectfully in someone else’s yard and then, later, to leave and go back home when asked. They did not do either of those things.

Mike

Excellent set of posts. I would wager that when CBS met with Axanar in August (?) of last year - they made clear their wishes and interests, and Alec chose to ignore them or re-interpret their broad statements and gamble that CBS would never act on them.

 

[muCephi]

I like the adverse possession analogy quite a bit.

It's good. In this light it's really clear that all the bluster, misdirection about being under the fan nonprofit criteria, and taking IP for multiple purposes without permission likely had the intention to establish such a beachhead ("independent star trek production company"). And who knows what the discovery of records will show wrt/ bts discussions on taking with the intent to establish squatters' rights. Though again, I wonder whether the hosting change conveniently left behind their old emails as abandoned and to be wiped/scrolled off backups at the prior service provider.

 

[HMS Ark Royal]

Lets face it... Alec has been a bastard (yes, I can use that word here because I doubt he was conceived in wedlock which is the applicable method) and he has gone against what CBS / Paramount have told him. Actors from his so called epic film have dropped out of production and he is trying to take money from people knowing he will lose

 

[steam235]

As far as Adverse possesion... And it's the same as waiver: IF you admit that CBS/Paramount "allowed" previous fan films then CBS/Paramount would have to show how Axanar is doing something different than the endeavors they've allowed in the past. I think we have hours of podcasts, convention appearances, blog posts Kickstarter campaigns etc. where Alec and others explain how different it is.

 

[YJAGG]

Here's my take on it - from a totally common-sense, non-legal perspective.

When I was little, I remember playing with my friends. Sometimes we would play in my yard, sometimes in my friend's yard. Occasionally, and without thinking too much of it, we would wander and find ourselves playing in some other neighbor's yard. A bit surprising to me looking on it with age, but most of my neighbors were pretty cool about it - other than maybe a "don't step in the begonias", they just let us keep playing - because we weren't harming anything or causing any problems.

But if they did tell us to stop playing in their yard, we would say "okay, yes ma'am (or sir)" - and we would comply. We wouldn't argue with them, and we certainly wouldn't be so graceless as to stand our ground and say "make us leave" - or, worse, "hey, I have a right to play in your yard."

"Star Trek" is C/P's yard. Fan films that play in it that do so under C/P's good graces - and they should not be bratty or combative when asked - or told - that they can't play in C/P's yard any more. It's that simple. To do otherwise demonstrates why people - and corporations - eventually put up fences and "do not enter" signs on their "yards".

(And, putting my legal hat back on - and extending the "yard" metaphor to the law - there is a very real, very old doctrine in real property law called "adverse possession", which states that, if you let someone be on your land and don't take action to evict them when their presence is "open and notorious" and they claim they have the "right" to stay there, you eventually give up ownership of that part of your land to that person. So, IMHO, everything we see in Axanar - from the production crew to the "fans" - claiming they have a right to use C/Ps "yard" because they "don't like what C/P is doing with it" is ultimately only forcing C/P to take stronger measures to "evict" them, because not doing so could result in C/P losing some of its rights in its property.)

M

common sense and courtesy are rare commodities today

 

[lurok]

Not sure I understand the adverse possession aspect too much. From the original description, it sounds like all fan film makers are the "kids playing in the neighbor's yard". Does this mean that all the "kids" should get the right (under the argument) to make a film? Or is each kid playing in the yard considered seperatley?

I took it as all kids are equal and welcome and happy to play in sandbox. But some are brattier than others, and eventually you just have to boot them.

 

[mkstewartesq]

Not sure I understand the adverse possession aspect too much. From the original description, it sounds like all fan film makers are the "kids playing in the neighbor's yard". Does this mean that all the "kids" should get the right (under the argument) to make a film? Or is each kid playing in the yard considered seperatley?

We-e-elllll . . . I’m not dodging your question, but this is where my “adverse possession” analogy - applicable to real property a/k/a land) gets dicey when applied to a different type of property with different legal rules (intellectual property). But lemme try, and maybe I can screw this up even further.

If we were talking land, then C/P as the land owner would, at the least, lose the right to kick the specific “squatter” (Axanar) off the property - and depending on what rights the squatter claimed, might even lose ownership of that part of the land as well. As @jespah mentioned, there is a distinction between the squatter claiming to “own” part of the land and merely claiming he or she has an “easement” (a right to be on the land for some limited purpose, though not amounting to actual ownership.) What Axanar is claiming is probably more like an easement - “Star Trek is still C/P’s property, but we have a right to use it that C/P can’t take away.”

So if Axanar gets an “easement” to use C/P’s property through adverse possession, does that mean all fan films get the same easement? Depends on the facts. So far, only Axanar has been openly claiming it has the right to do what it is doing, so they would be the first - and perhaps only - ones to get that right (no one else is engaging in adverse possession.) But there are situations where once an easement is granted and other people in the public use it regularly without being stopped, the law will consider the easement to apply to the whole public.
_____

Now, let’s get back to “the real world” - even if “adverse possession” isn’t literally applicable here, similar concepts do come into play that could have a real impact on C/P. For example, if C/P allowed Axanar to continue selling Axanar coffee using the “look and feel” of Star Trek, this puts C/P’s trademark/trade dress rights at risk.

- On the one hand, the law says that, to keep your rights in trademarks/trade dress, you must police other uses of the mark. This means you must stop others from using the trademarks/trade dress without your consent - or you may be deemed to have abandoned your rights in the trademarks/trade dress.

- Or, if you affirmatively allow someone else to use your trademarks/trade dress, then you have a legal duty to actively control the quality of the goods they sell using you trademarks/trade dress or, again, you will be deemed to have abandoned your rights in the trademarks/trade dress. It’s not fair to the public - who has come to view the “Star Trek” trademarks/trade dress as signifying a certain level of quality - to be “tricked” into buying substandard product because they thought the association with “Star Trek” meant the product would meet a certain standard of quality. This is why C/P has license agreements - they allow use of their IP, but retain the right to control the quality of the resulting goods sold under the license. If the goods fall below a certain quality level, C/P can pull the license rather than endanger its trademark rights.

So, either way, unless C/P wanted to actively get into the coffee business and spend time and effort in “coffee quality control”, they do stand a risk of losing ownership of some “Star Trek” trademarks/trade dress by allowing Axanar to continue to use their marks.

(Analogous - but not exactly the same - principles apply in copyright. Allowing anyone and everyone to do what they please with your copyrights certainly bolsters an argument that, somewhere along the line the copyright owner affirmative put the work into the public domain, making it free for anyone to use.)

Mike

 

[CaptGrumpy]

Ok, I think I understand now. Thanks, Mike.

 

[mkstewartesq]

Ok, I think I understand now. Thanks, Mike.

Happy to help, @CaptGrumpy. Sorry it took another of my "wall of text" posts to explain it

I will add the following. At least ten years ago, I represented a local company who had been sent a cease-and-desist by Viacom, Inc./Paramount Pictures for selling an item that, shall we say, looked an awful lot like a Klingon bat'leth. At the time, Viacom was coming down pretty hard on replica prop-makers, as well as anyone else using ST IP without permission - especially to make a buck. I'm sure many of us remember those times.

It seems to me that, taking a lead from Lucasfilm, C/P has, in recent years taken a decidedly-different, very lenient stance on fan productions, So much so that, as a lawyer, I often find myself wondering how C/P balances this benevolence with the need to make sure it is protecting its rights. But that's their call, and I assume they have good counsel advising them on where "the line" is.

But my point is - given the about-face C/P has taken in the past ten years toward fan productions, it tells me that someone has to really cross the line - and cross it hard - to get them to rise up and take legal action these days. My personal view is that the lawsuit against Axanar signifies only an action against someone who crossed the line "too much" rather than some "first step" to shut down all fan productions.

M

 

[CaptGrumpy]

@mkstewartesq & everybody else here. This is what I like about this community. Your're friendly and you answer questions for we, the partially confused .

From all I've heard about AP and co, they seem to like to hide in the shadows when it comes to answering questions. They are so Donald Trump-ish. You're gonna love it, it's the Star Trek the fans want, is the party line. But if you dare ask a question you're thrown out (with or without your coat). It's pretty reprehensible.

So thanks again!