That's fine, but the script was never published in any form.
CBS/Paramount sues to stop Axanar
- Thread starter Richard Baker
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That's fine, but the script was never published in any form.
One would assume that fan films' scripts change less radically than professional productions over time. If you've only got a small budget, you want to establish exactly what you need to shoot a script and stick to it. Changes mean more expenditure. Less money to spend on carpets.
The possibilities are quite daunting to be sure..........but IMO, if C/P widens their scope, it will only go so far as is necessary to be sure that Lord Alec & co. get nailed. Along those lines too, I could only see them including the clearest, most egregious infringements (the ones that are most obvious/easiest to prove).
Just realized I may have missed part of your question. If you question is "how would there be recoverable damages that a court could measure from an unproduced script?", the law allows a copyright plaintiff to recover defendant's profits attributable to the infringement along with any damages actually suffered by plaintiff. If, as you suspect, these numbers might be small given the script would never be produced, the plaintiff can elect instead - and assuming the infringed work is the subject of a federal copyright registration - to receive statutory damages (damages specified in the Copyright Act) in lieu of profits and actual damages.
Statutory damages run upward of $150,000 per work infringed - but the statute allows a judge to adjust down to, I believe, $100 (or anywhere in between) base don what he or she thinks is fair and reasonable under the circumstances. So even if C/P wins, they are not automatically guaranteed the $150,000, and a judge may adjust that number down significantly in light of the fact that the script never saw the light of day.
M
That part, I don't believe, matters. They produced revenue using those words, so in essence, it's "published."
True, but I'm looking at footage produced and released so far
Not sure what you are getting at. "Published" versus "unpublished' has no bearing on whether a work is protected by copyright or whether it infringes another work. The only thing that distinction would go to is calculating damages - i.e., if the script is published, chances are the defendant made more profit from it that the plaintiff can go after. But even if the defendant made zero profit from an unpublished script, the plaintiff may be able to recover statutory damages. See my post above.
M
Mike:
Great spot-on posts! And while you're here, maybe you can chime in on something, since I'm sure the Axanar people monitor what is being said here.
I've already shared why we feel perfectly legal in our coverage overnight of the leaked script. Could you share your opinion on that?
What we have said (and maintained) is that unless we broke into something and stole that script, having someone leak a script to us is not unlawful. Our possession of that script is not unlawful. Reviewing that script and even doing a news story on that script is not unlawful.
We are explicitly covered under the First Amendment and Fair Use, but it would be nice to get a second opinion to either affirm that, or tell us where you think we might be mistaken.
Plus the opening is workable, and easy to film. Alec may have even thought of using his godchildren to be the kids playing in the park.
I don't see why he would change it, or the basic structure of the script. The script (at least from what I can tell thanks to the review) is kinda meh, but not terrible. Wouldn't be painful to sit through, and it looks like it also wouldn't have all the weird stuff that made Renegades almost unwatchable.
I have a feeling that when CBS presents their amended complaint, there will be the donor store, coffee and models all involved. I don't think that CBS declining to file something by the 29th is the win Axanar is presenting it as.
I understand that it still infringes (i'm not talking about any profit or whether its protected), but the script is essentially just something someone wrote and is sitting in a drawer. Yes, they had intentions to film it, but it never was (and likely never will be). It only got out there because it was leaked.
Are you saying that I could write fan-fiction and keep it in my desk drawer-- no one could ever see it-- and they could be awarded damages?
Yes, fan-fiction infringes, but it's published at least-- people put it out there. I just am having a hard time imagining a judge awarding 150K damages per infringement on a script that nothing was ever done with.
Michael:
I must be too new to send a PM (or I'm not smart enough to figure it out) so I sent you an email at the address on your website.
M
Yes.
No.
Your scenario doesn't have the writer raising a million dollars without permission and published plans to produce the movie.
Beside the point. I'm talking strictly about damages from an unproduced script. MK says the answer is yes-- that's all I wanted to know. Very interesting.
The act of creating an unauthorized work is an infringement (technically), entitling them to damages even if you never took it out of your drawer (as you recognize).
However, because you never took it out of your drawer, you could argue fair use (it had no effect on the marketplace for the copyright owner's own work - one of the factors of a fair use analysis) or, failing that, that copyright owner suffered no "real" damages and should not be entitled to more than the barest minimum statutory damages ($100), if that.
M
Could axanar argue this over this script? Could they claim that-- while they may have INTENDED to film the script, they never did, and it only got out based on a leak. And would that claim hold any water with a judge?
Well, they can argue whatever they want. But there's a lot of publicly available info from them showing their plan to produce the script (and to have an effect on the Star Trek market - CBS will say an unfavorable effect, Axanar will say the opposite), and they would have to submit to depositions where they confirmed (or denied) the status of the script as of the date of the complaint and their imminent plans to film it in early 2016. All of the versions of the script would likely be discoverable as well.
M
But they did film part of the script.
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