We're doin' some speculatin' over in the CBS/Paramount v. Axanar Facebook group about this.
CBS/Paramount sues to stop Axanar
- Thread starter Richard Baker
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The Pro-Axas(Nice term you came up for them by the way.) don't understand that someone making money off of ideas they don't own is not legal. Axanar will never see the light of day now because Paramount and CBS will win this case and will not let Peters even finish it as a fan picture that supposedly isn't making a profit.@Michael Hinman : I couldn't help but laugh at the comments section of the article. Here we have Dave Galanter explaining exactly what happened behind the scenes, and the pro-Axa drones come right in and start calling it a hit piece full of bias and slander.
There wouldn't be a public viewable version of that would there? Don't do Facebook.
Can you post a link to that page, please??
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It's like they have this impression Star Trek was made as a gift for humanity. It isn't. We love it, it's a terrific show with some great (and not so great) ideas, but it was never meant to be freely distributed. It exists to make money.
Sorry. Posted from mobile Facebook originally, which doesn't make linking to threads very easy. Here you go »
OK, that made for interesting reading, @carlosp.
Two questions.
1) If this turns out to be the case, can the Plaintiffs change the suit in the future to go after the supposed complicit fundraising using Trek IP?
2) What could counter this new tactic if Loeb & Loeb have actually anticipated this possibility?
Two questions.
1) If this turns out to be the case, can the Plaintiffs change the suit in the future to go after the supposed complicit fundraising using Trek IP?
2) What could counter this new tactic if Loeb & Loeb have actually anticipated this possibility?
Well said.
Exactly. Roddenberry didn't create STAR TREK because he had some altruistic goal of changing humanity forever. He did it to make a buck.
Even if they rewrite Axanar as a documentary series in the style of Prelude, it'll be an uphill struggle convincing anyone that it's a parody or any other kind of "transformative" work.
Read your analysis as well, Carlos.
I wonder what the precedents are for a deliberate copy of an entertainment work as a property (Star Trek like you've never seen it before) being ruled transformative even though a vast number of the copyrighted elements are not transformed. I am assuming Axanar would try to continue to use the trademarks and copyright races/technology/backstory etc so they are "real" to fans. If the "purpose" is still to tell an entertainment story, what other factors could they fiddle with enough to be "transformative"?
Somehow, I just don't see a whole series or movie in the documentary style while retaining all the Trek elements as a true transformation. It would be a story with a light wrapper around it.
Also, couldn't C/P lock up the funds raised so far on the grounds of the charges about historic Axanar activity which is not tied to speculating about the future Axanar movie, such as products, the Vulcan scene, etc. already cover a large amount of potential damages? And lock up the sale on the grounds an accounting of C/P IP value on the "original" sales pitch needs to be done before the actual fair value sale of the asset can proceed?
I wonder what the precedents are for a deliberate copy of an entertainment work as a property (Star Trek like you've never seen it before) being ruled transformative even though a vast number of the copyrighted elements are not transformed. I am assuming Axanar would try to continue to use the trademarks and copyright races/technology/backstory etc so they are "real" to fans. If the "purpose" is still to tell an entertainment story, what other factors could they fiddle with enough to be "transformative"?
Somehow, I just don't see a whole series or movie in the documentary style while retaining all the Trek elements as a true transformation. It would be a story with a light wrapper around it.
Also, couldn't C/P lock up the funds raised so far on the grounds of the charges about historic Axanar activity which is not tied to speculating about the future Axanar movie, such as products, the Vulcan scene, etc. already cover a large amount of potential damages? And lock up the sale on the grounds an accounting of C/P IP value on the "original" sales pitch needs to be done before the actual fair value sale of the asset can proceed?
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- I think the fundraising efforts can be argued under the Cause of Action in which the plaintiffs accuse the defendants of gaining a "direct financial benefit" from the infringing activities. I've written elsewhere that I think the legal complaint should have gone into a bit more detail about what the financial gain entailed, and in fact the motion to dismiss argues for striking that portion of the suit because of insufficient facts to support the allegation. So I don't think the plaintiffs will need to amend the complaint; "direct financial benefit" instead will likely be a focus of discovery.
- Plaintiffs will have plenty of time to counter the fair use arguments I speculate about in the Facebook post once the case clears the motion to dismiss stage because — finally! — the defense will have to file a formal Answer to the allegations in the legal complaint. The fair use arguments will have to be detailed in that Answer.
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Gotcha, thank you Carlos. I'd forgotten the part about 'direct financial benefit'.
It will require fancy legal footwork because transformativeness is a largely unexplored area of case law.
In a 1994 case, the Supreme Court emphasized that transformativeness analysis has to examine the material has been used to help create something new or merely copied verbatim into another work. Two key questions in this analysis:
- Has the material taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
here is a page with a number of transformative use rulings, some of which are in entertainment, with synopses:
http://www.nolo.com/legal-encyclopedia/fair-use-what-transformative.html
here is a direct link to Carlos' FB article proposing recent Axanar behavior makes sense if one postulates the intent to create a tranformative work and shift the case to debating that:
https://www.facebook.com/groups/CBSvsAxanar/permalink/1211406708870697/
https://www.facebook.com/groups/CBSvsAxanar/permalink/1211406708870697/
See my post above for the issues to be grappled with regarding transformativeness.
Locking up funds as you suggested requires some kind of injunction from the court; CBS can't do this unilaterally. That's why I've speculated that the preliminary injunction hearing may prove to be quite a dramatic confrontation between the two sides.
Regarding the asset transfer, I think the best source on this is none other than @jespah's excellent analysis she did for the G&T Show, which examines the possible sale of Axanar's “Ares Studio” assets, and what's the upside for Axanar and the secret investors. Listen in at the 01:15:00 mark.
Shniff, thank you.
I am considering the case where a transforming project seeks to use, thoughout its work, various trademarked/copywritten elements of another work, and wishes to keep a straight storytelling face, not be a parody or satire, while doing so.
It isn't a case where the IP is used in small chunks to advance a different purpose than the original work. It isn't a commentary on the original work. It isn't creating new value out of the elements [vulcans/transporters/UFP/etc.] in some way. The first is not of interest to fans, the second same because it breaks the third wall and fans want in-universe. The third they aren't creative enough to pull off.
What could be left? a documentary series would just be a wrapper.
food for thought.
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