I guess they'll consider it a win, though, if they create enough doubt to prevent a preliminary injunction and buy themselves a chance to make something. Even if it's nothing like what the backers thought they were backing.
CBS/Paramount sues to stop Axanar
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C/P should heavily argue then the long Axanar track record of claiming that they are the standardbearer of "true Star Trek", "Trek the fans want", "Trek the studios aren't making anymore".
Any amount of saying "hey guess what now we are doing a transformative work" would have to argue against years of saying their intent is otherwise.
Well, you are.
They won't need to change the suit. @jespah actually stated something quite clearly in this discussion — that you can't put the genie back in the bottle.
No matter how they try to change it after the fact, the unripe argument will be over after the judge rules on the motion to dismiss. Discovery would show emails, script drafts, planning notes, etc., that existed when Axanar was planning and conducting its fundraisers. Even if the "new final product" as Carlos has speculated were to come into being, it doesn't negate what happened before.
You steal something from Wal-Mart, you get caught, even if you put it back with a $50 bill strapped to it, you're still going to get prosecuted for theft. Actions that take place after an event, like a theft, do not negate the original event itself.
Ranahan already has made a push for the unproduced film to be considered "unripe." If she loses that, then she also loses the argument of it being a living, breathing, ever-changing project (not that she really has that argument even with the unripe motion). Either way, it doesn't matter what they are doing with it now. What matters is what they were doing with it then ... like when they were planning the fundraising, and then conducting the fundraising. Even even after the fundraising, leading up to last Christmas.
They won't need to. Their case is based on what's happened before, not what's happening in the future. Discovery would easily show what was planned before and during fundraising, which would support the original case CBS and Paramount has laid out.
I agree. A faux documentary is not very transformative. You can't just tell the same story in a different way, and say, "See? That's transformative!"
Elton John couldn't just make a musical version of "Billy Elliot" and then say, "but mine is transformative — we tell the whole story in song." Obviously, he needed the original copyright holders to sign off on it (and they did, thus the hit musical).
The same is true about a faux documentary. Not enough.
The Language Creation Society wasn't taking sides, but it sure looks like battle lines were drawn:
http://1701news.com/node/1181/both-axanar-lawsuit-sides-battle-over-klingon-language.html
http://1701news.com/node/1181/both-axanar-lawsuit-sides-battle-over-klingon-language.html
Now that "transformation" and "fair use" are moving into the center spotlight, it would, I think, benefit most everyone to read (or reread) Campbell v. Acuff-Rose, which is the "all roads lead back to this case" precedent for transformation and fair use.
I wasn't under contract with Pocket when I wrote for New Voyages but didn't accept money for it and it was done in fun, and fan films were in a special state of grace it seemed so long as they didn't make money. With DC Fontana and David Gerrold having written the two episodes previous to the one I co-wrote, I felt I was in good company.
What Peters did was ask me to write a Trek book that he then hoped to publish and offer as a perk. That's a direct conflict with Pocket's license so I told him he needed to get their approval or his own license. He said he knew the people to talk to and was working on it.
When he didn't get it but still offered to pay me for doing it, i felt I couldn't because it violates the agreements I had signed and would hopefully sign again that indicate to me in no uncertain terms that no one can pay for and publish Trek books but Pocket. Knowing that to be the case, my ethical obligation was to say no.
He then suggested I could write it under a pen name. I said no again.
So I reference the contract not as me being under a binding agreement not to write Trek for someone else, but because it informs me legally and morally that doing so for pay for anyone else is forbidden. The comment about notes belonging to them was that the contract is clear about who owns Trek.
Unlike Peters I wasn't going to make bootleg Trek for money and then claim I didn't know it was wrong.
Making dress up Trek with fans for fun was being tolerated and was a non-pro venture for me, so I did it because I loved the NV people and loved what they do.
By the way, someone commented asking the extent of my help to Axanar's script. I provided notes, comments, and suggestions (often commenting on dialogue and suggesting alternative phrasing or ideas) which is what I do when helping any beginning writer in a writing workshop or a writing contest even.
Anything I did on that script was when it was a first draft, as he was writing that draft, and probably 4 or so years ago already. Once Christian and then Davod Gerrold worked on the script, I never saw it. (Which was fine with me--he didn't need my help, as I am not actually a screenwriter. I just play at it.)
I did pen a stand alone Sarek and Spock scene he wanted to film as a vignette to show at cons or something but worked all of 5 mins on it and I don't think it was filmed and once Axanar became a big thing I assumed he dropped what was literally a little romp lasting 2 mins. I didn't really hear from Peters for a couple years if memory serves, until he called with his novella idea.
Edited to add one more thing: people have asked to see the draft script. I don't have it. The one I saw flowing around on the Internet has changes I suggested but others I didn't so it's later than I saw. I don't save attachments in gmail and the laptop I used to have died due to a poor meeting with a glass of water thanks to one of my cats. It's now a very expensive paper weight. All I have left of anything regarding that script was some notes i kept in an email because it didn't have an attachment.
I remember the script as having some potential as a good fan film. That's a relatively low bar. As a professional feature? Well, few first drafts are good so I can really comment on how much better it would have become. But it would have needed to have a lot of work done to it and for a long time I assumed it was. I have since heard from people who read the locked script that it was only okay. I take their word. I didn't ask to see and don't want to see the script and hope it dies in a CBS/Paramount lit fire.
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Perhaps I misunderstood the purpose of your thought experiment. In your earlier post, you seemed to be arguing that the Klingon language, which is a system (and therefore not subject to copyright) is inextricably tied up with Klingon culture, which is either fixed in or derived from literary works (which are subject to copyright). Based on this premise, you concluded that the Klingon language system is subject to copyright because the literary Klingon culture, to which it is inextricably linked, is subject to copyright.
If I misunderstood this original argument, please show me where I went wrong.
Faced with this argument, I countered that, no, the language system is separable from the literary culture, and so the premise is false and the conclusion fails. Because it is a language or system, the Klingon language cannot be copyrighted.
For this reason, it does not matter whether the language was produced by Marc Okrand while on Paramount's dime. Marc Okrand couldn't have copyrighted the Klingon language system if he wrote it himself, and Paramount could not assume the copyright through the "work for hire" clause of the Copyright Act, because the Klingon language is not subject to copyright in the first place, period. (Also, even if it were subject to copyright, the amicus smartly points out, in Footnote 9, that the "work for hire" clause of the Copyright Act may not even cover it.)
(As an aside, even if the language system and the copyrighted literary works were inextricably linked, as you suggested, there's no principle of law I'm aware of that would lead any court to conclude that the language system is copyrighted for that reason because of its link to the copyrighted culture. On the contrary, the terms of the Copyright Act itself, and the broader doctrine of merger, would seem to suggest the opposite: that the Klingon literary works are not protected by copyright insofar as they are needed to express ideas in the Klingon language system. So linking the two together does not, I think, actually get CBS a copyright on the Klingon language, because the Copyright Act forbids that absolutely, but I think it does weaken CBS's hold on the copyright to Star Trek III! One more reason for CBS to leave this entire line of argument alone and focus on Axanar's billions of other, clearer copyright infringements.)
Comparison: Albert Einstein figures out special relativity. He writes a paper, with lots of explanations and math in it, and concludes E=mc^2. The paper is copyrighted; nobody can reprint it without Einstein's permission. But E=mc^2 is not copyrighted. The idea behind it, of course, is non-copyrightable, and even the phrase "E=mc^2" is non-copyrightable, because it is the only reasonable way to express the idea in the language of mathematics ('ello, doctrine of merger!). It does not matter whether Einstein invented the theory of special relativity on his own or invented it while on Paramount's payroll as a member of the science advisory team for Interstellar: it is non-copyrightable, and, even if it is a "work made for hire" (it may well be), because it's not copyrightable, it doesn't matter: all the "work for hire" clause does is transfer the creator's non-ownership of the energy-mass equivalence equation to the studio, which gains all the rights and privileges that come with not owning it.
A functional language with a bizarre construction and enough words to express most ideas (though sometimes clumsily; it's a rather small language).
Essentially nothing would remain. However, this cannot arise: the language elements originating in the Okrand dictionary constitute an "idea, procedure, process, system, concept, principle, discovery, or method of operation," and so they are not copyrightable, "regardless" of the fact that they are "embodied" within a dictionary.
Language extensions aren't a "work" within the meaning of the Copyright Act, so they can't be derivative works.
You may have built a case against the authors of The Klingon Hamlet here, who may (I have not read it, and have only Wikipedia's description to go on) have included elements of Klingon culture and history in their translation that are copyrighted (although I think you can make a very strong fair-use/parody defense there). But this doesn't put the language itself under copyright, and Axanar's use of a couple words isn't infringing.
Of course, a whole lot else in Prelude is at least facially infringing; whether it can be considered a fair use is the crux of this and any other fan film case. (And, while I'm normally optimistic about the fair-use status of fan films, because nobody profits from them, that wasn't true of Axanar, and courts usually weigh profit very, very heavily in such cases.)
Yeah, I don't doubt your motives; I'm just pretty sure you have some wrong ideas about the Copyright Act! Hope you don't mind my stubbornly arguing the point. We both love the franchise, and presumably the language itself.
DISCLAIMER: I am not a lawyer, though I read judicial opinions for fun. Which is why I've been watching this case so much!
That was the Pretty Woman case, no? I still can't figure out how the courts ruled the way they did on that one. I'm no expert but have read copyright laws and a few case results, and to me that one seemed to go contrary to black-letter law. I'm no expert in music theory, but I do have ears, and it sure didn't sound "transformative" to me.
Thank you for the detailed background - still amazed you were asked to write something under a pen name. Appreciate your keeping things on the up and up.
The way he originally talked about it, it was like a PDF download for people which would go to donars if the campaign reached a certain level I think. That's my recollection.
How it became some leather bound volume for sale in a "donar" store has to be answered by someone's psychiatrist.
As I have said to others, it's "donar" and not "store" they should be putting in quotes. Their definition of donating--especially since they are still taking in money for a project that will never happen--is as deluded as their mistaken notion that they could get away with all this. If we apply the Peters rule to commerce, yesterday I donated $42 to Target in exchange for special donar perks: sour dough bread, tidy cat cat litter, temptations cat nip flavor cat treats, JIF peanut butter (as I am a choosy monkey), veggie chips, and speed stick deodorant. (Target has the BEST donar perks!)
I have a blog post on that big, honkin' brief coming out on the 10th. I agree with you that, most likely, it's going to be declared a system. What I ended up mainly writing about were a lot of the conclusory statements peppered throughout the documents. Adding in the Welsh government's use of Klingon or the KLI's home page screenshot, etc., were immaterial red herrings. It's either a system, or it's not. But calling it a 'living language' was what I objected to. It's not. It is not functional for basic work, and it is inextricably linked with its origins, which come from a copyrighted IP. Even if the IP on this system falls, Klingon still means Trek and, if you have a person dressed in an appreciable percentage of a screen-worn film costume, with a character named under an understood naming convention, and discussing basic copyrighted plot points and copyrighted elements of the IP, and speaking the language developed for said IP, then you've got a derivative (e. g. not fair use, and not transformative) work.
And I Typoed donor. Meh. Mainly because I have a friend whose screen name is Donar.I declare this to be Comment of the Week!
I knew a legate once named Dumar.
Apologies if this has already been noted on here but it appears Axanar have now paid for some Boomer Cat Squadron patches to be produced that you can now buy from the Donor Store. That's right, whilst some donors are still awaiting delivery of their patches they've now started selling new additional ones.
Again, sorry if this has already been picked up on but, you know how it is, you turn your back on this thread to sleep or whatever and it's inflated by 6 or 7 pages when you return!
Again, sorry if this has already been picked up on but, you know how it is, you turn your back on this thread to sleep or whatever and it's inflated by 6 or 7 pages when you return!
I would fix it in my post but now it's just amusing. :-)
Looks like they have to make money somehow ... I mean, according to Burnett, Peters doesn't have any other job.
I declare this to be Comment of the Week!
Here are details about that planned book, itself planned for a Kickstarter, and a picture.
Here are details about that planned book, itself planned for a Kickstarter, and a picture.
Was it a picture book? Why is it so tall?
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