Let's return to LFIM's statement that "we are prepared to pursue our fair use argument through the courts in an attempt to clearly identify what we can and cannot do when we resume production of
Axanar." It's still not entirely clear to me exactly what his fair use argument entails beyond, "Anything a fan does should be considered 'fair use.'" He basically wants the judge to rewrite copyright law to accommodate his project.
Let's go back to
Paramount Pictures Corp. v. Carol Publishing, which also involved a fan who decided to publish his own unauthorized derivative "Star Trek" work, in that case a book. Here's how the judge disposed of the defendant's attempted fair use defense:
1. The
Carol Publishing court noted the author "was motivated, to a large extent, by a genuine desire to help others to understand the idiosyncracies of the typical Trekker," specifically his wife. The judge said this motive provided a "couterbalance" to the commercial interests in producing a book. That said, the real problem, according to the judge, was not the book's commercial or noncommercial nature, but rather the fact it was not a "transformative" work. Fair use applies to works that criticize, mock, or parody. But the court noted "it would be nonsensical to think that a Trekker would author a book in which the main point is to mock Star Trek."
2. The defendants argued their copying--which consisted primarily of reproducing summaries of "Star Trek" episodes--was "necessary to accomplish the book's purpose of explaining the appeal of Star Trek to its fans." The court said that was "factually and legally inaccurate." The book "explains, not simply the appeal of Star Trek, but the story of Star Trek."
3. The defendants argued their book differed "from any own presently licensed by Paramount." The judge said that made "no difference." The book was a "potential substitute" for any similar product that Paramount might offer in the future.
4. The defendants argued that the "lack of legal action against other infringing" works demonstrates their book "will not damage a potential market." The court said that was "simply irrelevant."
All of these arguments mirror those advances by AP and his associates. And I see no reason the judge here will take them any more seriously than the court in
Carol Publishing did.
