Reviewing Madam Justice
@jespah's post, the most interesting thing to me is LFIM's ongoing misunderstanding of what "transformative" means in the context of fair use. Here's a portion of his deposition:
Q. And there’s no question that all of these
similarities [between Star Trek and Axanar] were intentional, correct?
A. Yes, as I’ve said, that we were taking a — taking something from the “Star Trek” universe and expanding upon it in original and different and transformative ways.
Q. By the way, that’s an interesting word that you used, “transformative.” Do you mean that in the legal sense?
A. I mean that in a creative sense. We never
saw these aspects of “Star Trek” before. We never saw these characters fully fleshed out in the time period we saw them. We didn’t see most of the characters that are in the “Axanar” script.
LFIM confuses adding to an existing fictional universe with transforming content from it. Here's a good illustration of what constitutes an actual transformative use, courtesy of a
2003 Ninth Circuit decision:
In the action before us, Plaintiff Mattel Corporation asks us to prohibit Defendant artist Thomas Forsythe from producing and selling photographs containing Mattel's "Barbie" doll. Most of Forsythe's photos portray a nude Barbie in danger of being attacked by vintage household appliances. Mattel argues that his photos infringe on their copyrights, trademarks, and trade dress. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court's grant of summary judgment to Forsythe.
The Ninth Circuit said the artist's works were fair use because they were clearly "parody meant to criticize Barbie." Specifically, the artist was attempting to "critique the objectification of women associated with Barbie, and to lambast the conventional beauty myth and the societal acceptance of women as objects because this is what Barbie embodies." This was transformative because the artist actually took Barbie and did something with it other than its originally intended use.
Another point of note from this case is Mattel's unsuccessful attempt to introduce "public opinion" evidence in support of its argument against a finding of fair use. The Ninth Circuit said, "The issue of whether a work is a parody is a question of law, not a matter of public majority opinion." There was simply "no case law in support of [Mattel's] contention that the parodic nature of a defendant's work should be assessed using surveys and opinion testimony."
This also cuts against LFIM's attempts to introduce evidence of fan opinion in support of his own fair use claim, such as in this declaration accompanying the defense's summary judgment motion:
The mockumentary style of the film allowed us to add critical commentary and analysis to the work in order to highlight a comparison of concepts in the Star Trek universe to the present-day military industrial complex, thus serving a different purpose than Plaintiffs’ Works, which I understand to be solely entertainment-focused.
Furthermore, in portraying Garth of Izar, I hoped to examine issues of post-traumatic stress disorder and other psychological issues associated with war. To this end, I drew inspiration from the performance of veterans depicted in the HBO mini-series, “Band of Brothers.” Prelude to Axanar, as a consequence, is both a commentary and satire, exposing the horrors of war in ways the
original Star Trek series did not.
First, as Madam Justice
@jespah noted, this "interpretation of Prelude [is] unsupported by anyone’s reading of the script or viewing of the film." Second, it is a factual misrepresentation of "Star Trek." Unless I imagined that episode of
The Next Generation where Picard spends time at his home on Earth to "examine issues of post-traumatic stress disorder and other psychological issues associated with war." And I'm pretty sure "a comparison of concepts in the Star Trek universe to the present-day military industrial complex" describes pretty much all of
Deep Space Nine, not to mention
Star Trek Into Darkness.
But the main problem here is what LFIM describes is not "satire." And even if it is, that doesn't really help the defense's case. The
Supreme Court affords broader protection to parody than satire, noting the former "needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing." (The Ninth Circuit went on to explain in a footnote to a
1997 opinion that parody is actually "one of four types of satire: diatribe, narrative, parody and burlesque.")
