CBS/Paramount sues to stop Axanar

[Maurice]

Regarding some discussions about Fair Use, I got to thinking about the old case of "The Air Pirates" and Disney's total annihilation of that comic for Copyright infringement. In reading up on case again, I ran across this reference:

The 1956 9th Circuit case Benny v. Loew’s had declared that copying a “substantial part” of a prior work, even in parody, could be actionable.

So even outright parody is not a bulletproof Fair Use defense.

Well, the Supreme Court discussed that in its 1994 decision in the Acuff-Rose case:

This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court's equal division. Benny v. Loew's Inc., 239 F. 2d 532 (CA9 1956), aff'd sub nom. Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U. S. 43 (1958). Suffice it to say now that parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107.

Well, sure, but my point is that there's got to be a limit in terms of how far a "parody" goes without crossing the line into indistinguishable from the original. If I write a silly Star Trek script where everyone is acting exaggerated and sell it to CBS, that's just a "weird/funny" episode, but if I make it myself, with some of the same actors on perfect replicas of the sets, is that actually parody Fair Use?

 

[Mudd]

This project isn't failing because bad luck has befallen blameless people. It's failing because its leaders tried to get away with something wrong and got caught.

So...joy? Well, on the one hand I feel badly that creative people who've poured their energies into this are screwed because of Peters' bad actions.

OTOH, our friend Duncan here is indignant, unhappy and snakebitten. That's not much, but it's a good thing.

 

[oswriter]

Well, sure, but my point is that there's got to be a limit in terms of how far a "parody" goes without crossing the line into indistinguishable from the original. If I write a silly Star Trek script where everyone is acting exaggerated and sell it to CBS, that's just a "weird/funny" episode, but if I make it myself, with some of the same actors on perfect replicas of the sets, is that actually parody Fair Use?

It could be. Justice Souter's test in Acuff-Rose was whether the parody could "reasonably [] be perceived as commenting on the original or criticizing it, to some degree." If your hypothetical script was seen as commenting or criticizing the original Star Trek, even if you use the same actors and sets, it could be considered parody and thus fair use.

 

[Maurice]

Well, sure, but my point is that there's got to be a limit in terms of how far a "parody" goes without crossing the line into indistinguishable from the original. If I write a silly Star Trek script where everyone is acting exaggerated and sell it to CBS, that's just a "weird/funny" episode, but if I make it myself, with some of the same actors on perfect replicas of the sets, is that actually parody Fair Use?

It could be. Justice Souter's test in Acuff-Rose was whether the parody could "reasonably [] be perceived as commenting on the original or criticizing it, to some degree." If your hypothetical script was seen as commenting or criticizing the original Star Trek, even if you use the same actors and sets, it could be considered parody and thus fair use.

Yeah, I suppose, but I bet if I'd made "Spock's Brain" and not Paramount that defense wouldn't have flown.

EDIT: I guess my point is, doesn't "parody" have to be recognizable as such?

 

[oswriter]

Well, sure, but my point is that there's got to be a limit in terms of how far a "parody" goes without crossing the line into indistinguishable from the original. If I write a silly Star Trek script where everyone is acting exaggerated and sell it to CBS, that's just a "weird/funny" episode, but if I make it myself, with some of the same actors on perfect replicas of the sets, is that actually parody Fair Use?

It could be. Justice Souter's test in Acuff-Rose was whether the parody could "reasonably [] be perceived as commenting on the original or criticizing it, to some degree." If your hypothetical script was seen as commenting or criticizing the original Star Trek, even if you use the same actors and sets, it could be considered parody and thus fair use.

Yeah, I suppose, but I bet if I'd made "Spock's Brain" and not Paramount that defense wouldn't have flown.

Fair use always comes down to a case-by-case inquiry. But I suspect "Spock's Brain " would not be considered parody if created by an unauthorized third party. However, something like "The Way to Eden" might be. Because dirty, filthy space hippies.

 

[Tim Thomason]

Well, sure, but my point is that there's got to be a limit in terms of how far a "parody" goes without crossing the line into indistinguishable from the original. If I write a silly Star Trek script where everyone is acting exaggerated and sell it to CBS, that's just a "weird/funny" episode, but if I make it myself, with some of the same actors on perfect replicas of the sets, is that actually parody Fair Use?

It could be. Justice Souter's test in Acuff-Rose was whether the parody could "reasonably [] be perceived as commenting on the original or criticizing it, to some degree." If your hypothetical script was seen as commenting or criticizing the original Star Trek, even if you use the same actors and sets, it could be considered parody and thus fair use.

Yeah, I suppose, but I bet if I'd made "Spock's Brain" and not Paramount that defense wouldn't have flown.

I don't know. Marc Cushman has directed over a dozen straight parodies of Star Trek, for profit, and there was no talk of litigation as far as I'm aware. His parodies just had to have a specific thematic focus.

 

[MikeH92467]

That episode works better if you think of it as parody.

 

[Maurice]

I don't know. Marc Cushman has directed over a dozen straight parodies of Star Trek, for profit, and there was no talk of litigation as far as I'm aware. His parodies just had to have a specific thematic focus.

And no one can mistake those for the real thing, can they? Even the porn titles are like Sex Trek and This Ain't Star Trek.

 

[oswriter]

I don't know. Marc Cushman has directed over a dozen straight parodies of Star Trek, for profit, and there was no talk of litigation as far as I'm aware. His parodies just had to have a specific thematic focus.

And no one can mistake those for the real thing, can they? Even the porn titles are like Sex Trek and This Ain't Star Trek.

I think pornography is sufficiently "transformative" to qualify as fair use.

 

[oswriter]

I don't know. Marc Cushman has directed over a dozen straight parodies of Star Trek, for profit, and there was no talk of litigation as far as I'm aware. His parodies just had to have a specific thematic focus.

And no one can mistake those for the real thing, can they? Even the porn titles are like Sex Trek and This Ain't Star Trek.

I'm not familiar with Cushman's filmography, so I have to ask: Was his version of Star Trek faithful to Gene's original vision?

 

[Indysolo]

I've more or less convinced myself, and no one else, that if the company survives and holds onto enough of its assets when forced to abandon this Star Trek ripoff they'll try to pivot to doing a Star Wolf project. It benefits everyone involved, and might even have real potential.

Which makes me wonder why they didn't go with that for all the merchandising and profit making, it sounds like they would have permission for that as long as David Gerrold got his cut.

There was already a failed Kickstarter for The Star Wolf.

Neil

 

[BillJ]

BEST ACTOR, Richard Hatch,

What was the competition? Inanimate carbon rods?

If you submit a film with copyrighted or trademarked materials included and you do not have written permission to use them, you will not be eligible to screen at CAFF.

So they faked the written permission?

 

[BillJ]

I've more or less convinced myself, and no one else, that if the company survives and holds onto enough of its assets when forced to abandon this Star Trek ripoff they'll try to pivot to doing a Star Wolf project. It benefits everyone involved, and might even have real potential.

Which makes me wonder why they didn't go with that for all the merchandising and profit making, it sounds like they would have permission for that as long as David Gerrold got his cut.

There was already a failed Kickstarter for The Star Wolf.

Neil

Ouch!

 

[USS Triumphant]

So they faked the written permission?

That is possibility A.

Possibility B is that the contest didn't actually require the written permission itself, but only that contestants sign off saying that they had the permission. In which case, they lied, but didn't fake a document.

Possibility C is that they actually somehow had that written permission? (???)

Possibility D is that they did something similar to what I did when asked to sign a non-compete at work. I threw it away. HR contacted me to tell me it had been left out of my packet, and so I got them to send me one over to my office to correct that. Which I then threw away. I haven't heard about it again - and I've been working for them for over 10 years now. Sometimes things just fall through the cracks.

 

[Indysolo]

I don't know. Marc Cushman has directed over a dozen straight parodies of Star Trek, for profit, and there was no talk of litigation as far as I'm aware. His parodies just had to have a specific thematic focus.

And no one can mistake those for the real thing, can they? Even the porn titles are like Sex Trek and This Ain't Star Trek.

I'm not familiar with Cushman's filmography, so I have to ask: Was his version of Star Trek faithful to Gene's original vision?

You can view his filmography here.

Neil

 

[Mudd]

I've more or less convinced myself, and no one else, that if the company survives and holds onto enough of its assets when forced to abandon this Star Trek ripoff they'll try to pivot to doing a Star Wolf project. It benefits everyone involved, and might even have real potential.

Which makes me wonder why they didn't go with that for all the merchandising and profit making, it sounds like they would have permission for that as long as David Gerrold got his cut.

There was already a failed Kickstarter for The Star Wolf.

Neil

Yeah, which pretty strongly suggests that Gerrold sees some virtues in using the crowd funding path to getting his books before the cameras.

 

[FormerLurker]

That guy's name is Cash Markman, not Marc Cushman.

 

[Kegg]

I've more or less convinced myself, and no one else, that if the company survives and holds onto enough of its assets when forced to abandon this Star Trek ripoff they'll try to pivot to doing a Star Wolf project. It benefits everyone involved, and might even have real potential.

There was an attempt at a Star Wolf kickstarter back in 2012. My understanding was it didn't go so well.


I'm really surprised more crowdfunding hasn't gone this route, honestly - if one looks at some of the most successful crowdfunding in videogames (like Star Citizen, itself mired in as many if not more controversies than Axanar) - there's been an emphasis on 'we have X talent, want to do a spiritual successor to Y, and the key word is spiritual because we don't have the license to Y.'

Star Wolf's 2012 video was understandably lame, but with, say, the Prelude of Axanar cast, they might have got somewhere.

 

[BillJ]

That guy's name is Cash Markman, not Marc Cushman.

Same person.

 

[mswood]

BEST ACTOR, Richard Hatch,

What was the competition? Inanimate carbon rods?

If you submit a film with copyrighted or trademarked materials included and you do not have written permission to use them, you will not be eligible to screen at CAFF.

So they faked the written permission?

Is there a way to contact the festival to let them know that the IP holder is suing them for unlicensed use of their IP, so that those awards can be stripped from them and awarded to whatever might actually qualify under their own terms for not qualifying to screen?