CBS/Paramount sues to stop Axanar

[carlosp]

I tend to agree. But it it is a weak point if anyone ever tried to challenge the guidelines in court.



Well, I know of cases where "advisory" guidelines have been declared illegal. One thing to keep in mind about the FTC Act is that it's unnecessary to demonstrate actual harm. A hypothetical harm to "competition" is sufficient for agency action.

I have a hard time believing the guidelines could be successfully challenged in court on their own merits; they are basically justification for the copyright holders to pursue legal action should they choose to do so.

I'm curious: In your FTC example, was the agency that promulgated the advisory guidelines legally authorized to regulate the industry in question? Because that creates a formal relationship between the agency and affected companies. But there's no parallel relationship between CBS/P and fan productions; CBS is quick to point out the guidelines are not a license.

And with regard to the FTC Act, the "competition" to which companies are entitled in our society does not extend to filmmakers engaging in an act to which they are not legally entitled, to compete with copyright holders using the studios' own intellectual property.

 

[carlosp]

There's something of a chicken-and-egg problem here. It's not a given that a "fan film" is illegal. There may be cases where it is fair use under copyright law. Axanar almost certainly is not, but other cases are much closer. And if CBS argued, "This isn't fair use because it includes professional actors," I don't think that would fly with a lot of judges. The guidelines are a preemptive effort by CBS to state their terms of "fair use," but a court does not have to accept them.

I agree that there's a chicken-and-egg problem. However, while it's possible that a given fan film might qualify for fair use, it's likely that most are not, especially if they're setting up private commercial ventures founded on that intellectual property. Certainly, since no fan film infringement case has ever made it to court, there's not really any direct governing case law. Yet. That could change with Axanar.

In any case, if CBS/P were to take a fan production to court after it had flouted the guidelines, I'd be surprised to see the plaintiffs justify their legal complaint using the guidelines. They'd do exactly what they've done with Axanar — focus only on proving infringement the old-fashioned way. Using professional actors isn't really relevant to that case (except, maybe, in the case of someone like Gary Graham portraying exactly the same character, but the infringement isn't about him being a professional, rather it's about having a canon character appear in a fan film played by the same actor as the TV series — part of the plaintiffs' case to demonstrate substantial similarity.

 

[OpenMaw]

Your first sentence is contradicted by the 2nd.

Most fan films would probably fail the fair use defense, as they are trying to recreate Star Trek, but some, like the one you mention, would pass as it is transformative or parody, etc.

Not really. I cited a very specific example of an exclusion. That's 1 out of a thousand. Most fan film productions are neither a parody, nor "transformative." They play at being just like official Trek productions.

I disagree. I think a number of fan films (not Axanar) could successfully claim a fair use defense if put to the test.

Virtually none. There are two examples, that I know of, that can claim parody. The rest are straight up reproducing Trek.

 

[carlosp]

But there's still risk for CBS. There are a number of non-profit and advocacy groups that focus on copyright reform and would gladly finance a lawsuit to establish the limits of "fair use." Axanar is a poor vehicle for such an argument--even the Klingon Language Society amicus brief dealt with a side issue unrelated to fan productions and fair use--but if CBS were to try and crack down across-the-board, the studio could find itself facing an unwelcome judicial precedent.

I agree that there are people and organizations interested in carving out a place for fan works under the fair use umbrella. Heck, if you'd interviewed fan filmmaker Carlos Pedraza of 2007, he'd be right there with you. And you're right: Axanar is not a good example to hold up; they're simply too commercial. But those advocates need a clean, non-commercial case to hitch their star to, and I'd be surprised if any current fan producers would sign on.

But if CBS were to try to crack down across the board, I doubt they'd do it via press release. They'd target specific productions with C&Ds and the fear would ripple throughout the fan film community. So long as the advocates have no defendant, CBS would succeed in its crackdown from a legal standpoint. But from a public relations standpoint? That's tough. No copyright holder wants to have to sue their own fans. But I believe in reality, once Axanar is smacked down, it will be some time before another fan production has the temerity to defy the studios, and CBS would likely be able to avoid such a drastic crackdown.

 

[dmac]

If you're selling your house and there is a swimming pond out back that every one was allowed to enjoy as long as they kept it neat. Then you have that one guy that's making claims that the pond belongs to him at a time when prospective buyers are dropping by to take a look, you might be thinking it is time to come up with a few guidelines for the terms of use. I am amazed the guidelines provide for any use after all the noise and media spot lighting done by Team Alec. Did he devalue the future revenues of the Star Trek Franchise, probably not, but did he devalue the Paramount property, arguably by a billion and a half but that might be a different kind of lawsuit.

 

[carlosp]

Carlos, did any non-Axanar fan film producers collaborate on these "revised" fan film guidelines?

Not to my knowledge. I was going to go to them for comment. Unless they're members of the Small Access group on Facebook, it's not likely, since that's where the polls that make up the recommendations were conducted.

 

[muCephi]

I'm still having fun with my conspiracy Script "The Anaxar Conspiracy
(Rough Notes) Can I get a fact check?
Dalian Wanda wants to buy Paramount owned by Viacom (all or part)
Viacom also owns CBS
Paramount owns Star Trek movies
CBS owns Star Trek Series
CBS and Paramount teamed up to sue Alec Peters (Anaxar)
Wang Jianlin rallying support makes claims that Disney is next on his list
Wang Jianlin is the CEO of Dalian Wanda his net worth is around 33 billion US dollars and has $9 billion in free cash.
Winston & Strawn, stepped up to the plate to defend Alec Peters and Ananar,.Pro Bono.
Dalian Wanda is listed by Winston A Strawn as a client on their High Cash Client list. page 6
http://www.winston.com/images/content/8/9/89010.pdf

Then if the sale occurs as described, couldn't this lead to a conflict of interest which might require W&S either to withdraw from defending Axanar or drop Wanda as a client?

If somehow Axanar is riding the wave of bigger goings-on, they could be sunk at any moment too.

 

[muCephi]

Not to my knowledge. I was going to go to them for comment. Unless they're members of the Small Access group on Facebook, it's not likely, since that's where the polls that make up the recommendations were conducted.

I can't help but feel that "Small Access" is "Small Importance" to the studios.

Rather like someone who is with fury telling you to tie your shoes right-handed, or all the shoe tying fan clubs will rise up at your apostasy and pledge to buy slip-ons.

Assign it to a PR staff person to semi-respond into oblivion.

 

[Noname Given]

Yeah, the way I interpreted that was that its been 50 years since any ship survived to tell the tale, and 50 years since the Romulans dared to enter federation space. Since Narendra III was in Klingon space, and the Enterprise-C was destroyed and all the federation had were rumors and possibly Klingon accounts of the battle, that technically doesn't violate the 50 year silence between the federation and romulans.

You both forgot the TNG episode: "Angel One"

https://en.wikipedia.org/wiki/Angel_One
^^^
From the above Wikipedia article which relates a certain episode plot point:

Time is of the essence however, as the Enterprise must travel to a Federation outpost near the Romulan Neutral Zone (where a group of Romulan Battlecruisers has been detected) as soon as they resolve their investigation into the Odin survivors.

I disagree. I think a number of fan films (not Axanar) could successfully claim a fair use defense if put to the test. And I think the reason CBS issued the guidelines instead of simply saying "NO MORE FAN FILMS" is they know the latter position would not hold up in court.

Actually, given the attempt by most TOS fan films faithful recreation of sets and visuals, I don't think any of them could win with a 'fair use' defense; BUT CBS WOULD be tied up in court (and legal fees) prosecuting every one that CBS found something objectionable (either in the manner they were raising funds/DVDs or other unlicensed merchandise as a perk; or even a smaller legitimate Production company or studio doing a one off Star Trek 'fan film' as a way to promote their capabilities, or promote some other aspect of their business.)
^^^
That's what the CBS/Paramount Guidelines were set up to curb. Put EVERYONE on notice (especially semi-professionals) that new or major high end Star Trek fan films (an d doing unlicensed merchandise even as limited perks) simply won't be tolerated going forward.

 

[Potemkin_Prod]

Not to my knowledge. I was going to go to them for comment. Unless they're members of the Small Access group on Facebook, it's not likely, since that's where the polls that make up the recommendations were conducted.

So yet again a small group is trying to foist its guidelines on all fan films.

 

[mkstewartesq]

In any case, if CBS/P were to take a fan production to court after it had flouted the guidelines, I'd be surprised to see the plaintiffs justify their legal complaint using the guidelines.

I think you are 100% correct here, @carlosp. The guidelines themselves would have very little bearing on the plaintiff's case in chief. None of them go very much toward proving whether or not the defendant copied the underlying work and, since there is no contract in the sense that the defendant promised not to violate the guidelines, there is no other real legal cause of action for defying the guidelines.

However, I do think that the plaintiff will point to various deviations from the guidelines as grounds for undermining a fair use defense. Let's face it, most – not all, but most - would, if violated, be good evidence for the plaintiffs with respect to undermining the "minimal effect on the copyright owner's market for the copyrighted work" strand of the fair use defense. For example, a length equivalent to a TV episode, or the use of professional actors, would support a claim that the use is not fair because it becomes directly competitive with the studio's own product. Even the restriction to using only licensed versions of props where those license versions are available, if violated, igoes to show that the fan film makers are impacting the copyright owners market for licensing derivative works of copyrightable subject matter covered in the original work ( by instead purchasing or using unlicensed versions for which the studio gets no revenue).

I think that this is the corollary of the position the studio has taken that "if you follow these guidelines, we will in effect consider it a fair use in our minds and not sue you" - the corollary being "if you don't follow these guidelines, you are doing things that we do not consider – and we don't believe a court would consider – to be a fair use."

M

 

[muCephi]

I think you are 100% correct here, @carlosp. I think that this is the corollary of the position the studio has taken that "if you follow these guidelines, we will in effect consider it a fair use in our minds and not sue you" - the corollary being "if you don't follow these guidelines, you are doing things that we do not consider – and we don't believe a court would consider – to be a fair use."

M

Perhaps it would be good to draw a distinction between fair use and studio policy. Fair use is set down in laws the studio cannot change. The studio can have on the side a policy which defines behaviors it would take outside of the fair use law. But the two probably operate separately. I think any permission granted by a studio policy would not be an extension of fair use. It would just be an advice about the intentions of the studio wrt/ enforcing non fair use rights.

 

[ThankYouGeneR]

Then if the sale occurs as described, couldn't this lead to a conflict of interest which might require W&S either to withdraw from defending Axanar or drop Wanda as a client?

If somehow Axanar is riding the wave of bigger goings-on, they could be sunk at any moment too.

Curious.
Wang Jianlin is chairman of Dalian Wanda group and is making business moves on film and theaters in the US. The Wanda group has US representation with W&S. W&S Ranahan's stated interest in making IP precedent. W&S Ranahan signs on with the defendant who is in a case that offers that possibility.

I do believe that there is much legal precedent for one firm representing conflict of interest parties. It has to do with not permitting information on parties and cases to be shared and hinted at between the in-house representatives of those parties.

I do believe there are secreted backdoors that can be set in place by a business party which can .... circumvent this type of barrier and keep it unknown to the attorney/firm.

But even withOUT such a business move in place, and 'if this in-house six degrees of separation thing between Jianlin and the defendant with W&S is accurate', the W&S motivation to pursue this case even at really significant cost to them to carry this with enthusiastic effort for years would show an already existing future big money payoff for them were they to be even somewhat successful in setting IP precedent in the defendant's case. Whether they win what the defendant wants or not.

I have never believed W&S was in this for the defendant, which I readily stipulate would still be well served for the defendant anyway.

But to see this in-house connection, again if it is accurate, with this person/business making a major play for US film and theaters at this time and this law firm representing this alleged fan film?

Curiouser and curiouser. wheels w/in wheels w/in....... Jianlin/Ma/tobacco/Monsanto/and the like multinational Big Business machinations are beyond my personal capacity to understand. I know they exist of course for there have often been brief views of them from various whistle blowers and insiders. I have followed some of them but only in the written and reported on 20/20 hindsight documentations.

I can comprehend the smaller scale as in a level headed new media producer with a plan PR volunteer & a not-for-profit/for profit alleged fan film studio/not a studio & and a law firm walk into a bar. But Jianlin big business level? The defendant would be just a pawn in the intricate machinations entirely outside my realm of comprehension regarding plays employed by multinational Big Business actors.

 

[dmac]

Curious.
Wang Jianlin is chairman of Dalian Wanda group and is making business moves on film and theaters in the US. The Wanda group has US representation with W&S. W&S Ranahan's stated interest in making IP precedent. W&S Ranahan signs on with the defendant who is in a case that offers that possibility.

I do believe that there is much legal precedent for one firm representing conflict of interest parties. It has to do with not permitting information on parties and cases to be shared and hinted at between the in-house representatives of those parties.

I do believe there are secreted backdoors that can be set in place by a business party which can .... circumvent this type of barrier unknown to the attorney/firm.

But even withOUT such a business move in place, and 'if this in-house six degrees of separation thing between Jianlin and the defendant with W&S is accurate', the W&S motivation to pursue this case even at really significant cost to them to carry this with enthusiastic effort for years would show an already existing future big money payoff for them were they to be even somewhat successful in setting IP precedent in the defendant's case. Whether they win what the defendant wants or not.

I have never believed W&S was in this for the defendant, which I readily stipulate would still be well served for the defendant anyway.

But to see this, again, if it is accurate, in-house connection with this person/business making a major play for US film and theaters at this time /this law firm/this alleged fan film?

Curiouser and curiouser. wheels w/in wheels w/in....... Big Business machinations are beyond my personal capacity to understand. I know they exist of course for there have often been brief views of them from various whistle blowers and insiders. I have followed some of them but only in the written 20/20 hindsight documentations.

I can comprehend the smaller scale as in a PR volunteer & a not-for-profit/for profit alleged fan film studio & and a law firm walk into a bar. But Jianlin big business level? The defendant would be just a pawn in the intricate machinations of outside my realm of understanding of International Big Business.

I've known this goes on for a long time. I didn't save references from past research for other films but there are also cases of either Wanda or Alibaba Film Productions investing as little as $25 million into films and then dictating the narrative of the film, resulting in some box office flops. Maybe they would have flopped anyway, that's hard to say. Paramount's books aren't open to the general public, the numbers lag and are filtered through Viacom. It's reported that Paramount has gone from a $425 million dollar net profit to a loss of $100 million this past quarter, to a projected $500 million loss in 2017. Wanda also became involved in Lionsgate and now they seem to have stumbled into producing a costly flop, possible fickle audience, it's subjective and hard to lay where the blame comes from.
Then you come to Anaxar, this whole lawsuit makes no sense at all, just issue a C&D and ban this work from social media like any music artist would do. I doubt that Law firms act on their own, sure they might present something they found which at some point gets reviewed by the board of directors and boards often have divided interests. It's no secret how divided the Viacom board is right now. Anaxar isn't even a teardrop in hell unless they are serving some purpose for someone. A common listing from a client list is a very small connection I know but it is there.

 

[Sgt_G]

I think that this is the corollary of the position the studio has taken that "if you follow these guidelines, we will in effect consider it a fair use in our minds and not sue you" ....

No, no, no, no. The studio's guidelines are "if you follow these, we feel it's not worth taking legal action." What @muCephi said: "Fair use is set down in laws the studio cannot change." The law is pretty clear what is "fair use". Granted, Axanar and its lawyers are trying to re-write black-letter law with by winning this case in court, but I don't see how they can win unless the fill the jury with stupid people (hey, this is America, so that could happen).

 

[carlosp]

Then you come to Anaxar, this whole lawsuit makes no sense at all, just issue a C&D and band this work from social media like any music artist would do. I doubt that Law firms act on their own, sure they might present something they found which at some point gets reviewed by the board of directors and boards often have divided interests. It's no secret how divided the Viacom board is right now. Anaxar isn't even a teardrop in hell unless they are serving some purpose for someone. A common listing from a client list is a very small connection I know but it is there.

A cease-and-desist (C&D) letter is not imbued with the kind of magical fairy dust you seem to believe it is. A C&D has no force of law. It's simply a letter written by a law firm suggesting that if the addressee does not cease the activity objected to by its client, they may (may) seek legal action. In many cases they're bluffing, hoping the mere threat of legal action does their work for them.

The objectionable thing about Axanar wasn't merely that they were copying Star Trek (all fan films do that) but that they were making money doing it. Further, as I've pointed out elsewhere, what would a C&D alone have accomplished? Possibly stopping production of the Axanar film, but certainly still leaving Alec Peters with a million bucks in the bank and that shiny new studio. No legal instrument was available to deal with those things other than filing suit.

 

[dmac]

A cease-and-desist (C&D) letter is not imbued with the kind of magically fairy dust you seem to believe it is.

I'm sure you're correct, I still find it hard to believe Alec never got one.
In your opinion, other than driving Alex to bankruptcy, what does CBS/ Paramount have to gain from a good outcome resulting in the lawsuit?

 

[Sgt_G]

what would a C&D alone have accomplished? Possibly stopping production of the Axanar film, but certainly still leaving Alec Peters with a million bucks in the bank and that shiny new studio. No legal instrument was available to deal with those things other than filing suit.

Oooooh, good point. For the first time, I might be able to believe Alec Peters' claim that he never received any C&D letter.

EDIT: cross-posted with @dmac ... Yes, I still find it hard to believe he never got one, but the percentage just got lower.

 

[muCephi]

I am really not getting what is being hinted at by the postings about the Chinese investor.

Axanar's lawsuit serves some purpose related to those investments, because W&S would never have bothered to take the case otherwise? Alright, what purpose? "There is something unexplained therefore it must be explanation X, nothing else could make sense" is the classic justification for all conspiracy theories to jump over lack of information. Not saying that is what anyone is doing here. Just wondering what the link is believed to be. Its hard for me to draw any inference simply from the chain of relationships.

 

[urbandefault]

So, W&S represent Wanda (is that the name?) and AP. Unless and until Wanda makes a move on Paramount, there's no conflict of interest that I can see. Then again, I'm not "trained as an attorney,"

If Wanda was actively trying to buy Paramount from Viacom, W&S representing AP would be a direct conflict.

It will be interesting to see what happens next.