Star Trek v. Axanar: Copyright Infringement or Permissible Fan Work?

Star Trek vs Axanar: CBS and Paramount sue Axanar Productions
Star Trek vs Axanar: CBS and Paramount sue Axanar Productions

If you are a Star Trek fan, know a Star Trek fan, or are merely vaguely aware that you need to be very careful about whether you call Star Trek fans “trekkies” or “trekkers,” you are probably aware of the Axanar project and the litigation surrounding it.

For those who spend slightly less of their time contemplating the wonders that Gene Roddenberry created than I do, here is the nickel summary: In 1966, the television show Star Trek first aired. It was cancelled after three seasons but went on to gain popularity in syndication. From these humble beginnings, the property has ultimately expanded into multiple spinoff television series, movies, books, websites, merchandising, and pretty well any kind of copyrightable work you can think of. In terms of the depth and breadth of the copyrighted properties and the fictional geography, it can only properly be called a “universe.” Today, there are two companies that own the copyright rights to Star Trek, CBS and Paramount. CBS owns the television rights and Paramount owns the movie rights, though according to Axanar Productions’ attorneys, this may not be the full picture due to the ways in which the copyright ownership has changed hands over time. CBS and Paramount have, according to numerous news articles, allowed fans to make short films, written fictional works, elaborate and accurate costumes, and other tributes, all without pursuing legal action against the fans. Corroborating this claim is the fact that Paramount lists Star Trek fan sites on its official website for the Star Trek movies. CBS and Paramount could have taken legal action against these fan uses at any time because these fan works are derivative works, meaning copyrightable works that are based on another copyrighted work. Only the owner of a copyright has the right to create or authorize creation of derivative works of the original copyrighted material; if anyone else creates a derivative work, that constitutes copyright infringement.

But Axanar, unlike many fan films before it, has drawn legal action from CBS and Paramount. Theories on why Axanar is different range from timing (CBS has just announced another new Star Trek television show to begin airing in 2017, and Paramount has the next reboot movie coming out in summer 2016) to money (the crowdfunded Axanar raised an unprecedented $1 million for production online) to quality (Axanar is using professionals to make the film, while most prior fan films did not) to sour grapes (the studios fear that Axanar will be more popular than the reboot movies, which many fans felt failed to capture the spirit of Star Trek). The Axanar Productions legal team has taken the strategy of insisting that the plaintiff explain in great detail exactly which copyrights have been violated and exactly which plaintiff owns which copyrights. They are asking, essentially, that CBS and Paramount give the exact coordinates of the conflict within the Star Trek universe. The disconnect is that CBS and Paramount are contending that Axanar Productions is in essence violating (almost) the entire universe all at once. And such insistence on a detailed list of the exact elements that have been violated (which the amended complaint does provide) gives the appearance of being the refuge of an infringer that knows it has been caught and has no solid grounds for defense.

One concept I have seen repeatedly throughout news articles and fan website discussions is that CBS and Paramount have always been fine with fan works as long as they didn’t make any money–and that a lack of profits is a defense to infringement. The Axanar creators themselves have repeated this idea and are fighting hard in the court of public opinion to turn the fan community to their side. Both Prelude to Axanar, a 20-minute trailer to the new movie, and Axanar itself will be released to the public for free (assuming the movie ever does get released). This does not, however, mean that the movie is not a for-profit enterprise in any sense that would matter for a legal defense of Axanar. The professional production staff, producers, and others are certainly being paid, regardless of whether the money comes from donations to a Kickstarter campaign or from purchase of tickets, electronic files, or DVDs. This is also not a real legal test for whether a work is infringing. It is part of the legal test for the fair use defense to infringement, but it is only part of the test. Axanar likely wouldn’t make it past the first question in a fair use analysis, specifically whether the purpose of the use is “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Even if it did, there is a serious question about whether it would harm the market for the copyrighted works, another of the elements of the fair use test. The fact that fans have posited that Axanar better captures the spirit of the original Star Trek than the reboot movies certainly adds weight to CBS and Paramount’s position on that question.

Another defense of Axanar Productions that I have seen often is that CBS and Paramount have never sued before, so they should be barred from suing now. Legally speaking, this would be a defense for Axanar Productions in a trademark case, but it is not a defense in a copyright case like the one CBS and Paramount have filed. Trademark owners must police their trademarks to ensure that the marks do not become so diluted that they no longer serve as source identifiers; copyright owners have no such obligation and are perfectly free to pick and choose which infringers to take action against. This means that the fan theory that the money is the motivation may be at least a partial explanation: why bother pursuing an infringer who has no money? Hiring big-name litigation lawyers is quite expensive, and if you win an infringement case, the other side must pay your attorneys’ fees. If the other side has no money, you’re out your attorneys’ fees.

The other major defense of Axanar Productions I have seen is that CBS and Paramount have slapped fans in the face by bringing this lawsuit. The fan community is the lifeblood of Star Trek, the thinking goes, and for CBS and Paramount to bring a suit without so much as sending a cease and desist letter will only alienate fans. While I do understand this sentiment, and I enjoyed Prelude to Axanar as much as the next fan, I also appreciate that CBS and Paramount are businesses. They have a bottom line to consider, and when fans are saying things like “this captures the spirit of Star Trek better than the reboot movies!” that shows that Axanar is realistically a threat to their bottom line. Should they have explored a license agreement first? Maybe. But they also don’t want to encourage the “it’s better to beg forgiveness than to ask permission” approach from fan works. In addition, Axanar Productions is able to do things that older fan works have not: technology has been changing in ways that make fan works a realistic threat to the market for canon/copyright-owner-created works. CBS and Paramount may be navigating the changing landscape badly, but they are hardly alone in needing to find ways to deal with the changes.

What do you think? Are there other alternatives CBS and Paramount should have explored? Can fan films coexist with canon works without hurting the market for canon works? Will you stop watching new Star Trek because of the lawsuit?

How Do I Get a Copyright?

Intellectual Property - Copyright

I have had several people ask me recently how they can get a copyright in their works. There is good news: contrary to some rumors, you don’t have to do anything to get a copyright! If your work is copyrightable, copyright exists in that work at the moment of creation. But what kinds of works are copyrightable?

Copyright protects original works of authorship fixed in a tangible medium of expression. This means that if you have created something, it needs to be original to be eligible for copyright protection. Originality in copyright law means that a work has to both be independently created and have a minimum degree of creativity. If it lacks either of these factors, it is not eligible for copyright; courts have held that works like databases are not eligible for copyright protection because they lack the requisite creativity. A work must also be fixed to be eligible for copyright protection. If a particular creative work was not recorded in any way, it is not protected by copyright—legally, it has not yet been created. Merely fixed in memory does not count; the fixation must occur in a tangible medium of expression such that it is possible to reproduce it—this means that 1’s and 0’s on a hard drive do count as fixation, as ephemeral as they may seem at first blush.

So if copyright exists at the moment of creation, what do people mean when they say they “have a copyright” or “want to get a copyright”? In the United States, they are generally referring to copyright registration, the process of entering a creative work into the U.S. Copyright Office’s database of copyrighted works. Registration offers several benefits to copyright holders, including:

  • Establishing a public record of the copyright claim.
  • Allowing copyright holders to file infringement suits in court.
  • Owners of a registration can collect statutory damages and attorneys’ fees in a court action, if the registration is made within three months after publication of a work or prior to an infringement. Otherwise, the owner of the unregistered copyrighted work must prove actual damages in order to collect in court.
  • Registration establishes prima facie evidence (that is, evidence that will be accepted as establishing facts unless the other side can present evidence showing that it is not true) of the validity of the copyright and any facts stated in the registration certificate, if the registration is made within five years of publication.
  • Once a work is registered, the owner of a copyright can record the work with the U.S. Customs and Border Protection Service for protection against importation of infringing copies.

Because of the many benefits of protection, many copyright holders choose to register their copyrighted works. The Copyright Office has different rules and procedures for registration of different types of works, all of which are outlined on the Copyright Office website.

Interested in registering your copyrightable works but unsure how to go about it? The Law Office of Kelcey Patrick-Ferree offers copyright registration training and copyright registration services. Contact me for more detail.

Pinterest Copyright Questions and Concerns

Pinterest for Business

The Social Networking Nanny, Lanae, and I co-wrote a blog post over at Lanae’s blog:
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“The last few months have been a whirlwind here at Pinterest. It’s hard to explain how it feels to go from a small group of people working on a virtually unknown website, to a slightly bigger team of people working on a service that millions of people use every day.” (Pinterest spokesperson to CBS’s WCCO)

Isn’t that statement the truth! In a busy, busy world who doesn’t love a fast and easy way to share ideas, recipes, fashion and more…hello Pinterest! It sparked our interest, 12 million of us have flocked to it, and for many of us it became an immediate addiction. And then the “fine print” was made bold to us. … Nobody likes reading the fine print, but interpreting this was scary. Could we possibly be violating people’s Copyrights? … Read more

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Legal Issues Around Pinterest

Pinterest for Business

Arik Hanson of ACH Communications interviewed me about Pinterest:

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A few weeks ago, I was at an event that focused on, you guessed it, Pinterest. Great, I thought. We’ll hopefully hear about some of legal issues swirling around Pinterest for brands right now. It was just that week before that legal concerns had broke–and one attorney/photog had taken down her Pinterest board as a result. But, unfortunately, we didn’t get to discuss those legal concerns at this event–even though there was an attorney at the event who just so happened to specialize in social media.

So, I thought I’d take this chance to approach said attorney to answer some of the questions I have about Pinterest and brand usage (as I’m sure many others do at this point) and open up the discussion a bit…. Read more

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Do You Like Free Advertising? Or, How to Make Pinterest Work for Your Business

Pinterest for Business

The hot new social site is Pinterest, alternately referred to as a threat to Facebook and Twitter and the biggest threat to copyright since Napster. I hardly need link it, as by now you have surely seen the blog post by distraught attorney-and-photographer Kirsten Kowalski, who deleted her account after reading the site’s Terms of Service.

I won’t weigh in on the controversy over Kowalski’s understanding of Pinterest’s Terms of Service, or how they compare to other sites’ terms. It hardly matters; she has ignited the public interest in, and fear of, the potential for violating copyright by using the site. The real question is, what will you, as a business owner and content creator, do about it?

Pinterest, like so many other social media sites, is great for small businesses. It is yet another method of getting people—the people who make the purchasing decisions—interested in and looking at your products. You should be especially interested in the site if your products fall within one of the major categories (Architecture, Art, Cars & Motorcycles, Design, DIY & Crafts, Education, Film, Music & Books, Fitness, Food & Drink, Gardening, Geek, Hair & Beauty, History, Holidays, Home Décor, Humor, Kids, My Life, Women’s Apparel, Men’s Apparel, Outdoors, People, Pets, Photography, Print & Posters, Products, Science & Nature, Sports, Technology, Travel & Places, and Wedding & Events). If your product falls into the Other category, the site may be slightly less useful to you, but it is still an avenue for free advertising. If you, like many businesses, are less concerned about protecting the copyright in the photographs of your products than you are about selling the products themselves, Pinterest is probably a great move.

I, however, am not a marketing expert, so I cannot tell you how best to use the site. I’ll leave that to the experts. What I do know is that if you want people to “pin” your products, you may have to reassure them that you do not intend to chase them down a la RIAA. To ensure that you aren’t sending mixed signals:

  • Make sure that your own site’s Terms of Use are not preventing people from sharing your content. Your linking policy should be clearly link-friendly, within reason. You do not want people linking your content in a way that implies a relationship that does not exist, for example, but your policy should clearly allow a Pinterest pin with a note about how much the user loves your new software product, clothing line, or music album.
  • Join Pinterest and pin as many of your own products as you have time to pin, in as exciting and attractive a format as possible. This will reassure people that you do not mind pinning, and give them the opportunity to re-pin from an unquestionably legitimate source.
  • Put a link to your Pinterest page on your company’s website. Again, this will reassure people that you are fine with social sharing.
  • Make use of Pinterest’s “Goodies” and put a “Pin It!” button on your company website.

If you are not sure whether your website’s current Terms of Use are pin-friendly, but want to make sure to get it right, feel free to contact me for help.

Update March 24, 2012: Pinterest has updated its site Terms of Service and Privacy Policy. The new documents will be effective as of April 12, 2012. These changes to not affect the information provided in this blog post, as Pinterest cannot grant users a license to your business’s content; only your business can do that.

Pinterest logo courtesy of the “Goodies” section on Pinterest. The Pinterest logo was designed by Michael Deal and Juan Carlos Pagan.