With a hearing just two weeks away, the attorney representing the fan-film “Star Trek: Axanar” filed paperwork with the court Monday that reinforces its position that the two studios who own the copyright to Star Trek have failed to make an infringement claim against her client.
Erin Ranahan, a pro bono attorney with Winston & Strawn, defended her motion to dismiss she filed a month ago, arguing that CBS and Paramount have no standing to make the copyright claims, that the studios failed to properly identify the copyrights they said were infringed, and that there’s no finished work for the studios to sue over.
“In a misguided effort to squash defendants’ creativity in telling an original story about an obscure character that appeared in only one 1969 ‘Star Trek’ episode, plaintiff’s opposition shows that their strategy is to avoid properly framing this copyright action” by focusing on “unprotected elements and irrelevant works, refusing to identify the specific infringed works at issue, and premature claiming infringement against a work that is not complete,” Ranahan wrote in defense of her motion.
“But plaintiffs cannot simply rely on their boundless claims to an amorphous, extended Star Trek universe when pursuing claims against defendants in a narrow dispute,” she added.
Ranahan is working to either fully dismiss or severely cripple the copyright infringement suit CBS Corp. and Paramount Pictures filed against Axanar Productions, and its principal, Alec Peters, last December. An original motion to dismiss forced the studios to re-file their complaint, only to get a second motion from Ranahan to dismiss on similar grounds.
The studios say Peters and potentially a group of filmmakers who might include announced project director Robert Meyer Burnett had turned their “Axanar” fan-film into a commercial venture. Axanar raised at least $1.3 million in fan donations, according to Peters, which allowed them to produce a short featuring former “Star Trek: Enterprise” guest star Gary Graham, and long-term rental of premium studio space in the greater Los Angeles area.
Peters, who originally was slated to play Garth of Izar — a character introduced in the original “Star Trek” episode “Whom Gods Destroy” — admitted to paying himself a salary of $38,000 last year from those fan donations, and receiving thousands of dollars in reimbursement for other expenses, like phones, a car, and travel to various Star Trek conventions around the world to promote the production.
David Grossman, an attorney with Loeb & Loeb representing the studios, argued Ranahan’s motion to dismiss was misguided and misleading.
“This is precisely the tactic that courts have admonished, because it ‘misses the forest for the trees,'” Grossman wrote in mid-April. He added that the studios’ copyrighted elements “have already been fixed in the Axanar works for the court to determine, at the appropriate time, that there is no fair use.”
Ranahan, however, disagrees, saying the studios don’t have enough facts in front of them to determine whether Axanar was within the bounds of fair use when planning its “independent” Star Trek fan-film. Fair use is a doctrine that allows for limited use of copyrighted material without the need to get permission, based on freedoms granted through the First Amendment. Those fair use elements are typically afforded to scholarly endeavors, journalists, and constitutionally protected parody.
“Fair use is impossible to evaluate without a complete film, as it requires consideration of the amount taken, whether the use is transformative, and other factors,” Ranahan said.
Axanar’s attorney also tried to turn the tables a bit on Loeb & Loeb, claiming they are now taking an opposite approach of what they argued in a different, unrelated case. That 2013 case involved the James Cameron film “Avatar,” according to the firm, which rock album artist Roger Dean claimed the “floating mountains” and other visuals seen on the Na’vi homeworld were lifted from album covers he did for bands like Asia and Yes.
The judge in that case, Jesse Furman, conducted a detailed comparison between Dean’s album artwork and the visuals that appeared in “Avatar.” He determined that “any similarities between ‘Avatar’ and Dean’s works arose out of shared features that no one owns,” according to Loeb & Loeb.
In the Axanar case, Ranahan says that CBS and Paramount said the court should not filter out un-protectable elements, where in the “Avatar” case, the artist had “failed to identify any protectable elements of his works that were allegedly infringed by ‘Avatar.'”
Ranahan claims that this bolsters her arguments that CBS and Paramount included too many elements that were simply not protectable by copyright. They include the use of an “obscure” character like Garth of Izar, and the use of various technology like transporters and warp drive “which existed in science-fiction long before the creation of ‘Star Trek,'” Ranahan said.
“Only distinctive characters are protectable, not an entire race or species that has an unoriginal trait,” Ranahan said. “Plaintiffs’ claim to an expansive Star Trek universe does not allow plaintiffs to assert copyright protection over unoriginal elements.”
The studios, however, disagree, saying in their response earlier this month that while looked at individually, features like pointed ears can’t be copyrighted. But when joined together with other features — like raised eyebrows, a society based on logic, no emotions and specific cultural costuming — that creates an expression that is indeed copyrightable.
“Courts view the work as a whole, and do not dissect copyrighted designs into separate components, because to do so would be ‘akin to accepting the position that every song is merely a collection of basic notes, every painting a derivative work of color and stroke, and every novel merely an unprotected jumble of words,'” Grossman said.
CBS and Paramount are seeking statutory damages up to $150,000 per alleged infringement, or actual damages — an award that would likely wipe out Axanar’s remaining funds with just a small handful of confirmed violations. The studios also want to stop Axanar Productions and Peters from moving forward with the “Star Trek: Axanar” production as planned.
In the meantime, Axanar is responding to questions from some fans that Peters and his production team touted “Star Trek: Axanar” as “officially sanctioned,” implying the crew had received permission from CBS and Paramount to raise money and produce “Axanar.”
Axanar spokesman Mike Bawden defended the verbiage in a post Monday in the Facebook social area CBS/Paramount v. Axanar, which 1701News is part of the management team.
Bawden says that he “immediately changed” a news release about Axanar to remove “officially sanctioned,” but that he didn’t catch all the references to the claim.
“While many of you may not believe it, there’s no attempt here to be intentionally deceptive,” Bawden said. “When I see mistakes — or they are brought to my attention — I try to fix them. Sometimes I’m able to. Sometimes I’m not. In this case, I was able to.”
Other posters in that forum, however, pointed to an August 2014 story by Yahoo Movies that describes “Axanar” as “officially sanctioned by the franchise’s overlords at CBS,” and that Peters himself “has said that he secured permission from the network to move forward, with the understanding that he wouldn’t attempt to profit personally from the production.”
The news release using “officially sanctioned” was released seven months later, and one poster at TrekBBS claims that as of last February, it still used the phrase “officially sanctioned.”
Bawden has yet to respond to those expanded questions about the use of the phrase.
A hearing on Ranahan’s motion to dismiss is scheduled for May 9.
h/t Jody Wheeler