Lawyers from both sides of a copyright infringement case against an “independent” Star Trek fan-film met in court for the first time Monday. And afterward, one of the defendants in that case was optimistic — even announcing plans to restart production of “Star Trek: Axanar” next year.
But Tuesday, Judge R. Gary Klausner dropped a huge hammer on “Axanar,” denying completely the fan-film’s motion to dismiss. Which means the suit filed by CBS Corp. and Paramount Pictures against Axanar Productions and its principal, Alec Peters, will move forward at full force.
“We should be hearing in a few weeks on Judge Klausner’s decision on our motion to dismiss,” Peters wrote Monday on his Axanar Productions blog, soon after the Los Angeles circuit court hearing ended. “And despite a certain conspiracy nut’s claims, we expect to win at least part of that motion. My money is on the judge dismissing at least the claim against the film ‘Axanar,’ since we haven’t even begun production, and so you can’t even judge a fair use defense.”
Except Peters projected wrongly. Klausner didn’t need a few weeks to issue a decision — he did it the next day. And with a little Star Trek humor to boot.
“Although the court declines to address whether plaintiffs’ claims will prosper at this time, the court does find plaintiffs’ claims will live long enough to survive defendants’ motion to dismiss,” Klausner wrote in his order. “For the foregoing reasons, the court denies defendants’ motion to dismiss.”
That denial also includes the un-produced “Star Trek: Axanar” film, which defense attorney Erin Ranahan claimed was premature to challenge, since the film had yet to be made.
Klausner disagreed, saying an announced “final and locked script” as Axanar declared last August in social media was more than sufficient to claim copyright infringement — at least at this early stage. CBS and Paramount are seeking to conduct what is known as a substantial similarity analysis, allowing the studios to compare distinctive aspects of Star Trek — whether those elements are copyrighted or not — against what has been produced, or at least scripted, by “Axanar.”
“Because plaintiffs’ allegations of infringement are based upon an entire franchise of works, the court anticipates that its substantial similarity analysis will primarily be based on defendants’ utilization of similar character, theme, setting and mood in the Axanar works, rather than copying a specific plot line or dialogue sequence,” Klausner said.
That could include aspects of Star Trek that may or may not be copyrighted, like pointy ears, warp drive, or even the Klingon language.
“When viewed in a vacuum, each of these elements may not individually be protectable by copyright,” Klausner said. “Plaintiffs, however, do not seek to enforce their copyright in each of these elements individually. Rather, plaintiffs’ copyright infringement claims are based on the Star Trek copyrighted works as a whole.”
Klausner also cited a 2015 court decision that said that even if each individual element were not protected by copyright, unprotectable elements “may gain some protection in combination with each other.”
CBS and Paramount sued Axanar and Peters last year claiming copyright infringement over its “Axanar” fan-film. Axanar had raised more than $1.3 million, according to Peters, with plans to create a studio in Los Angeles, provide a “donor store” offering merchandise tied to the Axanar production, and even paying $38,000 plus expenses to its principal, Alec Peters. Axanar produced a trailer and a short known as the “Vulcan scene” that included actor Gary Graham reprising his role of Vulcan ambassador Soval from “Star Trek: Enterprise.”
Another avenue Axanar attorney Ranahan pursued was whether CBS and Paramount even had standing to claim copyright on Star Trek. The franchise was originally owned by Lucille Ball’s Desilu Productions in the 1960s, but was part of the acquisition by Paramount Pictures a short time later.
Paramount held on to its full ownership of Star Trek until its parent, Viacom Corp., split in 2006, creating CBS Corp. and a smaller Viacom. Paramount remained with Viacom, and kept the film rights to Star Trek, while the remaining library and television rights went to CBS.
Ranahan argued that because the Star Trek films are derivative of the television library, which CBS controls, Paramount had no standing to sue.
Klausner once again disagreed.
“Because it is undisputed that Paramount owns the copyrights to the Star Trek motion pictures, which is included in the Star Trek copyrighted works (as part of the lawsuit),” Paramount has “standing to sue for copyright infringement based on these works,” the judge ordered.
Klausner also rejected Ranahan’s claim that CBS and Paramount would have to identify each and every copyrighted work where a Star Trek element was allegedly infringed in a short, “Prelude to Axanar.” That means instead of just pointing out the first copyright claim for an element like the USS Enterprise, Ranahan was demanding that CBS and Paramount list every single copyrighted instance where the Enterprise appeared — spanning hundreds of episodes, and all the movies.
“Plaintiffs allege that the starship USS Enterprise, which first appears in the pilot episodes of the original series and is consistently portrayed throughout the franchise’s episodes and films, appears in defendants’ ‘Prelude to Axanar,'” Klausner said. “This provides defendants with notice that their use of the USS Enterprise is potentially infringing each Star Trek copyrighted work in which the USS Enterprise appears.”
CBS and Paramount also do not have to show profit in order to prevail in a copyright infringement suit, Klausner said.
“Although it is unclear whether defendants stand to earn a profit from the Axanar works, realizing a profit is irrelevant to this analysis,” Klausner said. “The court can easily infer that by raising $1 million to produce the Axanar works and disseminating the Axanar works on YouTube.com, the allegedly infringing material ‘acts as a ‘draw’ for customers’ to watch defendants’ films.”
Klausner did re-enforce, however, that nothing is legally stopping Axanar from moving forward with producing its film, as CBS and Paramount have not sought a preliminary injunction. Because of that, Ranahan’s claim of “prior restraint” has no standing, because no one is stopping Axanar from moving forward.
“Defendants are on notice that plaintiffs allege certain copyright infringement allegations against them,” Klausner said. “This ruling does not affect defendants’ choice to proceed with the production of the ‘Axanar’ motion picture.”
In a statement, Axanar says it will continue to look for a settlement with CBS and Paramount, and somehow salvage the fan-film.
“Winston & Strawn will prepare our answer to the amended complaint, which is due in 14 days,” according to the statement, referring to Ranahan’s law firm. “In the meantime, we continue our efforts to settle this matter with CBS and Paramount so we can move forward with telling the story of Axanar in a way that satisfies both the studios and the over 10,000 fans who financially supported our project.”
Klausner also rejected a “friend of the court” brief from the Language Creation Society, saying the argument whether the Klingon language can be copyrighted is not before the court. However, if the Klingon copyright does come up later, the California group will be able to file an amicus brief again asking that the judge rule against acknowledging any copyrights on the fictional language.
What does this mean now for the case? It will roll forward to a proposed May trial date, although Peters stated yesterday the judge has moved the trial date up to January.
Some legal observers have told 1701News that settlement negotiations may have been partially stalled waiting for the judge’s ruling on the motion to dismiss. Now that the decision has come down, it appears CBS and Paramount would have a superior negotiating position in those settlement talks — especially as a very costly aspect of the case looms: discovery.
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