‘Axanar’ pushes back in CBS/Paramount lawsuit

axanarship

The legal saga that has drawn the interest of both Star Trek fans and law scholars alike took another turn on Monday.

Axanar Productions, the production company owned by Alec Peters that plans on producing the fledgling fan film Axanar, responded to a copyright infringement lawsuit brought by CBS and Paramount Pictures over whether the film uses “innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes.”  We reported on this back in December when the lawsuit was filed, and recommend you read that story before proceeding further.

Axanar’s defense

The response is detailed in a 29-page document which tries to go on the offensive regarding alleged ambiguities in the initial legal filing and makes several calls to get the entire lawsuit dismissed.

Axanar wants to know exactly what copyrights are being infringed upon, pointing out that the Star Trek franchise is immense and that nowhere in their filing do the studios specify which works are in dispute:

…while Plaintiffs allege ownership of “thousands” of copyrights relating to Star Trek episodes and films, Plaintiffs fail to specify which of those copyrights Defendants have allegedly infringed.

Copyright confusion?

When CBS was spun off from Viacom in 2006 the Star Trek rights got split between CBS and Paramount, with CBS retaining rights to the television shows while Paramount controlled the feature films.  This situation is unusual and often confuses people.  Axanar wants more detail regarding who actually owns which copyrights:

Which Plaintiff owns which alleged copyrights is critical to Defendants’ investigation into Plaintiffs’ claims, as it could be that the only works that Plaintiffs are actually alleging Defendants infringed are owned by one Plaintiff as opposed to the other.

Putting the cart before the horse?

They also feel the studios cannot act against a film which hasn’t started production and believe the lawsuit should be dismissed on that basis alone:

Compounding Plaintiffs’ failure to plead their copyright claims with specificity is Plaintiffs’ attempt to assert copyright claims based on a film which has not even  been made yet. Plaintiffs’ claims based on the Potential Fan Film are premature, unripe, and would constitute an impermissible prior restraint on speech.  Thus, Plaintiffs’ claims should be dismissed or stricken.

 Ultimately, they believe that the studios have no legal ground to stand on and would like to see the entire lawsuit dropped:

Plaintiffs have failed to put Defendants on fair notice of their claims, which are not plausible, and seek premature relief. Defendants respectfully request that the Court grant their motion to dismiss or strike Plaintiffs’ claims.

To get a professional perspective, we reached out to our own legal counsel, Susan Kayler, who told us that “the response is creative. I don’t know that it will work. It could slow things down. It will be interesting.”

Kayler, who founded the Artists and Writers Legal Resource Center, explains that by asking the plaintiffs to clarify which entities own which copyrightable assets, Axanar is calling into question whether Paramount or CBS have the right to file suit in the first place.

Who owns [particular elements from Star Trek] determines who can sue. Their argument is akin to, ‘you can’t sue us because you don’t own it.’ [Axanar] wants different entities to have to break down which part of Star Trek each “owns” since only the owner can file suit.

CBS and Paramount are expected to respond by February 29th, although the studios have asked for a two week delay.  Stay tuned…

Much more detail is available in the motion itself:

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This could get very interesting.

Indeed, it would be interesting to see if there will be an out of court settlement or not.

There will be… AFTER the next Star Trek movie is released by Paramount/CBS. This is a delay ruse more than anything with a chance at censoring fan-made productions to monopolize the franchise for thee future.

Isn’t greed wonderful?…

Yeah. That’s why CBS/Paramount have sued all the other Star Trek fanfilm productions…oh, wait…no they haven’t.

That’s not how it’s done. You don’t fight dozens of legal battles at once, you go after the highest profile target, then, should you win, you use the precedent to take down the rest.

And with Peters as the perfect scapegoat “We didn’t want to destroy you all, but that gosh-darned Axanar crossed the line and ruined it for everybody”

Everyone from sub-megabuck Trek alum productions like Renegades down to animatic one-man bands like Aurora are in their cross-hairs, because any one of them could potentially show up the third-rate Guardians imitation JJ has turned trek into.

You may not like Peters, but the die has been cast, and the FanFic community would do well to heed the words of Ben Franklin “We must all hang together, or surely we will all hang separately.”

No they haven’t – but they don’t have paydays. Or paychecks. Axanar staff made money. That’s the difference.

Indeed, and as you and Ahmed may recall this is the tact upon which I thought Peters would most likely proceed. The studios do not like having to reveal more of their inner workings than they have to.

Interesting.

What’s your opinion, Bob? Surely a precedent has been set by other fan films (Phase II, Continues). Axanar must have asked permission to proceed (?) If they did not and the Studio asks you to cease and desist, you must have balls the size of grapefruit to question whether they own the rights….Although, Alec Peters did assure in a response on FB, “I’m an attorney, I think I know what I’m doing.”

But don’t all these fan based films all have Star Trek sets ,uniforms etc like the TV shows. Should that mean if CBS wins all fan based films should be stopped.

Bingo… Paramount/CBS are attempting to monopolize the franchise. If they fail, they at least get to delay release of Axanar long enough to cash out on their new film they are about to release through their studio. This is all dirty pool cronyism, and might even backfire after this when fans start boycotting their films.

No. You’re entitled to enforce copyrights selectively, unlike trademarks.

Just call Trump. I hear he makes deals.

Oh, come ON. The Axanar folks have no leg to stand on here. There is no question that their film infringes copyright, and the absurd amount of money it has brought in makes it very clear that CBS had to step in. Only an idiot would think this film doesn’t infringe, and the very notion that the Axanar team don’t understand how it does is disingenuous and laughable.

I’m embarrassed for them at this point, as they look utterly ridiculous. Peters can’t win this, and in the meantime he’s going to drag down other fan films with him since they’re all going to feel the backlash of his arrogance, unethical use of the money, and drawing out of the proceedings.

CBS and Paramount have left fan films alone because they were non-profit ventures. This one demonstrably is not–Peters took $38,000 in salary and enough money to build a film studio–so Axanar is very clearly in the wrong. He should just walk away, return the money (since he never said, when asking for it, that he would be keeping tens of thousands of it for himself) and let the situation fade away before he ruins it for everyone else. But he won’t, and everyone (including the actors in the production, who are going to be blacklisted if this goes on much longer) will suffer.

You’re absolutely right. Ruining it for the other fan films is a real di** move. I’m amazed they haven’t done a cease and desist before now. It’s probably an overreaction, but it is their property and they can do what they want with it.

Team Anaxar isnt ruining nothing. Cbs and paramount are greedy bastards. End of story.

If CBS/Paramount were just greedy bastards, as you claim, then they would not be allowing anyone to make any Star Trek at all, without first exacting big time royalties etc. If they did that, then no one could afford to make any kind of Star Trek at all.

CBS ARE PAH-WRAITHS!!!

Don’t tempt them. They might just do that, and this Axanar thing could be the opening volley. Star Trek Renegades, Star Trek Horizon, Star Trek Continues or Star Trek Phase II/New Voyages could be next. Knowing the Ferengi-like greed of CBS/Paramount, I wouldnt be surprised if they also try to wage war on websites that host fan renders of Trek ships, space stations, etc… as well as written fan fiction sites too! What they would do well to do instead of suing the best fan projects out there, are offer to hire the people behind them into the new CBS TV Star Trek camp

If you think Axanar “isn’t ruining nothing,” then that means you agree with me that they are, in fact, ruining it. Thank you for your support, poorly written though it may be.

As far as a LEGAL response to this lawsuit, it is clever. It stops to make you think, anyways.

Agreed. If they can make CBS/Paramount feel that this might be more trouble (more money) than it’s worth, yes. For instance, how many CBS and Paramount lawyers will it take to determine which company owns rights to, say, a particular nacelle design? If Axenar can make those companies stare deep into the expenses of teams of lawyer spending their time figuring that sort of thing out, Axenar might create a position for themselves from which they can negotiate some kind of fair use terms, if nothing else.

CBS ARE PAH-WRAITHS!!!

Furthermore, if the Axanar team could run CBS/Paramount through enough legal red tape that to continue with the lawsuit would destroy Star Trek in general, then that could also force CBS/Paramount to back off, if they are interested in continuing their revenue streams from it.

Agreed. “Fans” running after money for a production not based on their own ideas leaves a really bad taste in my mouth.

Found a nice write up about it: https://www.reddit.com/r/movies/comments/42br97/star_trek_axanar_project_enlists_legal_defense/cz9e5mh

Actually, it’s a good move, since the Axanar production could just say, “Well, we’re a ‘movie’, which falls directly under Paramount Pictures jurisdiction”, especially if it turns out that CBS was the one who initiated the lawsuit to begin with, which only owns the rights to the ‘Trek series. It may turn out that the only way to resolve this matter is to create a separate entity that has complete control over all things ‘Trek (like Lucas Films does with the Star Wars franchise). Definitely, how this whole thing resolves itself will be fascinating to watch.

Then that means all fan films should be sued. To me it appears Anaxar has been singled out. They have produced a film…prelude that is miles ahead of the last 2 movies in my opinion. I hope team Anaxar wins.

You simply don’t understand the situation. There’s a world of difference between Axanar and other fan productions. Read the comments in this thread. It’s been laid out many times.

sitting in front of a green screen talking is miles ahead of the last two movies. I hope your day job is not a film critic.

But is him taking a salary really any different than Continues (for example) paying for Colin Baker to appear in an episode? Or Phase II paying for Koening or Taki to appear in their productions? And is Axanar using the movie to build a studio for their sets any different than fundraising efforts on those and other productions where they’ve raised money to construct sets? Someone explain the difference to me.

You really don’t understand the difference between a business expense (paying a celebrity to take part) and the producers making a personal profit off someone else’s IP? Really? Astounding.

You really don’t understand that the point of a salary is NOT profit but compensation?

Peters IS Axanar. His compensation is profit. That’s why those who make other fan films don’t take compensation for themselves.

You contradict yourself. Those who make other fan films don’t take compensation for themselves because they have bread jobs that pay the bills. If Peters “is” Axanar, then evidently, he a)spends a lot of time on it and b)forgoes other sources of income.

Join Peters was also a lawyer, maybe he knows more about the law than we do.

NO ONE took a “profit.” Salaries are not a “profit,” but an expense. If you work 60+ hours a week doing a job you should get paid for it! A profit would be if someone just invested some money and got more money back without otherwise doing anything to earn it. That is VERY clearly NOT what is happening here.

CBS or Paramount… it does not matter which one own what. However, the parties should attempt to work out a way that Axanar can contribute the trek franchise.

Dandru, It seems that you are the one that has no understanding. You keep responding to other people but not really saying anything of substance. Are you a lawyer? Are you aware that even a charity pays it’s employees? The producers can make a reasonable pay for their work, it doesn’t mean that they are profiting. Do you think that the writers of all these spin off books over the years didn’t make a profit?
Also the fact that CBS/Paramount would file a vague lawsuit in the hopes that the producers would just shut down seems to show that they are worried that they have allowed the Fan base to much freedom in producing films. The more likely point of the lawsuit is to stop anyone from using their Star Trek Universe.

Actors can’t just work for nothing, their guild must have restrictions. Same goes for the writers guild and the other guilds needed to make a movie or television show. If the unwritten rule is no profits than taking a salary violates that rule. Fundraising to build the sets is one thing, using copyrighted property to build a studio that will later be used to make for profit projects violates the unwritten rule and several copyright laws. I worry about the production people working on Prelude & Axanar, I hope it doesn’t jeopardise their chances of getting work in the industry.

It’s a fine, but very important line. If actors are SAG they have to be paid. You can’t avoid that. If you’re hiring people outside of the production to help build your sets, for example, construction workers, electricians, etc, then they need to be paid if you can’t find volunteers willing or capable of doing it (which is what most fan productions do). But things change when you start paying yourself and your production team. That crosses the line, and is something NO OTHER fan production does. While the Axanar team is quick to say that a salary is profit it’s still financial enrichment, and obviously something CBS/Paramount is vehemently against. Strike 1. And while it’s perfectly acceptable to rent a studio space and build your set, it again crosses the line when you publicly state your intention to use said studio for other non-Trek commercial ventures. So in essence you’ve used Star Trek IP-related funds to jump start non-Trek commercial endeavors. Again, breaking the “no financial enrichment” rule, and something else that no other fan production has ever done. Strike 2. There are also many lingering questions and inconsistencies. Why hasn’t the production started? It’s literally been YEARS. It should have been long completed and released by now. Why hasn’t it been? Why have key figures associated with the production abruptly left (and have had some not-so-nice things to say)? Why were we told last year the script was locked, but now told it’s still being written? Too many… Read more »

“While the Axanar team is quick to say that a salary is profit it’s still financial enrichment, ”

No, it isn’t. It’s trading work for money, one asset for another.

Taking a salary and making a profit are, indeed, two separate things, as one can take a salary, yet still not make a profit. Building sets, a studio, and paying salaries are costs involved with making a film. Those who donated expect such costs. Please tell is how the COSTS involved in creating a film can be considered profits? Profit is the money left over after all the bills, salaries, utilities and expenses are paid and the product has been released. Since the product has not been released and the financial books balanced, no profit yet exists.

Axanar is a FAN film, and so long as it does not make one cent of profit, it will remain as such. CBS/Paramount have allowed such ventures in the past with the stipulation it was not to be used to make a profit… there is your “legal leg.” Since Axanar is not even in production, it has not violated any laws, including copyright. In order to violate a copyright, one must produce SOMETHING that violates said copyright. Intent, dreams, and plans are not copyright infringements. As stated, the copyright infringement case is premature at this point.

Ironically, booking excessively high costs for crew and studio hire is what makes every production company record a LOSS even on billion-dollar-grossing blockbusters.

Axanar is just using the same “Hollywood Accounting” strategy to enforce its position that it is not making any profit. They could even put their legal fees on the cost ledger for the production and claim they are losing tons of money on the production, just as the major studios would.

This seems like poking a giant with a stick (though more power to Axanar).

I suppose Paramount/CBS thought they had an open and shut case (after all, Axanar is referencing a TOS episode using TOS iconography as well Klingons and Vulcans, and classic trek ship designs). Legally I guess Axanar wants a list of the offenses, probably which they are entitled to.

Guess not as easy as Paramount thought

They DO have an open-and-shut case. This is a delaying tactic, but it won’t win Axanar anything other than more legal bills. They will lose this because they are very clearly infringing. The law is absolutely on CBS’s and Paramount’s side.

So then why not go after every other fan film out there? They’re all making use of said copyrights. Is that the question? I don’t think anyone has come up with a satisfactory answer.

Because the others are non-profit. It’s as simple as that. I can write a Trek fan-fiction and no one will care. If I try to publish it as a novel, CBS and Paramount will come down hard on me–and rightfully so. What Peters has done is VERY different than what others has done. He’s used someone else’s IP to make a ton of money, which is illegal, pure and simple. He’s being smacked down for a reason. And worst of all, he’s ruining the playing field for all the other fan productions that play by the rules.

“I’m not-for-profit” is not a defense against copyright infringement. It is, at best, a mitigating factor that can help establish a work as a parody, which is a defense against copyright infringement. (Here, it’s an exceedingly weak defense IMO.)

Cause other fan films are not trying to “sell” I mean request donations for a “commercialized product” I mean donation perk, such as a DVD or Blu-ray of a “professional Star Trek film” I mean an amateur Axanar fan film.

Sure they do. Every major fan production now does crowdfunding – in the tens- if nor hundredthousand dollar range. And they have the same perks as Axanar had.

If they go after the other fan films because of Axanar’s actions, the people behind Axanar are going to have some real problems, and not because of CBS or Paramount. There will be real and tangible retaliation against individuals involved in Axanar’s management for ruining things for everyone else.

Because other fan productions are just that, amateur productions. Peters muddied the distinction of not-for-profit and non-profit, figuring that by creating a professional production house, zeroing out the books, and labeling marketing materials Axanar instead of Star Trek he thought he could skate around the TM and CR entanglements. Other fan productions have a clear understanding what the rules of the sandbox are that they chose to play in, which is why they won’t be shut down.

Just what exactly do yo mean by that? “real and tangible retaliation?”
If you want to protect other fan films support Alec and crew, here. If CBS/Paramount backs down it helps all of us who make and enjoy fan films. You statement comes across to me as you’re uttering threats. Please be careful, Al, in how you phrase things.

There is absolutely zero chance of Paramount/CBS backing down here–nor should they. They are the ones in the right, and they are protecting their brand. It’s open and shut.

There’s plenty of chance. Being legally in the right doesn’t mean it’s the right business decision.

Al, good moniker. But denny has a point.

And if they win, we could see a boom in Star Trek fan productions unlike anything that has ever been seen before. Seriously, Everyone who claims to be a Star Trek fan should get behind Axanar. If you don’t stand with Axanar you don’t belong here.

They would likely be in their rights to do that. They chose not to for business reasons.

They have pro-bono representation.

Just because the law is on someone’s side doesn’t mean it is a sound business decision to go that way. You overlook that the duty of Paramount and CBS is not to win battles in court but to make money. And if they should come to the conclusion that the fallout of this affair is way more costly than they initially thought, they’ll try to find a mutually acceptable solution.

You DO realize the lawyers representing Axanar are doing it pro-bono, right? That was made pretty clear a few times already by Alec Peters himself.

Paramount does have an open and shut case. The Great Ego of the Galaxy is bluffing, and hoping beyond hope they’ll blink and settle.

If they really had an open and shut case, it would have been shut by now.

It is a creative response, one that seems to be banking on Peters believing that Paramount doesn’t want to waste a lot of time on this, so their opening volley is to make a documents request that could bury the proceedings in a blizzard of paper. Paramount could call their bluff, figuring that the lawyers who took the case pro bono don’t want to spend six months sorting through all the TM’s and CR’s that Trek possesses, and responding accordingly.

The ownership challenge is also a gamble – CBS and Paramount are both bringing suit, so they have standing in the case.

Peters seems to be treating this like a hand of poker, and he’s gambling with the lawyers money. The problem is, he’s bluffing with a junk hand, and the studios have the full house – if they call his bluff, he’s done. His lawyers aren’t going to stay pro bono if this case grows legs, and Peters probably doesn’t have the cash to keep them interested – I doubt GoFundMe could raise that kind of money for him now.

There’s some peril in this for CBS/Paramount as well. First, I’m willing to bet that the lawsuit was written just the way it was because they didn’t expect Mr. Peters to be able to lawyer up as well as he has. Any of us average fans would take one look and say, “Um, yeah, Of course it’s infringement” because we all KNOW Star Trek so well. While it’s not likely to amount to much more than making them actually do their homework, it does put them on notice that they ARE going to have to work a little harder then they planned. Secondly, (and I admit that this is conjecture on my part), there are many things in the lawsuit that aren’t really covered by copyright, but by trademark. Unlike copyrights, trademarks have to be continually defended in order to keep them. If the defense does manage to get the trademarks involved in this suit, CBS/Paramount is going to have a tough time explaining how they’ve allowed a decade plus of fan productions to exist, but only try to shut down Axanar. Again, this is conjecture on my part, but I’ll bet dollars to doughnuts this will be part of W&S’s defense. Thirdly, the third part of the motion (the infringement claim is unripe) is probably the strongest argument in the dismissal. And last, remember this is just a motion to dismiss, not their entire defense. I doubt W&S would take this case on if they thought this was a… Read more »

Phil, and heaven only knows how many young interns will be standing at how many copy machines cranking out ream after ream of documents …. I’m not saying Paramount has money to burn exactly, but surely they have more than Peters, and more people on their legal team to get their ducks in a row before they soak Peters in a storm of paperwork.

If they use CupCake, I at least want a latte.

I’d be careful if I was boborci. He might get sued by Hostess ;)
We can thank Disney in part for this.

Even if Axanar hasn’t been made, yet, there’s “Prelude to Axanar” which uses a lot of copyrighted Star Trek elements and is supposed to act as a trailer to the full thing. I’m no legal expert, nor am I particularly invested in Axanar. So I’ll just wait and see what happens.

I’m not sure they have to actually produce *anything* in order to infringe copyright. Nor, as I understand it, does copyright infringement necessarily entail making money. They are using the intellectual property of a copyright holder without that holder’s permission, and in fact against that holder’s expressed wishes.

In this instance, it appears to me that they *have* been using that IP to make money. The fact that Paramount/CBS have customarily allowed fan groups to produce and distribute their own films, stories, etc. when profit wasn’t the object doesn’t create an “easement”. We can debate Paramount/CBS motives all day long, but that doesn’t change the legal footing.

(NOTE: I’m not a lawyer, but I sometimes play one in my own mind.)

You can still infringe on copyright even if you don’t benefit financially from it.
A friend of mine, got a cease and desist letter from Paramount for his use of a Star Trek font in his fan club newsletter.

By definition, EVERY fan production out there infringes on copyright. Now, there is SOMETHING which prompted the plaintiffs to go after Axanar, to be sure, but we really don’t know what it is, the endless bleating about Mr. Peters’ salary, the fan perks, and the coffee thing notwithstanding. The suit alleges only that the film infringes on copyright and that the alleged infringers enjoy a “direct financial benefit” from it, without detailing what that benefit is.

It’s impossible to infringe on copyright if you have not produced anything tangible. Copyright works in a different way from patents – you cannot copyright vague ideas or concepts, but only discrete works which have been produced.

This is also one of the cornerstones of Axanar’s defense. They claim that CBS and Paramount are keeping very vague definitions of what Star Trek’s copyrights entail (as opposed to Disney’s strict boundaries on Star Wars) with the intent of creating a complete blanket ban on anything that remotely resembles Star Trek. That is impossible to hold up in court.

Robin,
Apologies – I was imprecise in my language. I was using the word “produce” in the filmic sense, as in “produce a film”. You are quite correct that one must “produce something tangible,” in the broader sense of making something that can be seen/heard/etc.

In this case, the Axanar team is using names, terms, images. designation, etc. which are all clearly associated with a particular property, namely Star Trek.

Does anyone dispute that things such as “Klingons”, “Star Fleet”, “The United Federation of Planets”, “warp drive” and such are part of something called Star Trek, both individually and especially when taken as a combination of things? If they were not, would we even be having this discussion? I suspect we wouldn’t, because we wouldn’t be reading about it on a site such as TrekMovie. The borders of the property may be vague, but the preponderance of elements is rather dispositive.

How and why this use differs legally from other uses (such as the “New Voyages” productions) is a different and more interesting question. This may get back to my earlier assertion that Paramount/CBS failing to take action against others doesn’t create an “easement”. That is a statement of opinion on my part – I do not know if it is settled law.

But that’s not the subject of this lawsuit.

You’re right – the Prelude to Axanar has already been made and released, and the studio could argue for damages based on that alone. The Prelude covers plenty of concepts & properties covered in the CBS-owned series & the movies (characters, USS Enterprise, Vulcans, Klingons, Andoria, Tellar… I could go on). All CBS needs to do is hire a Trekspert to link every episode to each concept in the Axanar film, and it’s done.

Potential damages from an independent project are hard to assess and very ambiguous to begin with. We’re not talking about music piracy here where the copy of a track is shared and a record company can claim damages because the track isn’t purchased.

How many people will avoid Star Trek because of the Axanar prelude film (which was very well made, BTW)? I suspect, none. On the contrary, productions like Axanar are free advertising for Star Trek and people will probably check out the new film after watching a fan production. So the actual damages would end up in the negative, and I doubt they are willing to sue for that.

CBS ARE PAH-WRAITHS!!!

I think what Paramount/CBS needs to consider more, is ‘How many people will avoid Star Trek because of CBS/Paramount’s caring more about their profit than about viewer/customer satisfaction. It’s time, independent of Axanar, for us fans to band together, and demand fair treatment by CBS/Paramount over a franchise that is as popular as it is BECAUSE of us. The surest way to destroy a house is to sabotage the foundation. WE are the foundation. CBS/Paramount needs to tread VERY carefully, lest in the process of protecting their copyrights over Star Trek, they alienate the fans so badly their only choice will be to sell the Star Trek rights to Disney.

YEAH! GO AXANAR! idiots at CBS/Paramount. Fundraising $ to MAKE a fan film is NOT the same as $ MADE from a finished product. There are hundreds of fan films of all kinds on YouTube. Axanar is just one of many that fans wanna make & see.

You have no understanding of the situation whatsoever. Try reading.

And you should stop repeating claims that are either dubious or out-and-out wrong (like claiming Axanar is making a profit). There is a group of anti-Axanar stalkers who go around literally every comment section dealing with this subject with lies and distortions. I hope you aren’t one of those individuals unfairly polluting public opinion with untruths or opinions given as facts.

I’m with you!

Peters may have a case if only one company filed suit against Axanar, but both companies, who jointly own all that is Star Trek, have sued him. Both companies can legitimately use the Star Trek name and other, like USS Enterprise and other copyrighted words, scenarios etc. No one else can without their express permission and usually by payment of royalty fees. CBS waived royalty so long as Peters (Axanar) did not make or seek to make a profit from making a Star Trek film. Other amateur/fanmade productions have abided by this stipulation, but not the arrogant Alec Peters – so dumb. All I can hear is Kaching-kaching in the attorneys’ offices…

“like USS Enterprise” should read Starship Enterprise.

What really gets to me about this case is the way that Peters (Axanar) continues to abuse the goodwill of the present management of the film companies who own “Star Trek”. 20+ years ago, the franchise owners’ management sucked. NZ had just built its first purpose-built childrens hospital (also, at the time, the largest in the Southern Hemisphere) and the engineers/architects wanted to call the hospital Starship Enterprise. Paramount would not allow the hospital to be so named unless hospital admin. (ie NZ Govt/kiwi taxpayers) were prepared to pay a huge annual royality for use of the name. The hospital could not afford it. It is a hospital that provides free state-of-the-art medical care for ALL NZ born children, those whose parents are permanent residents and for children from a number of Pacific Island nations.

Now the franchise owners are prepared to allow use of their name/property free of charge providing certain stipulations are adhered to. Alec Peters (Axanar) did not abide by such and what’s more, he doesn’t help sick children get well again. I’m a bit disgusted.

I’m acquainted with Alec and he has a kind heart towards children. He has someone very close to him who has learning disabilities and he is a tireless champion for this young person.

so? What does that have to do with Alec stealing from someone else’ IP?

This is a response to my post above which outlined the lack of goodwill on the part of Paramount’s previous management circa 1991.
My brother-in-law (dec.) was born with downs syndrome who also had heart and obesity problems directly associated with having the syndrome. Our family did our best to take good care of this otherwise bright young person (his father described him as being an “imprisoned intelligence” that he suspected as being of quite a high order). We all have or know of such people. We know of
another similar person now.

That was not the point on my previous post though. Auckland Starship Childrens Hospital is NZ state-owned entity whole sole purpose is to care and (hopefully) cure/heal any sick child of their infirmities, whether it be a broken leg or cancer. It is a NOT-FOR-PROFIT entity. Patients/sick children who pass those doors, free of charge to parents/guardians, number in their thousands.

Alec Peters/Axanar has crapped over many Star Trek fans and the goodwill of the Star Trek franchise owners.

But wait ,the USS Enterprise is or was a Navy ship ,for real. Did Paramount at the time get permission to use that name on 3 TV shows?? How can Paramount or CBS claim ownership over a name that’s clearly the Navy’s property .
Or at least was.

“How can Paramount or CBS claim ownership over a name that’s clearly the Navy’s property ”

You will note that I corrected what I wrote. Afaik, neither company are claiming ownership of the name USS Enterprise and I have no idea if they sought the Navy’s permission to use the name for a fictional spaceship. That’s between them and the Navy.

What I do know is that the name “Starship Enterprise” is owned by CBS/Paramount and that no one can use that name without permission and payment of royalties, if the companies wish to impose such fees.

or the Royal navy with HMS Enterprise 1705

So does that mean they can sue the Navy and NASA for using enterprises

Jeez, just make it in your basement and sell it on Craigs List.

Woah!

I step away from TrekMovie and come back to discover that they finally updated the cooments section to something so much better! Thank you Trekmovie. This makes it so much easier to follow the conversation here.

Regards.

Axanar is getting really desperate. This will do nothing for them. Clearly they’re violating copyrights from both companies. If Paramount owns the rights to the movies, you need only look at the saucers on most of those ships… ripped right off the Kelvin, which is from Paramount’s 2009 Star Trek film. For CBS, they’re violating numerous copyrights in very obvious ways. Heck, you only need to look at the ‘Star Trek’ above Axanar. You can bet CBS already has this list of copyright violations somewhere because they can sue for each individual violation. Axanar is going to regret even bothering with that tactic when they get that full list, along with the price-tags attached. Fact of the matter is, it’s not about the use of the copyrighted material for a fan film, it’s the acquisition of a large sum of money from fans for something labeled as Star Trek (and all the copyrights attached) and that money having gone to creating an independent film studio with the intention of making more money. They hijacked a copyrighted brand to coerce people into giving the capital for creating a business. That’s what the issue is here (as far as I am aware). Star Trek Continues, for example, has a corporation based on the production of their series, but they clearly state on their site that they are a non-profit organization in accordance with CBS’s policies and have referenced their business partner which likely covers the costs of the corporation itself as an… Read more »

Yep!

“Coerce”? LOL!To paraphrase The Princess Bride, that word does not mean what you think it means.

As for the rest, show me where in the lawsuit they bring up the studio?

It’s not very detailed but page 2 section 2 under ‘Nature of the Action’, they reference the money going towards a studio being built and people being hired. The rest of the claim reinforces the fact that they breached copyright, they apparently did not have permission to make Axanar which is also a breach, and there are multiple instances of this: “That the Court enjoin Defendants, their agents, servants, employees, attorneys, successors, assigns, subsidiaries, and all persons, firms, and corporations acting in concert with them, from directly or indirectly infringing the copyrights in the Star Trek Copyrighted Works, including but not limited to continuing to distribute, copy, publicly perform, market, advertise, promote, produce, sell, or offer for sale the Axanar Works or any works derived or copied from the Star Trek Copyrighted Works, and from participating or assisting in any such activity whether or not it occurs in the United States.” I’m assuming, with that last part, they have some dirt on Axanar if they’re saying all that. I personally wasn’t aware they were selling anything, so I’m not sure what that part is referring to. However, the parts about building a studio and hiring people, not getting permission, and what can be derived from what’s stated on the Axanar website, can all be very substantial things. Also take note of what Axanar is disputing as those are very telling. It’s all a delaying tactic. We’ll see if they follow it up with any legitimate and substantial counter-claims to prove… Read more »

Ashley, that language reads as fairly boilerplate to me, and would likely be in any infringement suit they would bring against anybody. Put it another way, I’m sure New Voyages, Continues, Starship Studios, et. al, all have cash outlays for their studios and sets. And nowhere in there do they allege that Axanar is planning to use the studio for profit making.

Axanar has done NOTHING that other fan films haven’t already done. At worst they have just done it at higher levels and amounts of money. The other stuff being sold are the perks that come BY DEFINITION from kickstarter (and similar campaigns). Likewise, there is no “studio” being built and certainly none that can be automatically used for the production of later films. “Axanar Studios” is not a legal entity nor is the studio space they are using their own property – they have rented space for three years (with the main producer facing serious expenses to cover the last two if the film falls through). Do not fall for those spreading lies and disinformation. Axanar has not done anything you haven’t seen from other fan films. They just did it at a higher level of professionalism and funding. They also did everything they could to make sure that Paramount was happy with the production and as far as the producers knew everything was fine until the lawsuit came out of nowhere. At no time did Paramount tell them to change this or that or else. They just gave a “wink, wink, nod, nod” approval of Axanar without actually giving any clear instructions or putting anything in writing. Basically, Axanar operated in good faith and Paramount ambushed them. Paramount led Axanar on and had many, many chances to ask for changes or even to just tell them no before the lawsuit. If Axanar was such a problem they could have… Read more »

WTF happened in here? Looks like they used the Infinite Probability Drive. When is it going back to normal?

Axanar seems to take the mickey, selling model ships, coffee and using fan donated monies to fund convention appearances. Worst is that they seem to use Star Trek IP to build a ‘for profit’ studio. Doesn’t Prelude to Axanar constitute a fan film? Axanar is just ‘War Trek’ and would damage Star Treks reputation.

Not to sound too disparaging but I’ve yet found a fan film I could watch all the way through, including the trailer for this one. Sure there are plenty of bad episodes from all the real series but still….

They DID NOT build a for profit studio – those are lies which a small band of anti-Axanar stalkers who pollute every comments section dealing with this story has been repeating DESPITE having been proven wrong many times. Nor have they done anything that other non-profit fan films haven’t already done, they’ve just done it at a higher level of professionalism and funding.

Likewise, they worked with Paramount as much as they could and never heard about any problems until this lawsuit came out of nowhere without warning.

Point is that don’t take these anti-Axanar claims for granted. Go visit the Axanar website where you can read the facts and even ask more questions if you still aren’t convinced. They are NOT the villains here, but have been badly treated by both Paramount (who had many, many chances to ask for changes or even for them to stop) and a small Axanar hate group stalking its executive producer and spreading long disproven lies.

Not really…David Gerrold was going to make his own film there too. Those are all points found in old blog posts and videos with the Axanar people.

Interesting and quite clever response. It will be interesting to see what actual copyrights there are. Everbody assumes the copyright situation is very clear, when it might indeed not be. There is already a lot of fuzz between CBS and Paramount about it before that legal case, so I guess it might not be as easy as it seems. It is certainly within Axanar right to request a more detailed list of infringements and the knowledge of who owns that copyright. How else can they defend themselves? It will be interesting to other fanfilms as well to finally get some clarification on what it allowed and what not.

And I like the point that they are sueing something that hasn´t been done yet. Kind of a “Minority report” vibe…

Indeed northstar.

I pointed out in the early announcement of the lawsuit here that Harlan Ellison’s legal wrangling with Paramount of old established that the copyright situation that it in inherited from Desilu was anything but clear:

http://www.courthousenews.com/2008/08/29/Harlan_Ellison_Wants_Paramount_To_Beam_Up_Royalties_For_Star_Trek_.htm

“Ellison signed a contract with Paramount’s predecessor in interest, DesiLu Studios, when he wrote the 1967 screenplay. However, DesiLu never registered its copyright of the episode, and didn’t even register the episode as having been broadcasted. After Paramount took over the rights to “Star Trek,” it registered a significantly edited copy of Ellison’s episode as having been produced in 1975. But Ellison had already registered his own copyright, using the original screenplay without editing.” — KARINA BROWN; “Courthouse News Service”; Friday, August 29, 2008

Apparently DesiLu was in such disarray prior to its sale to Paramount that properly filing and registering Trek copyrights, as required at the time before Disney got the law changed to make its bestowal automatic, fell through the cracks in at least one instance and Paramount hadn’t tried to remedy it until almost a decade later by apparently declaring a transformative work significantly altered from that episode as it originally aired and years after Ellison had already been awarded the right? Who knows what else Peters’ discovery motions may uncover with stuff like that in the foundation?

Copyrights are weird- you don’t have to register them to have the copyright- registering it just helps out for legal battles like this. Technically, as soon as you write something, for example, you own the copyright. I know I am oversimplifying things but …..

CaptainSheridan,

That’s the way it is now AFTER Disney lobbied heavily and succeeded in getting copyright law retroactively changed. I was alive back then in the 60s and recall several entities back THEN that lost their copyrights because they neglected to include the appropriate (c) mark, got the publication/release date wrong, etc.

And the way Disney got the current law rewritten, if any of the legal trail through the copyright law of back then is wonky the rights return to the actual “originator” of the creative work of art which as best as I can determine would be each script’s writer(s).

Vulcans. Klingons. Starfleet. Soval (the character). Four pretty major infringements right there. And that doesn’t include the dozens of minor elements, such as the lead character (Garth of Izar) the battle itself (Battle of Axanar)– both of which were established in a Trek episode and expounded upon in licensed comics, novels and games.

Characters, places and fictional races that are scattered across film and tv shows. The Big Bang Theory has had their characters dressed up many times as Trek figures. Of course they were using parody which prevents TBBT from being sued
Now, if they did a serious take at TNG characters, whose ownership did they infringe upon? TNG the tv show, or TNG the movie? Each are owned by separate companies.

As TBBT is produced for airing on CBS, is there a conflict?

Marja – Probably not. I think that there may be royalties/other in order for TBBT to go to air with its references to Star Trek, however it would be for accounting purposes. Star Trek and TBBT are different entities, even if they are owned by the same company. I suspect their legal and accountancy departments want to ensure that such entities and costs etc incurred are kept separate. It helps when it comes to auditing and taxation.

Yes, the Big Bang Theory show often uses Star Trek, in its various forms. It appears that you are assuming that the TBBT programme makers can do this without permission, without any kind of stipulations and for free. Such is likely not be the case at all. I’m sure that studios involved got this sorted out to everyone’s mutual satisfaction before TBBT got to mention anything to do with Star Trek. CBS/Paramount are still within their legal rights to sue the TBBT programme makers should there any breaches.

Some of those things aren’t covered by copyright, but by trademark, which is a different animal altogether, as I’ve described above.

HubcapDave,

Indeed and as I pointed out after reading Paramount/CBS’s filing: CBS isn’t making any sort of Trademark infringement claim in their suit which is fairly odd as historically the old Paramount studio would throw everything and the kitchen sink at anyone they thought threatened their brand and business.

This may just be the new motion picture industry over-reliance on some of the power they lobbied into copyright law as their big stick or may be an indication that P&C are after something here other than what everyone else assumes?

Simply using people and concepts from a copyrighted source does NOT necessarily make it infringement. There are, for example, various ways to qualify for fair use. Likewise, at times the original copyright claim is false or at least being used in a fashion far broader than the law allows. For instance, Paramount in this case just makes a claim without given any specific instances or even proving they have standing to accuse someone of infringement! That right there is alarming as to just give Paramount the right to vaguely define what they claim could easily lead them to swallowing up the work and rights of others. It also effectively makes them a law unto themselves where they can enforce a potentially illegal copyright claim or quash entirely legal fair use just because they can throw their lawyers and wealth around. Copyrights are a PRIVILEGE which many modern mega-corps have twisted almost beyond recognition to boost their bottom line, turning what was meant to be a temporary monopoly with strict limits into a draconian system of absolute control that lasts forever. We need groups like Axanar to fight back and try to return our copyright laws to something actually fair. Think about it – Star Trek has been around for 50 years now – or longer than a copyright would have lasted if they hadn’t been repeatedly extended over the last century. Axanar isn’t trying to cash in on a recent craze, but rather extend an already broad and mature range… Read more »

It’s a huge strategic mistake. The studios’ are going to be able to now list hundreds of potential infringements, and this gives them the opening no to go “discovery mad” on Peters an company.

Axanar “blinked” here. Big mistake.

I don´t think so, CBS/Paramount could have done that from the start. It is telling that they didn´t. It involves deeper insight into who owns what, if at all. I suspect things are not as clear as we usual fans might think they are. We´ll know more once they have answered the motion.

Exactly. That that court didn’t award the plaintiffs the summary judgement they asked for against Peters and shut all this down right then and there is the most damning evidence that no matter how many armchair legal experts shout how clear it is, it isn’t “clear” to the judge.

The only mistake CBS made was in assuming Axanar wouldn’t fight the suit. this may not be an “open and shut case” depending on how Axanar chooses to actually defend it (you’ll notice they actually haven’t filed any formal defense argument)– but it certainly doesn’t look good.

As far as we can tell, Paramount and CBS jointly own all the copyrights associated with ‘Star Trek’. But that’s not the point of this suit.

The companies are not suing other productions made by fans which also use much of the Star Trek copyrighted material in order to make their films. These fans have abided by the Paramount/CBS stipulations, but Alec Peters/Axanar has not. That
is the issue here. Paramount/CBS are allowing other fanmade productions to happen, without (it appears) exacting royalties, which they are legally entitled to impose, because these productions abide by the requirements of Paramount/CBS.

Paramount/CBS have legal entitlement, whether we like it or not, just as I, as homeowner, am entitled to say who may or may not enter my property, who may make use of the contents of my home or not etc.

The point is – there are no stipulations or regulations that are binding to any fan productions. Its all a big grey area, nothing was ever put on paper. I don´t know why they never bothered to do that, but this is the reason for the uncertainty. As far as I can see Axanar has done nothing different then other fan productions (and yes, these are paying actors and staff as well) – only at a more “professional” level and with a little more money. it would be VERY interesting to see the financial breakdown of other fan productions in a way Axanar did. Their transparency surely has worked against them.

Interesting stuff from the WGA on the Separation of Rights:

http://www.wga.org/uploadedfiles/creative_rights/SeparatedRights.pdf

If I understand it somewhat accurately, for Ellison to have his rights restored to the extent he claims Desilu really did have to mess up on a level that doesn’t seem possible to be limited to solely him..

OK this is interesting. Article got me to check the paper trail myself. Here’s what I found, so far. Gene Roddenberry retained the rights to ST, except, he gave the exclusive rights to television to Desilu which was later acquired by Paramount. GR then gave exclusive cinema rights to Paramount, which was acquired by Viacom who merge with CBS. When CBS split back off, CBS had the television rights, while Paramount had cinema rights. Publishing rights were also doled out, but that’s separate from the topic. However, GR retained all other rights which allowed him to be able to dissent on any directions that the studios were going. He had ownership of the ST IP when he died, and they passed to Majel Barrett. When she passed, I can’t find anything beyond this point, but I would assume they passed to their children (such as Rod). If this is the case, CBS and Paramount don’t own the Star Trek IP, they just own the exclusive right to produce cinema films and television shows with the IP that was owned by Gene Roddenberry and his estate.

Truly fascinating fictional world you live in.

Interesting fairly tell. Means nothing in terms of the law and reality in this case.

Rod Roddenberry said in recent days that the estate has no rights to the Star Trek IP. Nothing. Nada.

Gene Roddenberry did not retain, nor did he ever have, any ownership rights to Star Trek. Desilu bankrolled his show and NBC purchased it for their network with Desilu controlling all rights to Star Trek until they sold their assets to Paramount. Those rights included film, television, publishing and any licensing rights associated with the property.

Roddenberry more than likely just viewed Star Trek as just another job, not an asset that would reap rewards for decades on end and in all fairness that’s pretty much how television worked back in those days. Sell a show, let it run for a few years and move on to the next thing. Few retained the rights to their creations with all rights reverting to the studio or production company that produced it (Irwin Allen was a notable exception).

So, yes, Paramount and CBS own Star Trek and have decades of precedent establishing that fact.

Gene sold whatever rights his production company(Norway Corporation) had to Paramount in the early 80’s. Paramount then had the full rights to Trek until 2006 when the split happened, as I noted above.

Brian,

I believe you have it right, but I am confused about the exact date(s) as I thought Paramount amended the copyright logo in 1984 long after that sale but their new copyright logo of that decade credits Norway Corporation with copyrights?

Um… no. You are completely misinformed. CBS and Paramount own Star Trek. It’s that simple.

Furthermore, Gene Roddenberry never owned Star Trek to begin with.

Why anyone downvoted my comment, I’ll never know. It was 100 percent accurate. Roddenberry didn’t own Star Trek. Desliu did. Fact.

Likely because it was never 100% accurate as you claimed and therefore NOT a fact.

Demonstrably false claim please note Paramount ammended copyright notice for THE IMMUNITY SYNDROME:

comment image

The Norway Corporation was Roddenberry.

These are two different companies. Now who owns what part of Star Trek. And what IS Star Trek exactly?

Huh? Where did you get this false information? Gene Roddenberry didn’t own the Star Trek IP and neither does Rod.

Here’s what Rod most recently said:

http://www.baltimoresun.com/entertainment/bs-ae-star-trek-rod-roddenberry-20160227-15-story.html

”CBS owns “Star Trek.” My dad made a deal with Desilu Productions for “Star Trek” and retained some creative control. That all died with him [in 1991].” — Rod Roddenberry; February 27, 2016

Axanar has started a Vietnam-scale epic legal battle. It has NO chance of prevailing on the simple basis if legal bills. Paramount and CBS can nuke them with discovery, a process whereby documents are produced, witnesses are deposed and motion after motion is filed by the well-heeled corporate giants. Forget the merits; the titan defendants can outspend the plaintiff in a matter of months. For that reason alone, Axanar will never be made. Sad because it seemed to be a very intriguing story.

Exactly.

Old Paramount definitely thought as much when they tried that same tactic that you suggest against Art Buchwald’s copyright infringement charges where THEY were the defendents in Peters’ position. However, Paramount lost that case, so outspending in a legal arms race, for Paramount at least, doesn’t appear guarantee the automatic court win that you and others suggest.

Besides new Paramount’s pockets aren’t nearly as big:

http://www.capecodtimes.com/news/20160225/at-viacom-executive-cashes-in-as-company-lags

” Viacom is paying Chairman and Chief Executive Officer Philippe Dauman like a top industry performer, even as high debt and sagging stock have pressured the company to seek an investor for its famed Paramount Pictures.

Dauman said Tuesday he’ll sell part of Viacom’s film division, saying the proceeds would help pay down debt and return cash to shareholders.” — ‘At Viacom, executive cashes in as company lags’, CAPE COD TIMES, 2/25/2016

I would love to see Anaxar win this, just because they are the underdogs.

Axanar did not start the legal battle – CBS/Paramount did.

You are under the false assumption that this issue will be decided in legal court. You also seem not to be aware that Axanar is being represented pro bono, so there is no outspending.

Good luck, Axanar! You raised your shields and returned fire. Now you just have to use several good maneuvers and deliver several well-placed phaser shots.

as a maneuver to stay alive 2-3 minutes longer before the big guns are deployed against them.

Which makes it ever the more interesting to see if the USS Axanar has a secret weapon up their sleeve.

So far the phaser shots have mostly been to own foot, presumably to have excuse to not face honorable defeat in battle and own up to war crimes.

Regardless of whether you like fan films or not, I dont see the confusion here. CLEARLY this is violating copywrite. And he will lose.

Are these the dumbest lawyers in legal history? I mean, LOL — the studios’ huge legal team is going to come back with hundreds on copyright violation examples.

Pro Bono lawyers. The term “you get what you paid for” applies to this case.

Not dumb, just pro bono. They saw an opportunity to cash in on a potential ownership issue for a lucrative, long established franchise, but it was based on forcing a quick settlement. The Great Ego of the Galaxy had to have told them there was a mountain of money to be made on the back end, which is why they took the case. Don’t think they figured that Paramount would call their bluff…which technically they haven’t, yet.

Quite the opposite, Winston & Strawn, and Ms. Ranahan in particular, have a lot of experience in the IP field. I suggest you read up on them before making judgement on how “stupid” they are….

Then they better sue all fan films then. Because all of them do it.

What’s your last name, Alec? Is it Peters?

I would love to see Paramount/ CBS be taken to task on this. Seems to me that they are trying their hardest to attack the funding vehicle that the guys at Axanar are using to fund their project. They KNOW it’s a threat to their business model and they fear it.

Did they go after Kickstarter? did they go after IndieGogo? did they go after donors? It seems to me (because it’s reality) that they’re going after Axanar.

They have nothing to fear. And even if they did it’s their right to do what they want because Star Trek is THEIR business, not anyone else’s.

I’m talking about crowd sourced project funding. The current model involves sponsorship and commercials. THIS directly challenges that model.

You’re a fool if you dont think that Paramount/ CBS is being consistent. Look, objectively, at the situation. Paramount/ CBS is going after Axanar… NOT New Voyages or Continues or any of the numerous fan made films. What kind of distinctions can you draw? The funding vehicle? Fan enthusiasm? Com’n, I know you’re not that thick.

This is not about the fact that others make Star Trek films as well where, obviously, they have to use what is copyrighted material (jointly owned by Paramount/CBS). The makers of the New Voyages and Star Trek Continues appear to have followed the stipulations outlined by the franchise owners. Alec Peters has not. He has abused the privilege, the opportunity afforded him by the franchise owners, which the other film makers have not.

Even if it turns some of the material Axanar and others use does not hold copyright, the bulk of it DOES, that which is essentially, uniquely Star Trek, as opposed to anything else.

This is a nonsense case.

Why would they go after them? Did they produce a movie that allegedly infringes on their copyright?

HubcapDave,

No AXANAR film has been produced, either. Difficult to discern the point that you’re attempting to make?

Amick, you have no understanding of the situation whatsoever.

Dandru…

Pot calling the kettle black.

I get the feeling that because Peters is demonstrating he wants a fight, CBS & Paramount are now definitely and decisively going to put this guy in the ground because setting the legal precedent regarding fan films was their intention all along.

Yep. This was over with before it started. Peters has ZERO chance here.

And from what would you get that “feeling”. There has been no reaction from CBS/Paramount so far. And they started the fights, surely not Axanar. if they didn´t like what they saw, they could have just send a C&D, but they didn´t. They wanted this from the start.

northstar, sure Paramount could of sent a C&D letter and if they did Peters would of surely followed that letter and stop his production and walk away with a studio paid for by Star Trek fans. But CBS & Paramount is not just protecting their property but they are also protecting the fans that donated over a million dollars for a film. By suing him for copyright infrindgement the production gets shutdown and the studio gets shutdown too and the fans are not riped off by Peters. If Peters wanted to start a production studio he should of ran a seperate fundraiser for it and then produced his professional fan film.

Paramount has nothing to lose here. They own Star Trek and allow fan films to proceed on good faith. Note that Paramount has focused its energy on Axanar only, no other fan production has been issued a cease and desist. Axanar crossed a line somewhere that the others have not and Paramount decided to move in.

Paramount has deep pockets, Peters does not and to say that Axanar doesn’t borrow “innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes” after the production of hundreds of episodes, a dozen movies and more novels and comic books than I can count is just absurd. Paramount will ultimately prevail.

CBS/Paramount has a LOT to lose here – because I suspect the copyright issue is not that simple. CBS and Paramount are two companies that have been struggling over copyright issues among themselves for years, so it is not as clear as everyone might think. They might have deep pockets, but since Axanars lawyers, a top IP company who seem to know what they are doing, work pro bono, this is far from over.

I suspect in the end no one will have an interest to get this to court and it will be settled – sadly that would probably mean the end of Axanar in its current form.

Unless they figure out which entity owns the copyrights/trademarks/rights to a movie & cut a work-for-hire deal after the fact… If the result was pro-quality, maybe CBS/Paramount would go “…free money; let’s burn DVDs & sell ’em in Best Buy.”

As a consumer who was impressed by the quality of the sample work, having the movie finished & handed over to the rights-holders would be /my/ happy ending.

But it’s not implausible they’d need to know which company they needed to cut that deal with.

It’s not about money when it comes to copyright cases. In a lot of “infringement” cases (which are studio level productions in their own right, not blunt piracy) the copyright holders could have made some very lucrative deals with the producing companies to allow them to continue and promote their brand *for* them while receiving royalties in the meantime.

The problem is control. The major studios are just frustrated that they can’t get the independent producers to conform to THEIR terms because they are not willing to negotiate. Instead they just stomp their legal feet like a spoiled brat.

Peters is clearly calling artillery on his own position and has been for some time. The amount of marketing, hype, and huckstering he and his Axanar crew have performed certainly got Paramount’s attention. Using crowd-sourced money to build a commercial studio is something that also seems to be something that makes the Axanar production standout. Clearly Paramount owns the rights to all things Star Trek. They funded Trek from the beginning, It is THEIR intellectual property. If you bring facts to the argument on any of the Axanar Facebook pages, even if you are logical and good-mannered, you will be banned and have your postings removed from the page. Clearly, Peters and his cohorts are sensitive to any criticism or dissent. Sure, the Prelude to Axanar was fantastic and most of us would love to see the end product of an Axanar video, but the facts are plain, Paramount owns Trek and Peters does not.Making Paramount prove they own the rights is going to only result in Paramount being pissed-off that they are being challenged. Hopefully my posting here is not censored as it was on the Axanar sites.

Criticism is valid as long as there is proof. Most of what is claimed can be easily dismissed as speculation because nobody has seen the numbers on Axanar’s finance. Paying yourself a salary because you spend 60 work hours a week on a project isn’t self-enrichment, it’s paying for your own food and a bed to sleep in. I would expect the same from an organisation if I volunteered for them, either a physical bed and a meal or the budget to facilitate it. Let’s call that a salary, shall we?

Axanar is either trying to make itself a legal martyr and play the victim card so they can claim to be harrassed by Paramount, or they are pulling a very large rabbit out of a hat to prove the point that the current copyright laws are flawed and ineffective. I would give them massive credit for pulling that off.

One can most definitely be critical without having to prove anything. You are confusing things. In a court of law proof is requirement. Criticism can and is mostly based-upon opinion which never requires proof. If you pay yourself a salary with monies associated with violating the intellectual property of another then that is a problem. I believe the Axanar crowd is ginning-up the emotions of the fan base to make their case but fails to realize that case law will trump emotion every single time in court. As for proving that current copyright laws are flawed, well…good luck on that one. Alec Peters and his cohorts can clearly be seen as infringing upon Paramount’s intellectual property and they hope to use fan emotion and sentiment to get out of the suit. The smart move should be to negotiate with Paramount and find a solution that benefits everyone. The fan base makes the classic mistake of justifying their desires based on their emotions thinking that this will win the day over established contract law. They are being delusional at best. Peters and crew have been flaunting their status with convention appearances, press junkets, promoting merchandise, and appearing in social media with drinks in their hands and enjoying meals in restaurants. Regardless of how they pay for all of this, the fact is they took over $1M in crowd source funding using the intellectual property that they don’t own. They now are stirring-up a rally cry of “Stand with Axanar” like they… Read more »
” The fan base makes the classic mistake of justifying their desires based on their emotions thinking that this will win the day over established contract law. They are being delusional at best.” — Finnegan You mean as they were in 1996 when Paramount Legal “lettered” them?: http://www.kevina.org/protest/letter1.html ”Re: Infringements of STAR TREK Copyrights and Trademarks Dear Mr. Brown: I write as attorney for Paramount Pictures Corporation (“Paramount”). As you are, no doubt, aware, Paramount owns all of the rights to the television series entitled STAR TREK, STAR TREK: THE NEXT GENERATION, STAR TREK: DEEP SPACE NINE, STAR TREK: VOYAGER, and all theatrical releases relating thereto (collectively the “STAR TREK Properties”). These rights are protected by numerous copyrights trademarks in both the programs themselves and the characters, sets, and other elements appearing in those programs. We have recently learned that you have posted various elements of the STAR TREK Properties on its site named Athena Star Trek at cen.uiuc.edu/~paron/athena/trek. Your posting of these items is an infringement of Paramount’s rights in the STAR TREK Properties. Paramount does not, of course, object to all materials posted on the Internet relating to the STAR TREK Properties. For example, Paramount does not object to the general discussion of “Star Trek” over the Internet. However, when such disscussions rise to the level of copying full transcripts or providing detailed summaries of the works, such transmissions are clear infringements of Paramounts’s rights. Similarly, posting of copyrighted material such as photographs, artistic renditions of “Star Trek”… Read more »

“I submit to you that ‘Star Trek: Axanar’ is not dead!”

Samuel Cogley would be proud.

Personally, though, I think a crackdown on fan films, as important as they have been to keeping the franchise alive, has been a long time coming. Make no mistake, CBS has been lying in wait for the right project to tackle.

Yeah, its dead. As long other fan productions don’t turn into Tricky Teds and skate around the rules, they won’t have any problems.

Instead of forking out so much cash to its lawyers, why doesn’t CBS just buy Axanar and sell it on the Direct-to-Video market? It would probably cost less than their legal charges.

Somebody, just lock the Axanar group and the CBS guys in a room and tell them they can’t come out until they resolve this. It can’t be that difficult.

“Instead of forking out so much cash to its lawyers, why doesn’t CBS just buy Axanar”

Perhaps, looking at your proposition from a purely monetary perspective, it does make sense. However, doing so would set a very dubious legal/moral precedent. Why should Peters/Axanar gain even greater profit from not abiding by stipulations laid down by the companies, whereas those fans who work on making the best ST films they can on next to nothing, for the love of Star Trek, get nothing? This would be just compensating the wrongdoer, which Peters is. Not good at all.

My favorite response

Winston & Strawn are doing this pro bono.

Well, here’s the problem with ‘just buying it’, the paper trail. The funding for this was crowdsourced, and it’s now pretty obvious the money went places other then the production. No corporation in it’s right mind would acquire an IP that could immediately turn into a criminal investigation of misappropriation of funds.

Money going places other than production? Proof? I would be convinced if that meant Peters was buying expensive jewelry, cars, and stock off our Kickstarter donations.

Spending money on food for the production crew (himself included) is hardly misappropriation of studio resources. Have you ever worked with a hungry director on set?

They have no obligation to buy Axanar whatsoever–nor should they, as that would be a very bad idea from a legalities standpoint. Axanar is an infringing, money-making project and CBS/Paramount HAVE to shut it down.

Axanar should be made regards of the official new series… It would be nice to have another Trek project to support!!!

Axanar should be made regardless of the official new series…

TrekMadeMeWonder is proven right again?

I recall it was me that said that Paramont or CBS were sloppy about the whole management of their copyright claims and properties.

They are just very poor stewards of the product.

They were lazy in any of their attempts to produce a decent Star Trek – or one that resembles the original series. Forcing them to hire that Bad Robot to try and do what they should have been doing all along! And now they continue to display poor management with this pointless lawsuit.

Make a good product that is consistent with the founding principals of Star Trek, Paramount… and I might just buy it again.

Axanar will obviously lose this. I am curious though, how Paramount and CBS will answer the question about of who owns what.

Funny all this drama for a fan film that in the end could suck harder than Renegades. Kind of crazy.

Prelude was pretty damn good, so I have higher hopes than that…..

I’d also like to make a note to the author of this article that this was a motion to dismiss, not the entirety of Axanar’s defense.

At last, Alec Peters’ s plot is revealed! He simply wants an answer to the question we’ve all had since CBS split from Paramount!

Axanar has to be taken down – they’re out of line – take them down fast before it cause more damage to other fan films!

One good thing that could come out is if CBS and Paramount decided to unify all the Star Trek copyright portfolio under one entity. Sort of a joint venture that would be autonomous and manage the franchise.

Axanar will be going down. You can’t make money off of someone else’s IP and CBS/P has all the rights on their side. I just hope that Alec can be punished as well for lying to the fans of Star Trek…a little jail time would be great!

Jail time? Really?!?

And just how did Mr. Peter’s lie to the fans of Trek? Even if we assume that the $38,000 salary, the studio, and the coffee is what this suit is really about, we only know about those things because the production made the information available!

jail time, YES! He has spoiled (or soon will spoil) fan movies for everyone. I never donated to have Alec build a for profit studio and since that was not mentioned at first, then it’s a scam and deserves prison time or at least a major monetary fine. Do you people really feel good about what Alec is doing? Good luck with your support.

If you feel that Alec Peters has scammed you, why don’t you bring about a lawsuit against him for that specific reason?

And where’s this “for profit studio” BS? From all official sources I’ve read, the “studio” is nothing more than a glorified sound stage. Rather than having to rent a stage, they built one. Seems pretty clear cut there.

Yes jail time. take a look at the penalties for copyright infrindgement.

Copyright Infringement Penalties from Purdue Universaty
The legal penalties for copyright infringement are:

1. Infringer pays the actual dollar amount of damages and profits.
2. The law provides a range from $200 to $150,000 for each work infringed.
3. Infringer pays for all attorneys fees and court costs.
4. The Court can issue an injunction to stop the infringing acts.
5. The Court can impound the illegal works.
6. The infringer can go to jail.

If that indeed is one of the penalties for infringement, there would have to be a criminal case brought. That hasn’t happened, and I highly doubt there would be one in this particular case.

I think impounding the work would be futile. It can be downloaded off the internet and will most likely float around for decades to come. Prelude is already out there seen/and to be seen.

Civil case, Edward. No one goes to jail for that. Now, if it comes out that Peters engaged in misappropriation of funds, that’s criminal, and could involve jail time….or picking up trash on the side of the freeway on weekends.

Emotional attachment to Star Trek makes some people believe that feelings alone surpass the law. Question1: If the crowd source funding is building a studio for commercial production, will Peters and crew use it beyond Axanar to make other features? Question 2: Is Peters using money raised by Kickstarter to pay his legal fees?

Question 3: might CBS/Paramount come after all financial backers as well as aiders and abetters to copyright infringement?

They would not be able to do that. Aiding and abetting cannot be pursued in a civil court.

Such a case would be the responsibility of the District Attorney, which will not press charges because there is no suspicion of criminal appropriation of funds.

For all those who think this is a slam dunk against Axanar, this article shows that Winston & Strawn have experience with slaying Goliaths: http://www.winston.com/en/thought-leadership/winston-strawn-defeats-hundreds-of-trademark-and-copyright-infringement-claims.html

Oh yea, Winston & Strawn think they might win this? Hahaha! stealing IS BREAKING THE LAW AND DESERVES PUNISHMENT.

Learn the definition of “Stealing”, would be a start. Infringement is not the same thing, and CBS/Paramount have not yet proven what is being infringed upon, besides that Axanar is set in the Star Trek universe (as are many other fan productions).

What’s Axanar?

A story about Garth of Izar from the TOS episode, “Whom Gods Destroy”. Before he went nuts, he was a celebrated Starfleet captain, and Kirk’s hero.

A fan film who crowd funded (nothing wrong there what they did with said funds is so questionable it’s untrue)
The film has stolen various IP items from CBS & Paramount and as a result they have been taken to court.
Although it looked good in practice however the move has taken almost 5 years from the original conception to get to the point that over the last year the filming dates have been pushed back and back to the point that now even after boasting on Facebook etc back in Aug last year (2015) that the script has been finished it is now under rewrite (whatever that means another delay if you ask me).
Tony Todd has left the production.
They have NO CAST
The sets are unfinished (STILL) even after claiming they were due to start filming in Feb this year (2016)
To be totally honest this fan film has been nothing but Delays, unprofessionalism and Rudeness from the crew at Axanar to the point they are now throwing out the Donors from the Facebook groups and refunding their money and then ejecting them from the Donor site all because “they” claim that they are being negative when in reality they are just asking things like “why so so many delays etc etc”.
There is so much more to all of this and anyone can see it’s not just simply CBS/PARAMOUNT suing for the hell of it, Axanar have a LOT of questions to answer and IP theft is only one.

It’s a good question.
Who owns the right to use Klingons or the Enterprise? Is it CBS who are licensing Paramount or the other way round?
Is there a licence in place between the two companies? If not why haven’t one sued the other for breach of copyright?

Presumably because one has sought and got permission from the other.

I don’t know why so many people have downvoted your comment, as well as many other comments that just presented facts or logical arguments that said anything other than “Paramount/CBS is dumb and Axanar will win!”

CBS owns the underlying trademarks and copyrights lock stock and barrel. Paramount owns the copyrights to the realized sound and images contained in their officially licensed films, but not the underlying concepts.

CBS can take any new concepts created by Paramount in the films as derivative of the copyrights they own, and license them to third parties to use. But they cannot take actual video or sound created for those films without a proper license from Paramount. It’s also slightly more complicated since any copyright CBS owns almost certainly has royalty payments tied to it, principally the producers. So even as CBS can license the concepts to others, the depiction of those concepts will most likely require royalty payments to the creators of those rendered elements. But at the end of the day CBS owns everything.

The reason Axinar wants Paramount and CBS to delineate the specifics is because they can potentially eliminate one of the plaintiffs, and ultimately both, by eliminating the copyrighted elements, and continue to produce the series without any reference to Star Trek, after receiving significant publicity.

I would be stunned if any of the original Star Trek actors would agree to continue their roles in light of this lawsuit, though they could be legally barred from appearing if they have contracts that compel them to appear.

Curious Cadet, That’s a pretty good summation of the rights as it appears in the historical record and the court documents that I’ve been slogging through. However, I would point out that for whatever reasons Paramount & CBS chose NOT to make a Trademark violation claim so the only rights they are presently claiming are those in regards to copyrights violation. I haven’t found the definitive online smoking gun, but my research to date strongly indicates that Desilu did indeed “publish” the entire first season of STAR TREK on 16mm film for network distribution WITHOUT any copyright notices as the Courthouse News reporting of Ellison’s rights caused me to speculate might be the case. Peters is a Trek memorabilia “authority” that even they, have hired, in the past, in that capacity. If this omission is not just another piece of oft repeated Trek lore fiction, it should be a simple matter for him to locate and subpoena these “bad notice” published editions of the first season which were in syndicated rerun distribution by Paramount until they became aware of the copyright omission problem in 1975. By now, most copies have found their way into the hands of collectors. Apparently, Paramount papered over the problem of what would cause STAR TREK’s first season to automatically enter the public domain (the 5 year grace period for remedying deficient or omitted copyright notices had long since expired) by going with Desilu’s complete copyright dereliction and claiming in 1975 that they, Paramount, were exercising… Read more »
Fascinating stuff, as always. I think Trademark hasn’t entered into the picture yet, because copyright is likely the easier of the two to prove. Trademark infringement has to show damages. And could open a can of worms with respect to CBS allowing other fan produced films to use the Trademarks. In any event, Axanar absolutely has no claim to use of Trademark here, either. As for the likelihood that some of these old Star Trek episodes have fallen into the PD due to technicalities in filing, here’s one good reason they haven’t. Recall the “It’s A Wonderful Life” case. The film had fallen into the PD as far as anyone was concerned due to the same technical filing issues. However, the copyright was reclaimed due to the underlying book being properly renewed, and the film was seen as a derivative copyright. Now apply that to Star Trek — if ANY previous script, or one or both pilots were properly copyrighted, then all derivative episodes were themselves protected by copyright whether properly registered or not, and the underlying copyright could be re-claimed exactly as “It’s A Wonderful Life” was able to do. So even if all these registration errors occurred in the first season, such that the episodes would have otherwise fallen into the public domain, they could have all been reclaimed as derivative of the pilot episodes. So as I’ve been saying, even if you find a smoking gun, it’s not likely to amount to much as far as Axanar’s… Read more »

Curious Cadet,

“Now apply that to Star Trek — if ANY previous script, or one or both pilots were properly copyrighted,…” — Curious Cadet

I think you are not grasping exactly the enormity of what Paramount did there in order to get STAR TREK’s first season copyrighted which they then hammered the mom & pop video stores with. They had the court rule that the entirety of STAR TREK produced prior to 1980 was an “unpublished work” whether it bore a copyright notice or not. That means prior to that year STAR TREK can NOT have enjoyed full copyright protection. Back then, being “properly” copyrighted, i.e. enjoying federal protection, required publication. For Paramount’s 1980 issued copyright to hold there can be no “properly”, i.e. fully, copyrighted editions prior. Essentially, Paramount swore there were none.

That’s why I said I suspect Ellison’s publication of his script prior to this ruling creates a legal point of contention. How could Paramount in 1981 swear that STAR TREK remained unpublished and therefore eligible for a “published” full 1980 copyright when in 1975 they were losing in court to Ellison who they knew indeed had “properly” copyrighted it? Not only that, they scheduled two royalty payments to him based on it.

I’m sorry Disinvited, I’m just not following. Maybe it’s the new format or the posts being out of order, or I’m just not seeing in the linked document what Paramount did. They claimed Star Trek had never been published prior to 1980? That’s impossible. I had 12 photo novels published during the 1970s made from stills of those episodes that was clear proof of publication. So you’re saying Paramount perjured themselves in court?

“So you’re saying Paramount perjured themselves in court?” — Curious Cadet Or, at least, as the Judge ruled in the Buchwald case: they made unconscionable claims which may be tantamount to the same thing. They claimed their librarying of the 16mm reels of STAR TREK’s first season used in network broadcasts and syndication was SO strict that they could only be considered a “limited” pressing and NOT one available to the public because they strictly kept them all in Paramount’s possession by making all the stations account for them and check them back in. This while during the decade of the 1970s syndication they sued Thomas W. Dunahoo dba THUNDERBIRD FILMS for making 16mm and 8mm film copies of those supposedly tightly tracked Paramount “possessed” 16mm prints and those of season 2, as well, and selling them in his catalog. I haven’t found the legal citations for that case but as so far the lore seems to bear out, I don’t feel so reticent about passing it on: Lore says that in 1978 the court found that in disbanding, Desilu neglected to transfer the copyrights for season 1 and 2 to Paramount and they were still in the possession of that defunct entity. As there was no active entity to bring copyright infringement against Dunahoo, the court tossed Paramount’s case until such time as they could figure a way to come into possession of those two seasons’ orphaned copyrights. Those case rulings and testimony in the Peters discovery could be… Read more »

Sorry Disninvited, I’m just not following your argument. There’s a licensing issue here about syndicators rights being passed on to authorizing the video reproductions. I don’t see a copyright issue here about Star Trek falling into the public domain. As I said, if any pilot episode or script was ever copyrighted, published or not, then every episode ever created is derivative of that copyright whether properly copyrighted or not, as determined in the “It’s A Wonderful Life” case. There is absolutely no way Star Trek is not a fully protected copyright, and Axanar will not lose this lawsuit.

Curious Cadet, It’s not my argument. It was Paramount’s. They took a rinky dink Mom&Pop video outfit to court solely so they could use them to transform an old movie rental film argument to ramrod a claim that STAR TREK was never “published” before 1980 because they retained tight possession of the 16mm prints which only constituted a limited run personal “publication”. The copyright law at the time required publication to get a copyright awarded but defined that it had to be accessible by the public. Paramount argued in that court that the16mm reel prints never left their possession because of their tight policing of their 16mm reel library so the fact that the first season bore no copyrights shouldn’t be used against them to place those episodes in the public domain because they were NEVER publicly accessible and therefore a limited publication allowed under this “unpublished” consideration. It was a demonstrably bogus argument that the M&P’s poor legal representation failed to know how to challenge. Some examples of the lack of tight policing were: 1. The VAST majority of reels returned to Paramount were not returned in their original condition. It was quite a common practice for stations receiving those reels to edit them by trimming them as they saw fit to allow for the ad time they sold. And this practice got worse the longer they stayed in circulation. The upshot being that Paramount rarely got their “personal publications” returned but rather accepted transformative abridged editions in their… Read more »

Disinvited, you’re comparing Apples and oranges. what you think happened here doesn’t apply at all. Paramount was never in danger of copyrights falling into the public domain.

Curious Cadet, Today 10:23 am “Disinvited, you’re comparing Apples and oranges. what you think happened here doesn’t apply at all. Paramount was never in danger of copyrights falling into the public domain.” — Curious Cadet You seem to be taking what I said too far. I’m only speaking of some of the copyrights being in danger of entering into the public domain. And it would be more because of things Desilu was doing or more precisely because of things Desilu was NOT doing that thoroughly undermined Paramount. If a court ruled in Thunderbird Films v Paramount Pictures circa 1975 that Paramount did not have possession of STAR TREK’s first two seasons’ copyrights but the defunct Desilu did, how does Paramount get away with arguing 5 years later that the unpublished copyrights of STAR TREK were strictly policed when the entity, Desilu, that had possession of them was incapable of providing it? Most glaringly made apparent in Thunderbird. A pattern emerges, that Desilu, most likely due to their dire financial situation, during STAR TREK’s first year were not dotting all their “Is” and crossing all their “Ts” in their business dealings. This presents a problem for Paramount in taking STAR TREK ‘s copyright prior to 1978 back to an “unpublished” status because such unpublished copyrights fall under the business contract law of the state where those deals are made. I am no expert, but in the early 70s I was schooled in California’s Business Contract Law and there both parties have… Read more »

First, as I read this case, the “publishing” in question was not in relation to the underlying copyrights, but rather the licenses involved in distribution in the previously unheard of medium of “home video”. Obviously Star Trek had been “published”, that claim would have been thrown out on the face of it, if they weren’t referencing a specific and limited definition of “published”. And even if they were discussing the copyrights to the specific filmed images, as I have demonstrated with the “It’s A Winderful Life” ruling, the proper copyright of the underlying rights would have given Paramount regained control over the filmed episodes. But that was never the case.

There’s a lot of murky copyright law from this period, and clearly Star Trek has its share of it. However, there is no smoking gun here. Star Trek NEVER entered the public domain to begin with. You’re seriously grasping at unrelated straws. I’ll be the first to eat my hat if Axanar manages to prove that CBS does not own the copyrights upon which they base their series, but I think that’s as unlikely as me literally eating my hat. And I’ve certainly seen nothing in the case you’ve presented to suggest that.

Curious Cadet, I have pieced together a picture of Tom Dunnahoo from disparate sources, a Supreme Court AMICUS CURIAEa, a newspaper interview, Google Books, an 1980 appeal of a copyright violation ruling against him on his defense claim that the STAR TREK third season episode, LET THAT BE YOUR LAST BATTLEFIELD, had a defective copyright tag and had therefore entered the public domain. I wish I had more access to his complete court records to really nail down the facts but FWIW the following story emerges for me: From 1968 to 1971 Dunnahoo [now deceased], was a very successful literal movie “film” pirate. In 1971, Tom was arrested for bootlegging the film, BEACH BLANKET BINGO, to an undercover agent. Ten film studios joined together in a lawsuit that followed for his copyright violations in 1972 after raiding his film lab. In a resolution of that lawsuit for reasons not entirely clear (I suspect the studios were more interested in his client list.) the court decreed and Dunnahoo agreed to stop his copyright violations. Tom would be allowed to continue his film duplication operation but only for films that had entered the public domain. The studios had setup Attorney Albert F. Smith to monitor his catalog and if the court were made aware of any copyrighted works there, Dunnahoo would take a $44,000.00 hit for damages as agreed upon in the 1972 ruling. In 1978, the court was made aware of 4 films from 3 out of the 10 studios, with… Read more »
Curious Cadet, Here’s is the richest citation of Dunnahoo’s consent decree that I could find. It is his last appeal: https://casetext.com/case/twentieth-century-fox-film-corp-v-dunnahoo It’s not everything I was looking for but it does get us closer to the facts. Infuriatingly, while it mentions the decree, it doesn’t provide a link to the case nor does it provide one for the one from which the appeal is being made. Or maybe I’m not finding it because of the screwy way it displays on my FireFox browser? Anyway, the case being appealed reveals the award was $40,000 in damages and NOT $44,000. But note this: ”The distributors brought the present action against Dunnahoo to enforce the original judgment with respect to four films, “Let That Be Your Last Battlefield”, “The Producers”, “The MGM Story”, and “The Courage of Lassie”. Their contention was that Dunnahoo was copying, selling, and offering to sell these particular films, for which the distributors held copyrights, in violation of the judgment. The films were, in fact, deposited and registered with the Copyright Office at the time Dunnahoo obtained his prints and offered the works through his business.” – United States Court of Appeals, Ninth Circuit. 637 F.2d 1338 (9th Cir. 1981) LTBYLB’s films were “..deposited and registered with the Copyright Office at the time…” Now compare this with the COURTHOUSE NEWS SERVICE reporting of the Ellison case: http://www.courthousenews.com/2008/08/29/Harlan_Ellison_Wants_Paramount_To_Beam_Up_Royalties_For_Star_Trek_.htm ”However, DesiLu never registered its copyright of the episode, and didn’t even register the episode as having been broadcasted. After Paramount took… Read more »
Curious Cadet, Somehow I keep saying that I’m NOT saying the entirety of Paramount/CBS’ copyrights would enter the public domain but you keep thinking I’m saying that. Here’s to what I am specifically referring: http://elr.carolon.net/BI/V03N15.PDF. ”In the case of Burke v. National Broadcasting Co., Inc., 598 F.2d 688 (ELR 1:7:3), the First Circuit described general publication as occurring “when a work is made available to members of the public at large without regard to who they are or what they propose to do with it. A general publication is such dissemination of the work itself among the public as justifies the belief that it has been dedicated to the public and rendered common property.” However, Professor Nimmer has stated that leasing or distributing film prints for exhibition amounts to a publication. By placing film prints in regional distri- bution offices for rental to anyone, the creator of the work relinquishes control with the result that there oc- curs a general publication, according to Nimmer. Rather than focusing on the act of leasing a print for exhibition, the Paramount court agreed with the First Circuit that the most significant question is whether a copyright pro- prietor has limited publication to both the class of per- sons with access to the material and the use made of the material. Paramount’s licensing agreements with individual television stations for the exhibition of the “Star Trek” episodes … required the licensees not to part with possession of the print and not to allow the copying… Read more »
Ok CC, I tracked down the court case in this University of California Irvine Law copy of a Texas Law Review document: http://www.law.uci.edu/faculty/full-time/reese/reese_publicbutprivate.pdf ”Nimmer states that television programs may be published “when copies are made available for general distribution or syndication to television stations” as when “a television producer sells or distributes film prints or video tape to independent television stations.” 1 NIMMER & NIMMER, supra note 10, § 4.11[B]; see also Nimmer, supra note 76, 197–98 (detailing the analogous problems regarding publication of motion pictures). But see Paramount Pictures Corp. v. Rubinowitz, No. CV 81 0925, 1981 WL 1396, at *4–5 (E.D.N.Y. June 26, 1981) (ruling that Paramount Pictures did not publish Star Trek by putting it in heavy syndication, due in part to its strict licensing agreements). Many motion pictures, television programs, and radio scripts were registered for protection under the 1909 Act. Many theatrical films and TV programs were registered as published works, presumably indicating that there had been some distribution of copies at least to cinema operators or affiliated TV stations, even if not to the public at large; however, these works could have been registered for protection even if they were technically unpublished. Act of Aug. 24, 1912, ch. 356, 37 Stat. at 488–89. The radio scripts appear to have been registered principally as unpublished dramas.” — ‘Public but Private: Copyright’s New Unpublished Public Domain’, by R. Anthony Reese, Texas Law Review [Vol. 85:585], p 602, footnote 79 I’m well on the way to uncovering… Read more »

CC,

Absolutely fascinating, ‘Syndication of “Star Trek” television series without copyright notices did not put shows in the public domain’, ENTERTAINMENT LAW REPORTER;
VOLUME 3; NUMBER 15; JANUARY 1, 1982:
:

http://elr.carolon.net/BI/V03N15.PDF

Apparently, Paramount claimed in court that the series STAR TREK was “unpublished” even though they knew an entire first season script to THE CITY ON THE EDGE OF FOREVER was published prior to 1980 and I know for a fact that in SCHOLASTIC MAGAZINE around that same time they had authorized a significant portion of the script to the episode, THE JOURNEY TO BABEL, to be published as well. And yet Paramount was awarded a 1980 copyright for “publishing” it.

What’s fascinating is the 1909 copyright law in effect during the first season in question says that “unpublished works” falls under the purview of state business contract law and we know the courts hold that CA’s statute of limitations were in effect.

It’s also unclear how Paramount claimed due 16mm reel tight license diligence for the year it didn’t control STAR TREK prior to purchase?

I have to say, this is a pretty smart run down on specific case history. At least for me, it still seems like Peters is grasping for that legal needle in the haystack to succeed here…

Both companies are subsidiaries of National Amusements, so even though they are separate legal entities they both ultimately answer to the same boss (the Redstones).

Well, the copyright office didn’t make it easy. They kept tagging my searches with some sort of session id that kept expiring. But if I’ve figured it out, as I believe I have, This will take you to the records for the series’ 3 seasons of episodes:

https://tinyurl.com/TREK-series-copyright-records

You’ll note that the first 34 episodes show copyrights of 1978 while the rest Paramount filed copyrights for from 1967 to 1969 which it has renewed since.

Apparently Paramount tried to rectify Desilu’s inactions by registering the first 34 episodes’ scripts as being unpublished in 1975. One problem as I see it is the “DU” in those registrations designate Desilu as the possessor of those unpublished rights Desilu no longer existed in 1975. I know from the court records that Paramount then sought a “published” copyright for those 34 scripts in 1980 which was awarded and back dated later to 1978 as the Copyright Office records reflect.

So Paramount only has a full “published ” copyright for CITY ON THE EDGE OF FOREVER script dating from 1978. But if we look up Harlan Ellison’s published copyright for the script as listed in the record for his 1996 reprint:

http://tinyurl.com/HEs-TCOTEOF-reprint-rights

We see his previous “published” copyright for the script is 1976 which predates Paramount’s published claim by two years.

Unfortunately the online records only go back to 1978 but there’s a conversion of those older records going on that may be be able to searched old school. Stay tuned.

Just a tactic to slow down the plaintiff. Now would be a good time for CBS/Paramount to offer reasonable licensing terms.

CBS is scared, they have a new series in pre-production and they know that if it has to compete with Axanar and they won’t have a chance. Plus Axanar will be free to the public but CBS wants to charge for viewing the new series.

ROFL, are you actually serious? Thats just about the most ridiculous statement I have ever read. First off even the very worst episodes in all of Trek, like Spock’s Brain and Threshold, are hundreds of times better than anything Alec Peters was ever going to make. Secondly, in the last week CBS has hired Bryan Fuller, Nick Meyer, and Rod Roddenberry for the new show. Axanar was never competition, for that matter they are no more than an irritating mosquito bite. Axanar is dead, deal with it.

I dont like this at all. I want Star trek fan films awards, and people making more Trek not all this bull about IP. Producers, actors and make up artists and CGI Artists, etc all need to eat.

If people want to give them money to make that that shouldn’t be an issue, its their money. Why did they go after Tim Russ? Can someone tell me why the other fan films are ok but Axanar is not?

I remember also a few interviews on P1 podcast, were the team talked about they talked to the powers that be and they gave them their blessing to do the production. And that unlike Star wrs, there was no rules making fan fiction films and it was “Great” to do so. So what the hell changed?

I love trek and i want to make fan films. Really really good fan films. So how will this effect me or others. I do like JJ trek but would love to see other stuff. All this does is just hurts the fans bases.

Scroll down through the thread, there are plenty of good answers as to why other fan films don’t have anything to worry about.

All the defense counsel has done is succeeded in delaying the inevitable. There are so many copyrighted elements in Star Trek that they’ll hardly know where to start but he’s an obvious few. 1) the name Vulcan as associated with a fictional race of people; 2) the specific looks of Vulcans, from their haircuts to the eyebrows to the ears to their skin color; 3) the culture of Vulcans, specifically their obsession with logic. That’s three copyrighted elements for just one species. How about the ships with saucer sections and nacelles? A United Federation of Planets? The character of Garth and the freaking name Axanar itself?!? I daresay that Mr. Peters did not create any of these things himself, so his only claim can be that he falls under fair use. Good luck with that…

Blester Langs,

http://chart.copyrightdata.com/c16A.html#sc16A.1

“Names, titles, and short phrases or expressions are not subject to copyright protection. Even if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright.” (Copyright Information Circular 34)

Disinvited, copyright litigation does not treat these individual aspects mutually exclusively. In a case such as Axanar, the whole of the infringement weighs on the judgement. In this case, use of these otherwise non-copyrightable elements contribute to an overall infringement in the case of Axanar which treads on all of them.

Curious Cadet,

Thanks. That clears a lot up for me.

Axanar – while interesting, and yes, I contributed but have yet to receive anything promised – doesn’t have a leg to stand on. The moment Peters took a paycheck, it was’t a fan production anymore. Hell, Axanar Coffee was a step too far.

On another note – even the name Axanar could be questioned. It was a name the first new race discovered in Enterprise.

The legal move to dismiss was expected. An out of court settlement where Axanar still gets made would be awesome, but more likely this will be an opportunity to firmly define what constitutes legal and fair usage while hammering it home with a massive lawsuit victory for CBS.

Titles are NOT copyrightable.

Axanar is not a title in this context.

Curious Cadet,

Not sure to what context you are referring? I am obviously referring to the name of the film that Lootcritter admitted to financially supporting and alluded to being something that can be questioned in the suit that Paramount/CBS filed. It is my understanding the name of the film, i.e. the title, is NOT actionable as a copyright violation.

They have other avenues that can be pursued but are not pursuing it at this time.

That’s not how it works in this case. While a title cannot be copyrighted, such that other people are prevented from using that title, if a copyrighted name is used in the title of a film about the very thing which is otherwise protected by copyright, in this case “AXANAR”, then it can be said that the production is infringing upon CBS’ copyright by using a protected name in the title, and can be awarded damages, even though the protected name itself cannot be copyrighted as used as a title. In most cases that would be hard to prove, however, I’m unaware of the name Axanar having any other meaning other than that for which it was originally created in Star Trek. And even if Axanar did have another meaning, the fact the rest of the series is based around this original copyright created for Star Trek removes any doubt that the use of the name intentionally infringes upon CBS’ copyright. At a minimum, a court can stipulate that Peters cannot use the name Axanar as the title of ANY series that deals with any of the same aspects as Star Trek. This is why a new film could be titled “Singing In The Rain” which has nothing to do with the original Gene Kelly movie or the song itself. But the minute a character starts singing an unrelated song, but while dancing around a lampost in the rain, the title used for the film may infringe upon the copyright… Read more »

Curious Cadet,

As always I’m prepared to defer to your greater expertise if you are certain. It’s just while the name “AXANAR” is distinctive I always thought this rule held from the circular, regardless:

http://chart.copyrightdata.com/c16A.html#sc16A.1

“Names, titles, and short phrases or expressions are not subject to copyright protection. Even if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright.” (Information Circular 34)

Again you are confusing things you don’t fully understand. I’m not talking about Axanar being copyrightable as a title, I’m talking about their title infringing upon a copyright since it is reflective of the body of the work it titles, which is itself copyright infringement.

I cannot explain it any more clearly. Titling their show after a Star Trek copyright, when the show itself is a copyright infringement, constitutes infringement, when it otherwise would not be for the reasons you state. It is a protected right.

Curious Cadet,

OK. I get it that this:

https://h2o.law.harvard.edu/collages/40201

says that the Palm Leaf Of Axanar Peace Mission has the potential to enjoy copyright protection as a character.

but does not Judge Hand here say:

http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1961&context=law-review

that if the character is developed too indistinctly (It is not even depicted in COURT-MARTIAL, as the Batmobile was many times, on screen or page, or even described.) that it serves merely as a prototype of a commendation and therefore does NOT enjoy copyright protection?

”Therefore, “the penalty for painting a character too indistinctly is lack of protection for the copyrightable
component of the character, namely the characterization.”” — ‘ CHARACTERS UNDER COPYRIGHT LAW’, DEPAUL LAW REVIEW [Vol. 41:359 1992], p. 364

Yes. However, taken as a whole, i.e. the Court Martial reference is further expanded in Whom Gods Destroy, to give it further depth. Something that is too generic is not capable of copyright. But the more background a thing is given, in this case Axanar, the greater the protection. I would think Axanar is easily capable of protection. And to the extent it is, then using it as the title of a series about the thing itself, is copyright infringement.

Curious Cadet,

I see that. But the problem for the court is Hand established that character copyright protection varies in degrees from none to full, i.e. weak to strong, based on how well developed the initial character was.

Axanar in COURT-MARTIAL lacking that would get no copyright protection and Peters could use it in his title. However, his problem is he didn’t just stop there but went ON to have a script commissioned that does appear to definitely infringe on the derivative Axanar copyrights developed in WHOM GODS DESTROY.

A problem as I see it is derivative copyrights are weaker, and if the initial Axanar character is so weak as to not enjoy copyright protection then there’s no avenue to use it to strengthen the derivative rights through renewal of its copyrights (COURT-MARTIAL’s Axanar has none.) 23 years later after it aired — a la IT’S A WONDERFUL LIFE. Even going with the suspicious to me 1978 Paramount copyright that’s asserted on my DVD copy, 2001 is long gone.

Not that I want to appear to suggest that there isn’t enough in WGD to trip Peters’ defense up as I believe will ultimately come to light and Disney’s opened up avenues for renewal that likely apply from copyright laws as they now stand.

You should really take a class to pose some of these questions, given your level of interest.

Curiuos cadet,

Oddly enough, in the early 1970s, in California, I did take a Business Law course.

Curious Cadet, We’ve been wondering what exactly Ellison owns and how he asserts that he owns it. Well, apparently he spelled it out at his website back in 2007 TrekMovie even covered it: harlanellison.com/heboard/archive/unca20071217.htm ”THAT STAR TREK BUSINESS MARK GOLDBERG or ANYONE ELSE: Would someone go to that site [http://www.iesb.net/index.php?option=com_content&task=view&id=3696&Itemid=99], and suggest to those people there, that “City” and all its elements EXCEPT specific Star Trek characters, belong to Harlan Ellison–author of that much-lauded episode–by terms of the Separation of Rights clause of the Writers Guild’s Minimum Basic Agreement (MBA), and if Mr. Abrams–with whom I’m currently on strike–or anyone else, at Paramount or elsewhere, thinks they’re going to use MY creations–whether the City, the Guardians, Sister Edith Keeler, or any other elements CREATED BY HARLAN ELLISON…they had damned well better lose the unilateral arrogance, get in touch with me, or my agent, Marty Shapiro, and be prepared to pay for the privilege of mining the lode I own. Thank you, and thank Peter David, who just called to alert me, as have you, Mark, to yet another gimmegimme grab by Paramount and the Star trek francchise that makes billions, but withholds recognition or recompense to the artists who labored in that vein. Yr. Pal, Harlan” — HARLAN ELLISON; – Monday, November 12 2007 10:19:47 My understanding is “A Separation of Rights Clause provides that after a certain amount of time, rights revert back to original owner if film has not been made.” This appears to support my contention that… Read more »

And CC,

Don Mankiewicz, who originated the COURT-MARTIAL story and worked on the script, has been a WGA member since 1952:

http://awards.wga.org/wga-awards/2008-morgan-cox-award-don-mankiewicz

Disinvited, as interesting as all of this is, I cannot keep following you down the rabbit hole. This was all settled a long time ago, and there are no significant hidden surprises left. We are not in possession of all of the facts in Ellison’s case. But remember his original script was rejected, and Trek took it over and re-worked it such that it was substantially different from the story he submitted, and that is what was never produced. I believe what Ellison may have copyright over is the original screenplay, in which case the Trek episode is the derivative copyright, which Ellison granted CBS certain rights to in the settlement. Obviously he has no claim to any of the other elements in the episode he did not create. So whatever unique attributes apply to his very unusual saga within Trek lore, it is unlikely to apply to anyone else, regardless of how fast and loose Desilu played with their paperwork in those early days.

Curious Cadet,

Except as you yourself pointed out, when it comes to copyrights and thanks to Disney’s successful lobbying it’s never over and copyrights can be not just restored to studios but to their actual originators as well. That’s my point.

Ellison didn’t say he had a unique contract clause that restored his copyrights. He said it was the WGA “Minimum” Basic Agreement that had done so. Also, it wasn’t until recently that the courts ruled that these studios operating in California can’t skirt around California’s statute of limitations. That means Desilu/Paramount had until 1974 to show they were upholding their end of the WGA’s negotiated work for hire contracts. The Copyright Office records shows Paramount didn’t register the first season episodes and the first 11 of the second as unpublished works until 1975.

In Buchwald vs. Paramount Pictures. Paramount lost the case but used every tactic in the book to wheedle their infringement damages down to around $64,000 plus his legal expenses. All, I’m saying is Peters’ defense is entitled to employ the same vigorous tactics used by Paramount in their defense.

You have accurately pointed out that the two pilot movies did not have this defect and the 3 first season episodes derived from them are therefore in order.

Curious Cadet,

Also Axanar first occurs in STAR TREK in the Episode, COURT-MARTIAL, as the title of a commendation:
Palm Leaf Of Axanar Peace Mission. And is only mention that one time in the episode.

http://www.chakoteya.net/StarTrek/15.htm

It seems very odd to me that a fictional title would be copyrightable?

Why wouldn’t a fictional title be copyrightable? It’s something originally created that didn’t exist before. That’s the very definition of IP. It’s anything but generic.

Curious Cadet,

I’m just trying to understand why the Copyright Circular asserts:

“Names, titles, and short phrases or expressions are not subject to copyright protection. Even if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright.” (Information Circular 34)

When in COURT-MARTIAL where “Palm Leaf Of Axanar Peace Mission” was created in that sole occurence in the episode, and its only use seems precisely to fit that description of that which is NOT copyrightable, i.e. it is not used as an expression of an idea but rather is solely relegated to serve the role as a space filler. In other words, in COURT-MARTIAL’s script Axanar is undeveloped as an idea whose expression would make it copyrightable.

And why in your assertion that that name was copyrighted in COURT-MARTIAL you seem to indicate that its derivative copyrights in WHOM GODS DESTROY are equally strong when that’s not my understanding of derivative copyrights?

Hmmm…something is dawning on me. Is it that “Names, titles, and short phrases or expressions” are not copyrighable by themselves but when incorporated in a greater body of work that does express an idea, they can be?

I know you are going to point out this is apples and oranges but doesn’t sampling in the music industry indicate that use of short phrases such as “Axanar Peace Mission” make it fairly hard for CBS to wield the copyright bat?

You don’t have to wait till Enterprise to get an Axanar reference in canon Trek. The Axanar Peace Mission was mentioned in TOS “Court Martial” during the computer reading of James Kirk’s medals and commendations. More specifically he was noted to have been awarded the “Palm Leaf of the Axanar Peace Mission”.

This is a ridiculous defense. CBS will specify during the trial how the copyrights are violated. Axanar is just buying time. This defense will not work, and they know it. I guess they just want to squeeze a few more “donations” from the fans.

time for trekmovie to make a new posting about this. Pacer has Paramount’s response to Peters, but it costs money to look at it. Apparently they DID provide a list of infringements.

Something very big!!!!!!!

all tittering aside, I do wonder why they haven’t gone after trademark violation – as somebody on trekbbs indicated, all these trademarked model ships and stuff are each potentially worth at least a 100 grand per violation, or three times what is made off of them illegally. Then again, maybe that is included in the details of this, will have to wait for somebody to post specifics to know.

Really hope cbs/par goes after Cushman and picture crony about their books too – it’s be nice to see all the bad guys REALLY getting theirs.

It’s certainly about time AXANAR got this axe to the nards.

kmart,

Not really surprising given the judge denied Paramount/CBS’ request for a 3 week delay in responding.

“I do wonder why they haven’t gone after trademark violation…” — kmart

As I’ve been questioning from the beginning. I take it as a sign that since CBS has a stronger hand in the trademarks that their not being pursued is a sign 6-months Paramount is behind this.

kmart,

Hmmm….they missed the March 7th deadline but ammended the suit yesterday:

https://tinyurl.com/Paramount-and-CBS-amend

“…ammended the suit …” — Disinvited

That should have been: “ammended the COMPLAINT” as in Moderators please note, the above complaint, Document 20, has been amended to Document 26

kmart,

I don’t know, In the amended complaint they assert:

“Plaintiffs own the copyrights for all episodes of each Star Trek television series, and have identified the copyright registrations for the first episode of each television series.” — Paramount & CBS in Amended complaint

But Harlan Ellison’s asserted:

http://harlanellison.com/heboard/archive/unca20071217.htm

”…[THE] “City” [ON THE EDGE OF FOREVER] and all its elements EXCEPT specific Star Trek characters, belong to Harlan Ellison–author of that much-lauded episode–by terms of the Separation of Rights clause of the Writers Guild’s Minimum Basic Agreement (MBA)…” HARLAN ELLISON; Monday, November 12 2007 10:19:47

It looks to me as if the amended claim is defective or at the very least incomplete. I don’t think the judge is going to be very happy about that when the Peters team points it out. This could give them a wedge to go into discovery of how those rights were restored to Ellison under the MBA and whether any of the other WGA member writers’ for that series qualify for their MBA copyrights restoration too.

If they go after Trademark now, as I’ve said before, then they open a can of worms in that Trademark has to be actively defended. They clearly aren’t actively defending Trademark in the case of the other fan films, which they evidently have no issue with. Better to build the case on copyright, which can’t call into evidence all of the other Trademark infringements they are not defending, since copyright is selectively defended, without jeopardizing ownership.

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