“I’m not seeing a lot of outs here for them,” a First Amendment lawyer tells TheWrap of the $1.3 million “Axanar”
Last week, CBS and Paramount sued the producer of the crowdfunded “Star Trek” fan film “Axanar,” and according to a First Amendment and intellectual property lawyer, it’s not all that surprising.
“This appears to simply be the creation of a work based on characters and elements of the protected ‘Star Trek’ franchise,'” Lincoln Bandlow, a partner at Fox Rothschild, LLP, told TheWrap. “Essentially, Axanar appears to just be a situation where the producer is taking characters based on a well-known work because they know people love it.”
The companies are going after producer Alec Peters of Axanar Productions for copyright infringement with a suit filed last week in California district court. The suit concerns “Axanar” and the prequel film “Prelude to Axanar,” collectively referred to as “the ‘Axanar’ Works.”
“The ‘Axanar’ Works infringes plaintiffs’ works by using innumerable copyrighted elements of ‘Star Trek,’ including its settings, characters, species, and themes,” the complaint reads. CBS and Paramount are seeking up to $150,000 for every copyrighted “Star Trek” element present in the films.
“Axanar” raised $1.13 million in crowdfunding, making it possibly the biggest-budget fan film ever made. CBS said they never “authorized, sanctioned or licensed this project in any way, and this has been communicated to those involved.” However, Peters told TheWrap that he and his team met with CBS prior to production, and the network didn’t offer any specific guidelines concerning what his crew could and could not do, simply that he couldn’t make money off the project.
“CBS has a long history of accepting fan films,” Peters said back in August. “I think ‘Axanar’ has become so popular that CBS realizes that we’re just making their brand that much better.”
Of course CBS has now filed suit against the production, and Bandlow has a simple explanation.
“With a small, not particularly commercial fan work … [the copyright holder] might simply say, ‘it’s not worth the time,’ said Bandlow. “But when you are going out and doing crowdfunding and making a million-dollar picture … that’s not going to be allowed.”
Peters claimed to have limited the use of “Star Trek” logos and likenesses, using only three protected characters who are all relatively obscure: Garth of Izar from the original “Star Trek” TV series, the Vulcan from “Star Trek: Enterprise” and General Chang from the film “Star Trek VI: The Undiscovered Country.”
“If I use the copyrightable, expressive characteristics of a character — it doesn’t matter if I change the name — I have stolen a character that someone else created,” Bandlow adds.
Apart from the fan film being a clear derivative work of the famous franchise, the fact that CBS announced in November that it’s debuting a new “Star Trek” series in 2017 and that Paramount is releasing the third film in the rebooted franchise, “Star Trek Beyond,” on July 22, probably stoked the companies’ mutual desire to put a stop to “Axanar.”
“The crowding of the market can very well be a factor that’s motivating a greater desire to bring litigation and certainly could enhance the concern from a damages standpoint,” Bandlow said.
Although Peters could not be reached for comment regarding the lawsuit, Bandlow thinks that the only thing left for the producers of “Axanar” to do is to stop the production or get licensing — which doesn’t seem likely.
“I don’t imagine they are going to get a license because, again, they are competing against a work that might crowd the market of an authorized ‘Star Trek’ production,” he said. “I’m not seeing a lot of outs here for them.”
And while Peters and fans of “Axanar” will probably try to assert that this is protected by the fair use doctrine, Bandlow thinks that argument will not prevail.
“This is not a fair use type scenario — certainly, if I make a documentary about famous science-fiction works and show various film clips from ‘Star Trek,’ that would probably be fully protected by the fair use doctrine … because I am doing a commentary/criticism of the franchise. Axanar doesn’t sound anything like that at all.”
Paramount and CBS had no further comment other than a statement sent to TheWrap last week.