By Scott Hervey
Fan films and fan fiction ordinarily don’t end up being the subject of a federal court lawsuit. Most fan fiction are creative expressions reflecting adoration of a series, film or character and the majority of copyright owners take a permissive view of fan fiction. However, Paramount Pictures, the owner of the Star Trek franchise, which in the past has not taken action against other fan fiction projects, is opposing the production of a full length film, Axanar, which has a production budget of over $1 million and has a professional crew and professional actors.
The Axanar project is the creative brain child of writer/producer and entrepreneur Alec Peters. Peters wanted to tell the story of Garth of Izar, a Starfleet captain and Captain Kirk’s hero, who fought in the Battle of Axanar, a major clash between the Federation and the Klingons, which took place 21 years before the events of the first episode of the original Star Trek television show. In 2014 Peters raised over $100,000 on kickstarter and produced a “proof of concept” thirty-minute film entitled “Prelude to Axanar.” Prelude purports to be a documentary recounting the events surrounding the Battle of Axanar. Prelude was well received and as a result, Peters raised over $1 million through Kickstarter and Indegogo in order to produce a full length, studio quality motion picture about the Garth of Izard and the battle of Axanar. In addition to releasing Prelude on YouTube, Peters released on YouTube a short clip entitled “Vulcan Scene” (which features Ambassador Soval, a minor character from “Star Trek: Enterprise” and a new Vulcan character) and drafts of the script for the full length movie.
Paramount sued Peters and his production company Axanar Productions for copyright infringement, and last week Paramount and Axanar Productions traded shots in Federal Court last week over a motion to dismiss Paramount’s Complaint. According to the Complaint, Peters and his production company infringed Star Trek’s copyright by utilizing various Star Trek elements including the concept of the Battle of Axanar, the Klingons, the Starfleet and characters, costumes and props that are unique to Star Trek. According to Paramount, Axanar is substantially similar to Star Trek precisely because it copied characters, settings, plot points, dialogue, themes, pace, mood, races, species, ships, and weapons in order to create an unlicensed, independent Star Trek film.
In its motion to dismiss, Peters contends that his works – Prelude to Axanar, the Vulcan Scene and drafts of the Axanar script – are transformative and therefore protected under fair use. While Peters presents other arguments in support of his claim of non-infringement, the question of whether these works are transformative will be largely determinative of this issue.
A work is transformative when it adds something new to the work allegedly infringed, with a further purpose or different character, altering the original work with new expression, meaning, or message. A work is transformative if it does something more than repackage or republish the original copyrighted work. A transformative work is one that serves a new and different function from the original work and is not a substitute for it. As the Supreme Court noted in Campbell v. Acuff-Rose Music, Inc., “the more transformative the new work, the less will be the significance of other factors, … that may weigh against a finding of fair use.”
Peters claims that his works are transformative. Although Prelude features Federation officers, Klingons and Starfleet ships, Peters argues that it does so in a first person narrative style, never before used by Paramount, featuring new characters and other elements, with its subject matter being a storyline that was only a footnote in the first episode of the original Star Trek television series. This, Peters contends, makes Prelude transformative. Peters claims that the Vulcan Scene is transformative because it incorporates original dialogue, new characters and is a continuation of the original story told in Prelude.
In its opposition to the motion to dismiss, Paramount takes the position that its copyright interest in Star Trek extends far beyond Captain Kirk and Spock. While a small number of Vulcans and Federation Officers in Prelude and the Vulcan Scene were previously featured in previous Star Trek episodes or films, Paramount contends that what causes Prelude, the Vulcan Scene and the current draft of the Axanar script to be an infringement is the fact that they are populated with Klingons, Vulcans, Federation Officers, Starfleet ships in the shape of the Enterprise and Klingon battlecruisers and littered with references to warp drives, dilithium crystals, stardates and transporters. All of these elements are protected by Paramount’s copyright interests and cause Peters’ works to be infringements.
Paramount argues that Prelude, the Vulcan Scene and the draft of the Axanar script are not transformative as they “were created to function as another Star Trek work, with a slightly different plot.” Paramount argues that using copyrighted characters and elements and then placing those elements into a new story or timeline does not create a transformative work but rather an infringing derivative work. And while that was the case for Catcher in the Rye protagonist Holden Caulfield as portrayed 60 years later in 60 Years (see Salinger v. Colting), it was not the case for the story of Cynara, a slave owned by Scarlett O’Hara, as told in The Wind Done Gone (see Suntrust v. Houghton Mifflin). In Suntrust, the 11th Circuit found The Wind Done Gone was not an infringement of Gone with the Wind and was protected under fair use. The court found persuasive the fact that the The Wind Done Gone was told using a different format, featured new characters, elements and plot settings not found in Gone with the Wind.
The determination of fair use is a balancing test that requires the Court to weigh numerous factors. While Peters’ works feature numerous factors the 11th Circuit found persuasive in the case of The Wind Done Gone, there are other factors that may weigh – possibly heavily – in the opposite direction.
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