Star Trek Fan Film Not Fair Use
Published: January 25, 2017
Paramount and Star Trek Fan Film Producers Settle
The copyright infringement lawsuit between Star Trek fan film producer, Axanar Productions, and Paramount Pictures came to an end less than two weeks before trial. The settlement was undoubtedly triggered by the court’s early January ruling that the fan fiction film, Prelude to Axanar, is not protected by fair use.
Prelude to Axanar is a documentary style short that tells the story of Garth of Izar, a Starfleet captain and Captain Kirk’s hero, who fought in the Battle of Axanar 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. As a result of it success, Prelude’s producer, Alec Peters, raised over $1 million through Kickstarter and Indegogo in order to produce a full-length, studio quality motion picture about the Garth of Izar 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 Axanar Productions and its founder Alec Peters for copyright infringement. 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, Prelude and the other Axanar works are substantially similar to Star Trek precisely because they copied characters, settings, plot points, dialogue, themes, pace, mood, races, species, ships, and weapons in order to create an unlicensed, independent Star Trek film.
Peters, on the other hand, argued that Prelude and the other Axanar works were transformative and therefore protected under fair use.
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. 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.”
Although Prelude features Federation officers, Klingons and Starfleet ships, Peters claimed that the work is transformative because of the way in which it features these elements; 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 and the other Axanar works transformative.
To the contrary, Paramount argued that Prelude and the other works 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.
In determining whether Prelude and the other Axanar works are protected by fair use, the court reviewed its four factors: (i) the purpose and character of the infringing use; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the work used; and (iv) the effect upon the market for the original work.
The first factor explores whether and to what extent the new work is transformative. Here the court agreed with Paramount, finding Prelude and the other works not transformative. The court noted that Peters “set out to create a… prequel to The Original [Star Trek] Series” and that they “intentionally use or reference many elements similar to those in [Star Trek] to stay true to Star Trek cannon down to excruciating details.” The court found that Prelude and the other works do not have a further purpose or different character, and do not alter Star Trek with new expression, meaning or message. Instead, the court stated, the defendants intended to supplant Star Trek with Prelude and their full-length motion picture.
The court determined that the second factor, the nature of the work, also weighed in favor of Paramount as creative works – such as Star Trek – are given broad copyright protections.
The third factor examines the quantity, quality and importance of the materials used in relation to the copyrighted work in its entirety. The court did not accept Peters’ argument that, from a quantitative and qualitative standpoint, the elements he used from Star Trek were not significant. The court remarked that the elements used by Peters “are an indispensable part of what makes Star Trek ‘Star Trek’” and give Prelude the “Star Trek feel.”
The fourth factor examines the effect the infringing work would have on the market and also whether unrestricted and widespread similar conduct would have an adverse impact on the market for derivative works. In considering the market harm presented by a full-length, professional quality motion picture about the battle of Axanar, the court stated that such a motion picture is the kind of derivative project Paramount would develop. The court also focused on Peters’ statement that he wanted to create “a whole new way that fans can get the content they want, by funding it themselves.” If left unrestricted, widespread fan-funded, professional quality motion pictures telling Star Trek stories would have an adverse impact on Paramount’s ability to develop derivative Star Trek properties.
With all four factors weighing in favor of Paramount, the court rejected Peters’ fair use defense, leaving for the jury the determination of whether Prelude is substantially similar to Star Trek and whether Paramount’s copyright in Star Trek was willfully infringed.
However, the key cause for the settlement was undoubtedly the court’s finding that Peters would be personally liable for contributory and vicarious infringement if the jury found substantial similarity between Prelude and the other Axanar works and Star Trek. The terms of the settlement are unknown with the exception of the fact that “substantial changes” would be made to the Axanar feature film and that any future Star Trek films produced by Peters or his company would follow the Guidelines for Fan Films distributed by CBS and Paramount in June, 2016.