<WRAP box>
{{::burnett-wondercon.jpg|}} \\
<wrap lo>**‘WE DON'T OWN STAR TREK’** //Axanar// director Robert Meyer Burnett's podcast interview may make it difficult to prove Axanar didn't accidentally infringe upon Star Trek's copyrights.</wrap>
</WRAP>
====== Knowing Infringement? ======
{{TOC}}
<WRAP>
//**__ __**// <wrap lo>**By [[user>cpedraza|Carlos Pedraza]]**</wrap>
</WRAP>

<wrap lo>//Main article: [[Copyright infringement]] \\
See also: [[Motion to dismiss]] and [[burnett_resigns|Director Burnett Resigns from Axanar]] and [[hunt_resigns|Axanar Co-Writer Announces Departure]]//</wrap>

In a podcast interview released April 1, 2016, //Axanar// director [[Robert Meyer Burnett]] detailed how broadly and deeply he, the films' writers and producer [[Alec Peters]] foraged for source material in the body of Star Trek's copyrighted works, creating a problem for one defense their attorneys appeared to set up in the recent [[motion to dismiss|dismissal motion]].

"We knew… we don’t own Star Trek. We know that," Burnett told the host of the [[http://www.stitcher.com/s?eid=43514532|Blind Panels podcast]]. "We’re making a movie set in the Star Trek universe."

[{{ ::blind-panels.jpg?250&nolink|**BLIND PANELS** is a podcast dedicated to news of interest to blind and visually impaired comic book fans. Its [[http://www.stitcher.com/s?eid=43514532|22nd episode]] is Part 2 of an interview with Robert Burnett, covering his 15 years behind the scenes of landmark genre films. Blind Panels is created by [[http://ComicsEmpower.com|Comics Empower]].}}]

In that interview, Burnett strove to contrast Axanar's approach to the infringing nature of fan films with the way other fan productions have done it.

> The problem with Star Trek fan films is they’re trying to recreate Star Trek. As good as their productions might be … you’re still watching actors that aren’t Kirk, Spock and McCoy. While they painstakingly recreate the bridge or the props and everything, <wrap hi>you know you’re not watching real Star Trek.</wrap>(([[http://www.stitcher.com/s?eid=43514532|Blind Panels podcast]], "Episode 22: Star Trek Axanar - Robert Burnett, Part II, 4/1/16.)) <wrap lo>[//emphasis added//]</wrap>

Axanar instead planned on a different approach, Burnett said, to "sort of mix [source elements] all together into this new concoction that no one had ever seen before":

> We wanted to do something totally different, where we’re going to explore a previously unexplored era of the Star Trek universe, create new characters from whole cloth and extrapolate what the universe might be like <wrap hi>using all the different sources, whether it was Enterprise, whether it was J.J. Abrams’ Star Trek movie, whether it was Star Trek novels, whether it was Star Trek games — any place that we could draw what we thought were interesting pieces of source material that were all from various areas of the canon.</wrap>(([[http://www.stitcher.com/s?eid=43514532|Blind Panels podcast]], "Episode 22: Star Trek Axanar - Robert Burnett, Part II, 4/1/16.)) <wrap lo>[//emphasis added//]</wrap>

So while this approach may sound like an attempt to create a new, transformative work — a fair use defense against the copyright infringement of which Axanar is accused((needs citation)) — Burnett said in the same interview that the heart of his film's story, the fabled [[mema>Battle of Axanar]] relied on another Paramount-copyrighted Star Trek work, the role-playing game sourcebook, "The Four Years War."(([[http://www.stitcher.com/s?eid=43514532|Blind Panels podcast]], "Episode 22: Star Trek Axanar - Robert Burnett, Part II, 4/1/16.))

[{{ ::4-years-war.jpg?nolink|**SOURCEBOOK** "The Four Years War," a game sourcebook published by FASA under a license from Paramount Pictures in 1986 was the inspiration for Alec Peters' story in the //Axanar// film.}}]

That book was published by FASA Corp. in 1986 under license by Paramount Pictures, which still owns the copyright,(([[http://memory-beta.wikia.com/wiki/The_Four_Years_War|Memory Beta wiki, "The Four Years War,"]] retrieved 4/6/16.)), alongside a scenario book, "Return to Axanar."(([[http://memory-beta.wikia.com/wiki/Return_to_Axanar|Memory Beta wiki, "Return to Axanar,"]] retrieved 4/7/16.))

The FASA books portrayed the Battle of Axanar as the culmination of a war between Star Trek's United Federation of Planets and the Klingon Empire. 

===== Is 'Axanar' Transformative? =====
Despite director Burnett's recent, post-lawsuit characterization of //Axanar// as a "new concoction," in fact the production portrayed its aims this way in order to attract donations from diehard Star Trek fans:

> //Axanar// is the first fully-professional, independent Star Trek film. … For you, the Star Trek fan, //Axanar// is a return to the type of Star Trek all of us grew up on. …  Axanar feels like Star Trek because it is made by two of the biggest Star Trek fans in the world, Alec Peters and Robert Burnett.(([[https://www.indiegogo.com/projects/axanar#/|Axanar Indiegogo campaign page]], retrieved 4/7/16.))

In their firm's legal blog, intellectual property attorneys Nancy E. Wolff and Kenneth N. Swezey point out that "the courts have distinguished infringing derivative works from transforming fair use by requiring that the new work must 'supersede the objects of the original creation…altering the first [work] with new expression, meaning or message.' A derivative work is one that merely 'recasts, transforms, or adapts an original work into a new mode of presentation.'(([[http://cdas.com/how-much-is-too-much-transformative-works-vs-derivative-works-photographer-wins-appropriation-art-copyright-case/|CDAS legal blog, "How Much Is Too Much? Transformative Works vs. Derivative Works: Photographer Wins Appropriation Art Copyright Case,"]] Nancy E. Wolff and Kenneth N. Swezey, 9/1/11.))

So in their own pitch to fans who gave Axanar more than $1.3 million, Peters and Burnett were not proposing something transformative, with a new meaning or message, but instead "a return to the type of Star Trek all of us grew up on."(([[https://www.indiegogo.com/projects/axanar#/|Axanar Indiegogo campaign page]], retrieved 4/7/16.))

{{section>motion to dismiss#Fair Use Defense}}

Burnett's comments also call into question the defense's assertion in its [[motion to dismiss|dismissal motion]] that:
  * Star Trek's copyrights were too complex for the defendants (self-described as among "the biggest Star Trek fans in the world,") one of whom (Peters) often introduces himself as a lawyer who "knows how to navigate these things."((Alec Peters, comments on Axanar panel at Silicon Valley Comic Con, March 2016.))
  * Paramount may have no standing in the case since all the possible copyrights allegedly infringed upon may have come from CBS copyrights. That may be obviated by Burnett's own admission in the Blind Panels podcast that Axanar culled elements from J.J. Abrams' [2009] Star Trek, as well as the [[summary_of_the_lawsuit#side-by-side comparisons]] of such elements as the spacedock that first appeared in //Star Trek: The Motion Picture//, a Paramount property, and the substantially similar spacedock portrayed in //Prelude to Axanar// and in stills advertising the //Axanar// feature.

===== How to Prove Infringement =====

According to the American Bar Association, CBS and Paramount need to prove Axanar's copyright infringement via:

<WRAP right round important 50%>
<wrap lo>Note: Burnett was not named a defendant in the case. //See also: [[does|The Unnamed Defendants]]//</wrap>
</WRAP>

  * Direct evidence — This can include witness testimony, <wrap hi>the defendant’s own admission</wrap>, or photos or video catching the defendant in the act.
  * Circumstantial evidence — Plaintiffs need to demonstrate the defendants had access to the copyrighted work, and that the defendants' work is “substantially similar” to the original.(([[http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/elements_of_a_copyright.html|American Bar Association, "An Overview of the Elements of a Copyright Infringement Cause of Action,"]] Jason E. Sloan, retrieved 4/7/16.))

However, Burnett's detailed description in the podcast of Axanar's looking for elements from as many copyrighted Star Trek sources as they could find may provide plaintiffs the direct evidence, and point them to supporting circumstantial elements in the preproduction and already filmed works for //Prelude to Axanar// and //Axanar//.
===== Minimizing Damages =====

Writing for the news site, TrekMovie.com, attorney Susan Kayler, who founded the Artists and Writers Legal Resource Center, took issue with the defense's characterization that "since there are so many copyrights it’s not Axanar’s fault they infringed them because how can anybody look up that many copyrights?"(([[http://trekmovie.com/2016/03/30/axanar-files-another-motion-to-dismiss-copyright-infringement-lawsuit/|TrekMovie.com, "Axanar Files Another Motion to Dismiss Copyright Infringement Lawsuit,"]] 3/30/16.))

More likely, Kayler writes, the defense is attempting to minimize the potential damages of $150,000 per infringement allowable under the law to only $200 per infringement if the defense can show the infringement was accidental, not willful:

> The motion, in part, is defendant’s attempt to claim ignorance and therefore avoid “willfulness” and higher damages.(([[http://trekmovie.com/2016/03/30/axanar-files-another-motion-to-dismiss-copyright-infringement-lawsuit/|TrekMovie.com, "Axanar Files Another Motion to Dismiss Copyright Infringement Lawsuit,"]] 3/30/16.))

Again, Burnett's podcast comments may cast doubt on the defense's ability to demonstrate ignorance. {{:axamonitor-ico.gif?nolink|}}

----
**Keywords** {{tag>copyright defendants players}}