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fair_use_denied [2017/10/02 22:05] – [Willful Infringement] corrects year of citation Carlos Pedrazafair_use_denied [2017/10/02 22:10] (current) – [Trek References in Judge's Order] corrects citations year Carlos Pedraza
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 Klausner had found that line of argument unpersuasive when Ranahan first made it in the dismissal motion he rejected in May 2016; he found it even less persuasive when having to deal with it yet again in her motion for summary judgment: Klausner had found that line of argument unpersuasive when Ranahan first made it in the dismissal motion he rejected in May 2016; he found it even less persuasive when having to deal with it yet again in her motion for summary judgment:
  
-> The Court explained its rejection of this argument in the order denying Defendants’ Motion to Dismiss.. … The Court will not repeat its rationale here, except to note that evidence of a final shooting script satisfies the judicial standard for summary judgment.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 3, 1/4/16.))+> The Court explained its rejection of this argument in the order denying Defendants’ Motion to Dismiss.. … The Court will not repeat its rationale here, except to note that evidence of a final shooting script satisfies the judicial standard for summary judgment.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 3, 1/4/17.))
  
 ===== Copyrightable Elements ===== ===== Copyrightable Elements =====
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 The judge rejected those arguments with regard to Star Trek's most prominent alien species: The judge rejected those arguments with regard to Star Trek's most prominent alien species:
  
-> Klingons are a militaristic, alien species from the planet Qo’noS. They are long-time enemies of the Federation. Klingons have distinctive physical features including ridged foreheads, dark hair and skin, and upward sloping eyebrows. Klingon men have facial hair. \\ \\ Vulcans are a part of the Federation, a species that suppresses emotions in favor of logic and reason. They are advanced technologically. Vulcans have pointed ears and upswept eyebrows. Vulcan men usually have a bowl-shaped haircut. Taken together, these characteristics of Klingons and Vulcans are not “elements of expression[s] that necessarily follow from the idea” behind the expressions (visual expressions, for example) and may be entitled to copyright protection.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 6, 1/4/16.))+> Klingons are a militaristic, alien species from the planet Qo’noS. They are long-time enemies of the Federation. Klingons have distinctive physical features including ridged foreheads, dark hair and skin, and upward sloping eyebrows. Klingon men have facial hair. \\ \\ Vulcans are a part of the Federation, a species that suppresses emotions in favor of logic and reason. They are advanced technologically. Vulcans have pointed ears and upswept eyebrows. Vulcan men usually have a bowl-shaped haircut. Taken together, these characteristics of Klingons and Vulcans are not “elements of expression[s] that necessarily follow from the idea” behind the expressions (visual expressions, for example) and may be entitled to copyright protection.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 6, 1/4/17.))
  
 ==== Garth of Izar ==== ==== Garth of Izar ====
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 And with regard to Garth, Klausner applied the same three-part test to determine his copyrightability: That the character must demonstrate both physical and conceptual qualities; that he be sufficiently recognizable as the same character whenever he appears, and that he be especially distinctive with some unique elements of expression: And with regard to Garth, Klausner applied the same three-part test to determine his copyrightability: That the character must demonstrate both physical and conceptual qualities; that he be sufficiently recognizable as the same character whenever he appears, and that he be especially distinctive with some unique elements of expression:
  
-> Since Garth has appeared as a live character, he has physical as well as conceptual qualities. As stated above, Garth was a former starship captain and was famous among Starfleet officers for his exploits in the Battle of Axanar. In fact, his exploits were required reading at the Starfleet Academy. He charted more planets than any other Starfleet captain. In the episode, Garth discussed his victory in the Battle of Axanar with Captain Kirk, the Captain of U.S.S. Enterprise. In addition, a 2003 novel, titled Garth of Izar and copyrighted by Paramount, further developed the character. Garth’s identity as a Federation hero sufficiently delineates him and sets him apart from a stock spaceship officer.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 5, 1/4/16.))+> Since Garth has appeared as a live character, he has physical as well as conceptual qualities. As stated above, Garth was a former starship captain and was famous among Starfleet officers for his exploits in the Battle of Axanar. In fact, his exploits were required reading at the Starfleet Academy. He charted more planets than any other Starfleet captain. In the episode, Garth discussed his victory in the Battle of Axanar with Captain Kirk, the Captain of U.S.S. Enterprise. In addition, a 2003 novel, titled Garth of Izar and copyrighted by Paramount, further developed the character. Garth’s identity as a Federation hero sufficiently delineates him and sets him apart from a stock spaceship officer.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 5, 1/4/17.))
  
 ===== Why Fair Use Was Denied ===== ===== Why Fair Use Was Denied =====
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 The judge found Axanar was plainly commercial, despite the fact Peters made his videos available for free on the Internet: The judge found Axanar was plainly commercial, despite the fact Peters made his videos available for free on the Internet:
  
-> It is undisputed that Peters hoped to derive non-monetary benefits, for example, other job opportunities, from the Axanar Works. Defendants profit from exploitation of the copyrighted material without paying the customary price. The Axanar Works are commercial.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/16.))+> It is undisputed that Peters hoped to derive non-monetary benefits, for example, other job opportunities, from the Axanar Works. Defendants profit from exploitation of the copyrighted material without paying the customary price. The Axanar Works are commercial.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/17.))
  
 [{{ :ranahan_3.32.06_am.jpg?nolink&150|Axanar attorney **Erin Ranahan**}}] [{{ :ranahan_3.32.06_am.jpg?nolink&150|Axanar attorney **Erin Ranahan**}}]
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 Peter's attorneys made a big point of claiming that Axanar was making no profit, but the judge found that even the indirect benefits Axanar realized from its infringing activities were sufficient to call the production commercial: Peter's attorneys made a big point of claiming that Axanar was making no profit, but the judge found that even the indirect benefits Axanar realized from its infringing activities were sufficient to call the production commercial:
  
-> Common experience suggests that [the defendants] stood to gain at least indirect commercial benefit from the [viewership] boost which [they] had reason to hope would (and in fact did) result from the Axanar Works. … The successful fundraising campaign leveraging the popularity of //Prelude// is an example of such indirect benefit.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/16.))+> Common experience suggests that [the defendants] stood to gain at least indirect commercial benefit from the [viewership] boost which [they] had reason to hope would (and in fact did) result from the Axanar Works. … The successful fundraising campaign leveraging the popularity of //Prelude// is an example of such indirect benefit.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/17.))
  
 == 'Not Transformative' == == 'Not Transformative' ==
-The judge also plainly declared, "The Axanar Works [//Prelude to Axanar// and //Axanar//] are not transformative,"((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/16.)) a designation key to what Axanar's attorney had argued made Peters' use of Star Trek elements fair use under U.S. copyright law.+The judge also plainly declared, "The Axanar Works [//Prelude to Axanar// and //Axanar//] are not transformative,"((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/17.)) a designation key to what Axanar's attorney had argued made Peters' use of Star Trek elements fair use under U.S. copyright law.
  
 == Mocks the Mockumentary == == Mocks the Mockumentary ==
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 Klausner was not persuaded by Ranahan's use of Wikipedia: Klausner was not persuaded by Ranahan's use of Wikipedia:
  
-> The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. Here, <wrap hi>the Court has difficulty discerning from the Axanar Works any criticism of the Star Trek Copyrighted Works</wrap>. This is not surprising since Defendants set out to create films that stay faithful to the Star Trek canon and appeal to Star Trek fans.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 11, 1/4/16.)) +> The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. Here, <wrap hi>the Court has difficulty discerning from the Axanar Works any criticism of the Star Trek Copyrighted Works</wrap>. This is not surprising since Defendants set out to create films that stay faithful to the Star Trek canon and appeal to Star Trek fans.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 11, 1/4/17.)) 
  
 === Nature of the Copyrighted Work === === Nature of the Copyrighted Work ===
-The judge found the creativity of Star Trek as expressed in 13 movies and six television series "have transported the hearts of a legion of fans to the Star Trek universe. … They are the type of works that are given broad copyright protections."((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/16.))+The judge found the creativity of Star Trek as expressed in 13 movies and six television series "have transported the hearts of a legion of fans to the Star Trek universe. … They are the type of works that are given broad copyright protections."((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/17.))
  
 === Amount Used of the Copyrighted Work === === Amount Used of the Copyrighted Work ===
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 Peters had long claimed that his use of Star Trek was minimal, far less than that used by fan films generally. The judge found this argument unavailing: Peters had long claimed that his use of Star Trek was minimal, far less than that used by fan films generally. The judge found this argument unavailing:
  
-> Copying is not excused merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked, <wrap hi>"No plagiarist can excuse the wrong by showing how much of his work he did //not// pirate</wrap>.”((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 11, 1/4/16.)) [emphasis added]+> Copying is not excused merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked, <wrap hi>"No plagiarist can excuse the wrong by showing how much of his work he did //not// pirate</wrap>.”((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 11, 1/4/17.)) [emphasis added]
  
 === Potential Market Harm === === Potential Market Harm ===
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 Klausner dismissed this line of reasoning as well: Klausner dismissed this line of reasoning as well:
  
-> This factor requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact of market substitution for the original and for derivative works.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/16.))+> This factor requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact of market substitution for the original and for derivative works.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/17.))
  
-The judge found //Prelude// was exactly the kind of derivative work to which copyright holders hold exclusive ownership, pointing to a CBS-owned Garth of Izar novel and role-playing game depicting the Battle of Axanar.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/16.))+The judge found //Prelude// was exactly the kind of derivative work to which copyright holders hold exclusive ownership, pointing to a CBS-owned Garth of Izar novel and role-playing game depicting the Battle of Axanar.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/17.))
  
 == Market Substitute == == Market Substitute ==
 Klausner also rejected Axanar's claim of no past harm because //Prelude// wasn't a finished work itself, but a promotional work intended to raise nearly $2 million for the never-produced //Axanar// feature: Klausner also rejected Axanar's claim of no past harm because //Prelude// wasn't a finished work itself, but a promotional work intended to raise nearly $2 million for the never-produced //Axanar// feature:
  
-> Prelude in that sense cannot be a market substitute of Star Trek television series or motion pictures, just as a trailer does not substitute for a feature-length film. The Axanar Motion Picture has not yet been made or released and its script is not yet released. Hence it cannot have any market impact. On the other hand, Defendants have successfully raised over a million dollars from Star Trek fans at Defendants’ prompting of funding the Axanar projects instead of “dumping hundreds or thousands of dollars a year on . . . cable channels” on which the Star Trek Copyrighted Works are shown. … He wanted to create “a whole new way that fans can get the content they want, by funding it themselves.”((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/16.))+> Prelude in that sense cannot be a market substitute of Star Trek television series or motion pictures, just as a trailer does not substitute for a feature-length film. The Axanar Motion Picture has not yet been made or released and its script is not yet released. Hence it cannot have any market impact. On the other hand, Defendants have successfully raised over a million dollars from Star Trek fans at Defendants’ prompting of funding the Axanar projects instead of “dumping hundreds or thousands of dollars a year on . . . cable channels” on which the Star Trek Copyrighted Works are shown. … He wanted to create “a whole new way that fans can get the content they want, by funding it themselves.”((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/17.))
  
 Klausner concluded that unrestricted and widespread conduct like that of Axanar would hurt the market for Star Trek: Klausner concluded that unrestricted and widespread conduct like that of Axanar would hurt the market for Star Trek:
  
-> The fact that Defendants distributed //Prelude// and the Vulcan Scene for free online and intend to likewise distribute their future works may likely increase the risk of market substitution as fans choose free content over paid features.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/16.))+> The fact that Defendants distributed //Prelude// and the Vulcan Scene for free online and intend to likewise distribute their future works may likely increase the risk of market substitution as fans choose free content over paid features.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/17.))
  
 [{{ ::way-to-eden.jpg?direct|**HEY, BROTHER** Judge Klausner's ruling refers to the Star Trek episode, "Way to Eden."}}] [{{ ::way-to-eden.jpg?direct|**HEY, BROTHER** Judge Klausner's ruling refers to the Star Trek episode, "Way to Eden."}}]
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 As he did in his May order denying the defense's motion to dismiss the case, Klausner snuck several Star Trek references into his ruling: As he did in his May order denying the defense's motion to dismiss the case, Klausner snuck several Star Trek references into his ruling:
  
-> Like many other Star Trek fans, Peters wants to make his own Star Trek production. However, <wrap hi>going where no man has gone before</wrap> in producing Star Trek fan films, Defendants sought to make “a professional production,” “with a fully professional crew, many of whom have worked on Star Trek itself,” and raised over a million dollars on crowdsourcing websites Kickstarter and Indiegogo to fund their projects.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 2, 1/4/16.))+> Like many other Star Trek fans, Peters wants to make his own Star Trek production. However, <wrap hi>going where no man has gone before</wrap> in producing Star Trek fan films, Defendants sought to make “a professional production,” “with a fully professional crew, many of whom have worked on Star Trek itself,” and raised over a million dollars on crowdsourcing websites Kickstarter and Indiegogo to fund their projects.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 2, 1/4/17.))
  
 Also: Also:
  
-> There is no dispute that Plaintiffs have ownership of caopyrights to the Star Trek Copyrighted Works, and that Defendants have access to these Works. Thus, <wrap hi>the copyright infringement claim can live long and prosper if the Axanar Works are substantially similar to the Star Trek Copyrighted Works</wrap>.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 4, 1/4/16.))+> There is no dispute that Plaintiffs have ownership of caopyrights to the Star Trek Copyrighted Works, and that Defendants have access to these Works. Thus, <wrap hi>the copyright infringement claim can live long and prosper if the Axanar Works are substantially similar to the Star Trek Copyrighted Works</wrap>.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 4, 1/4/17.))
  
 And: And:
  
-> Peters “was interested in creating alternative ways for fans to view Star Trek” – the <wrap hi>way to Eden</wrap> perhaps.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/16.))+> Peters “was interested in creating alternative ways for fans to view Star Trek” – the <wrap hi>way to Eden</wrap> perhaps.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/17.))
  
 Also, from the episode, "A Taste of Armageddon": Also, from the episode, "A Taste of Armageddon":
  
-> <wrap hi>Sometimes a feeling is all we humans have to go on</wrap>. But for substantial similarity, the law demands more. ((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 4, 1/4/16.)) \\+> <wrap hi>Sometimes a feeling is all we humans have to go on</wrap>. But for substantial similarity, the law demands more. ((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 4, 1/4/17.)) \\
 {{:axamonitor-ico.gif?nolink|}} {{:axamonitor-ico.gif?nolink|}}
  
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 **Keywords** {{tag>Lawsuit Plaintiffs Defendants Fair_Use Copyright summary_judgment}} **Keywords** {{tag>Lawsuit Plaintiffs Defendants Fair_Use Copyright summary_judgment}}