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Knowing Infringement?
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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.
“We knew… we don’t own Star Trek. We know that,” Burnett told the host of the Blind Panels podcast. “We’re making a movie set in the Star Trek universe.”
In that interview, Burnett started out striving to contrast Axanar’s approach to the infringing nature of fan films with the way other fan films’ do 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, you know you’re not watching real Star Trek.1) [emphasis added]
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 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.2) [emphasis added]
So while this approach may sound like an attempt to create a new, transformative work — a fair use defense agains the copyright infringement of which Axanar is accused3) — Burnett said in the same interview that the heart of his film’s story, the fabled Battle of Axanar relied on another Paramount-copyrighted Star Trek work, the role-playing game sourcebook, “The Four Years War.”4)
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 for the Axanar film.
That book was published by FASA Corp. in 1986 under license of, but copyrighted by, Paramount Pictures.5), alongside a scenario book, “Return to Axanar.”6)
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.”7)
Two things about copyright infringment stood out in Axanar’s second Motion to Dismiss the copyright infringement lawsuit brought against it by CBS Studios and Paramount Pictures:
- Knowing, willful infringement. Star Trek copyrights too complex side-by-side comparisons
- Paramount has no standing
You want an even more explicit breakdown of how far and wide an expedition Axanar made into Star Trek’s intellectual property, how knowing and willful the infringement was?
Does that seem to comport with the notion advanced in the defense’s motion to dismiss that the Star Trek universe was simply too complex for its producer, writers and director to navigate with regard to copyright?
Instead, copyright fans, what you hear Rob Burnett describe might well be the recipe for building a derivative work, substantially similar to the works upon which it’s infringing.
From TrekBBS user mkstewartesq
Here’s why the nit-picky “no element of Star Trek cited by the Plaintiffs is copyrightable” is a bust of an argument from a legal perspective.
1. First, you have to start with the “idea-expression dichotomy” embodied in the U.S. Copyright Act (17 USC 102(b).) In short, no one can claim a copyright in an idea; ideas are free for everyone to use. However, the particular way one person expresses an idea – the creative choices he or she makes to express an idea– is protectable by copyright.
2. Next, let’s look at things from the other end – how a plaintiff proves that his or her copyright is infringed and wins the case. There are two ways – through “direct evidence” of copying and, where there is no direct proof, by circumstantial evidence of copying:
a. “Direct evidence” – believe it or not, this is actually pretty strict – you really need a confession by a person that he copies, or a photo of them engaged in the act of copying etc. Such direct evidence is actually rare.
b. “Circumstantial evidence” - When you don’t have “direct evidence”, the law allows you to raise an inference that copying occurred through circumstantial evidence if you show two things:
i. The defendant had access to your copyrighted work, and
ii. The defendant’s work is “substantially similar” to your work.
You get the drift? Even without any direct evidence of copying, the law will let you prove your case if you can show its more likely than not the defendant copied your work because he or she was exposed to your work in some way and came up with something substantially similar to it – the idea being that it beggars the imagination that it could only be sheer coincidence that their work was so similar to your work. In the present case, it’s clear SuperStarTrekFan Alec had access to the Star Trek works , and the work he has/is/might-maybe-someday-create is substantially similar to Star Trek.
Unfortunately, the inquiry doesn’t end there. Plaintiff only wins if he can show that the “substantial similarity” arises from copying of the copyrightable elements of his work. Since anyone is free to use ideas or uncopyrightable material, there is no infringement unless something that is proprietary to the Plaintiff is copied.
So this is the basis for Ranahan’s breaking everything down to its most basic level and point-by-point claiming each constitutent part is unprotectable. “You say we copied the word ‘Vulcan’? ‘Vulcan is a god’s name.” “You say we copied pointy ears? Wombats have pointy ears.” In short, she’s trying to state that any similarities are due to unprotectable elements. But I know you all get that.
But here’s the rub, and the fallacy in her argument, and why I think it will ultimately go down in flames. The law recognizes that “copyrightable expression” is by definition made up of a combination of uncopyrightable components. In fact, that’s what “copyrightable expression” is – the specific, creative way that one person chooses to combine those uncopyrightable components to express an idea. Let’s face it – it’s black letter law that single words and short phrases are not copyrightable. But a novel – which consists of nothing more than a creative combination of uncopyrightable words and phrases – is 100% copyrightable. Same thing for music – single notes are not copyrightable and there are only twelve notes in the entire (Western) musical scale – but there are thousands of creative combinations of those notes, and thousands of copyrighted songs. Thousands of different ways of expression, all built from the same public-domain pieces. It’s the choices and combinations that are copyrightable.
3)
needs citation
5)
Memory Beta wiki, "The Four Years War," retrieved 4/6/16.
6)
Memory Beta wiki, "Return to Axanar," retrieved 4/7/16.
7)
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.