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knowing_infringement [2016/04/07 01:42] – Carlos Pedraza | knowing_infringement [2018/03/06 09:39] (current) – [Minimizing Damages] adds tags Carlos Pedraza | ||
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====== Knowing Infringement? | ====== 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. | + | <wrap lo>// |
+ | See also: [[Motion to dismiss]] and [[burnett_resigns|Director Burnett Resigns from Axanar]] and [[hunt_resigns|Axanar Co-Writer Announces Departure]]//</ | ||
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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, 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:// | "We knew… we don’t own Star Trek. We know that," Burnett told the host of the [[http:// | ||
- | In that interview, Burnett | + | [{{ :: |
+ | |||
+ | In that interview, Burnett | ||
> 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.</ | > 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.</ | ||
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> 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.</ | > 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.</ | ||
- | So while this approach may sound like an attempt to create a new, transformative work — a fair use defense | + | So while this approach may sound like an attempt to create a new, transformative work — a fair use defense |
- | [{{ :: | + | [{{ :: |
- | That book was published by FASA Corp. in 1986 under license | + | That book was published by FASA Corp. in 1986 under license by Paramount Pictures, which still owns the copyright,(([[http:// |
- | Courts have distinguished infringing derivative works from transforming fair use by requiring that the new work must “supersede | + | The FASA books portrayed |
- | Two things about [[copyright infringment]] stood out in Axanar' | + | ===== Is 'Axanar' Transformative? |
+ | Despite director Burnett' | ||
- | * Knowing, willful infringement. Star Trek copyrights too complex | + | > //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:// |
- | * 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 | + | In their firm' |
- | Does that seem to comport | + | So in their own pitch to fans who gave Axanar more than $1.3 million, Peters and Burnett were not proposing something transformative, |
- | Instead, copyright fans, what you hear Rob Burnett describe might well be the recipe for building a derivative work, substantially similar | + | {{section> |
- | <WRAP todo> | + | Burnett' |
- | [[http:// | + | * Star Trek's copyrights were too complex for the defendants (self-described as among "the biggest Star Trek fans in the world," |
+ | * 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' | ||
- | 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. | + | ===== How to Prove Infringement ===== |
- | 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. | + | According |
- | 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: | + | <WRAP right round important 50%> |
- | + | <wrap lo>Note: Burnett was not named a defendant in the case. //See also: [[does|The Unnamed Defendants]]//</ | |
- | 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 | + | * Direct |
+ | * Circumstantial evidence — Plaintiffs need to demonstrate the defendants had access to the copyrighted work, and that the defendants' | ||
- | i. The defendant had access to your copyrighted | + | However, Burnett' |
+ | ===== Minimizing Damages ===== | ||
- | ii. The defendant’s work is “substantially similar” | + | Writing for the news site, TrekMovie.com, attorney Susan Kayler, who founded the Artists and Writers Legal Resource Center, took issue with the defense' |
- | You get the drift? Even without any direct evidence | + | More likely, Kayler writes, |
- | 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 | + | > The motion, in part, is defendant’s attempt to claim ignorance and therefore avoid “willfulness” and higher damages.(([[http:// |
- | 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. | + | Again, Burnett' |
- | 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. | + | ---- |
- | </WRAP> | + | **Keywords** {{tag>copyright defendants players}} |