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knowing_infringement [2016/04/07 02:19] – Carlos Pedrazaknowing_infringement [2018/03/06 09:39] (current) – [Minimizing Damages] adds tags Carlos Pedraza
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 +<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? ====== ====== Knowing Infringement? ======
-<WRAP right round alert 60%> +{{TOC}} 
-<wrap em>DRAFT</wrap> This article is currently being drafted. You should not rely on it until this notice is removed.+<WRAP> 
 +//**__ __**// <wrap lo>**By [[user>cpedraza|Carlos Pedraza]]**</wrap>
 </WRAP> </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.+<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." "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."
  
-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.+[{{ ::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> > 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>
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 [{{ ::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.}}] [{{ ::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 of, but copyrighted by, Paramount Pictures.(([[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.))+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.  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. 
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   * 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.   * 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.
  
-<WRAP todo> +===== How to Prove Infringement =====
-[[http://www.trekbbs.com/threads/cbs-paramount-sues-to-stop-axanar.278077/page-692#post-11531566|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.+According to the American Bar Association, CBS and Paramount need to prove Axanar's copyright infringement via:
  
-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. +<WRAP right round important 50%> 
- +<wrap lo>Note: Burnett was not named a defendant in the case. //See also: [[does|The Unnamed Defendants]]//</wrap> 
-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>
- +
-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:+  * 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.))
  
-i. The defendant had access to your copyrighted work, and+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 =====
  
-ii. The defendant’s work is “substantially similar” to your work.+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.))
  
-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.+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:
  
-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.+> 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.))
  
-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's podcast comments may cast doubt on the defense's ability to demonstrate ignorance. {{:axamonitor-ico.gif?nolink|}}
  
-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}}