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—takedown_analysis [2017/02/20 12:22] – [The Shoe is on the Other Foot] Carlos Pedraza
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 +{{::copyright-clash.jpg|}}
  
 +<WRAP>
 +//**__Analysis__**//
 +</WRAP>
 +
 +====== The Shoe is on the Other Foot ======
 +
 +//**Following Lawsuit, Axanar Ironically Claims Copyright Protection From Fan Edit of 'Prelude'**//
 +{{TOC}}
 +<WRAP>
 +//**__ __**// <wrap lo>**By [[user>cpedraza|Carlos Pedraza]] \\ AxaMonitor Editor**</wrap>
 +</WRAP>
 +
 +<wrap lo>//Main article: [[prelude_fan_edit|Fan-Edit of 'Prelude' Eliminates Alec Peters]]//</wrap>
 +
 +After an anonymous fan of //Prelude to Axanar// posted [[prelude_fan_edit|his version]] of the short, unauthorized Star Trek film on February 15, 2017 — edited to tighten the story and replacing [[Alec Peters]]' appearance — Peters moved swiftly to have YouTube [[prelude_fan_edit|take it down]].
 +
 +That action, normally straightforward on YouTube, instead opened up a myriad of questions surrounding the legal standing of a production that itself just avoided an infringement verdict, going on to claim copyright protection for its own unauthorized work.
 +
 +===== Settlement Terms =====
 +
 +The terms of the January 20 [[axanar settles|settlement]] between Peters and the two studios suing him for copyright infringement, [[CBS]] and [[Paramount Pictures]], allowed //Prelude//, produced in 2014, to remain on YouTube so long as it was not monetized.
 +
 +So far as the settlement terms are publicly known, granting permission was a concession that did not automatically invest //Prelude// with a copyright they could defend in court.
 +
 +Indeed, Axanar agreed in the settlement to abide by the Star Trek [[cbs_guidelines|fan film guidelines]].
 +
 +<WRAP>
 +//**__‘While Axanar may hold some kind of copyright even without registration it can’t defend against infringement of any element of its work without violating the fan film guidelines.’__**// <wrap indent>— //Legal Standing//</wrap>
 +</WRAP>
 +
 +==== No Copyright Registration ====
 +
 +The [[cbs guidelines|ninth guideline]] plainly states:
 +
 +> "Creators of fan productions <wrap hi>must not seek to register their works, nor any elements of the works</wrap>, under copyright or trademark law."
 +
 +A valid takedown notice submitted to YouTube would require to be the copyright holder of //Prelude//, something that is far from legally certain.
 +
 +===== Axanar Reaction to Fan Edit =====
 +
 +In the meantime, as the entity that originally uploaded //Prelude// to YouTube, Axanar was sufficiently empowered to issue the takedown, and took advantage of that the day //Prelude: Redux// was posted.
 +
 +Following the takedown, YouTube's public notice said, "This video is no longer available due to a copyright claim by Axanar Productions, Inc. Sorry about that."
 +
 +<WRAP right round info 50%>
 +{{ ::dmca-takedown-notice.png?direct&100|}}
 +<wrap lo><wrap em>WHAT IS THE DMCA?</wrap> \\
 +The [[wp>Digital_Millennium_Copyright_Act|Digital Millennium Copyright Act]] of 1996 was a revision of U.S. copyright law since the advent of the internet. Under its "safe harbor" provision websites like YouTube that host potentially infringing user-generated content are safe from legal action by copyright holders if they agree to take down infringing videos upon request. Learn more about this controversial law from this excellent article at [[https://www.plagiarismtoday.com/2013/09/24/dmca-safe-harbor-changing/|Plagiarism Today]].</wrap>
 +</WRAP>
 +
 +Contacted soon after the fan edit was posted, Axanar spokesman Mike Bawden told **AxaMonitor** pursuing a fan edit would move Axanar's focus away from its ostensible goal — producing //Axanar// as a short film to partially fulfill its obligations to the donors who forked over the $1.4 million Peters completely spent by the past year:
 +
 +> Quite honestly, I’m encouraging everyone to move along and continue with the planning required to produce the two fifteen-minute segments we’re allowed to produce to tell the story of //Axanar//, so I can’t say anyone is going to do anything about this.((Email from Mike Bawden to AxaMonitor editor Carlos Pedraza, 2/15/17.))
 +
 +Peters' takedown appeared to go against the advice of Bawden, his public relations director. Following the takedown, **AxaMonitor** asked Bawden whether the action went against Axanar's agreement to abide by the guidelines.
 +
 +Bawden did not respond.
 +
 +<wrap lo>//See also: [[prelude_fan_edit#watch here|Where to Watch 'Prelude to Axanar: Redux']]//</wrap>
 +
 +Since the takedown, others tried re-posting //Prelude: Redux// on YouTube. Each one received a takedown notice. The version posted by Australia's TrekZone.org remained online at its own website, away from YouTube's policy and the U.S. copyright law, the Digital Millennium Copyright Act (DMCA), under which Axanar issued the takedowns.
 +
 +[{{ ::phantom-edit.jpg?300|**THE PHANTOM EDIT** is perhaps the best known fan edit. It condenses the 415-minute long Star Wars prequels into a single two-hour edition. <wrap lo>//Image/The Escapist//</wrap>}}]
 +
 +==== History of Fan Edits ====
 +
 +Axanar, which often touts itself as a representative of fandom, appeared unaware of the long tradition of [[wp>fan edit|fan edits]] of much-loved (or maligned) films. 
 +
 +> Before the term "fan edit" was coined, many "alternate versions" of films edited by other fans or professional editors were simply known as a "cut." In the late 1970s, many alternate "cuts" of films were released in the United States, and foreign films (such as those from Europe or Japan) deemed unsuitable for American audiences underwent further alterations, score changes and re-titlings. Also fan translation (fandubs or fansubs) of anime is similar in spirit to fan edits.(([[wp>fan edit|Wikipedia, "Fan Edit]], retrieved 2/17/17.))
 +
 +Admittedly, the legal status of fan edits is unclear under copyright law. Fan editors claim [[#fair use analysis|fair use]] (just as Axanar did to justify making //Prelude// in the first place) because a fan edit "removes, reorders, or adds material in order to create a new interpretation of the source material," — the same transformativeness argument used by Axanar.
 +
 +===== Can Axanar Claim 'Prelude' Copyright? =====
 +
 +Unlike CBS, Paramount, Lucasfilm and Disney, have for their works, Axanar's lack of a clear copyright hold on //Prelude// may impair its attempt to defend the film from such things as fan edits. According to Atlanta attorney Michael K. Stewart:
 +
 +> Axanar does have a copyright in this film, at least in the original elements that they contributed. Even though it may be an unauthorized derivative work, the creator of the unauthorized derivative work still owns the copyright in it — even though the overall work may be infringing and he doesn't gain any rights into the pre-existing material he incorporated into the work. The myth that if you create an unauthorized derivative work, the copyright in that work is automatically owned by the party whose you infringed is just that — a myth.
 +
 +{{ :cut_peters_200px.jpg?direct|}}
 +
 +And while Guideline No. 9 prohibits Axanar from //registering// a copyright for //Prelude//, that doesn't mean Peters had no copyright, Stewart added:
 +
 +> Under the law, you can have a perfectly valid copyright without registering it. Registering it is especially problematic for the studios because not only does it put the claim of copyright on record, but it is a prerequisite to filing a copyright infringement lawsuit.
 +
 +But without the registration, how could Axanar defend //Prelude// in court? Some legal observers argue that the case of //Anderson v. Stallone// (1989) holds that Axanar has no defensible copyright interest in its film.
 +
 +==== The Anderson Case ====
 +
 +The Anderson case was a copyright infringement lawsuit against Sylvester Stallone, MGM, and other parties over a script for Stallone's film //Rocky IV//. This script written by Timothy Anderson was unsolicited and unauthorized, a key fact that led to a decision in favor of Stallone, et al., in federal court. 
 +
 +It was strikingly clear to the Court that Anderson's work was a derivative work; that under 17 U.S.C. section 106(2) derivative works are the exclusive privilege of the copyright holder (Stallone, in this case); and that since Anderson's work is unauthorized, no part of it can be given protection.(([[wp>Anderson_v._Stallone|Wikipedia, "Anderson v. Stallone"]], retrieved 2/18/17.))
 +
 +<WRAP>
 +//**__« This is consequently a higher stakes game … because the rightsholder does not have a cheap and fast way to keep the video down, short of suing you. »__**// <wrap indent>//— Electronic Frontier Foundation//</wrap>
 +</WRAP>
 +
 +Stewart called //Anderson//, which was ultimately settled pending appeal, an "outlier case that, to my knowledge has not been followed. … I am aware of no other case where the fact that the work was an unauthorized derivative work deprived the entire work of any and all protection." That position appeared to agree with the U.S. Copyright Office's take: 
 +
 +> In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any //part// of the work in which such material has been used unlawfully.(([[https://www.copyright.gov/circs/circ14.pdf|U.S. Copyright Office Circular 14]], p. 2, retrieved 2/16/17.))
 +
 +The Copyright Office then goes on to note that the creation of the unauthorized derivative work may nonetheless be an infringement.
 +
 +=== Murky Issue ===
 +
 +Stewart called the protectability "a murky issue," given possibly contradictory notions in //Anderson//, the copyright statute itself, and legislative comments on the statute (which are not binding as law but courts often use them to interpret the statute) using a different standard, turning on whether the underlying work was used "lawfully", not where it was "authorized". 
 +
 +When based on the "lawful" standard, "the creator of the derivative work would appear to own the copyright in his original portions even if the work was completely unauthorized," Stewart observed. "Lawfulness, for example, could be satisfied by a finding of [[fair use]]."
 +
 +<WRAP right round info 50%>
 +<WRAP>
 +//**__<wrap lo>Takedowns Failed Before</wrap>__**//
 +</WRAP>
 +<wrap lo>Axanar has not been successful with earlier efforts to take down videos it didn't want the public to see: It tried to takedown its [[yout>zThnJgj-k1Q|"Vulcan Scene"]] and [[axanar_trailer|criticized trailers]] that were posted on YouTube and Facebook. Axanar pulled the Vulcan Scene from public view shortly after the [[copyright infringement]] [[lawsuit]] was filed against it. After the Vulcan Scene was re-posted on YouTube, Axanar issued a takedown notice that was successfully challenged.</wrap>
 +</WRAP>
 +
 +He concluded, "The law is really, really unclear on this point."
 +
 +===== Legal Standing =====
 +
 +It is clear, however, that copyright registration is a prerequisite to defending copyrights in court. So then how could Axanar pursue a takedown to its logical conclusion — a lawsuit defending its copyright under the DMCA — if the guidelines by which Peters agreed to abide preclude registration? So while Axanar may hold some kind of copyright even without registration it can't defend against infringement of any element of its work without controverting Guideline No. 9.
 +
 +==== Challenging the Takedown ====
 +
 +If Axanar is indeed precluded from defending its copyright in court because of its settlement agreement to adhere to the guidelines, the fan editor of //Prelude// — and anyone else posting the //Redux// — has a case under the DMCA for challenging Axanar's takedown notice.
 +
 +<WRAP rightalign>
 +{{::dmca_guide.jpg|}}\\
 +<wrap lo><wrap lo>//Graphic/Electronic Frontier Foundation//</wrap></wrap>
 +</WRAP>
 +
 +=== Filing a Counter-Notice ===
 +
 +According to the Electronic Frontier Foundation, people who have had content taken down can submit a "counter-notice," a statement under penalty of perjury that the "material was removed or disabled as a result of a mistake or misidentification," and consenting to the jurisdiction of the poster's local federal court in case the rightsholder decides to sue.(([[https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals|"A Guide to YouTube Removals," Electronic Frontier Foundation]], retrieved 2/18/17.))
 +
 +=== Two-Week Ticking Clock ===
 +
 +The fan editor and other posters of //Prelude: Redux// told **AxaMonitor** they have filed counter-notices, giving Axanar only two weeks to file a copyright infringement lawsuit against them. If Axanar did not, YouTube can restore the video. If Axanar elected to sue, //Redux// would remain removed until the lawsuit is resolved.(([[https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals|"A Guide to YouTube Removals," Electronic Frontier Foundation]], retrieved 2/18/17.))
 +
 +"This is consequently a higher stakes game … because the rightsholder does not have a cheap and fast way to keep the video down, short of suing you," the EFF noted.
 +==== Can Axanar Sue? ====
 +
 +Therefore, if Guideline No. 9's prohibition against registering for copyright indeed applied to //Prelude//, then Axanar would be barred from suing for copyright infringement and the video would be eligible for posting once more on YouTube.
 +
 +It remained to be seen whether CBS or Paramount planned to take any action with regard to Axanar's copyright claim over //Prelude//, or whether the claim violates the settlement, of which most terms remain private by mutual consent of the plaintiffs and defendants.
 +
 +<WRAP tip>
 +[{{ :prelude-redux.jpg?300|**REDUX** An altered //Prelude// scene in the fan-edit taken down from YouTube.}}]
 +
 +===== Fair Use Analysis =====
 +
 +<wrap lo>As it turned out for Axanar in its lawsuit, a federal judge rejected its argument that //Prelude// made [[fair use]] of Star Trek copyrights. How well would //Prelude: Redux// fare under the same kind of analysis? The EFF sums up that analysis under the following questions,(([[https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals|"A Guide to YouTube Removals," Electronic Frontier Foundation]], retrieved 2/18/17.)) each followed by the fan editor's likely stance. \\ \\
 +**Is the video transformative? Is it non-commercial?** \\
 +The fan editor would say yes to first under the theory that his cut comments on the original work and transforms it into a new interpretation. Posted for free on YouTube, and free of any surrounding commercial endeavors based on the work — which severely weakened Axanar's own case — //Redux// would likely be found non-commercial.
 +\\ \\
 +**Is the video a substitute for the original? Would people still want to buy the original after seeing the video?** \\
 +Axanar could certainly argue the intent of the fan edit is precisely to substitute for the original. But Axanar is prohibited under the settlement from ever selling copies of //Prelude//, therefore there is no market  in which to substitute. The fan editor could, however, do a better job of identifying //Redux// with the body of the fan edit as clearly //not// the original //Prelude//, rather than just in the description of the work.
 +\\ \\
 +**How much of the original work did the fan editor take, both quantitatively and qualitatively?** \\
 +//Redux// would not fare so well under this examination since it uses nearly all of the original work, shaving off four minutes from //Prelude//, and adding a small amount of additional material.
 +\\ \\
 +**Was the purpose of his use non-commercial, educational, for the purpose of research?** \\
 +Already established as non-commercial, //Redux//'s editor could make a case that he undertook the project purely as an educational exercise, to comment upon the original and to encourage others to learn through the comparison of the two versions.
 +\\ \\
 +**If the fan editor's use were to become widespread, would it harm the market for or value of the original work?** \\
 +Since Axanar had already agreed never to monetize //Prelude// the film has no economic or market value likely to be affected this or any other fan edit. {{:axamonitor-ico.gif?nolink|}}</wrap>
 +</WRAP>
 +
 +<WRAP tip 75%>
 +<wrap em>COMMENTS</wrap> \\
 +Discuss this article in [[face>groups/axamonitor/permalink/148994902282032/|AxaMonitor's Facebook group]].
 +</WRAP>
 +
 +----
 +**Keywords** {{tag>copyright fair_use Prelude}}