Pre-kill

Garth of Izar

And once again, resistance to Eriq Gardner is futile — his piece, linked to in the tweet embedded below, tells the whole story with his characteristically lucid prose and complete grasp of the legal issues in this hot decision out of the Central District of California:

But fair use still lives here!  So while you have to read Eriq’s piece to really get this story about a would-be fan-fiction “prequel” that seems pretty clearly to have gone too far, I’ll steal just as much of it as I can get away with, as usual.

Mind you, I usually find that the problem is the other way around, i.e., that owners of IP equity are all too quick to come down against their own fans in a shortsighted effort to control and monetize everything, always in every way — and judges (especially in California) are all to quick to help them.

This, on the other hand — here is the Anaxar website (at least for now) — is clearly more than a bit much, given that the legal issues raised here do not seem to require judges to go where no judge has gone before:

Paramount Pictures and CBS have scored major successes in their copyright lawsuit over Axanar, a 20-minute YouTube video and a proposed feature-length version touted as a professional-quality Star Trek fan film.

But a California federal judge Wednesday stopped short of declaring the Star Trek rights holders the victors in the closely followed case, reserving for a jury the key question of whether the works would be seen by lay people as substantially similar to older Star Trek films and TV shows.

The lawsuit was filed almost exactly a year ago after Alec Peters’ Axanar Productions aimed to raise more than $1 million on Kickstarter for a prequel to the 1960s Gene Roddenberry series. Peters’ work focused on Garth of Izar, an obscure character who appeared in a 1969 episode. Scripts were prepared for a film to be set around the Four Years War between the United Federation of Planets and the Klingon Empire.

Last May, the case survived a motion to dismiss and began drawing attention to whether Paramount and CBS could take ownership of everything from “pointy ears” to the Klingon language, especially in light of many fan-made works that have been permitted through the years without controversy. Despite some hopes expressed by Star Trek Beyond director Justin Lin that all this would go away, Paramount and CBS marched forward, and the parties each delivered summary judgment motions.

On Wednesday, U.S. District Court Judge R. Gary Klausner released his much anticipated opinion (read in full here).

Read and learn, now, from the opinion (citations omitted):

In the Ninth Circuit, the substantial similarity analysis involves an objective extrinsic test and a subjective intrinsic test. The intrinsic test determines whether the “ordinary, reasonable person would find the total concept and feel of the [two works] to be substantially similar.” Sometimes a feeling is all we humans have to go on. But for substantial similarity, the law demands more. “The extrinsic test considers whether two works share a [substantial] similarity of ideas and expression as measured by external, objective criteria” – in a Vulcan-like manner. Id. at 845. For summary judgment, if the court concludes that the two works are substantially similar under the extrinsic test, the intrinsic test “must be left to the jury.”  If the court does not find substantial similarity under the extrinsic test, summary judgment for the defendant is appropriate. Thus, the Court will perform the extrinsic test, starting with an analysis of whether Defendants used copyright protected elements from the Star Trek Copyrighted Works.

To perform the extrinsic test, the court dissects the works down to their constituent elements, filters out and disregards unprotectable elements in the copyrighted work, and compares the protectable elements with their counterparts in the allegedly infringing work “for proof of copying as measured by substantial similarity.”  The dissecting and filtering steps are necessary because not all expressions in a copyrighted work are protectable since copyright only protects “original works of authorship.” 17 U.S.C. § 102. The two steps are used “to determine the scope of copyright protection before [the] works are considered as a whole” in the comparison step. Thus, the court should not overzealously disregard unprotectable elements and “blind [itself] to the expressiveness of their ensemble.” Indeed, “a combination of unprotectable elements is eligible for copyright protection . . . if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” The extrinsic test examines “specific expressive elements[:] the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in [the] two works” to determine if “articulable similarities” exist.


After a detailed analysis, the court mostly rules in Paramount’s favor, as Eriq explains:

“Under the extrinsic test, the Axanar Works are substantially similar to the Star Trek Copyrighted Works,” writes Klausner. “This conclusion finds strong support in Defendants’ intent for the Axanar Works. ‘Defendants expressly set out to create an authentic and independent Star Trek film that [stayed] true to Star Trek canon down to excruciating details.'”

But that doesn’t end the dispute because under the second part of the copyright analysis, the so-called intrinsic test that asks whether an ordinary, reasonable person would find the total concept and feel of the works to be substantially similar, the judge finds that a jury will best answer this. Thus, he denies the summary judgment motion made by CBS and Paramount.

And fair use?  Fairly impossible. The court considered the four fair use factors set out by  17 U.S.C. § 107  —

  1. the purpose and character of your use
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion taken, and
  4. the effect of the use upon the potential market

— and it wasn’t pretty.

Regarding factor (1), the court noted that  “Defendants want the Axanar Works to supplant the Star Trek Copyrighted Works. . . . “creating alternative ways for fans to view Star Trek . . . a whole new way that fans can get the content they want, by funding it themselves.” Ouch.  Unsurprisingly, the parody play didn’t fly either.

The court had no trouble making short work of (2) “the nature of the copyrighted work,” noting that “The creativity in these Works and their status as published works are not disputed.”

As to (3), “the amount and substantiality of the portion taken,” the court found that

Defendants intentionally use elements from the Star Trek Copyrighted Works to create works that stay true to Star Trek canon down to excruciating details. . . . The elements from the Star Trek Copyrighted Works that Defendants use are qualitatively important because they give the Axanar Works the Star Trek feel and enable Defendants to stay true to the Star Trek canon. Thus, the third factor weighs in favor of Plaintiffs as well.

Finally, with respect to (4) “the effect of the use upon the potential market,” the court found it obvious that Axanar’s project had the potential to subsume a similar prequel that might be produced by Paramount.  All four factors going Paramount’s way, fair use stood no more chance at surviving than a Red Shirt.

On the other hand, the Axanar folks did survive Paramount’s summary judgment motion, which, given their posture, has to be considered something.  The court also denied Paramount’s request for a preliminary injunction because “the jury must determine issue of subjective substantial similarity for a finding of copyright infringement.”

That’s not for nothing, considering the rest of the opinion.  It’s quite something, in fact.

It’s the kind of something, in a context such as this one, that judges sometimes put in place to promote settlement.  So I suppose the parties have to look at the odds of putting everything on the line via a jury trial and ask, What would Garth do?

 

Ron Coleman

2 Replies to “Pre-kill

  1. Trivia question (no looking it up!): What is the name of the actor who portrayed Garth (whose promising career was cut short by his death at a sadly early age); and for a bonus, in what cop film did he play a killer doggedly pursued by Richard Widmark in the title role?

  2. Is it wrong that I’m irritated with this case? I’m usually sympathetic with the fair use argument, but the Axanar case really seems like a blatant attempt to grab somebody else’s IP.

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