A copyright infringement battle of intergalactic proportions between Plaintiffs CBS and Paramount Pictures, and the company (along with its principal Alec Peters) looking to produce the crowdfunded Star Trek fan film Axanar (“Defendants”) is heating up. The parties have filed numerous motions in the past month, and the Court’s recent ruling on the parties’ motions for summary judgment means the case is inching closer and closer to its January 31 trial date.
Plaintiffs filed the lawsuit in December 2015 and amended their complaint in March 2016, alleging copyright infringement, contributory copyright infringement, and vicarious copyright infringement, (17 U.S.C. §§ 101, et seq.), and seeking a declaratory judgment, (28 U.S.C. § 2201 & 28 U.S.C. § 2202). CBS owns copyrights in the Star Trek television series, the first of which debuted in 1966 (“The Original Series”), while Paramount owns copyrights in Star Trek’s movies. Both companies allege that the Defendants’ (a) 20-minute short film entitled Star Trek: Prelude to Axanar, (b) written script for a feature film, and (c) current production of the Axanar film (collectively, “Axanar Works”) are “substantially similar” to Plaintiffs’ copyrighted works and infringes on their copyrights by lifting protectable elements such as the United Federation of Planets, “beaming up,” Klingons, Vulcans, the Starship Enterprise, and spacedocks. Overall, the Amended Complaint identifies over 50 instances of infringement.
In May 2016, fans of the Axanar film breathed a sigh of relief when J.J. Abrams, who directed Star Trek (2009) and produced Star Trek: Beyond (2016), stated at a fan event that at his and Justin Lin’s (Beyond’s director) urging the lawsuit would be dropped. That didn’t happen. Instead, CBS and Paramount ramped up the litigation.
While Star Trek fan films are by no means a recent phenomenon, this particular one is of a new breed. Axanar is intended to serve as a prequel to events that transpired during The Original Series, focusing on Captain Kirk’s hero Garth of Izar and his victory in the Battle of Axanar. Unlike prior fan films, Defendants have raised over $1 million through Kickstarter and Indiegogo to produce a “professional” quality film “with a fully professional crew, many of whom have worked on Star Trek itself.” A dream come true for Trekkies, but a nightmare, I’m sure, for Plaintiffs, especially because Axanar doesn’t even come close to complying with Plaintiffs’ 10 guidelines for production of “amateur” Star Trek fan films (e.g., “creators, actors and all other participants must be amateurs, [and] cannot be compensated for their services”).
Both parties are actively engaged in the fine art of zealous advocacy as they propel themselves closer to trial. Earlier this month, the Court issued an opinion and order denying the parties’ cross-motions for summary judgment. As a preliminary matter, the Court rejected Defendants’ argument that the lawsuit is premature because the film has not been completed, for the same reasons expressed in its prior decision denying Defendants’ motion to dismiss. The Court then concluded that the “Axanar Works have objective substantial similarity to the Star Trek Copyrighted Works,” and therefore it “leaves the question of subjective substantial similarity to the jury.” In so doing, the Court concluded that the character Garth of Izar and the species Klingons and Vulcans may be entitled to copyright protection.
Critically for purposes of trial, the Court evaluated the four factors that courts use to determine whether fair use may exist (17 U.S.C. § 107) and held that Defendants are not entitled to a fair use defense. Generally speaking, the fair use (affirmative) defense allows a defendant to establish that although its use of a copyrighted work might technically be infringing, the infringement is excused under the circumstances because the defendant’s work is being used for a “transformative” purpose (e.g., research, scholarship, criticism, journalism). The Court didn’t buy it. According to the Court, all four factors weigh in Plaintiffs’ favor, from the purpose and character of the infringing use to the effect of the use upon the potential market. The Court also found that the Axanar Works’ mockumentary style of production does not constitute a legally protectable form of parody because Defendants’ works do not adequately criticize Plaintiffs’ copyrighted works.
In wrapping up its opinion, the Court further held that it would be inappropriate to find on summary judgment that Mr. Peters’ conduct at issue was willful, but sufficient evidence exists to allow Plaintiffs’ claims of contributory and vicarious infringement against Mr. Peters to proceed to trial.
On January 9, 2017, the Court ordered the parties to submit a joint statement of the case by January 30, 2017, and issued its tentative rulings on the parties’ several motions in limine.
- MOTION IN LIMINE (#1) to Exclude Altered Financial Statement And Its Contents, Or Any Of The Post-Litigation Transactions Reflected Therein. DENIED
- MOTION IN LIMINE (#2) to Exclude Scripts Created After The Litigation Was Filed And Testimony Discussing Them. GRANTED.
- MOTION IN LIMINE (#3) to Exclude Testimony Or Documents By J.J. Abrams And Justin Lin And Their Public Statements, Or Anything Related To Their Public Statements Or Documents Regarding This Matter. GRANTED.
- MOTION IN LIMINE (#4) to Exclude Testimony Or Documents By Reece Watkins. GRANTED.
- MOTION IN LIMINE (#5) to Exclude Testimony And Documents Of Jonathan Lane. GRANTED.
- MOTION IN LIMINE (#6) to Exclude Testimony And Documents Regarding Star Trek Fan Films. UNDER SUBMISSION.
- MOTION IN LIMINE (#7) to Exclude Testimony And Documents Discussing Peters Unrelated Work Regarding Star Trek Props. GRANTED.
- MOTION IN LIMINE (#8) to Exclude All Testimony, Documents Or Other Evidence Made Or Created After The Filing Of The Original Complaint In This Litigation. GRANTED.
- MOTION IN LIMINE (#9) to Exclude The Testimony Of Christian Tregillis. DENIED
- MOTION IN LIMINE (#10) to Exclude Testimony of Henry Jenkins.GRANTED.
- MOTION IN LIMINE (#1) to Preclude Plaintiffs from Relying on Evidence Concerning Alleged Discovery Violation. GRANTED.
- MOTION IN LIMINE (#2) to Preclude Plaintiffs from Relying on Evidence That Was Not Timely Disclosed Under The Court’s Scheduling Order. DENIED
- MOTION IN LIMINE (#3) to Preclude Plaintiffs from Introducing Evidence Regarding Allegedly Infringed Works Not Identified in the First Amended Complaint. GRANTED.
- MOTION IN LIMINE (#4) to Preclude Plaintiffs From Relying on Evidence Regarding Items that are Unoriginal, In the Public Domain, or From Third Parties. GRANTED.
- MOTION IN LIMINE (#5) to Preclude Plaintiffs From Relying on Evidence Concerning Personal Drama, Smear Campaign, and Other Irrelevant Communications, Including Witnesses Christian Gossett, Terry McIntosh. GRANTED.
- MOTION IN LIMINE (#6) to Preclude Plaintiffs From Referring to Irrelevant Superseded Scripts. GRANTED.
- MOTION IN LIMINE (#7) to Preclude Introduction or Mention of Certain of Defendants’ Financial Information and Inaccurate Reference To “Profits” Defendants Allegedly Earned. DENIED
- MOTION IN LIMINE (#8) to Exclude Any Evidence, Testimony, or Argument Regarding Defendants’ Use of the Name “Star Trek.” DENIED
- MOTION IN LIMINE (#9) to Preclude Plaintiffs From Referencing The Quality of Defendants’ Works. GRANTED.
Interestingly, if the Court does not change its rulings, the Defendants will not be able to introduce Abrams’s or Lin’s public comments about Axanar and Plaintiffs will be allowed to introduce evidence and testimony of Defendants’ use of the name “Star Trek.” The Court hasn’t decided whether testimony and documents regarding fan films will be exclude from trial.
While it looks like the case will be tried at the end of this month, there is no guarantee that it will be. The vast majority of civil cases settle before trial. The court docket shows that the parties attended a settlement conference before the Court’s Magistrate Judge in October 2016, and appeared for two or three telephonic settlement conferences in November 2016. Although it is not uncommon for parties to stoke the fires of litigation by filing motions and prolonging settlement negotiations before settling on the eve of trial, this one feels a little different given the weight of the Trekkie fan base wishing to see the Defendants achieve victory in what has become the real-life Battle of Axanar.