Will 'Star Trek' Fan Film Live Long and Prosper?

LOS ANGELES www.dailyjournal.com THURSDAY, MAY 19, 2016 PERSPECTIVE Will ‘Star Trek’ fan film live long and prosper? By Todd Bonder Gene Roddenberry. For those works, a viable defense, Paramount and including “Axanar,” the right granted CBS’s case against the producers of ith the salacious Sumner exclusively to copyright owners to “Star Trek: Axanar” might turn on Redstone soap opera hav- control the making and distribution how much material entitled to copy- Wing now played itself out of works derivative of the original right protection the producers borrow in Los Angeles probate court, anoth- makes things more problematic. from the original. Were the charac- er Viacom-related courtroom drama The 1976 Copyright Act identifies ters that “Star Trek: Axanar” plucked is airing up the street in federal court. six illustrative purposes — “crit- from the authorized works sufficient- Having been stunned, first by Viacom’s icism, comment, news reporting, ly developed to enjoy copyright pro- Paramount and CBS Studios firing off teaching (including multiple copies tection? Is the expression of the pro- a lawsuit for copyright infringement, for classroom use), scholarship or re- tectable traits of such characters as search” — that are typically fair uses, well as of other elements such as the followed by the district court’s denial, Shutterstock with phaser-like precision, of their mo- and lists four non-exclusive factors to depictions of Vulcans and Klingons, tion to dismiss, the creators of the $1 be considered when making the case- purpose or character than the origi- at least substantially similar? And million Kickstarter-funded “Star Trek: by-case determination of whether a nal, thereby altering the underlying what about the visual depiction of the Axanar” face an uncertain future. Is particular use qualifies as “fair.” work with what amounts to new starship Enterprise? (Unless specific resistance futile? Or will “Star Trek: meaning or message. As the Supreme phrases are repeated virtually verba- Axanar” and its producers live long With fair use in all likelihood Court stated, the investigation to be tim, a claim of infringement by use and prosper? not a viable defense, Para- conducted under the first fair use of Klingon language appears to be a Betting on the latter outcome stretch.) mount and CBS’s case against factor is “whether and to what extent would be illogical. the new work is ‘transformative.’” In Ultimately, Paramount and CBS Devoted fans have long been mak- the producers of “Star Trek: general, uses such as 2 Live Crew’s have the burden of proving substan- ing films about the copyrighted char- Axanar” might turn on how use of “Oh, Pretty Woman” with al- tial similarity. With the crowd-fund- acters and shows they love. Signifi- ed movie apparently still in develop- much material entitled to copy- tered song lyrics commenting on or cant advances in recording, editing criticizing the original message are ment, the less the producers of “Star and distribution technology, along right protection the producers fair uses through parody since they Trek: Axanar” ultimately take from with reductions in the cost of each, borrow from the original. involve modification of the meaning the authorized works, the greater have led to the proliferation in recent or message conveyed by the orig- their chances will be of skirting a years of high-quality, unauthorized One factor is “the purpose and inal copyrighted work, thus being finding of copyright infringement. As fan films. character of the use, including transformative in nature, and do not it is, their chances of success appear The “Star Trek” franchise, which whether such use is of a commercial adversely affect the potential market slim. first aired on TV in 1966 and is best nature or is for nonprofit education- for or value of the copyrighted work. With film and court proceeding known for its six TV series and 12 al purposes.” Another is the nature Works such as “Star Trek: Axanar” each light years from completion, we movies, is no exception. There have of the copyrighted work. The more do not implicate any of the six illus- will have to wait and see how both been at least 18 unauthorized audio- functional or informational a copy- trative purposes mentioned in the turn out. Stay tuned, Trekkies. visual “Star Trek” productions of righted work is or the less creativity Copyright Act (or, for that matter, note (some involving multiple epi- involved, the more likely an unautho- any purpose similar to the six) and Todd Bonder is co-managing partner sodes) plus seven audio-only produc- rized use of the work will be consid- do not appear to involve a modifica- at Rosenfeld Meyer & Susman and tions. Most were ignored, or at least ered a fair one. The third and fourth tion of the meaning or message of the chairs the firm’s Intellectual Property tolerated, by Paramount and CBS. factors are “the amount and substan- authorized “Star Trek” franchise of and Litigation Groups. He focuses on A number of the unauthorized tiality of the portion used in relation works. Adhering closely to the orig- intellectual property and general civil “Star Trek” works are parodies of to the copyrighted work as a whole” inal by design, such productions are litigation, emphasizing entertainment, new media, trademark, copyright, the original protected works. Were and “the effect of the use upon the not transformative in nature. More- rights of Paramount or CBS to object, such potential market for or value of the over, the highly creative elements of publicity and non-commercial parodies might well copyrighted work.” the “Star Trek” franchise that have privacy, and each qualify as a transformative “fair In Campbell v. Acuff-Rose Mu- kept fans enthralled for generations, use” of the copyrighted material they sic, the U.S. Supreme Court consid- publishing coupled with the potential adverse ef- matters, as utilize. Other works — such as the ered 2 Live Crew’s parody of Roy fect of uses such as that made by the well as un- prequel that “Star Trek: Axanar” is Orbison’s, “Oh, Pretty Woman.” In producers of “Star Trek: Axanar” on fair compe- reputed to be — that are not paro- holding that the fair use defense ap- the market for authorized “Star Trek” tition, trust, plied, the court stated that the “cen- dies conveying a different meaning productions, also militate against a probate and or message than the originals but, tral purpose” of the first fair use fac- finding of fair use. In view of such contract dis- instead, seek to be as faithful to the tor is whether “the new work merely matters, reliance upon the affirmative putes authorized works as possible while supersedes the objects” of the un- defense of fair use would be, to quote profiting with their own story amid derlying work or, alternatively, adds Mr. Spock, “highly illogical.” TODD BONDER the “Star Trek” universe created by something new that has a different With fair use in all likelihood not Rosenfeld Meyer & Susman Reprinted with permission from the Daily Journal. ©2016 Daily Journal Corporation. All rights reserved. Reprinted by ReprintPros 949-702-5390..

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