Axanar - Crowdfunded 'Star Trek' Movie Draws Lawsuit from Paramount, CBS

[Solo4114]

Close. Laches won't remove all liability for money damages - you're still liable for damages for infringements in the last three years (i.e., within the statute of limitations, as well as injunctive relief against future infringement. This was the holding of the Supreme Court in the recent case of MGM v. Petrella (arising out of the film Raging Bull), a good analysis of which can be found here.

Thanks. Been a while since my last copyright class. I like to think I do pretty well with it for someone who deals chiefly in health care administrative law!

Re: Axanar - frankly, I thought people around here had forgotten about it. We're actually having a pretty lively and informative discussion on it on TrekBBS (almost 600 pages to date - take that, SofaKing's "1:1 Millennium Falcon Cockpit" thread!) :lol

In any event, I think there are several things that one can point to as ways in which Axanar “crossed the line” that other fan films haven’t (and likely won’t). So I don’t see this case as any harbinger of a crackdown on fan-films generally or even crowd-funded fan-films. Some examples:

- yes, the paying of salaries;

- leasing of studio space with Kickstarter money (money raised on Star Trek IP) with the apparent intent to leverage Axanar’s success (based on Star Trek IP) into an operational studio for use in other non-Star Trek productions;

- touting their product as a “fully-professional independent film”;

- basically going beyond creating a “labor of love fan film” and engaging in a “merchandising tie-in” operation akin to a commercial film (except Axanar didn’t have either the film rights or the merchandising rights - whoops) - including selling Axanar coffee (with ST-derivative graphics, including pictures of Klingon ships), patches and other promotional items, and model kits showing Star Trek designs and trademarks (yours for only $89.95 per model);

and then

- crying and stamping their feet when told to stop - and then refusing to do so and claiming they had a right to make their film because fans don’t like what CBS/Paramount is doing with the property. (Even Vic from Star Trek: New Voyages recently went on record as saying, if asked by CBS/Paramount to stop his production, his response would be “sure, absolutely - and thank you for letting me play in your playground for as long as you did.”)

So, yeah, tell me another fan film that did all of those things, and I’ll point out a fan film that’s likely to get sued in the future. But since most other fan films remain respectful and don’t try to get greedy, I’m not terribly worried about CBS/Paramount coming down on them anytime soon.

M

Yeah, I mean, I think it's pretty clear that Axanar is in the wrong. They managed to get a "stay of execution" with their procedural challenge, but if I understand what was posted upthread, once CBS/Paramount files its amended complaint (and assuming they actually hump the civil procedure details), that should be lights-out for Axanar.

 

[mkstewartesq]

Take it from Wil Wheaton yesterday

tl;dr: a group of people raised a TON of money, saying they were going to make a Trek fan film called Axanar. Then they took that money and spent it to build a studio, which will (presumably) be used to turn a profit from other productions once Axanar’s production is completed. They also sold unlicensed coffee, using copyrighted Star Trek names, and have generally been epic douchecanoes about the whole thing.


Most fan films, even the really polished ones, have very small budgets that rarely break USD10,000, but these people were effectively making a commercially-viable low budget (by Hollywood Standards) film, having raised over USD600,000. And they were going to invest that money into an unlicensed, copyright infringing film using Star Trek intellectual property that is owned by CBS.


They’ve put all fan films at risk, because they exploited the passion and love that Trekkies have for Star Trek to get money, and now they’re acting like they’re innocent victims of big bad CBS. These people are not innocent victims. They are morally and ethically and legally in the wrong, and while I have a lot of problems with copyright and IP law, these guys are not the people I want to be the poster children for reforming those laws.


I love fan fiction and fan films and headcanon and everything fans do to create their own extended universes (ST Online is a great example), and these jerks may have put all of that at risk, because they acted in bad faith from the beginning.


They are not on your side, they are not on Star Trek’s side, they are not good people.

M

 

[mkstewartesq]

if I understand what was posted upthread, once CBS/Paramount files its amended complaint (and assuming they actually hump the civil procedure details), that should be lights-out for Axanar.

FYI - the amended complaint was filed last Friday. There should be copies of it on the net (I don't know how to post my copy) and there were tons of articles on it in the last day or so. In short, CBS/Paramount took Axanar up on their challenge and filed a complaint including a 30-page blow-by-blow list of infringements (with pictures!)

Oddly, they kept the complaint to copyright claims - no trademark, which is the easier, quicker kill-shot here by far. (For example, Axanar's use of the term "Klingon" on their model kit almost certainly constitutes a "counterfeit mark" under the U.S. Lanham Act, because CBS/Paramount has a U.S. Federal trademark registration (1910208) for "Klingon" for model kits. The liability for a counterfeit mark is (i) three times defendants profits plus plaintiff's damages or (ii) $1,000,000 per mark in statutory damages. But I guess CBS/Paramount had their reasons for handling it the way they are,and they chose not to consult with me beforehand.

M

 

[Solo4114]

FYI - the amended complaint was filed last Friday. There should be copies of it on the net (I don't know how to post my copy) and there were tons of articles on it in the last day or so. In short, CBS/Paramount took Axanar up on their challenge and filed a complaint including a 30-page blow-by-blow list of infringements (with pictures!)

Oddly, they kept the complaint to copyright claims - no trademark, which is the easier, quicker kill-shot here by far. (For example, Axanar's use of the term "Klingon" on their model kit almost certainly constitutes a "counterfeit mark" under the U.S. Lanham Act, because CBS/Paramount has a U.S. Federal trademark registration (1910208) for "Klingon" for model kits. The liability for a counterfeit mark is (i) three times defendants profits plus plaintiff's damages or (ii) $1,000,000 per mark in statutory damages. But I guess CBS/Paramount had their reasons for handling it the way they are,and they chose not to consult with me beforehand.

M

Yeah, I've been wondering why they haven't bothered with trademark. In general, it's a lot easier to prove. Plus, failing to raise it makes me wonder if it might not potentially open the door for a future abandonment claim (although I guess shutting these guys down by any means could qualify as protecting the mark). If I were their counsel, I'd hit Axanar with everything I had, including trademark and copyright, and any other IP laws I could latch on to.

 

[mkstewartesq]

failing to raise it makes me wonder if it might not potentially open the door for a future abandonment claim (although I guess shutting these guys down by any means could qualify as protecting the mark).

In all seriousness, that's my thinking as well. Given that other fan films are using these marks (many right in their titles), I'm sure CBS/Paramount weighed the benefits of asserting them in this case versus the risk of having them challenged and thereby losing their exclusive rights in the marks and not being able to assert them against anyone going forward. Copyright - though tougher to prove in some respects (after all, how similar is "substantially similar"? - kind of in the eye of the beholder) - at least isn't subject to these attacks on the plaintiff's right to enforce, unless there is some defect in the plaintiff's chain of title/ownership in the copyright (which is pretty easy for the plaintiff to assess and quantify prior to filing the suit.)

I wouldn't rule out CBS/Paramount asserting trademarks later, depending on how things go - but, yeah, I actually can't disagree with their caution on this at this stage in the game.

M

 

[asalaw]

I'd been wondering about that since they filed. That's a very interesting theory, and makes a lot of sense. I had a client band get hit with an abandonment claim by a bigger band with a similar name, and that was very hard to defend. Yeah, they're better off not claiming TM in that case.

 

[joberg]

CBS fired a volley toward Axanar's ship and all systems are off-line. Time for these folks to run to the life-boats: the ship is listing dangerously:rolleyes

 

[mistymills]

Well, looks like a second one was shut down... Which was always a worry my series has had. I know a lot of people involved in this project and actually auditioned for the first one as it is a local production:

http://1701news.com/node/1151/cbs-reportedly-shuts-down-second-fan-film.html

A little snip of the article:

Have Star Trek fan-films finally met their fate?

With CBS Corp. and Paramount Pictures continuing its copyright infringement lawsuit against the fan-film "Star Trek: Axanar," at least one of the studios has reportedly forced a second fan-film project to pull the plug.

"Star Trek: Federation Rising," the recently announced sequel to the fan-film "Star Trek: Horizon" released last February by Tommy Kraft, has been shut down before it could even get off the ground.

"Earlier today, executives from CBS reached out to me and advised me that their legal team strongly suggested that we do not move forward with plans to create a sequel to 'Horizon,'" Kraft announced on the fan-film's Facebook page. "While this is a sign of the current climate that we find ourselves in with Star Trek fan-films, I want to personally thanks CBS for reaching out to me, rather than including us in their ongoing lawsuit against 'Axanar.'"

 

[Lord Boron]

It would seem one bad apple has managed to spoil the whole bunch for everyone.

 

[asalaw]

I really hope they don't hit ST:NV. That would be really upsetting. James Cawley has done an amazing job reproducing the sets and props.

 

[mistymills]

After some speculation and stuff, it is official. The Horizons sequel is canned. Now all of us (producers of Trek fan projects) are fearing...

 

[Joosh]

I have to say, as a writer, if someone took something I created and used it as a simple fan movie, I'd be flattered and I'd probably support it. If I found out someone was taking something I'd written (and use as part of my desire to earn a living) and was doing a $250,000 crowd sourced funding effort to make a movie from it- without compensating me or getting my approval. I'm calling out the lawyers. In fact, if someone was crowd funding anything of mine without my approval I'd send the lawyers.

There's a line and I think in this instance CBS/Paramount is fully justified in what they're doing. I'd say the same thing if someone contracted with a company in China to produce kits of the Enterprise. However, if someone was making a few dozen kits out of their garage and CBS/Paramount sent 100 lawyers to their door, I'd say it was an over reaction.

 

[mistymills]

Well Axanar had almost two million in total, which is even worse than only $250k...

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[joberg]

It begs the question: what would be an acceptable amount of money raised to make a fan movie while not be in Paramount/CBS radar? If I raise $80 000, would that be acceptable, or not...just asking the question to see if anybody has any opinion on that one.

 

[mistymills]

$0.

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[batguy]

It's not the dollar amount, it's the way this project was being handled in general.

 

[mistymills]

There are many reasons, but monetary reasons are just as valid as the copyright content reasons.

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[batguy]

Somebody like Elon Musk or Bill Gates could commission their own ST movie with a personal check for $200 million. They could have it done on Hollywood soundstages/etc by the whole JJA cast & crew.

As long as the movie was only shown to family & friends and it never got circulated around to 10,000 unrelated people, the studio probably wouldn't have a decent legal case against it. The project did not cost the studio any money no matter how big it was.

 

[Moviefreak]

You know the harder Axanar makers push back and think they will fight this, it will spell doom for other productions. CBS will now try to set an example across the board and you can't blame them. Last thing they want when taking Axanar to court is to have it shown that they are letting other makers do the same thing and get away with it. It will look like they are being selective who they go after. I suspect they will target everyone who is making a fan film while this lawsuit keeps unfolding.

 

[Moviefreak]

As long as the movie was only shown to family & friends and it never got circulated around to 10,000 unrelated people, the studio probably wouldn't have a decent legal case against it. The project did not cost the studio any money no matter how big it was.

Wrong! The STUDIO OWNS THIS PROPERTY! They will ALWAYS have a legal case against any unlicensed project. PERIOD!
In the case you outlined above, the studio could CHOOSE NOT TO SUE, because they don't feel the production is making a profit, but if they feel that the film could end up being used for Capitol gain down the road, they could shut it down or sue and they have every right, AND LEGAL RIGHT, to do so. Your view is exactly what is wrong with the Axanar crew and this legal battle. They seem to believe they have a legal right to use the property and that CBS doesn't have a legal leg to stand on. That is like saying I am going to invest my own money into replicating Coca Cola, bottling it in Coca Cola bottles at a legitimate facility/factory, and just because I am shipping the crates of product to "just family and friends", I'll be ok. That is crazy! Coke would shut that s*** down faster than you could pop the soda can top.