Axanar - Crowdfunded 'Star Trek' Movie Draws Lawsuit from Paramount, CBS
- Thread starter mkstewartesq
- Start date
Angelus Lupus
Sr Member
There was definitely no 'mock'. In fact the whole thing was presented as an in-universe historical documentary, with interviews and news clips.
Plus, nothing in the entirety of the production has suggested there was every anything 'spoof' about it. Rather, they made a point of how they cared about 'getting Trek right' because TPTB couldn't. This was in no way ever intended as an SNL-style skit.
Plus, nothing in the entirety of the production has suggested there was every anything 'spoof' about it. Rather, they made a point of how they cared about 'getting Trek right' because TPTB couldn't. This was in no way ever intended as an SNL-style skit.
Solo4114
Master Member
It's not going to fly. Parody, as an affirmative defense, rests on some solid caselaw. You have Acuff Rose, the "The Wind Done Gone" case, etc. Parody has to fundamentally change the underlying meaning of the original work to qualify. Weird Al songs would qualify. ARGUABLY, sampling qualifies. This...is unlikely to qualify.
At a guess, this is a strategic move to try to squeak past a JMOL/Summary Judgment ruling against them, to force the issue into an actual court case, in the hopes that Paramount won't have an interest in actually going to trial over this. Based on past behavior...I believe they are wrong, and Paramount is only too happy to get precedent set at Peters' expense. The only offsetting factor is that eventually they'll hit "blood from a stone" territory to the point where even proving willful infringement won't matter, because Peters will be too broke to pay Paramount's attorney fees. So, at that point, I'd figure the question will be whether Paramount finds it more valuable to "buy" a legal precedent on the books, or whether they would rather figure they're past the point of diminishing returns.
At a guess, this is a strategic move to try to squeak past a JMOL/Summary Judgment ruling against them, to force the issue into an actual court case, in the hopes that Paramount won't have an interest in actually going to trial over this. Based on past behavior...I believe they are wrong, and Paramount is only too happy to get precedent set at Peters' expense. The only offsetting factor is that eventually they'll hit "blood from a stone" territory to the point where even proving willful infringement won't matter, because Peters will be too broke to pay Paramount's attorney fees. So, at that point, I'd figure the question will be whether Paramount finds it more valuable to "buy" a legal precedent on the books, or whether they would rather figure they're past the point of diminishing returns.
mkstewartesq
Sr Member
And, even there, there are further distinctions on what qualifies as a "parody" for fair use purposes - to be protected as a fair use "parody" under Acuff-Rose, your work has to provide some commentary on the underlying work specifically. So, some "Weird Al songs would qualify" - for example, "Amish Paradise", which made fun of the "thug life" aspects of "Gangster's Paradise" - while others likely wouldn't (for example, "Eat It" - IIRC correctly, that song used the Michael Jackson music, but didn't make any commentary on the "tough/fighting" attitude of the lyrics to "Beat It" (the video, on the other hand . . definitely parody).
But Solo and Angelus hit on the bigger point - the defense wants to have it both ways with their pliable definition of "mockumentary". There is nothing parodic about Prelude - it's just a straight-up telling of a Star Trek story in a documentary form, with zero commentary on Star Trek itself; recognizing this, the defense cited to the definition of a "mockumentary" as meaning simply a "fake documentary." But in their later filings, they definitely seem to want to rely on the "mock" portion of that word more in line with what Angelus is saying - to imply that Prelude "mocked" or commented on the underlying work (bringing it closer to "parody" - without any evidence that Prelude actually did that.
M
SmilingOtter
Master Member
Do watch it (while it's still available.) I thought it was really well done. The space battles could've used some better rendering, but they weren't awful.
asalaw
Sr Member
None of this has struck me as the studios' having any monetary goals here beyond protecting their IP from egregious infringement. I do think they want to set a precedent, and they don't care what the ultimate procedural posture will be -- trial verdict, summary judgment, or love note handed to that hot bailiff. I may have made part of that up. 
Point is, I think they're happy to go to trial, and they're looking far beyond the fees incurred in one case. The potential lost value if Trek were pirated with impunity could dwarf the piddly couple of million this case could generate if it went to an extended trial phase. I'd bet they're already looking at diminishing returns (if you only count the cost of this case) and not expecting Peters to be able to cough up one red cent, ever. But they do expect to ruin him financially and set a legal precedent.
What I'm wondering about is, do Winston and Strawn ever cut bait, given that they're seeing diminishing returns in the value of their pro bono case? I don't see how they ever come up with positive PR from this loser.
Point is, I think they're happy to go to trial, and they're looking far beyond the fees incurred in one case. The potential lost value if Trek were pirated with impunity could dwarf the piddly couple of million this case could generate if it went to an extended trial phase. I'd bet they're already looking at diminishing returns (if you only count the cost of this case) and not expecting Peters to be able to cough up one red cent, ever. But they do expect to ruin him financially and set a legal precedent.
What I'm wondering about is, do Winston and Strawn ever cut bait, given that they're seeing diminishing returns in the value of their pro bono case? I don't see how they ever come up with positive PR from this loser.
Solo4114
Master Member
None of this has struck me as the studios' having any monetary goals here beyond protecting their IP from egregious infringement. I do think they want to set a precedent, and they don't care what the ultimate procedural posture will be -- trial verdict, summary judgment, or love note handed to that hot bailiff. I may have made part of that up.
Point is, I think they're happy to go to trial, and they're looking far beyond the fees incurred in one case. The potential lost value if Trek were pirated with impunity could dwarf the piddly couple of million this case could generate if it went to an extended trial phase. I'd bet they're already looking at diminishing returns (if you only count the cost of this case) and not expecting Peters to be able to cough up one red cent, ever. But they do expect to ruin him financially and set a legal precedent.
What I'm wondering about is, do Winston and Strawn ever cut bait, given that they're seeing diminishing returns in the value of their pro bono case? I don't see how they ever come up with positive PR from this loser.
It's a fair question. From a business development standpoint, it's tough to make the case that "We represent little guys" when it's really more like "We represent blatant infringers and make baseless arguments to support their cases." I mean, what's the business case here for representing Peters? You'll score a lot of biz from fan films...with no money...who get nailed infringing copyrights...and can't pay you? Or do you just take on a loser of a case figuring that if you lose, you blame the client, and if you win, you take the credit?
asalaw
Sr Member
Well, given that there has to be some reason, that's certainly as likely as anything. Another thing I didn't think of before is that they can't afford the reputational hit if they abandon a pro bono client, so they're in it till the bitter end. And when I say bitter, I mean client-up-in-flames disastrous. Yay!
asalaw
Sr Member
They could ethically hand it off to another firm that's looking to pad its pro bono hours, but point definitely taken.
Just exposing your name to the public is worth something. I don't know exactly when the benefit of this case dries up for the law firm but AP doesn't need to win for it to be worth something.
I don't see them abandoning AP in mid-case either. That really would look bad for them.
I don't see them abandoning AP in mid-case either. That really would look bad for them.
Solo4114
Master Member
Not entirely true, at least in the legal profession.
Exposing your name is helpful, but only up to a point. Past that point, the nature of the exposure starts to matter. Just generally having the name of your firm floating around as "experts in IP law" is good. Having your firm name floating around in association with "defended a clear loser of a case" is less good.
You also have to consider to whom you're appealing. The public at large? A specific client base that you can count on for business? I mean, let's look at who's being represented here: a fan film, basically, and one that went waaaaaaaaaaaay over the line in its efforts. So, who is the potential client base? Additional fan films? They have no money. And after Peters (and arguably before), nobody is gonna be dumb enough to try and raise and then spend the kind of money he did. Other small-potatoes copyright infringers? Not likely. Again, they don't have money and they probably aren't a high enough volume client base to really develop as a revenue stream.
No, I think the reason to do this is pretty simple: tax benefits. There's probably a portion of the IRS code that lets you offset the cost of pro bono services against the profits your firm takes in. If the firm had a particularly profitable year, wants to keep that money, and otherwise has the bodies to throw at a case like this, then the ultimate disposition of the case and any profile-raising it provides is irrelevant. You were in it to create a "loss" on your ledger, and a guy like Peters is gonna be litigious enough to keep the fight going for a while, meaning the "loss" grows and you keep more of your money.
mkstewartesq
Sr Member
All true - but I think the impetus for W&S taking this case - and what makes them stay in (beyond their ethical duty to not abandon a client mid-proceeding if it would prejudice the client) is the hope of making new law on the contours of fair use, and being known as the firm thataccomplished that. Erin Ranahan (bio here) has been named a "rising star" for her copyright/IP work, including on other cases with arguably bad facts or unsympathetic defendants.
I'm sure the initial attraction to this case was the abstract question of "when is a derivative work a legitimate fair use?" When the facts started to come out and painted a poor picture of the defendants, I suspect W&S stayed in because, let's face it, if significant new law is made, it's the legal arguments and the holding that are remembered, not the facts. (Take, for example, Campbell v. Acuff-Rose, the seminal Supreme Court case on when "parody" constitutes fair use - who remembers that the defendant was the rap band 2 Live Crew, and the work allegedly infringed was Roy Orbison's "Oh Pretty Woman"?) And Axanar has previously intimated that W&S has their eyes on the (likely) appeal to the 9th Circuit just as much - if not moreso - than the trial at the District Court level; in other words, there is anticipation that they will lose at trial, but hopefully get the verdict overturned at the 9th Circuit Court of Appeals, which is one of the most active appellate courts as far as IP issues and forging new law in this field.
So, in summary, I think the attraction to W&S is being known as the firm behind some landmark ruling on the contours of copyright law - which could bring in a lot more business from "big players" and not just fan films. For example, if W&S gets a ruling at the 9th Circuit that, under certain circumstances, an "independent, professional" Star Trek film can nonetheless be fair use, I could really see a lot of studios - both big and upstart - looking for their guidance on what would be a permissible way of, for example, making an "independent, professional" Star Wars film, or an "independent, professional" James Bond film. Or, the firm just gets known as being visionary on where copyright law is going, which has applicability to any number of clients looking for IP advice.
And if they lose, there's not much harm to them. They've done what all lawyers are bound to do, which is zealously represent their client, and there's no shame in losing so long as they have done that. After all, in every case, one side wins and one side loses.
M
asalaw
Sr Member
I get it, but it still staggers the imagination that even the 9th Circus would say it's fair use (let alone parody) when it's soooooooo flagrantly willfully infringing.
And if the Flying Circus of the North overturned, would the studios apply for cert? I guess they'd have to, since the 9th is the worst place on Earth for them to have a precedent like that.
And if the Flying Circus of the North overturned, would the studios apply for cert? I guess they'd have to, since the 9th is the worst place on Earth for them to have a precedent like that.
For those following the case, are you more interested in: The IP/copyright laws and how this case may impact them, the unmade movie itself, the impact this will have on crowdfunding in general or the horrorshow that is Alec's latest downfall?
I didn't think many people outside of people like me (Star Trek fan series/film producers) really cared much about that area! Good to know others do too.
asalaw
Sr Member
What he said.
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