Differences

This shows you the differences between two versions of the page.

Link to this comparison view

Both sides previous revisionPrevious revision
Next revision		Previous revision
Last revisionBoth sides next revision
fair_use_denied [2017/10/02 22:06] – [Garth of Izar] corrects citation year Carlos Pedrazafair_use_denied [2017/10/02 22:09] – [Fair Use Analysis] corrects citations year Carlos Pedraza
Line 109: Line 109:
 The judge found Axanar was plainly commercial, despite the fact Peters made his videos available for free on the Internet: The judge found Axanar was plainly commercial, despite the fact Peters made his videos available for free on the Internet:
  
-> It is undisputed that Peters hoped to derive non-monetary benefits, for example, other job opportunities, from the Axanar Works. Defendants profit from exploitation of the copyrighted material without paying the customary price. The Axanar Works are commercial.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/16.))+> It is undisputed that Peters hoped to derive non-monetary benefits, for example, other job opportunities, from the Axanar Works. Defendants profit from exploitation of the copyrighted material without paying the customary price. The Axanar Works are commercial.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/17.))
  
 [{{ :ranahan_3.32.06_am.jpg?nolink&150|Axanar attorney **Erin Ranahan**}}] [{{ :ranahan_3.32.06_am.jpg?nolink&150|Axanar attorney **Erin Ranahan**}}]
Line 115: Line 115:
 Peter's attorneys made a big point of claiming that Axanar was making no profit, but the judge found that even the indirect benefits Axanar realized from its infringing activities were sufficient to call the production commercial: Peter's attorneys made a big point of claiming that Axanar was making no profit, but the judge found that even the indirect benefits Axanar realized from its infringing activities were sufficient to call the production commercial:
  
-> Common experience suggests that [the defendants] stood to gain at least indirect commercial benefit from the [viewership] boost which [they] had reason to hope would (and in fact did) result from the Axanar Works. … The successful fundraising campaign leveraging the popularity of //Prelude// is an example of such indirect benefit.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/16.))+> Common experience suggests that [the defendants] stood to gain at least indirect commercial benefit from the [viewership] boost which [they] had reason to hope would (and in fact did) result from the Axanar Works. … The successful fundraising campaign leveraging the popularity of //Prelude// is an example of such indirect benefit.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/17.))
  
 == 'Not Transformative' == == 'Not Transformative' ==
-The judge also plainly declared, "The Axanar Works [//Prelude to Axanar// and //Axanar//] are not transformative,"((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/16.)) a designation key to what Axanar's attorney had argued made Peters' use of Star Trek elements fair use under U.S. copyright law.+The judge also plainly declared, "The Axanar Works [//Prelude to Axanar// and //Axanar//] are not transformative,"((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 10, 1/4/17.)) a designation key to what Axanar's attorney had argued made Peters' use of Star Trek elements fair use under U.S. copyright law.
  
 == Mocks the Mockumentary == == Mocks the Mockumentary ==
Line 125: Line 125:
 Klausner was not persuaded by Ranahan's use of Wikipedia: Klausner was not persuaded by Ranahan's use of Wikipedia:
  
-> The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. Here, <wrap hi>the Court has difficulty discerning from the Axanar Works any criticism of the Star Trek Copyrighted Works</wrap>. This is not surprising since Defendants set out to create films that stay faithful to the Star Trek canon and appeal to Star Trek fans.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 11, 1/4/16.)) +> The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. Here, <wrap hi>the Court has difficulty discerning from the Axanar Works any criticism of the Star Trek Copyrighted Works</wrap>. This is not surprising since Defendants set out to create films that stay faithful to the Star Trek canon and appeal to Star Trek fans.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 11, 1/4/17.)) 
  
 === Nature of the Copyrighted Work === === Nature of the Copyrighted Work ===
-The judge found the creativity of Star Trek as expressed in 13 movies and six television series "have transported the hearts of a legion of fans to the Star Trek universe. … They are the type of works that are given broad copyright protections."((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/16.))+The judge found the creativity of Star Trek as expressed in 13 movies and six television series "have transported the hearts of a legion of fans to the Star Trek universe. … They are the type of works that are given broad copyright protections."((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/17.))
  
 === Amount Used of the Copyrighted Work === === Amount Used of the Copyrighted Work ===
Line 134: Line 134:
 Peters had long claimed that his use of Star Trek was minimal, far less than that used by fan films generally. The judge found this argument unavailing: Peters had long claimed that his use of Star Trek was minimal, far less than that used by fan films generally. The judge found this argument unavailing:
  
-> Copying is not excused merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked, <wrap hi>"No plagiarist can excuse the wrong by showing how much of his work he did //not// pirate</wrap>.”((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 11, 1/4/16.)) [emphasis added]+> Copying is not excused merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked, <wrap hi>"No plagiarist can excuse the wrong by showing how much of his work he did //not// pirate</wrap>.”((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 11, 1/4/17.)) [emphasis added]
  
 === Potential Market Harm === === Potential Market Harm ===
Line 141: Line 141:
 Klausner dismissed this line of reasoning as well: Klausner dismissed this line of reasoning as well:
  
-> This factor requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact of market substitution for the original and for derivative works.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/16.))+> This factor requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact of market substitution for the original and for derivative works.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/17.))
  
-The judge found //Prelude// was exactly the kind of derivative work to which copyright holders hold exclusive ownership, pointing to a CBS-owned Garth of Izar novel and role-playing game depicting the Battle of Axanar.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/16.))+The judge found //Prelude// was exactly the kind of derivative work to which copyright holders hold exclusive ownership, pointing to a CBS-owned Garth of Izar novel and role-playing game depicting the Battle of Axanar.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 12, 1/4/17.))
  
 == Market Substitute == == Market Substitute ==
 Klausner also rejected Axanar's claim of no past harm because //Prelude// wasn't a finished work itself, but a promotional work intended to raise nearly $2 million for the never-produced //Axanar// feature: Klausner also rejected Axanar's claim of no past harm because //Prelude// wasn't a finished work itself, but a promotional work intended to raise nearly $2 million for the never-produced //Axanar// feature:
  
-> Prelude in that sense cannot be a market substitute of Star Trek television series or motion pictures, just as a trailer does not substitute for a feature-length film. The Axanar Motion Picture has not yet been made or released and its script is not yet released. Hence it cannot have any market impact. On the other hand, Defendants have successfully raised over a million dollars from Star Trek fans at Defendants’ prompting of funding the Axanar projects instead of “dumping hundreds or thousands of dollars a year on . . . cable channels” on which the Star Trek Copyrighted Works are shown. … He wanted to create “a whole new way that fans can get the content they want, by funding it themselves.”((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/16.))+> Prelude in that sense cannot be a market substitute of Star Trek television series or motion pictures, just as a trailer does not substitute for a feature-length film. The Axanar Motion Picture has not yet been made or released and its script is not yet released. Hence it cannot have any market impact. On the other hand, Defendants have successfully raised over a million dollars from Star Trek fans at Defendants’ prompting of funding the Axanar projects instead of “dumping hundreds or thousands of dollars a year on . . . cable channels” on which the Star Trek Copyrighted Works are shown. … He wanted to create “a whole new way that fans can get the content they want, by funding it themselves.”((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/17.))
  
 Klausner concluded that unrestricted and widespread conduct like that of Axanar would hurt the market for Star Trek: Klausner concluded that unrestricted and widespread conduct like that of Axanar would hurt the market for Star Trek:
  
-> The fact that Defendants distributed //Prelude// and the Vulcan Scene for free online and intend to likewise distribute their future works may likely increase the risk of market substitution as fans choose free content over paid features.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/16.))+> The fact that Defendants distributed //Prelude// and the Vulcan Scene for free online and intend to likewise distribute their future works may likely increase the risk of market substitution as fans choose free content over paid features.((Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 13, 1/4/17.))
  
 [{{ ::way-to-eden.jpg?direct|**HEY, BROTHER** Judge Klausner's ruling refers to the Star Trek episode, "Way to Eden."}}] [{{ ::way-to-eden.jpg?direct|**HEY, BROTHER** Judge Klausner's ruling refers to the Star Trek episode, "Way to Eden."}}]