CASE STATUS January 20 Axanar settles its copyright infringement lawsuit, admitting it overreached; both sides file for dismissal of the case in U.S. District Court. || January 9 Judge holds final pre-trial conference with attorneys for both sides to set final terms for trial — also a last-ditch effort at settlement || January 4 Judge throws out Axanar’s fair use defense || Up-to-the-minute news and views on Twitter @AxaMonitor

Summary of the Legal Complaint

LAWSUIT PRIMER Get an overview of the copyright lawsuit, including a timeline of the case, as well as downloadable pleadings made by the plaintiffs, CBS and Paramount, and defendants Alec Peters and Axanar Productions Inc. » Lawsuit Primer

The legal complaint, Paramount Pictures, et al., v. Axanar Productions, et al., alleging copyright infringement, was first filed on December 29, 2015. A more detailed, amended complaint was filed by CBS and Paramount’s attorneys on March 11, 2016, in response to an earlier motion to dismiss by the defense.

The Parties

The amended complaint identifies the following parties to the suit:

  • Paramount Pictures Corp., plaintiff
  • CBS Studios Inc., plaintiff
  • Axanar Productions, Inc., a California corporation, defendant, a “motion picture, television and/or video production company.”
  • Alec Peters, the “controlling principal of Axanar Productions,” defendant, and also the writer-producer of the “Axanar Works,” the suit’s catch-all term encompassing Prelude to Axanar, the Axanar script and production of the Axanar motion picture.
  • The “Doe Defendants,” as many as 20 unnamed people who aided in various infringing aspects of the writing and production of the Axanar Works.1)

Allegations

This section outlines several allegations of fact detailed in the amended complaint that underlie the plaintiffs’ case.

Copyrights at Issue

In amending the original complaint, the plaintiffs go into great detail regarding the copyrights at issue, including the original Star Trek television series, which introduced the key concepts, historical foundations, alien races, technology, vessels and characters of the Star Trek universe, including Garth of Izar, who is also the main character of Axanar.

The complaint goes into detail about the copyrights encompassed by the six Star Trek TV series and 12 motion pictures.2)

The Infringing Works

The complaint details the works created by the defendants that infringe on CBS and Paramounts asserted copyrights, alleging that the defendants had unfettered access to the Star Trek copyrighted works.

GARTH VS. GARTH The complaint notes the copied Garth costume in the Axanar vignette, Heroes (left), and the Original Series episode, “Whom Gods Destroy.”
Prelude to Axanar

Prelude to Axanar is the short film, funded using the Kickstarter crowdfunding platform.

  • The Prelude to Axanar screenplay, written by Peters with the aid of certain Doe defendants.
  • Production of Prelude to Axanar by Axanar Productions.
  • Doe defendants who directed the film, created the sets and designed the costumes.
  • Defendants are distributing and publicly exhibiting Prelude to Axanar on YouTube and other online platforms, as well as in other venues.3)
Prelude to Axanar is directly and unabashedly intended to be a derivative work of Star Trek … and uses numerous copyrighted elements from the Star Trek Copyrighted Works (in fact, the full title of this work is Star Trek: Prelude to Axanar).4) [emphasis added]

The plaintiffs allege that among the copyrighted elements infringed upon by Prelude were the Battle of Axanar, the Federation, Klingons, Vulcans, Starfleet and Starfleet officers, including Garth.5)

Star Trek: Axanar
LOCKED SCRIPT The supposed “fully revised, best Star Trek movie script ever” is displayed by the screenwriters and director of Axanar in August 2015.

Axanar is a feature-length motion picture funded on the Kickstarter and Indiegogo crowdfunding platforms.6)

  • Defendants created the Axanar script, in several versions, all of which are “fixed works.”7)
  • Axanar has already begun production, with release of the “Vulcan Scene” in 2015, and at least one other scene shot.8)
  • Peters, with the possible aid of some Doe defendants, wrote the Axanar Script in its several versions.9)

See also: The 'Locked' Axanar Screenplay: A Review

  • Doe defendants directed the film, created the sets and designed the costumes. Certain of the unnamed defendants continue to work on the screenplay, even though the production declared in August 2015 they had “fully revised and locked” the script,“ calling it “the best Star Trek movie script ever!”10)
  • The “Vulcan Scene” has already been disseminated online on the Axanar website and YouTube,11) though the video has since been removed from public view.12)
  • One-third of the visual effects for the motion picture, by defendants’ own admission, have been completed.13)
  • The complaint quotes Peters’ admission of infringement in a February 2016 interview with 1701News:
Defendant Peters has admitted that the Axanar Works violate Plaintiffs’ copyrights. In an interview published on February 1, 2016, Mr. Peters stated “We violate CBS copyright less than any other fan film.”14) [emphasis added]

The plaintiffs allege that among the copyrighted elements infringed upon by the Axanar script and the “Vulcan Scene” — intended for incorporation into Axanar itself — are the Battle of Axanar, characters, species, costumes, makeup, weapons, props, and the starships.15)

Side-by-Side Comparisons

The legal complaint spends 28 pages detailing alleged copyright infringements by running side-by-side comparisons of copyrighted Star Trek elements copied in Axanar, including specific characters, alien species and their specific appearances, uniforms and costumes, command insignia and medals, planets and other settings, space docks, Federation, Vulcan and Klingon starships, logos, governmental details, stardates, futuristic technology, fictional languages and philosophies and architecture.16)

Here are four examples:17)

Interestingly, Axanar‘s U.S.S. Ares and Pocket Books’ U.S.S. Titan were both designed by the same person, Sean Tourangeau, who is listed as a concept artist for Axanar and is a possible Doe defendant.

The plaintiffs further allege the defendants have announced they intend to include additional copyrighted elements, such as Captain Robert April, Chang, Sarek, the Bridge and mek'leths.18)

The plaintiffs conclude the allegations section of the complaint by noting the Axanar script contains even more copyrighted elements, and that the defendants intended the Axanar Works as a prequel to the Original series, making them unauthorized derivative works, unlicensed by either CBS or Paramount.19)

Causes of Action

The key parts of a legal complaint are the Causes of Action‭ — literally the reasons for the‭ lawsuit — ‬and the Prayer for Relief, which is what the plaintiffs are seeking‭.‬

The complaint asserts that the plaintiffs hold the “exclusive right to develop, create, and/or produce motion pictures and television shows based on the Star Trek Copyrighted Works, including but not limited to the characters, themes, plots, dialogue, settings, sequences, situations, and incidents therein, and also the props, character makeup, costumes, sets, fictional language, events, and fictional history.”20)

The suit alleges that the defendants:

  1. Created and were about to produce the infringing films‭ (Prelude to Axanar and Axanar, and then distribute them‭.21)
  2. Knew their efforts comprised unauthorized Star Trek derivative work.22)
  3. “Materially contributed to the unauthorized preparation, duplication, distribution and public performance of the infringing Axanar Works,” and won’t stop unless prevented by the court.23)
  4. ‬Supervised other defendants in their infringing activities.24)
  5. ‬Enjoyed‭ “‬a‭ direct financial benefit” from infringing on the studios‭’ ‬intellectual property‭.25) ‬In public statements, Axanar and its supporters have claimed they had to have made a profit for CBS and Paramount to claim it had done something wrong‭. ‬Actually, the production’s fundraising activities have translated into direct financial benefits‭ (‬e.g‭., ‬salaries‭, ‬a studio infrastructure for publicly declared future for-profit activities‭) ‬for both individuals associated with the production‭, ‬and for Axanar Productions Inc‭., ‬a registered for-profit corporation in California‭.26)
    The soundtrack CD from Prelude to Axanar is part of an extensive line of Axanar merchandise.
  6. ‬Are in the midst of producing their infringing works‭ without authorization from the plaintiffs.27)
  7. ‬Believe they are entitled to‭ “‬create‭, ‬distribute‭, ‬market‭, ‬advertise‭, ‬promote‭, ‬sell or offer for sale derivative Star Trek works‭.”‬28)

Prayer for Relief

So‭, ‬while copyright infringement is at the center of the lawsuit‭, ‬there is money associated with the infringing activities‭; ‬that’s why the suit seeks financial compensation‭ (‬damages‭) ‬for the harm ensuing from the infringement‭. ‬Note the relief being sought by lawsuit‭:‬

Declaratory Judgment

A judgment declaring Alec and the other defendants definitely infringed on the studios‭’ ‬copyright‭.‬29)

Damages

Statutory damages‭ of $‬150,000‭ ‬per infringement‭, or “actual damages sustained as a result of Defendants’ acts of copyright infringement [and] profits obtained as a result of their acts.”30) The request for actual damages shows that the studios believe Axanar’s infringing activities may have caused calculable financial harm to their exclusive right to make money from Star Trek‭.‬

So‭, ‬the lawsuit is most definitely about money: Axanar created multiple and ongoing revenue streams that generated more than a million dollars‭ (‬and aimed to raise hundreds of thousands more‭), ‬which contributes to the studios‭’ ‬urgency for an injunction‭.‬

Why Target Axanar?

Wonder why the studios haven’t gone after the other fan films? According to attorney Janet Gershen-Siegel, social media director for the popular Star Trek podcast, “The G&T Show,” there’s no reason they can’t:

There is no reason why they might not be [sued] in the future. CBS/Paramount is under no obligation whatsoever to sue all such productions in one big case. The Axanar matter can easily serve as precedent anyway.31)

What’s different about Axanar is that its multi-million dollar budget was completely intended to be raised from Star Trek fans, using the appeal of the studios’ copyrighted property. Unlike Axanar‭, ‬there’s no money in the other fan films for CBS to go after‭. ‬In addition‭, ‬Axanar’s‭ Annual Report detailed an extensive and expanding commercial operation trading off the studios‭’ Star Trek intellectual property.

Attorney Gershen-Siegel, points to the scale of Axanar’s fundraising:

The money is certainly a factor; Axanar has a deeper pocket than the other [fan] productions do. Making a profit or crowdfunding are not necessarily dispositive of anything here, but the money does lend credence to the idea of this being more than a mere fan film. Despite whatever it has been called or will be called, the budget numbers are close to other independent releases.

Continually referring to themselves as an ‘independent production’ could not have helped matters. Working with [actor Gary Graham] to reprise his actual canon role [as Vulcan ambassador Soval] was another problem area.32)

Intellectual property attorney Mary Ellen Tomazic says Axanar’s apparent commercial enterprise likely threatened CBS and Paramount’s rights over their own property, thereby prompting the suit:

Paramount and CBS [decided] this Axanar movie is no fan film but a competing product made from their copyrights and trademarks. The lawsuit is their way of reining in their previous tolerance of unlicensed use of their intellectual property, and protecting their legal rights under federal law.33)

The preceding section, Why Target Axanar?, expresses opinion or informed speculation.

Attorneys' Fees

If Axanar loses this case‭, ‬it‭ — and all the other defendants‭, ‬which include the 20‭ ‬to-be-named other people‭ (‬the‭ ”Does“) who also allegedly engaged in infringing activities under Alec Peters‭’ ‬supervision‭ — are all liable for the legal fees the studios pile up in defending their copyrights‭.‬34)

Injunction

The studios want a injunction to keep the film from moving into production‭, ‬and preventing the public performance and commercial activity from any‭ of Axanar’s merchandise and other infringing ancillary products‭.35)

Jury Trial

The complaint asks for a jury trial for this case. Some civil cases waive their right to a jury trial and ask a judge to rule on the case.36)

Appendix

The amended complaint concludes with an appendix listing all 12 released Star Trek motion pictures and the pilot episodes for five of the six TV series, along with their U.S. copyright registration numbers, as well as the copyright assignment from Paramount Pictures to CBS. The Appendix omits The Animated Series from its list, though it is included in the body of the complaint.

Motions to Dismiss

On February 22, 2016, the defendants filed a Motion to Dismiss the case, claiming the complaint was insufficient to make its case for copyright infringement. The plaintiffs answered the motion with an amended complaint filed March 11, 2016.

The defense filed a second Motion to Dismiss on March 28, substantially similar to the February 22 motion. A hearing on the new motion was requested for May 9, the same date as the pre-trial scheduling conference. Plaintiffs’ attorneys filed briefs opposing the dismissal motion on April 11, 2016.

In a sweeping rejection of arguments made by the defense, Judge Klausner on May 9, 2016, denied the pending motion to dismiss and ordered the copyright infringement lawsuit should move forward.

Joint Statement

A joint statement filed May 2, 2016, revealed it may be at least a year before Axanar gets its day in court, but a settlement might come sooner, as attorneys for both sides agreed to talks before a federal magistrate, and submitted their discovery plans.

However, a subsequent scheduling order by the judge set the trial date for January 2017.

Counterclaim

In its May 23, 2016, Answer to the legal complaint, Axanar’s attorneys filed a counterclaim against CBS and Paramount, alleging Axanar’s activities did not constitute infringement and asking for relief for harm caused the defendants by the lawsuit.

The plaintiffs filed their Answer to the counterclaim, refuting Axanar’s allegations and asking to move the case into discovery.

‬This section, Axanar Merchandise, express opinion or informed speculation‭.

Axanar Merchandise

One final note‭: ‬While most people have been focusing on what the suit calls‭ “‬the Axanar Works‭” (‬i.e‭., ‬Prelude‭ ‬and‭ ‬Axanar‭ ‬itself‭), ‬it’s quite likely CBS also has issues with all the ancillary products Axanar has created‭ (‬e.g‭., model ships, artwork, patches, coffee and more, which the suit calls‭ “‬any works derived or copied from the Star Trek copyrighted works‭.”‬

DONOR INTEREST
Contributors to Axanar’s various crowdfunding campaigns may be disappointed‭ —‬ ‬contrary to Alec Peters‭’ ‬assurances‭ — ‬to discover that the perks they paid for may be thwarted by the injunction and/or the judgment against Axanar‭.


Keywords

1)
Paramount et al., v. Axanar et al., amended complaint, p. 2 ¶6-10.
2)
Paramount et al., v. Axanar et al., amended complaint, pp. 3-6 ¶13-21.
3)
Paramount et al., v. Axanar et al., amended complaint, pp. 6 ¶22-27.
4)
Paramount et al., v. Axanar et al., amended complaint, pp. 6-7 ¶28.
5)
Paramount et al., v. Axanar et al., amended complaint, p. 7 ¶30.
6)
Paramount et al., v. Axanar et al., amended complaint, p. 7 ¶31.
7)
For purposes of copyright, a work must be “‘fixed’ in some physical form capable of identification that exists for more than a ‘transitory duration.’ Examples of ‘fixed works’ might include scribbles on paper, recordings of music, paintings on canvas and documents on web servers,” Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, by Kenneth D. Crews, Dwayne K. Butler (American Library Association, 2006).
8)
Paramount et al., v. Axanar et al., amended complaint, p. 7 ¶32, 34.
9)
Paramount et al., v. Axanar et al., amended complaint, p. 7 ¶33.
10)
Paramount et al., v. Axanar et al., amended complaint, p. 8 ¶35-36.
11)
Paramount et al., v. Axanar et al., amended complaint, p. 9 ¶39.
13)
Paramount et al., v. Axanar et al., amended complaint, p. 9 ¶42.
14)
Paramount et al., v. Axanar et al., amended complaint, p. 9 ¶43.
15)
Paramount et al., v. Axanar et al., amended complaint, p. 9 ¶41.
16)
Paramount et al., v. Axanar et al., amended complaint, pp. 10-38.
17)
Paramount et al., v. Axanar et al., amended complaint, pp. 25, 30, 33, 36.
18)
Paramount et al., v. Axanar et al., amended complaint, pp. 41-42 ¶66.
19)
Paramount et al., v. Axanar et al., amended complaint, p. 38 ¶48-51.
20)
Paramount et al., v. Axanar et al., amended complaint, p. 39 ¶54.
21)
Paramount et al., v. Axanar et al., amended complaint, p. 39 ¶55.
22)
Paramount et al., v. Axanar et al., amended complaint, p. 40 ¶57.
23)
Paramount et al., v. Axanar et al., amended complaint, pp. 39, 40 ¶55, 58.
24)
Paramount et al., v. Axanar et al., amended complaint, p. 41 ¶61.
25)
Paramount et al., v. Axanar et al., amended complaint, p. 41 ¶62.
27)
Paramount et al., v. Axanar et al., amended complaint, p. 41 ¶65.
28)
Paramount et al., v. Axanar et al., amended complaint, p. 42 ¶67.
29)
Paramount et al., v. Axanar et al., amended complaint, pp. 42-43 ¶1-2.
30)
Paramount et al., v. Axanar et al., amended complaint, p. 43 ¶3a.
31) , 32)
Janet Gershen-Siegel post, "Fan Dance — Sound, Fury and Axanar, G&T Show website, 1/21/16.
33)
Intellectual Property Law Blog, Mary Ellen Tomazic, 2/11/16.
34)
Paramount et al., v. Axanar et al., amended complaint, p. 43 ¶3b.
35)
Paramount et al., v. Axanar et al., amended complaint, p. 43-44 ¶4-5.
36)
Paramount et al., v. Axanar et al., amended complaint, p. 45.