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
takedown_analysis [2017/02/18 19:02] – adds material throughout; layout fixes Carlos Pedrazatakedown_analysis [Unknown date] (current) – external edit (Unknown date) 127.0.0.1
Line 7: Line 7:
 ====== The Shoe is on the Other Foot ====== ====== The Shoe is on the Other Foot ======
  
-//**Following Lawsuit, Axanar Ironically Claims Copyright Protection Against Fan Edit of 'Prelude'**//+//**Following Lawsuit, Axanar Ironically Claims Copyright Protection From Fan Edit of 'Prelude'**//
 {{TOC}} {{TOC}}
 <WRAP> <WRAP>
Line 17: Line 17:
 After an anonymous fan of //Prelude to Axanar// posted [[prelude_fan_edit|his version]] of the short, unauthorized Star Trek film on February 15, 2017 — edited to tighten the story and replacing [[Alec Peters]]' appearance — Peters moved swiftly to have YouTube [[prelude_fan_edit|take it down]]. After an anonymous fan of //Prelude to Axanar// posted [[prelude_fan_edit|his version]] of the short, unauthorized Star Trek film on February 15, 2017 — edited to tighten the story and replacing [[Alec Peters]]' appearance — Peters moved swiftly to have YouTube [[prelude_fan_edit|take it down]].
  
-That action, normally straightforward on YouTube, instead opened up a myriad of questions surrounding the legal standing of a production that itself just avoided an infringement verdict going on to claim copyright protection for its own unauthorized work.+That action, normally straightforward on YouTube, instead opened up a myriad of questions surrounding the legal standing of a production that itself just avoided an infringement verdict, going on to claim copyright protection for its own unauthorized work.
  
 ===== Settlement Terms ===== ===== Settlement Terms =====
Line 48: Line 48:
 {{ ::dmca-takedown-notice.png?direct&100|}} {{ ::dmca-takedown-notice.png?direct&100|}}
 <wrap lo><wrap em>WHAT IS THE DMCA?</wrap> \\ <wrap lo><wrap em>WHAT IS THE DMCA?</wrap> \\
-The [[wp>Digital_Millennium_Copyright_Act|Digital Millennium Copyright Act]] of 1996 was a revision of U.S. copyright law since the advent of the internet. Under its "safe harbor" provision websites like YouTube that host user-generated content are safe from legal action by copyright holders if they agree to take down infringing videos upon request. Learn more about this controversial law from this excellent article at [[https://www.plagiarismtoday.com/2013/09/24/dmca-safe-harbor-changing/|Plagiarism Today]].</wrap>+The [[wp>Digital_Millennium_Copyright_Act|Digital Millennium Copyright Act]] of 1996 was a revision of U.S. copyright law since the advent of the internet. Under its "safe harbor" provision websites like YouTube that host potentially infringing user-generated content are safe from legal action by copyright holders if they agree to take down infringing videos upon request. Learn more about this controversial law from this excellent article at [[https://www.plagiarismtoday.com/2013/09/24/dmca-safe-harbor-changing/|Plagiarism Today]].</wrap>
 </WRAP> </WRAP>
  
-Contacted soon after the fan edit was posted, Axanar spokesman Mike Bawden told **AxaMonitor** pursuing a fan edit moved Axanar's focus away from its ostensible goal — producing //Axanar// as a short film to partially fulfill its obligations to the donors who forked over the $1.4 million Peters completely spent by the past year.:+Contacted soon after the fan edit was posted, Axanar spokesman Mike Bawden told **AxaMonitor** pursuing a fan edit would move Axanar's focus away from its ostensible goal — producing //Axanar// as a short film to partially fulfill its obligations to the donors who forked over the $1.4 million Peters completely spent by the past year:
  
 > Quite honestly, I’m encouraging everyone to move along and continue with the planning required to produce the two fifteen-minute segments we’re allowed to produce to tell the story of //Axanar//, so I can’t say anyone is going to do anything about this.((Email from Mike Bawden to AxaMonitor editor Carlos Pedraza, 2/15/17.)) > Quite honestly, I’m encouraging everyone to move along and continue with the planning required to produce the two fifteen-minute segments we’re allowed to produce to tell the story of //Axanar//, so I can’t say anyone is going to do anything about this.((Email from Mike Bawden to AxaMonitor editor Carlos Pedraza, 2/15/17.))
  
-Peters' takedown appeared to go against the advice of Bawden his public relations director. Following the takedown, **AxaMonitor** asked Bawden whether the action went against Axanar's agreement to abide by the guidelines.+Peters' takedown appeared to go against the advice of Bawden, his public relations director. Following the takedown, **AxaMonitor** asked Bawden whether the action went against Axanar's agreement to abide by the guidelines.
  
 Bawden did not respond. Bawden did not respond.
Line 75: Line 75:
 ===== Can Axanar Claim 'Prelude' Copyright? ===== ===== Can Axanar Claim 'Prelude' Copyright? =====
  
-Unlike CBS, Paramount, Lucasfilm and Disney, have for their works, Axanar's lack of a clear copyright hold on //Prelude// may impair its attempt to defend the film from such things as fan edits. According to Atlanta attorney Michael K. Stewart:+Studios like CBS, Paramount, Lucasfilm and Disney have a clear copyright for their works. By contrast Axanar's unclear copyright of //Prelude// may impair its attempt to defend the film from such things as fan edits. According to Atlanta attorney Michael K. Stewart:
  
 > Axanar does have a copyright in this film, at least in the original elements that they contributed. Even though it may be an unauthorized derivative work, the creator of the unauthorized derivative work still owns the copyright in it — even though the overall work may be infringing and he doesn't gain any rights into the pre-existing material he incorporated into the work. The myth that if you create an unauthorized derivative work, the copyright in that work is automatically owned by the party whose you infringed is just that — a myth. > Axanar does have a copyright in this film, at least in the original elements that they contributed. Even though it may be an unauthorized derivative work, the creator of the unauthorized derivative work still owns the copyright in it — even though the overall work may be infringing and he doesn't gain any rights into the pre-existing material he incorporated into the work. The myth that if you create an unauthorized derivative work, the copyright in that work is automatically owned by the party whose you infringed is just that — a myth.
  
-And while Guideline No. 9 prohibits Axanar from //registering// a copyright for //Prelude//, that doesn't mean Peters doesn't have a copyright, Stewart added:+{{ :cut_peters_200px.jpg?direct|}} 
 + 
 +And while Guideline No. 9 prohibits Axanar from //registering// a copyright for //Prelude//, that doesn't mean Peters had no copyright, Stewart added:
  
 > Under the law, you can have a perfectly valid copyright without registering it. Registering it is especially problematic for the studios because not only does it put the claim of copyright on record, but it is a prerequisite to filing a copyright infringement lawsuit. > Under the law, you can have a perfectly valid copyright without registering it. Registering it is especially problematic for the studios because not only does it put the claim of copyright on record, but it is a prerequisite to filing a copyright infringement lawsuit.
  
-But without the registration, how could Axanar defend //Prelude// in court? Some legal observers argue that the case of Anderson v. Stallone (1989) holds that Axanar has no defensible copyright interest in its film.+But without the registration, how could Axanar defend //Prelude// in court? Some legal observers argue that the case of //Anderson v. Stallone// (1989) holds that Axanar has no defensible copyright interest in its film.
  
 ==== The Anderson Case ==== ==== The Anderson Case ====
Line 131: Line 133:
 === Filing a Counter-Notice === === Filing a Counter-Notice ===
  
-According to the Electronic Frontier Foundation, people who have had content taken down can submit a "counter-notice," a statement under penalty of perjury that the "material was removed or disabled as a result of a mistake or misidentification," and consenting to the jurisdiction of the poster's local federal court in case the rightsholder decides to sue.+According to the Electronic Frontier Foundation, people who have had content taken down can submit a "counter-notice," a statement under penalty of perjury that the "material was removed or disabled as a result of a mistake or misidentification," and consenting to the jurisdiction of the poster's local federal court in case the rightsholder decides to sue.(([[https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals|"A Guide to YouTube Removals," Electronic Frontier Foundation]], retrieved 2/18/17.))
  
 === Two-Week Ticking Clock === === Two-Week Ticking Clock ===
  
-The fan editor and other posters of //Prelude: Redux// told **AxaMonitor** they have filed counter-notices, giving Axanar only two weeks to file a copyright infringement lawsuit against them. If Axanar did not, YouTube can restore the video. If Axanar elected to sue //Redux// would remain removed until the lawsuit is resolved.(([[https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals|"A Guide to YouTube Removals," Electronic Frontier Foundation]], retrieved 2/18/17.))+The fan editor and other posters of //Prelude: Redux// told **AxaMonitor** they have filed counter-notices, giving Axanar only two weeks to file a copyright infringement lawsuit against them. If Axanar did not, YouTube can restore the video. If Axanar elected to sue, //Redux// would remain removed until the lawsuit is resolved.(([[https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals|"A Guide to YouTube Removals," Electronic Frontier Foundation]], retrieved 2/18/17.))
  
 "This is consequently a higher stakes game … because the rightsholder does not have a cheap and fast way to keep the video down, short of suing you," the EFF noted. "This is consequently a higher stakes game … because the rightsholder does not have a cheap and fast way to keep the video down, short of suing you," the EFF noted.
- 
 ==== Can Axanar Sue? ==== ==== Can Axanar Sue? ====
  
Line 147: Line 148:
 <WRAP tip> <WRAP tip>
 [{{ :prelude-redux.jpg?300|**REDUX** An altered //Prelude// scene in the fan-edit taken down from YouTube.}}] [{{ :prelude-redux.jpg?300|**REDUX** An altered //Prelude// scene in the fan-edit taken down from YouTube.}}]
 +
 ===== Fair Use Analysis ===== ===== Fair Use Analysis =====
  
-<wrap lo>As it turned out for Axanar in its lawsuit, a federal judge rejected its argument that //Prelude// consisted [[fair use]] of Star Trek copyrights. How well would //Prelude: Redux// fare under the same kind of analysis. The EFF sums up that analysis under the following questions,(([[https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals|"A Guide to YouTube Removals," Electronic Frontier Foundation]], retrieved 2/18/17.)) each followed by the fan editor's likely stance. \\ \\+<wrap lo>As it turned out for Axanar in its lawsuit, a federal judge rejected its argument that //Prelude// made [[fair use]] of Star Trek copyrights. How well would //Prelude: Redux// fare under the same kind of analysis? The EFF sums up that analysis under the following questions,(([[https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals|"A Guide to YouTube Removals," Electronic Frontier Foundation]], retrieved 2/18/17.)) each followed by the fan editor's likely stance. \\ \\
 **Is the video transformative? Is it non-commercial?** \\ **Is the video transformative? Is it non-commercial?** \\
 The fan editor would say yes to first under the theory that his cut comments on the original work and transforms it into a new interpretation. Posted for free on YouTube, and free of any surrounding commercial endeavors based on the work — which severely weakened Axanar's own case — //Redux// would likely be found non-commercial. The fan editor would say yes to first under the theory that his cut comments on the original work and transforms it into a new interpretation. Posted for free on YouTube, and free of any surrounding commercial endeavors based on the work — which severely weakened Axanar's own case — //Redux// would likely be found non-commercial.
 \\ \\ \\ \\
 **Is the video a substitute for the original? Would people still want to buy the original after seeing the video?** \\ **Is the video a substitute for the original? Would people still want to buy the original after seeing the video?** \\
-Axanar could certainly argue the intent of the fan edit is precisely to substitute for the original. But Axanar is prohibited under the settlement from ever selling copies of //Prelude//, therefore there would be no market substitution. The fan editor could, however, do a better job of identifying //Redux// with the body of the fan edit as clearly //not// the original //Prelude//.+Axanar could certainly argue the intent of the fan edit is precisely to substitute for the original. But Axanar is prohibited under the settlement from ever selling copies of //Prelude//, therefore there is no market  in which to substitute. The fan editor could, however, do a better job of identifying //Redux// with the body of the fan edit as clearly //not// the original //Prelude//, rather than just in the description of the work.
 \\ \\ \\ \\
 **How much of the original work did the fan editor take, both quantitatively and qualitatively?** \\ **How much of the original work did the fan editor take, both quantitatively and qualitatively?** \\
Line 163: Line 165:
 \\ \\ \\ \\
 **If the fan editor's use were to become widespread, would it harm the market for or value of the original work?** \\ **If the fan editor's use were to become widespread, would it harm the market for or value of the original work?** \\
-Since Axanar had already agreed never to monetize //Prelude// the film has no economic value or market likely to be affected this or any other fan edit. {{:axamonitor-ico.gif?nolink|}}</wrap>+Since Axanar had already agreed never to monetize //Prelude// the film has no economic or market value likely to be affected this or any other fan edit. {{:axamonitor-ico.gif?nolink|}}</wrap> 
 +</WRAP> 
 + 
 +<WRAP tip 75%> 
 +<wrap em>COMMENTS</wrap> \\ 
 +Discuss this article in [[face>groups/axamonitor/permalink/148994902282032/|AxaMonitor's Facebook group]].
 </WRAP> </WRAP>
  
 ---- ----
 **Keywords** {{tag>copyright fair_use Prelude}} **Keywords** {{tag>copyright fair_use Prelude}}