DAVID GERROLD COMES TO BAT FOR AXANAR – USES THE CLASSIC "EVERYBODY'S DOIN' IT" DEFENSE

This story references the current controversy and lawsuit surrounding the Star Trek Axanar project. You can get more info HERE.

The folks over at Axanar have been letting out a lot of sound and fury over the legal action that CBS and Paramount are pursuing against them. Instead of laying low and working on their defense, they are determined to bellow and froth at the mouth as if this will be tried in the court of public opinion rather than in an LA federal court. Apparently they have as much trouble with geography as law.

Here's what author and part-time Perry Mason impersonator David Gerrold (writer of the classic "The Trouble With Tribbles" episode who has latched onto this ship of fools for some reason) recently said:

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

The lawyers have to prove two things:

1) That this fan film represents a significant usage of Paramount/CBS’s property.
and

2) Axanar is a profit-making enterprise. (Ohell, it isn’t even THE Enterprise.)
Both will be hard to prove, especially the latter, because of all the fan films, Axanar has been the most transparent with its fund-raising and its accounting.

There is a third point that would likely be made in such a court case:

If Axanar represents a threat to the copyright, why haven’t Paramount and CBS taken steps to shut down New Voyages, Farragut, Renegades, and Continues? What makes Axanar different? What makes Axanar a threat?

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Now, I am not a lawyer, but I happen to have heard from someone who knows a thing or two about the law, S.M. Oliva, whose Blog can be found HERE. Mr. Oliva thinks that Mr. Gerrold – who, as far as I know, is not a lawyer either – thinks there's some shaky logic in Gerrold's thinking. Almost like he doesn't know what he's talking about because he's not a lawyer. Weird, right?

Here's what Mr. Oliva has to say on the subject (and, unlike the folks at Axanar vis-a-vis Star Trek, I actually have permission to use this):

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Gerrold is not stating copyright law accurately. To prove infringement, CBS Studios and Paramount need only show (1) they own a valid copyright and (2) Axanar Productions copied elements of the copyrighted work. It is not incumbent upon the studios to prove “Axanar is a profit-making enterprise.” Rather, as I explained in my last post, in considering a fair use defense a judge must weigh several factors, including whether or not Axanar Productions’ use of copyrighted material “is of a commercial nature or is for nonprofit educational purposes.”

“They Didn’t Sue the Other Infringers” Is Not a Valid Defense

Gerrold also raises a point made by many Axanar Productions supporters, including Alec Peters himself, namely that CBS Studios and Paramount need to explain why Axanar is “different” than other “Star Trek” fan films that use copyrighted material. This is perhaps the single most pervasive legal myth I have seen in and around the Axanar discussion. So let’s take a look at a case that actually addresses this exact point.

In 1997, Carol Publishing Group published a book, The Joy of Trek, by author Sam Ramer. This book was not authorized or licensed by Paramount, then the sole copyright holder for “Star Trek.” Although the book contained original criticism and commentary about “Star Trek,” Paramount claimed it was an infringing work because a substantial portion was devoted to “brief synopses of the major plots and story lines of many of the Star Trek Properties; descriptions of the history and personalities of the major Star Trek characters; and, descriptions of the fictional alien species and fictional technologies that appear in the Star Trek Properties.”

After Carol refused to pull the book in response to a cease-and-desist letter, Paramount filed suit in Manhattan federal court. On June 1, 1998, U.S. District Judge Samuel Conti (who just retired from the bench last year) issued a ruling in favor of Paramount:

The Court finds that The Joy of Trek consists of actionable copying because it is substantially similar to the Star Trek Properties. The test for substantial similarity is “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” There can be no question that The Joy of Trek meets that test. The characters, devices and plot lines discussed in the book have been taken directly from the Star Trek Properties. A reasonable person would easily recognize these aspects of the book as having been appropriated from the copyrighted properties. By relating synopses of individual episodes and encapsulations of the various characters and alien species, the work copies “the heart” of the Star Trek properties. (Citations omitted)

Of special interest to the Axanar litigation, Judge Conti expressly rejected Carol Publishing’s argument that Paramount’s failure to prosecute other books which infringed upon the “Star Trek” copyrights somehow undermined their clam in this case. Judge Conti said that argument was “without merit”:

It is possible that Paramount believed that the other books did not infringe on the Star Trek Properties. It is also possible that Paramount simply has had a change in corporate policy, determining that the market is now ripe for this type of derivative product. Regardless, the lack of earlier litigation against other similar works is simply irrelevant.

Similarly, Judge Conti said Carol Publishing could not rely on an “estoppel defense” based on Paramount’s alleged failure to sue other potential copyright infringers. “Extending the doctrine of estoppel so that a defendant may rely on a plaintiff’s conduct toward another party is both unsupported by law and pernicious as a matter of policy,” the judge said. Ultimately, “there is no legal duty to instigate legal proceedings,” and therefore “Paramount is free to instigate legal action against whomever it wishes.”

Protecting the Market for “Fictional History”
In his post, David Gerrold argues that Axanar Productions’ infringement is somehow insignificant, because the proposed movie is “about a minor character in one episode and how he became a Starfleet legend.” This, again, demonstrates a fundamental misunderstanding of copyright. First of all, while one episode may be a drop in the bucket that is the “Star Trek” universe, that episode is still a distinct copyrighted work—and one where that “minor character” was the featured guest star.
Secondly, both the proposed “Axanar” feature film and the previously released “Prelude to Axanar” short expressly relate a narrative about the history of the fictional “Star Trek” universe. As Judge Conti noted in the Carol Publishing case, “A person interested in learning about the fictional history of Star Trek now must purchase a product licensed by Paramount.” An infringing work, such as the Ramer book or Axanar’s films, “serves as a potential substitute” for that licensed product and therefore damages the “potential market” for such derivative works.

Finally, even if “Axanar” and “Prelude to Axanar” only use a small amount of copyrighted material, as Gerrold suggests, that too is likely irrelevant. Judge Conti addressed a similar argument from Carol Publishing, noting, “Copying only small portions of a series of copyrighted works offers no protection for a defendant.”

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

So perhaps the incredibly sophisticated "Everybody's Doin' It" defense might not hold water. Which is amazing since Alec Peters is (as he constantly reminds us) a lawyer. But keep in mind that he's a lawyer that sued an individual AND LOST on basic First Amendment grounds a few years back. So, if that case is any indication, Mr. Peters might be missing out on the one key factor regarding being a lawyer: you have to be a GOOD one because any schmuck can get a law degree.

Maybe they'll move on to the always classic "I Know You Are But What Am I?" defense? Only time will tell.

Many thanks to Mr. Oliva for his insight into this situation. He has no horse in the race and has authored two other articles regarding the Axanar case:

1. “Star Trek” Lawsuit Illustrates Legal Issues with Fan Films

2. Does Axanar Have a “Fair Use” Defense?

LLAP,

Don