Is Axanar Fair Use?

Fan films haven’t seen a lot of action in the court system and one case about a Star Trek fan film that raised over a million dollars in two years could set precedent.

Introduction

In August of last year, a fan film called Axanar ended it’s second crowdfunding campaign (three if you count the short film Prelude to Axanar that preceded it) having raised over one million dollars, more than any other Star Trek fan film. In the last week of the following December, CBS and Paramount sued fan film creator, Axanar Productions and it’s primary spokesperson/lead actor/scriptwriter Alec Peters.

It started when the Prelude to Axanar crowdfunding campaign on Kickstarter launched on March 1, 2014. The goal was $10,000 and it raised 10x that much during it’s one month campaign, allowing them to meet all their stated stretch goals. Three months later, Axanar Productions launched a crowdfunding campaign for the full-length feature film Axanar. While the goal was $100,000 this time around, the one month campaign raised 6x that amount, again allowing them meet all their stated stretch goals. In the campaign description Axanar was billed as “the independent Star Trek film which proves that a feature-quality Star Trek film can be made on a small budget.”

A year later, on July 10, 2015, Axanar Productions launched a new crowdfunding campaign for the feature film on Indigogo. By August 10, they raised $574,434, 188% of their goal. Although, according to Alec Peter’s comments on a July 9th block post, the goal was set artificially low and that Axanar Productions would need $1,300,000 dollars to make the full movie.

The Indidgogo campaign claimed that “Axanar is the first fully-professional, independent Star Trek film.” The crowdfunding campaign emphasized the use of professional actors and technical help with statements like “Axanar has professionals working in front and behind the camera, with a fully-professional crew…” And in their first frequently asked question on the Indiegogo site, they explained why they needed more money by saying “EVERYTHING costs more when you are a professional production and not a fan film.”

After the campaign wrapped up in August, (though you could still donate via retroactive donations on the axanarproductions.com retroactive donation page) The Wrap reported on a meeting between CBS (who own the copyright to almost all works involving Star Trek) and Alec Peters in Las Vegas. There, CBS representatives expressed concern over Axanar and stated that they couldn’t let Peters know what he could do, but they would let him know when he had gone too far.

On December 30, 2015, CBS and Paramount filed a lawsuit against Axanar Productions and Alec Peters for copyright infringement. Axanar Productions and Alec Peters have fought the lawsuit and are represented by a law firm on a pro bono basis.

The lawsuit has generated a lot of strong opinions. The fan film community is upset because they view Axanar as jeopardizing the Star Trek fan film community and believe the Alec Peters’ conduct is responsible for CBS and Paramount tightening the restrictions on fan films. On the other side are a few hardcore fans of Axanar, some of whom have worked on authorized Star Trek productions, who believe that CBS has over stepped its bounds.

At the center of all of this is U.S. copyright law, and the outcome of this case has some potential to be far reaching. Because if the Defendants are right, and if neither Prelude to Axanar nor Axanar infringe, then that could become a huge win for fan films and other fan works as well. But, to get that result, the works would have to be deemed fair use by the court. If the Defendants were to win for some other reason, like if the court finds that they had authorization, then the results are far less far reaching. Likewise, if the Plaintiffs win, then copyright law will be shown to work the way most everyone thinks it does.

Purpose

The purpose of this article is to examine whether or not the Defendants’ fan films, Axanar (which is unfinished) and Prelude to Axanar (which is finished), are fair use. I want to dig into the doctrine of fair use in U.S. Copyright law and see if the facts (as we know them right now) support a finding of fair use. Because the case is still ongoing, the reader should keep in mind that the analysis may change as new facts are uncovered. The reader should also be aware that this article isn’t intended to be legal advice. If you need legal advice, you should consult an attorney licensed to practice in your jurisdiction.

First, I’ll briefly discuss how the Plaintiffs will make a case for copyright infringement, and then briefly discuss the Defendants other defenses before diving into the main fair use analysis.

By looking at the larger infringement case first, I hope to place fair use in it’s legal context. Hopefully the reader will not only understand the case better, but will gain an understanding of how difficult applying the fair use factors can be. The law is specifically constructed so that obvious cases like a teacher making copies or a reviewer quoting from a book are clearly fair use, but other uses are not as easy to classify. Hopefully, the reader will gain an appreciation for the nuances of this important legal doctrine.

1st Step: Can the Plaintiffs Make Out a prima facie Case for Infringement?

A plaintiff can make out a prima facie case if they can show that they have the facts to meet every element of the tort. The elements of a copyright infringement tort are:

  1. Ownership of a valid copyright.
  2. Violation of a right listed 17 U.S.C. §106

In the Axanar case, the Plaintiffs can show the first element by introducing the certificates of registration from the U.S. Copyright Office. For the second element, the plaintiffs can use the videos Prelude to Axanar and The Vulcan Scene (a clip from the unfinished full length Axanar) as evidence of violation of the 17 U.S.C. §106(2), the right make or authorize derivative works.

So far, the plaintiffs have prima facie case for copyright infringement. So that leads us to our next step.

Step 2: What Defenses are Available to the Defendants?

There are two types of defenses available to the Defendants: first, the can try and negate an element of the tort (see above for the elements), and second, the can try and prove an affirmative defenses.

Negating an Element of the Tort

If the defendants can show that the plaintiffs don’t own a valid copyright, then that is an example of negating an element of the tort. This would require showing that either the original pilots were never copyrighted or that whatever later works the defendants copied from aren’t protected for some reason. This kind of thing happens if the original copyright holder fails to register the work or follow other formalities that were required at the time.

To my knowledge, no facts exist that show that the Plaintiffs don’t have a valid copyright. I searched the Copyright Office’s online database and saw registration certificates for Star Trek movies and episodes, as well has Star Trek books. There are both original registrations and assignments in that database. I couldn’t find any registration for FASA’s Star Trek RPG books, which contain extended information about the planet Axanar and the war, so that could be an issue. However, it won’t protect the defendants from copying works that are registered. (Also, I could have simply overlooked the FASA registrations in my search.)

The Defendants can also say that their work isn’t derivative of any of the Plaintiff’s copyrighted works. However, Prelude to Axanar uses several elements lifted directly from the original Star Trek series. And The Vulcan Scene clip is based on shots of Vulcan from both the 2009 Star Trek movie and Star Trek III: The Search for Spock. The Plaintiffs has exhaustedly pointed out the copyrighted elements in their amended complaint.

The Defendants will not be able to negate an element of the tort.

Authorization

In between negating an element of the tort and statutory affirmative defense is authorization.

The copyright holder has the right to make derivative works, or to authorize their creation. Note the word “authorize” as oppose to “license”. Authorization can come in many forms such as a formal written licensing agreement to a simple “uh huh” over the phone. Also, the court might infer authorization from the Plaintiff’s conduct. Since the Plaintiffs are corporations, they can only act through their agents, so there is some agency law that’s also relevant. For example, someone Peters talked to may not have had actual authority to authorize Axanar, but they might have had apparent authority.

If the Defendants can show that someone with either actual authority or apparent authority authorized Axanar then they have authorization under copyright law, even it’s not a formal written license. The Wrap article from last August suggests that the Defendants explicitly withheld authorization. However, Peters statements at the Silicon Valley Comic-Con (where I personally attended a panel about Axanar hosted by him) he said he was in contact with CBS and that they were fine with it.

If Peters can show this by producing emails with his contact at CBS or through deposition testimony with that contact, then he can make out a prima facia case that he had authorization.

Discovery will show whether or not they had authorization, but right now there aren’t any facts generally known that support the notion that the Defendants had authorization.

Affirmative Defenses

An affirmative defense is a defense where, even if the Plaintiffs have a prima facie case, the Defendants are still not liable for infringement because there is an exception. While the burden of making a prima facie case is on the Plaintiff, the burden of making out a an affirmative defense is on the Defendant.

Statutory Defenses

The Copyright Act of 1976 lists sixteen exceptions to the rights granted by §106 in §§107–122. Some of these blur the line between negating an element and affirmative defense, but the section we’re looking at, §107 Fair Use, is firmly in the affirmative defense camp.

Does Axanar fall into Fair Use?

Any analysis of fair use should start with the copyright statute and §107 says the following:

Notwithstanding the provisions of sections 106…, the fair use of a copyrighted work, including such use by reproduction in copies…or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

What Fair Use Does

Fair use allows people to use copyrighted works without the permission of the copyright holder. One of the limitations put on copyright ownership versus land ownership is that there are more ways for people to use your copyright without your permission than there for people to use your land without permission. If the use of a copyrighted work is found to be fair, then it is not infringement and the Plaintiff loses the case.

The statute gives a list of four factors to be considered when making the determination of fair use. Each factor is weighed, with some factors more dispositive then others. This isn’t a checklist. A potential defendant can’t just check these factors off and be safe, the finder of fact gets to weigh them and consider the surrounding circumstances.

That said, the statute is worded in a way that makes some uses, like a teacher making multiple copies for her classroom or a reviewer quoting dialogue from a movie, as clearly falling into the fair use. In addition, educational non-profit use will almost always going to be deemed fair use.

Also, any use deemed by a U.S. Supreme Court case to be fair use will found to be fair in cases with similar facts. See The Betamax case and Campbell vs. Acuff-Rose Music for cases where the U.S. Supreme court ruled whole categories of use as fair use.

Everything else, however, has to go through the four factor analysis.

Factor 0: For Purposes of…

Before we get to the four enumerated factors in the statute, we need to look at the purposes listed in the preceding paragraph. The paragraph gives us a non-exhaustive list of purposes would lead to a finding fair use: “criticism, comment, news reporting, teaching…, scholarship, or research…” If Defendant’s use falls into one of those categories, then it is more likely to be fair use. If not, then they will have a tougher time of it.

Neither Prelude to Axanar nor The Vulcan Scene fall into any of the above categories. It is made for entertainment purposes. While making a movie for entertainment doesn’t preclude a finding a fair use, it weighs against it.

Factor 1: Purpose and character use

This factor has a number of sub-factors courtesy of case law (see Campbell and others). Don’t blame me, blame the Supreme Court. I’ll take each sub-factor separately and evaluate it.

Sub-factor: Commercial vs. Non-profit educational use

If your use is for a non-profit educational use, (like making multiple copies for a class) then it is more likely to be fair use. It is not dispositive, but it certainly helps. This analysis overlaps with the classifying the use based on the preceding paragraph.

A commercial transaction is one where money is exchanged for goods or services. Neither party has to make a profit off the transaction for it to be commercial. A commercial use of someone’s copyrighted work weighs against a finding of fair use.

Prelude to Axanar and Axanar proper were funded via a crowdfunding campaigns on both Kickstarter and Indiegogo. On both sites, people could pre-order DVDs, Blu-rays, CDs, scripts, badges, and other goods or services in exchange for money. This is clearly a commercial transaction.

The Defendants use the word donation and say they are not making money, but none of those facts diminish the commercial nature of the transactions. Even if Axanar Productions was a non-profit (and it wasn’t at any time prior to the lawsuit) that doesn’t make the crowdfunding campaigns any less commercial in nature.

The Defendants use of the Plaintiffs copyrighted works was clearly commercial.

Sub-factor: Education vs. Entertainment

The original Star Trek series was made for entertainment purposes, as were all the movies and subsequent TV shows. The Defendants goal seems to be to recreate the feel of the original show, with some updates for modern audience (like the use of a ship design aesthetic similar to the recent movies). It’s not made for classroom use or to inform anyone about anything in real life. This will weigh against fair use.

Sub-factor: Good Faith vs. Bad Faith

The Defendants bad faith conduct gets a lot of traffic on the internet, but this is one of the least important aspects of the fair use analysis because good faith conduct doesn’t help a defendant very much. That said, bad faith can hurt a lot and even if it’s not dispositive, and it can impact damages a great deal.

Because so much has been targeted at Alec Peters specifically, I’m disinclined to rehash all of it here. But there are two instances that should be highlighted:

First, the Plaintiffs could argue that the Defendants ignored warnings that their fan film was infringing. Last year The Wrap reported that CBS had approached Peters during the Star Trek convention in Las Vegas and warned him that Axanar might be taking things to far. Peters wrote his own version of the events that seemed to suggest that The Wrap had the details of the meeting right, but that he disagreed with The Wrap’s contention that CBS might start to put it’s foot down on Axanar. Peters felt that CBS was just be cautious.

A court might find that Peters’ interpretation of that meeting was willful ignorance on his part.

Second, when the Indigogo campaign launched, Peters said in response to a comment on his blog post announcing it, that the funding level was artificially low and that they really needed 1.3 million dollars to make the movie. It’s unclear from the context if he needs 1.3 million from the Indigogo campaign, or if he needs a total of both the previous year’s Kickstarter campaign and the Indigogo campaign. Either way, setting a goal artificially low so that it will “fund” even if you don’t have the money to make the movie sounds a lot like fraud, and bad faith.

This sub-factor isn’t all that important, but I lean towards bad faith. At best, Peters is an optimist who wasn’t prepared for the Plaintiffs to come down as hard as they did. At worst, he willfully created a crowdfunding campaign that was designed to achieve “fund” status even though he knew the amount wasn’t enough to make the film.

Sub-factor: Transformative Nature of the Work

The big inquiry for this factor (if your use is for commercial entertainment purposes) is whether or not the use is transformative. This inquiry was front and center in the U.S. Supreme Court case Campbell v. Acuff-Rose Music where the court found that parody was transformative and thus fair use.

The framework for evaluating transformative use is completely driven by case law, and it’s quickly taken over fair use analysis. Because of this, I’m going to look at major cases where transformative use has been an important factor.

First, we learn from Campbell that transformative use is when the Defendant “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[.]” (See page 576 of Campbell.) 2 Live Crew’s parody of Pretty Women was found to be transformative in a unanimous decision by the high court.

In the Bill Graham Archive case, the 2nd Circuit ruled that DK Publishing’s use of a copyrighted Grateful Dead concert poster was transformative because they weren’t using it to promote a concert, but to illustrate the history of the Grateful Dead.

In a contrasting case also decided by the 2nd Court a few years later, famous recluse J. D. Salinger sued to stop the publication of an unauthorized sequel to his famous novel Catcher in the Rye. The court found that the Defendants would be unlikely to succeed in their fair use defense, and publication was halted.

Axanar isn’t a parody, nor is it a commentary or criticism on any version of Star Trek. Also, it’s not being used to illustrate the history of Star Trek, science fiction, or any similar thing. It’s sole purpose is to be another entry in the Star Trek saga. This positions Axanar more like the sequel to Cather in the Rye than a parody song or the history of The Grateful Dead.

So this use is highly unlikely to be transformative.

That said, the doctrine is somewhat flexible and ill-defined. If the Defendants can come up with a good argument, and the Plaintiffs argument is deficient in some way, then I can see a finder of fact ruling for the Defendants.

The Defendants best defense is to say that, unlike the Catcher in the Rye sequel, Axanar doesn’t use any of the main characters and it’s a continuation of the the story in the original series. Rather, it’s a side story highlighting an extremely minor character. I don’t think this will work, but it helps distinguish Axanar from bad case law.

Wrap-up for Factor 1

Generally speaking, this factor is the heaviest. Many works live or die on the analysis of this factor alone, especially the transformative use sub-factor. Unfortunately for the Defendants, this factor doesn’t look good for them. Their work is a piece of entertainment that is both commercial in nature and non-transformative. My prediction is that that Axanar will lose on this one factor. Given current trends in copyright law, likely on the transformative use sub-factor alone.

Factor 2: Nature of the Copyrighted Work

Is the copyright work the kind of work that copyright law seeks to protect? Copyright law is designed to give artists control over their creative works. Star Trek television episodes are creative audio-visual works, and represent exactly the kind of work copyright seeks to protect and encourage. We grant greater difference to creative works than to some other kind of work that may be protected by copyright law, but isn’t really what Congress had in mind when the statute was enacted.

Copyrighting a non-creative work, like instructions, might be subject lesser protection. See also the merger-doctrine. However, TV shows were clearly designed to be copyrightable under both the 1976 Copyright Act.

Because Star Trek is a creative audio-visual work, this factor weighs against them.

Factor 3: The Amount Used

The more a defendant uses, the more likely it is to be infringement and not fair use. Prelude to Axanar drew from a large number of copyrighted Star Trek works. They didn’t use a lot from any one source, but rather drew from several sources to make the work look and feel like a Star Trek work.

The Defendants used an extensive amount of the original series and other Star Trek works to recreate the feel of Star Trek. They also gave characters from Enterprise and Star Trek VI: The Undiscovered Country important parts. Peters once said that they use less Star Trek IP than any other fan film, but that doesn’t mean they don’t use a lot. The opening shot of The Vulcan Scene copies elements from Star Trek III, and the shot of the planet looks like Vulcan from the 2009 Star Trek movie.

This element weighs against the Defendants, they drew from multiple sources to make a Star Trek movie.

Factor 4: Effect of the Market

If a Defendant’s use adversely affects the market for the Plaintiff’s copyrighted works, that will weigh heavily against a finding of fair use.

The distribution of infringing high quality verbatim copies definitely impacts the demand for non-infringing copies. However, derivative works may not since they are new works with their own copyright. Fan works may not reduce demand for the original, but there’s a good argument to be made that fan works reduce demand for future authorized derivative works.

One interesting fact that get’s brought up is that the Plaintiffs didn’t want competition from Axanar because of Star Trek: Beyond coming out. If that’s true, then that fact would weigh against fair use because part of the reasoning behind copyright law is to allow copyright holders the ability to profit from their works.

Also, the new Star Trek TV show, Star Trek: Discovery may be set in a time period similar to when Axanar was set. (It actually looks like it’s set a few years after, but maybe that’s close enough.) If CBS felt Axanar would hurt the market for their new TV show (airing on CBS’s pay streaming service) and if they are right, then that fact would also weigh against fair use and the Defendants, for the reason I articulated above.

Fan film makers like Peters have often contended that fan films help copyright owners by promoting their works. If the Defendants had an expert (e.g., an economist) say that (combined, of course with the expert’s reasoning), then that might tip the scales for this one factor towards the Defendants. But, again, this one factor alone doesn’t really help the Defendants even if they can show that it’s in their favor.

However, it can be an important factor for the Plaintiffs though. Part of the reason we have copyright law is so that artists can make money from their works, if a use impacts that right, it’s going to weigh in favor of the Plaintiff and against fair use.

Unfortunately, it’s impossible to make a judgement call without analyzing economic factors beyond the scope of this article, I not going to make a call on this one.

Conclusion

The most important factor in this case is Factor 1. Campbell has placed a great deal of emphasis on it and transformative use, and of the parties arguments will be focused on factor one and transformative use. This doctrine is still evolving, however, and we can’t completely discount the possibility of the court going against the general consensus of copyright experts.

If the court’s analysis extends beyond Factor 1 and transformative use, I expect a lot of time to be spent on Factor 4. A good market analysis showing that fan films do hurt demand for authorized works could be the final nail in the Defendants coffin. However, a counter showing that they do not hurt demand (or even bolster it) won’t really help the Defendants because Factor 1 looms so large.

Still, given the commercial nature of the work, it’s desire to recreate Star Trek as opposed to comment or inform on it, and utter lack of precedent for something like this to be fair use, I think the Defendants case for fair use will fail.