Stand down from battle stations. Star Trek rights holders CBS and Paramount have seen the logic of settling a copyright suit against Alec Peters, who solicited money on crowdfunding sites and hired professionals to make a YouTube short and a script of a planned feature film focused on a fictional event — a Starfleet captain’s victory in a war with the Klingon Empire — referenced in the original 1960s Gene Roddenberry television series. Thanks to the settlement, CBS and Paramount won’t be going to trial on Stardate 47634.44, known to most as Jan. 31, 2017.
According to a joint statement, “Paramount Pictures Corporation, CBS Studios Inc., Axanar Productions, Inc. and Alec Peters are pleased to announce that the litigation regarding Axanar’s film Prelude to Axanar and its proposed film Axanar has been resolved. Axanar and Mr. Peters acknowledge that both films were not approved by Paramount or CBS, and that both works crossed boundaries acceptable to CBS and Paramount relating to copyright law.”
Peters’ Axanar video and script, which feature such arguably copyrighted elements as Vulcan ears, the Klingon language and an obscure character from a 1969 episode, sparked a lawsuit in December 2015. The litigation then proceeded at warp speed with the case almost making it to trial in just 13 months, an amazingly brisk pace by typical standards. Before R. Gary Klausner, the same federal judge in Los Angeles who presided over the copyright trial in 2016 concerning Led Zeppelin’s “Stairway to Heaven,” the case charted an unexplored copyright galaxy. Although there have been past legal disputes over such fare as Harry Potter and Seinfeld encyclopedias, as well as a closely watched battle a few years back over an unauthorized sequel to J.D. Salinger’s Catcher in the Rye, this one has boldly gone places. “There’s never really been a trial over fan fiction before,” says David Kluft, a partner at Foley Hoag who has written about Star Trek litigation.
News of the lawsuit brought mixed emotions on the part of the famously hard-core aficionados of Star Trek.
Some were astounded when CBS and Paramount sued after decades of turning a blind eye to fan-made works. But in taking action over Peters’ video, the studios aimed to convey the message that professional-quality “derivatives” of its films and series wouldn’t be tolerated (Paramount released a Star Trek film last summer and CBS has a new Trek series coming to its All Access streaming service in March). Upon widespread concern caused by the lawsuit, the companies put out “guidelines” so fans can stay legally in bounds with amateur productions.
The case is now ending, which probably means no one will ever get to see the several-hour-long highlight reel of episodes and movies being prepared by attorneys for CBS and Paramount for the purpose of introducing jurors to the franchise’s intricate universe.
Instead, when Axanar comes out, it will look different.
“Axanar and Mr. Peters have agreed to make substantial changes to Axanar to resolve this litigation, and have also assured the copyright holders that any future Star Trek fan films produced by Axanar or Mr. Peters will be in accordance with the ‘Guidelines for Fan Films’ distributed by CBS and Paramount in June 2016,” states the parties’ joint announcement of a settlement.
Creators of parodies or homages often argue they qualify as “fair use.” But a summary judgment ruling in January from Klausner took away fair use as a defense, which for Peters was the equivalent of going into battle with a starship’s shields down. What’s more, the judge found under an objective analysis that the YouTube video, dubbed Prelude to Axanar, was too congruent to Star Trek, leaving a jury to decide whether a reasonable person would find the total concept and feel of the works to be substantially similar. In other words, Peters’ best hope to avoid an adverse verdict was for jurors to look at Axanar and conclude it doesn’t feel authentically Star Trek.
“It was first presented to me as something very raw and unformed,” recalls Christian Gossett, the director hired to take Axanar, he says, from nerd-horrible to Trek-worthy. “Once it became clear that Prelude was not a Star Trek spec for CBS but a fundraising tool that generated over $1 million [in crowdfunding], I suspected that a lawsuit might follow.”
Kluft can’t recall any instance when a jury has found insubstantial similarity after a judge has concluded otherwise. The fact that CBS and Paramount have looked the other way, maybe even encouraging past Trek fan fiction, probably wouldn’t have mattered much on the issue of liability. (It may have factored more had CBS and Paramount brought a separate claim of trademark infringement. Failing to police a mark holds consequences, and the studios’ decision to give the defendant a pass here deserves at least some notice.)
“You got sued because you are too good,” says Kluft, referring to Peters. “It’s a compliment.”
The trial that would have been is somewhat of a moot point now, but it might help to explain what the parties were thinking by striking a deal. At a pretrial conference two weeks ago, Klausner told the parties there would have been three big issues. Besides similarity, a jury would also entertain whether Peters — a lawyer by training who runs a merchandising website — acted willfully in committing infringements, and also, what damages to assess. These latter aspects could have become the most important at trial and may have factored as the parties negotiated a settlement months after premature talk of a deal, spurred by comments by Star Trek Beyond executive producer J.J. Abrams at a promotional event.
For the prospective trial, CBS and Paramount had a big decision to make. They could have either gone after profits — which they estimated to be about $1.4 million in income from Axanar (possibly from the crowdfunding campaign and ad revenue from YouTube) — or elect statutory damages, which can be up to $150,000 per infringed work. That might not sound like much, but adding up the hundreds of copyrighted materials used in Axanar — TV episodes, more than a dozen movies and all those elements like Starfleet uniforms — it could have theoretically computed to damages surpassing $100 million. The complexity of figuring out what copyrights were at issue was one of the things that made a case covering a five-decade-old entertainment franchise somewhat unique. David Grossman, the plaintiffs’ attorney, had told the judge he’d indicate his choice of actual damages or statutory damages on the first day of trial. Meanwhile, Peters’ attorney Erin Ranahan (working pro bono) was preparing to use the studios’ lack of pre-litigation warnings to knock the allegation of willfulness and had hoped her damages expert would tell jurors that fan-made fiction hardly makes a dent in CBS/Paramount’s Star Trek earnings and represents free promotion.
The choice also represented the difficulty for CBS and Paramount in figuring out what constituted a true victory here. Whatever the result of the trial, the dispute could have dragged onto an appeals court where Peters may have challenged the judge’s decision not to let him argue before a jury that Axanar is a transformative fair use of copyrighted material. Meanwhile, a humongous verdict could have driven Peters into bankruptcy with the studios having little hope of collecting. More importantly, CBS and Paramount could have suffered bad publicity from being a bullying Borg at a time when a new Star Trek is about to launch on CBS All Access, something Star Trek fans — and even Abrams and Star Trek Beyond director Justin Lin might not have tolerated.
Instead, the parties have made arrangements to move on. Maybe, to quote one famous Vulcan, they discovered that “the needs of the many outweigh the needs of the few.”
The joint statement from the parties linked to the guidelines and added, "Paramount and CBS would like Star Trek fans, with their boundless creativity and passion, to ‘Live Long and Prosper.’”
