Axanar not blinking after CBS/Paramount suit, ask what exactly they're infringing

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Feb 25, 2016, 6:52 PM EST (Updated)

The story of Axanar's production has become a complex one -- professionals who are also Trek fans raised millions to make a film about the war between the Federation and the Klingon Empire only to find themselves embroiled in a war of their own with current Star Trek rights holders CBS and Paramount. Axanar's production staff (and their lawyers) insist that no money is being made via Axanar, that fan funding is all being funneled into production, and that no financial gain will result from the final product. Paramount and CBS, however, disagree and see an infringement in play based on what they've seen of the Axanar script and preproduction work.

Last time I wrote on this subject, I talked about how Winston & Strawn, a law practice whose expertise is in intellectual property disputes, had agreed to take on Axanar's case. Now we can finally talk about how Axanar plans to proceed.

I received an email from Axanar's PR rep, Morey Altman, in which he laid out Axanar's reaction and the problems they see with the CBS/Paramount suit.

"1.  The motion filed Monday on behalf of Axanar Productions and Alec Peters identifies what we view as deficiencies in the original complaint. Specifically, of all the copyrights owned by CBS and Paramount that relate to Star Trek, none are specifically referenced as being violated meaning it's not clear what the potential damages are or, more importantly, what Axanar Productions might be able to do to change its production and no longer infringe on the copyright.

2.  The motion also asks for a dismissal of the suit as it pertains to the feature film, Axanar, because the film has not yet been produced - the script hasn't even been finalized -  and it's impossible to identify precisely how the film infringes on CBS and/or Paramount's various copyrights."

And here's the crux of these arguments straight from the motion itself:

"Until the film has been completed, the Court will not be able to compare Defendants’ film with the relevant Star Trek films and episodes at issue to determine whether the themes, mood, setting, pace, plot and characters are substantially similar. Moreover, to the extent any of the elements Plaintiffs are complaining about are actually protectable, Defendants intend to vigorously defend their use (if any) as a fair use. Without a film, the Court cannot evaluate the purpose and character of Defendants’ film, whether it is transformative, or a parody, and the amount and substantiality taken (if any). Similarly, the Court will not be able to evaluate any de minimis use defense."

So what we're talking about here, in part, is an issue of fair use. You've likely heard that term show up quite a lot online recently due to corporate takedowns of small content creates on sites like YouTube, Vimeo and others. And there's an argument to made that a work, inspired or otherwise using elements from another copyrighted work, is within its legal right to exist and even draw income. But fair use is a vague and tricky concept, one whose fate is being played out right now, both legally and in the court of public opinion.

As for Axanar's current expressed goal, they are hoping to find some kind of middle ground that will address CBS's and Paramount's concerns "while allowing the filmmakers to fulfill the wishes of thousands of Star Trek fans who have contributed both financially and in-kind to tell this never-before-seen story in the Star Trek universe."

Again, there's that play toward to court of public opinion. Certainly a lot of fans want Axanar to proceed, and with fair use continuing to be a hot-button topic it's possible CBS and Paramount may feel pressured to meet in the middle.

(quotes from Axanar's motion provided via The Hollywood Reporter)

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