# Axanar meets legal resistence from CBS



## Ryujin (Dec 30, 2015)

Full disclosure: I am a backer of the "Star Trek: Axanar" crowdfunding projects.

This has been going back and forth for a while now, but CBS has finally gone forward with an attempt to get an injunction against the producers of the crowdfunded Star Trek movie "Star Trek: Axanar." Until now CBS has tolerated fan films, as long as they didn't make a profit. Alec Peters, one of the producers who also plays Garth of Izar in the movie, was told as much in meetings with CBS execs. I guess as long as your project effectively acts as advertising for their property it's OK, but you can't be TOO successful. Doing this production caught the imagination of a lot of industry professionals who are working for significantly less than usual, are putting aside more lucrative work, or are working for nothing in order to see it be made.

Yes, I support a creator/producer being able to exert creative creative control over his intellectual property. This is a bit different, though, as there has been a long standing explicit permission for not-for-profit productions. These days a production without much SFX and reasonable production values runs a minimum of around $100K per hour of the final product, and that's not at Hollywood rates. So is it the fact that they managed to get a couple of million dollars in support that makes the difference? Is it that it's actual higher level Hollywood professionals who have made this their passion project?

http://www.hollywoodreporter.com/th...Lewis&utm_term=hollywoodreporter_breakingnews


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## Umbran (Dec 30, 2015)

Ryujin said:


> So is it the fact that they managed to get a couple of million dollars in support that makes the difference? Is it that it's actual higher level Hollywood professionals who have made this their passion project?




I suspect it is because CBS is intending to start a new TV series almost exactly a year from now.

Part of the issue may be that CBS intends this to drive their streaming content service, rather than broadcast it - Axanar, as an online offering, may be seen as a conflict.

http://www.startrek.com/article/new-star-trek-series-premieres-january-2017


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## Mallus (Dec 30, 2015)

Yep, got it in one. CBS -- stupidly, in my opinion -- looks like it's using the Star Trek brand to push their streaming content service which will be a complete failure. The best I can say is the Enterprise has survived worse...

Contrast CBS's actions with Disney/Lucasfilms. You can't open Youtube these days without seeing full-length fan re-edits of the Star Wars prequel films, in 1080P, all free of charge and heavily promoted.


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## Umbran (Dec 30, 2015)

Mallus said:


> Yep, got it in one. CBS -- stupidly, in my opinion -- looks like it's using the Star Trek brand to push their streaming content service which will be a complete failure. The best I can say is the Enterprise has survived worse...




I find it a little boggling that CBS can't come to an amicable deal with Hulu or Netflix for their content.  Either one would *love* to be the place where folks can get new Trek, I suspect, as well as most of the rest of what CBS produces.  And CBS could avoid all the cost and risk of operating a service, create content, and get paid for it through the license.  *sigh*



> Contrast CBS's actions with Disney/Lucasfilms. You can't open Youtube these days without seeing full-length fan re-edits of the Star Wars prequel films, in 1080P, all free of charge and heavily promoted.




Yes, but that's in part because 1) The prequels are now 10-15 years old!  2) Aren't considered very good.  That's squeezing some good will marketing out of old content, which isn't much related to establishing and getting value out of new content.


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## Ryujin (Dec 30, 2015)

Umbran said:


> I suspect it is because CBS is intending to start a new TV series almost exactly a year from now.
> 
> Part of the issue may be that CBS intends this to drive their streaming content service, rather than broadcast it - Axanar, as an online offering, may be seen as a conflict.
> 
> http://www.startrek.com/article/new-star-trek-series-premieres-january-2017




You aren't wrong, but I don't think that you go quite far enough. It's the 50th anniversary of the original series. They're releasing the third in a series of movies, that many like myself don't feel have been very true to the vision of Star Trek (though I'm now holding out some hope). AND you have the CBS streaming service that's coming, with the new Star Trek series appearing to be its flagship show.

You've got a producer/star who met with CBS execs and came away from that meeting feeling that there was an agreement, or at least the outline for fair use, in place. He, those working with him, and thousands of fans have gone forward based on that. I don't see that anything has changed on the Axanar side of the equation.


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## Umbran (Dec 30, 2015)

Ryujin said:


> You've got a producer/star who met with CBS execs and came away from that meeting feeling that there was an agreement, or at least the outline for fair use, in place.




Paramount has generally been okay with fan work, if it doesn't sell anything. However, the significant professional involvement, and million dollar budget make it a different beast.

Plus, I am not so sure about feeling there was an agreement - this back from August:

[/i]"The official line from CBS and Paramount, which manage the TV and film rights to the ‘Star Trek’ franchise, respectively, is not to endorse such a production.

“CBS has not authorized, sanctioned or licensed this project in any way, and this has been communicated to those involved,” a representative from the network told TheWrap. “We continue to object to professional commercial ventures trading off our property rights and are considering further options to protect these rights.” (Paramount did not return TheWrap’s request for comment.)

Peters said he and his team met with CBS last week but the network didn’t offer any specific guidelines concerning what his crew can and cannot do — the network simply told him that they can’t make money off the project."[/i]

http://www.thewrap.com/how-1-1-million-star-trek-fan-movie-has-escaped-studio-shutdown-so-far/

I don't see how he gets from "didn't offer any specific guidelines" to "have an agreement or outline for fair use in place".  I really don't.


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## Ryujin (Dec 30, 2015)

Umbran said:


> Paramount has generally been okay with fan work, if it doesn't sell anything. However, the significant professional involvement, and million dollar budget make it a different beast.
> 
> Plus, I am not so sure about feeling there was an agreement - this back from August:
> 
> ...




I'd say that "can't make money from it" pretty much does that and the Axanar folks have been very forthcoming about where the money from the project is being spent, by publicly releasing their books.


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## Ryujin (Dec 31, 2015)

From Alec Peters, about an hour ago:



> STATEMENT FROM ALEC PETERS, EXECUTIVE PRODUCER OF AXANAR
> 
> December 30, 2015
> 
> ...


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## Umbran (Dec 31, 2015)

Ryujin said:


> I'd say that "can't make money from it" pretty much does that ...




Not when accompanied by an explicit statement that they *weren't* given a list of what was okay, and what wasn't.  All it really says is that if they try to make a profit, CBS *will* shoot them down.  It gives no guarantee otherwise.  CBS was being intentionally vague, and not committing to allow anything in particular.  So, no, not anywhere near an agreement.  Nobody who works with Hollywood should think of that as an agreement or understanding for a *million dollar* project.  

Really, think of that scale for a moment.  Consider how clear and unambiguous that agreement should have been before committing to a project that large.


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## HardcoreDandDGirl (Dec 31, 2015)

OK, I'm new to this whole idea of 'fan films' but I have been an avid roleplayer since I was 8 years old, and that is a market I follow. How is this any different then an RPG company that has no problem with Me, Tabitha, putting out an adventure on the web for free, but stopping Monte cook from putting up a kickstarter for an adventure?


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## Ryujin (Dec 31, 2015)

Umbran said:


> Not when accompanied by an explicit statement that they *weren't* given a list of what was okay, and what wasn't.  All it really says is that if they try to make a profit, CBS *will* shoot them down.  It gives no guarantee otherwise.  CBS was being intentionally vague, and not committing to allow anything in particular.  So, no, not anywhere near an agreement.  Nobody who works with Hollywood should think of that as an agreement or understanding for a *million dollar* project.
> 
> Really, think of that scale for a moment.  Consider how clear and unambiguous that agreement should have been before committing to a project that large.




I can't say that you're wrong there. All that I can say is that previous efforts of the sort were passed and the only real difference here is scale.


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## Ryujin (Dec 31, 2015)

HardcoreDandDGirl said:


> OK, I'm new to this whole idea of 'fan films' but I have been an avid roleplayer since I was 8 years old, and that is a market I follow. How is this any different then an RPG company that has no problem with Me, Tabitha, putting out an adventure on the web for free, but stopping Monte cook from putting up a kickstarter for an adventure?




The difference would be if said RPG company had permitted 20 people before Monte to do so, without making a profit, and Monte was also making no profit but could draw on his greater fan following to make it prettier, and longer.


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## Cor Azer (Dec 31, 2015)

Ryujin said:


> The difference would be if said RPG company had permitted 20 people before Monte to do so, without making a profit, and Monte was also making no profit but could draw on his greater fan following to make it prettier, and longer.




That's simplistic, if not an outright strawman.

A business entity is under no obligation to enter into contracts with everyone using the same terms, as long as none of those terms are discriminatory (among a few other restrictions).

Further, I wouldn't be surprised if lawyers thought there's a grey area in whether this was non-profit or not - even with open books. It sounds like a lot of professionals are being paid, even if at reduced rates, and I'm sure better legal minds than I could argue some sort of (un)intention shenanigans that those reduced rates hide what profit it could have warranted - ie: just because a business fails to make money, it doesn't mean it's a non-profit (without saying that happened here). 

As suggested upthread, I certainly hope the group making Axanar had a lawyer onboard to shore up what they're doing, because while laudible in goal, at their scale rules and laws can change.


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## Ryujin (Dec 31, 2015)

Cor Azer said:


> That's simplistic, if not an outright strawman.
> 
> A business entity is under no obligation to enter into contracts with everyone using the same terms, as long as none of those terms are discriminatory (among a few other restrictions).
> 
> ...




No, the business entity isn't obligated to deal with all comers in the same way. The specifics regarding whether the production is not for profit and if the studio created a situation in which the "Axanar" people believed that they were following the vague guidelines laid out are matters for the court to decide.

No, it isn't an over simplification. It's an analogy. It's representative of the situation and doesn't preclude your statement regarding inequality of treatment. I can easily point to three campaigns, ranging from $50K to $200K+, for other Star Trek fan productions. These productions are also not one-offs, but rather ongoing series.


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## Janx (Dec 31, 2015)

Ryujin said:


> No, the business entity isn't obligated to deal with all comers in the same way. The specifics regarding whether the production is not for profit and if the studio created a situation in which the "Axanar" people believed that they were following the vague guidelines laid out are matters for the court to decide.
> 
> No, it isn't an over simplification. It's an analogy. It's representative of the situation and doesn't preclude your statement regarding inequality of treatment. I can easily point to three campaigns, ranging from $50K to $200K+, for other Star Trek fan productions. These productions are also not one-offs, but rather ongoing series.




yep.  A case can be made that CBS/Paramount has failed to defend its trademark/copyright/whatever in allowing any use of ST stuff.

It could also be that in seeing million dollar in donations, CBS lawyers got dollar signs in their eyes and decided to try to snag a share.

Sadly, Axanar could be a nice filler piece of content between Enterprise and TOS.  I highly doubt CBS is ever going to backfill that content themselves.

So it could be that for a licensing fee and a consultancy, CBS could join the Axanar project and all this could be happy again.

If CBS tries to scuttle the Axanar project, I predict huge issues.  In theory, the donations would have to be returned. Some of which was spent on costs/staff/etc.  Try explaining that to your supporters...


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## Ryujin (Dec 31, 2015)

Janx said:


> yep.  A case can be made that CBS/Paramount has failed to defend its trademark/copyright/whatever in allowing any use of ST stuff.
> 
> It could also be that in seeing million dollar in donations, CBS lawyers got dollar signs in their eyes and decided to try to snag a share.
> 
> ...




If "Axanar" is required to pay any fees, based on the point at which their budgeting currently sits, it would kill the project outright. Any donations would be lost. This statement appears on the Indigogo campaign and others, much like it, show up in their previous Kickstarter campaigns.



> There are always risks and challenges when making a film - actors dropping out, locations and/or sets not being available, unforeseen costs, equipment trouble, inclement weather, etc.  In addition, "Star Trek" is a licensed property of CBS and so they have the final say in any Star Trek venture. However, the Axanar team has dealt with CBS and knows the landscape which must be navigated. Every member of the Axanar team is also a professional, and has proven his or her skills on other projects and films.




As far as repercussions to CBS go, many are already screaming words like 'boycott.' Facebook and twitter are full of hashtags against CBS and supporting the "Axanar" group. This goes a bit far but, then again, when doesn't the internet dial outrage up to eleven?


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## Umbran (Dec 31, 2015)

Ryujin said:


> I can't say that you're wrong there. All that I can say is that previous efforts of the sort were passed and the only real difference here is scale.




Yes, but scale *matters*.  Scale leads to qualitative, not merely quantitative, differences in the result.  The larger scale leads Axanar to be a different beast.  And, to be honest, *that is the point of Anxanar!*.  Axanar was not supposed to be just another fan film, so I don't think they can't really hide behind that distinction.

To be honest, if they were big enough to have meetings with CBS about it, and they didn't come out with a written permission, then they've nobody to blame but themselves.


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## Janx (Dec 31, 2015)

Umbran said:


> To be honest, if they were big enough to have meetings with CBS about it, and they didn't come out with a written permission, then they've nobody to blame but themselves.




that part is certainly true.  According to the first article, the guy who's playing garth, who met with CBS,  is also a lawyer.

Part of my work involves contracts, agreements and stuff that I am wise enough to recognize "this needs a lawyer"

Surely an actual lawyer, should have been wise enough to know "I think we should get a written agreement"


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## tomBitonti (Dec 31, 2015)

Eh, why the focus on profit?  That's just one leg of possible legal issues.  And, a part of profit considerations is profit loss by the copyright holder.

There is a lot more to consider.

Thx!
TomB


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## Ryujin (Dec 31, 2015)

Umbran said:


> Yes, but scale *matters*.  Scale leads to qualitative, not merely quantitative, differences in the result.  The larger scale leads Axanar to be a different beast.  And, to be honest, *that is the point of Anxanar!*.  Axanar was not supposed to be just another fan film, so I don't think they can't really hide behind that distinction.
> 
> To be honest, if they were big enough to have meetings with CBS about it, and they didn't come out with a written permission, then they've nobody to blame but themselves.




They aren't the only fan film folks to have a meeting with CBS execs though, by virtue of many of those involved having actually worked on Star Trek projects, they may have had an easier time arranging such a meeting. I don't believe that any of the fan films or series have received "written permission" from CBS. The vague outline given seems to be that such productions could not be made for profit and could not make use of previously unreleased content (in other words,for example, you couldn't make a production based on a script that was submitted for TOS).

I've looked for a quote I read from Alec Peters, but cannot find it, that stated CBS was unwilling to create actual guidelines for fan films, in the way that Disney has for the Star Wars franchise. Unfortunately it has been buried in the Facebook rage over this.


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## Cor Azer (Dec 31, 2015)

Ryujin said:


> No, it isn't an over simplification. It's an analogy. It's representative of the situation and doesn't preclude your statement regarding inequality of treatment. I can easily point to three campaigns, ranging from $50K to $200K+, for other Star Trek fan productions. These productions are also not one-offs, but rather ongoing series.




I didn't say 'oversimplification'. Just simplification, and in particular one that removes a rather important nuance: RPG companies specifically encourage players to make their own adventures and stories (in addition to hopefully purchasing their company-produced ones) - although with a few exceptions, they don't expect players to publish them from profit. It's not a far cry for players to go from making adventures for their own use to sharing with others, and so RPG companies don't frown on that as long there aren't copyright or trademark violations or implied endorsements. 

Television and film companies certainly like for their to be (positive) buzz for their properties, but they don't generally encourage people to make their own stories set in those properties. That said, unless copyright and trademarks are infringed, there's not much they can do against fan fiction besides a stern glare.


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## HardcoreDandDGirl (Dec 31, 2015)

ALso the whole 'not for profit' thing is tricky...

if I open a lemon aid stand, and hire my brother and his wife, and pay each 3x hire then min wage (7.25 an hour so 21.75 an hour) then pay myself as a manager double that (43.50 an hour), then spend $2,500 on supplies and licenses. at the end of week one I have spent 1,740 on my 2 employees, and 1,740 on my pay, and 2,500 on stuff so my over head is $5,980. If my sales came in at $6,000 that $20 profit is then 'reinvested' and week 2 I do the same thing, but with a $20 add in the newspaper. I still pay my 2 employees, and myself. 

the company has 0 savings and 0 from the profit, but me and my 2 family members didn't 'volunteer our time'  'not for profits' still give profit to the people, just not investers... when you make $100 bake sale or lemonaid stand no one says anything... when you make $24000 in a mounth, and walk away with 'paychecks' of almost 7k your self and family members make almost another 7k people change there minds...

like umbra said "Scale matters"


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## Mallus (Dec 31, 2015)

Umbran said:


> I find it a little boggling that CBS can't come to an amicable deal with Hulu or Netflix for their content.  Either one would *love* to be the place where folks can get new Trek, I suspect, as well as most of the rest of what CBS produces.  And CBS could avoid all the cost and risk of operating a service, create content, and get paid for it through the license.  *sigh*



I think it comes down to Netflix really wanting to be a studio/network a la HBO and having more control than CBS is willing to cede. Which would make Hulu a logical choice -- except Hulu is a partnership with NBC/Universal/Comcast (did I get that all right??) and currently offers *no* CBS programming (which I discovered when I tried to catch up w/Supergirl via Hulu).  



> Yes, but that's in part because 1) The prequels are now 10-15 years old!  2) Aren't considered very good.  That's squeezing some good will marketing out of old content, which isn't much related to establishing and getting value out of new content.



All true. But I still find it weird that Disney is okay with free versions of the prequels while still selling them in multiple formats and CBS thinks Axanar warrants multiple lawsuits. 

To my mind, anything that gets people talking about Star Trek in the current climate of Star Wars mania is a good thing.

Anything except suing the makers popular crowd-funded fan film, that is.


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## Umbran (Dec 31, 2015)

HardcoreDandDGirl said:


> ALso the whole 'not for profit' thing is tricky...




Yes.  And to a certain extent, it is a red herring.  It isn't a guideline for fair use (that guideline is for "non-profit _educational_" use, not just not-for-profit).  This isn't educational.  

The only thing that really matters is whether they had a clear agreement with CBS on whether Axanar was going to be okay.  Nothing in the quotes I've seen suggests so - what Iv'e found says there were very big, open questions, and no blessing from CBS.  This isn't a case of CBS going back on their word - it is a case of fans pushing the limit, and finding they went beyond it.

The makers of a property - be it Star Trek, Star Wars, Doctor Who, or any other popular or unpopular thing, do not owe the fans the right to do anything they darn well please.


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## Ryujin (Dec 31, 2015)

Umbran said:


> Yes.  And to a certain extent, it is a red herring.  It isn't a guideline for fair use (that guideline is for "non-profit _educational_" use, not just not-for-profit).  This isn't educational.
> 
> The only thing that really matters is whether they had a clear agreement with CBS on whether Axanar was going to be okay.  Nothing in the quotes I've seen suggests so - what Iv'e found says there were very big, open questions, and no blessing from CBS.  This isn't a case of CBS going back on their word - it is a case of fans pushing the limit, and finding they went beyond it.
> 
> The makers of a property - be it Star Trek, Star Wars, Doctor Who, or any other popular or unpopular thing, do not owe the fans the right to do anything they darn well please.




You're absolutely right. In addition not defending copyright, in previous cases, does not mean that it cannot be enforced in subsequent cases, as the owner of intellectual property cannot be aware of all such breaches. To this day I still find old instances in which people have used my own photography, out of license, for their own enrichment.

This will likely come down to whether the meeting with CBS execs constitutes any sort of assurance that the Axanar folks acted upon in good faith, to their current detriment.


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## Umbran (Dec 31, 2015)

Mallus said:


> All true. But I still find it weird that Disney is okay with free versions of the prequels while still selling them in multiple formats and CBS thinks Axanar warrants multiple lawsuits.




I don't.  The prequels are all their own content, and, as noted, were not considered great films.  The fan activities around them probably aren't cutting into profits.

Establishing a precedent that you can make a *million dollar* fan film, however, opens up to making a sort of business out of such, which I am pretty sure CBS does not want.

For example - Michael Dorn has several times tried to get a "Captain Worf" series made, including trying to sell them on it for the 2017 show.  Should Axanar succeed, what's to prevent Dorn from moving ahead with a multi-million dollar miniseries effort, possibly leveraging the same people with Dorn's face to drive the funding?  That would surely be competition for CBS's new series, but would mean they'd have to deal with a beloved star to get them to stop.  Not a position CBS would want to be in.

It is simply a case of policies not being ahead of what technology allows, really.  Everyone's learning.



> Anything except suing the makers popular crowd-funded fan film, that is.




Meh.  I don't see as engaging the court in the matter is particularly problematic.


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## Ryujin (Dec 31, 2015)

Umbran said:


> I don't.  The prequels are all their own content, and, as noted, were not considered great films.  The fan activities around them probably aren't cutting into profits.
> 
> Establishing a precedent that you can make a *million dollar* fan film, however, opens up to making a sort of business out of such, which I am pretty sure CBS does not want.
> 
> ...




Have you heard of "Star Trek: Renegades"? While it's not a million dollar budget series it does, in fact, involve one of the beloved characters from the original series, "Admiral Checkov." They have just completed funding of their second and third episodes, to the tune of almost $380K.

Again, full discolsure: I was a backer of their first film. As I found it to be disjointed, unnecessarily expository and, in my opinion generally bad, I did not take part in ongoing support.


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## Umbran (Dec 31, 2015)

Ryujin said:


> Have you heard of "Star Trek: Renegades"? While it's not a million dollar budget series it does, in fact, involve one of the beloved characters from the original series, "Admiral Checkov." They have just completed funding of their second and third episodes, to the tune of almost $380K.
> .




I know of it, yes.  I also know that the folks who make Renegades *sell* DVDs of the thing, which would seem a pretty blatant violation of CBS's usual policy.  It is possible that they have some agreement with CBS, that Axanar doesn't have - given that they've got so many former Trek actors involved, I'd not be surprised.  It is also possible that CBS will eventually close Renegades down, too.


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## Ryujin (Dec 31, 2015)

Umbran said:


> I know of it, yes.  I also know that the folks who make Renegades *sell* DVDs of the thing, which would seem a pretty blatant violation of CBS's usual policy.  It is possible that they have some agreement with CBS, that Axanar doesn't have - given that they've got so many former Trek actors involved, I'd not be surprised.  It is also possible that CBS will eventually close Renegades down, too.




And yet "Axanar" has former Star Trek actors and people otherwise well known to CBS, from the production side. It's all a little higgledy-piggledy.


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## HardcoreDandDGirl (Dec 31, 2015)

Ryujin said:


> And yet "Axanar" has former Star Trek actors and people otherwise well known to CBS, from the production side. It's all a little higgledy-piggledy.




"You shouldn't insult my mother.."
"That other guy insulted your mother"
"I'l get to him, what's your excuse"

seems like "Hey this other person did it is the type of defense that didn't work in kindergarten, let alone in the business world.

Imagine standing before a judge and using this excuse for any other theft... "This other guy robed  bank last week" I bet wouldn't cut it...


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## Cor Azer (Dec 31, 2015)

Ryujin said:


> And yet "Axanar" has former Star Trek actors and people otherwise well known to CBS, from the production side. It's all a little higgledy-piggledy.




Higgledy-piggledy? That's an odd term for 'we know nothing of what, if any, terms were negotiated by two separate groups with CBS/Paramount'. Using your term implies shenanigans, when much more likely is either 1. better negotiators on behalf of Renegades, or 2. extenuating circumstances delaying a public response from CBS re Renegades.


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## Ryujin (Dec 31, 2015)

Cor Azer said:


> Higgledy-piggledy? That's an odd term for 'we know nothing of what, if any, terms were negotiated by two separate groups with CBS/Paramount'. Using your term implies shenanigans, when much more likely is either 1. better negotiators on behalf of Renegades, or 2. extenuating circumstances delaying a public response from CBS re Renegades.




Actually what it means is confusion; nothing more, nothing less.


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## Ryujin (Dec 31, 2015)

HardcoreDandDGirl said:


> "You shouldn't insult my mother.."
> "That other guy insulted your mother"
> "I'l get to him, what's your excuse"
> 
> ...




Except that, in legal terms, there's a thing referred to as 'precedent.' CBS is aware of these other productions and yet has done nothing, until now. There's also the term "implied consent." These are not schoolyard things, and have very much potential to be applied in this situation.


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## HobbitFan (Dec 31, 2015)

Sad to hear that about Axanar.  
I thought they were doing a quality production.
I enjoyed what they have released more than the two AbramsTrek movies.


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## HardcoreDandDGirl (Dec 31, 2015)

Ryujin said:


> Except that, in legal terms, there's a thing referred to as 'precedent.' CBS is aware of these other productions and yet has done nothing, until now. There's also the term "implied consent." These are not schoolyard things, and have very much potential to be applied in this situation.




it still seems silly both in a court and in this thread... you want to be mad at CBS for saying "Hey you can't make a million dollor movie" but your best argument is "Someone else did...and you may or may not have had a deal with them, and you may or may not have other things stoping you because they did things different...but still grr mad."


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## Ryujin (Dec 31, 2015)

HardcoreDandDGirl said:


> it still seems silly both in a court and in this thread... you want to be mad at CBS for saying "Hey you can't make a million dollor movie" but your best argument is "Someone else did...and you may or may not have had a deal with them, and you may or may not have other things stoping you because they did things different...but still grr mad."




Might I remind you that mind reading via the internet has a rather low success rate?


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## Cor Azer (Dec 31, 2015)

Ryujin said:


> Actually what it means is confusion; nothing more, nothing less.




Regardless of that (although I admit I've never heard that word before and thought you were going all Tenth/Eleventh Doctor on us with timey-wimey babble , something being unknown does not equate with confusion.


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## Ryujin (Dec 31, 2015)

Cor Azer said:


> Regardless of that (although I admit I've never heard that word before and thought you were going all Tenth/Eleventh Doctor on us with timey-wimey babble , something being unknown does not equate with confusion.




Inconsistency, however, does.


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## Cor Azer (Dec 31, 2015)

Ryujin said:


> Except that, in legal terms, there's a thing referred to as 'precedent.' CBS is aware of these other productions and yet has done nothing, until now. There's also the term "implied consent." These are not schoolyard things, and have very much potential to be applied in this situation.




Precedent is set in courts and contracts.

Given that CBS has very deliberately avoided publicly presenting any terms of acceptable use, there is no precedent to be used legally. You cannot use someone's lack of action against them unless they had a duty to act in a timely manner (for which copyright and trademark infringement do not have).

Also, I'm not sure how you're trying to invoke implied consent. By Peters' own admission, CBS didn't offer any specific guidelines as to how they might make things work. To me, that sounds very much like a 'we're not going to give you a green light' that would prevent any thought of implied consent.


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## Cor Azer (Dec 31, 2015)

Ryujin said:


> Inconsistency, however, does.




Where's the inconsistency? They have *never* publicly consented to fan films. That's pretty consistent.


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## Ryujin (Jan 1, 2016)

Cor Azer said:


> Precedent is set in courts and contracts.
> 
> Given that CBS has very deliberately avoided publicly presenting any terms of acceptable use, there is no precedent to be used legally. You cannot use someone's lack of action against them unless they had a duty to act in a timely manner (for which copyright and trademark infringement do not have).
> 
> Also, I'm not sure how you're trying to invoke implied consent. By Peters' own admission, CBS didn't offer any specific guidelines as to how they might make things work. To me, that sounds very much like a 'we're not going to give you a green light' that would prevent any thought of implied consent.




Precedent may be where this is going and giving someone nebulous guidelines, to which they adhere, could be ruled implied consent. We'll see.



Cor Azer said:


> Where's the inconsistency? They have *never* publicly consented to fan films. That's pretty consistent.




Inconsistency is consistency. Hmmmm...... I'll have to puzzle that one over, given this one inconsistency


----------



## Cor Azer (Jan 1, 2016)

Ryujin said:


> Precedent may be where this is going and giving someone nebulous guidelines, to which they adhere, could be ruled implied consent. We'll see.




They didn't give nebulous guidelines. They gave *no* guidelines.



Ryujin said:


> Inconsistency is consistency. Hmmmm...... I'll have to puzzle that one over, given this one inconsistency




Beyond recognizing you're trying (and possibly succeeding) to be witty, I have no idea what you're trying to imply here.


----------



## Ryujin (Jan 1, 2016)

Cor Azer said:


> They didn't give nebulous guidelines. They gave *no* guidelines.
> 
> Beyond recognizing you're trying (and possibly succeeding) to be witty, I have no idea what you're trying to imply here.




"Not for profit and not to use unpublished show material."

One inconsistency is all that there appears to be here. Apart from that, the fan productions have pretty much been ignored.


----------



## Cor Azer (Jan 1, 2016)

Ryujin said:


> "Not for profit and not to use unpublished show material."
> 
> One inconsistency is all that there appears to be here. Apart from that, the fan productions have pretty much been ignored.




Ok, thanks for the clarification. I misinterpreted Peter's comment of "they gave us no specific guidelines" as "no guidelines", but apparently there are more details than that if there was some sort of "initial starting point".

I can see how a layperson such as us could infer inconsistency, but given the huge number of unknowns in any possible (if such exist) negotiations renders such an opinion uninformed and largely moot. I would expect better from a lawyer actually involved in such an industry than to proceed as we laypeople might.

And of course, I expect the debate hinges largely around whether or not Axanar can be considered "not-for-profit". I'm not trying to claim they are engaging in shenanigans with their books, but CBS may very well think how Axanar is doing things is decidedly different than Renegade or Continues or other previous fan films.


----------



## Ryujin (Jan 1, 2016)

Cor Azer said:


> Ok, thanks for the clarification. I misinterpreted Peter's comment of "they gave us no specific guidelines" as "no guidelines", but apparently there are more details than that if there was some sort of "initial starting point".
> 
> I can see how a layperson such as us could infer inconsistency, but given the huge number of unknowns in any possible (if such exist) negotiations renders such an opinion uninformed and largely moot. I would expect better from a lawyer actually involved in such an industry than to proceed as we laypeople might.
> 
> And of course, I expect the debate hinges largely around whether or not Axanar can be considered "not-for-profit". I'm not trying to claim they are engaging in shenanigans with their books, but CBS may very well think how Axanar is doing things is decidedly different than Renegade or Continues or other previous fan films.




Yes, as I said up-thread.

When CBS/Paramount won't give a more clear direction than that, and your production fits those gauzy guidelines, you've got the choice to proceed or to abandon the project. As enthusiasts themselves, they were unlikely to abandon the project.

Yes, Axanar is different from previous works but if it wasn't fresh, there would be no enticement to it. It is larger in scale and quality. It addresses a time in the Federation that no other production that I know of addresses ("Star Trek: Enterprise" should have, but tripped on its proverbial member). It makes me wonder if the upcoming Star Trek series on the CBS streaming service might not actually be aimed at this period in the life of the Federation, rather than post TNG as has been hinted.


----------



## Cor Azer (Jan 1, 2016)

Ryujin said:


> Yes, as I said up-thread.
> 
> When CBS/Paramount won't give a more clear direction than that, and your production fits those gauzy guidelines, you've got the choice to proceed or to abandon the project. As enthusiasts themselves, they were unlikely to abandon the project.
> 
> Yes, Axanar is different from previous works but if it wasn't fresh, there would be no enticement to it. It is larger in scale and quality. It addresses a time in the Federation that no other production that I know of addresses ("Star Trek: Enterprise" should have, but tripped on its proverbial member). It makes me wonder if the upcoming Star Trek series on the CBS streaming service might not actually be aimed at this period in the life of the Federation, rather than post TNG as has been hinted.




I would suspect their issue has little to do with the setting details of Axanar, and is more about the "not-for-profit" debate - if the only guidelines given were "not for profit and don't use unpublished material" and you know you're not using unpublished material, then the sticking point is the "not for profit". The movies, even if in an alternate universe, are covering the "past" of Star Trek. They'd be far better served at going into the "future" to allow themselves room to breath narratively.


----------



## Umbran (Jan 1, 2016)

Ryujin said:


> And yet "Axanar" has former Star Trek actors and people otherwise well known to CBS, from the production side. It's all a little higgledy-piggledy.




People from the production side are not a particular PR issue for the studio.  And, to be honest, the actors in Axanar are not all that big in terms of Trek History - Renegades has Tim Russ, Robert Picardo, and, for goodness sake, Walter Koenig.  The last of whom will be stepping away, and maybe it won't last long after that.

Ultimately, you still seem to be discussing from the point of view that they somehow *owe* a consistent policy.  They don't.  They don't need to have any policy at all - all such could be dealt with on a case-by-case basis.


----------



## MechaPilot (Jan 3, 2016)

Umbran said:


> Ultimately, you still seem to be discussing from the point of view that they somehow *owe* a consistent policy.  They don't.  They don't need to have any policy at all - all such could be dealt with on a case-by-case basis.




It's not so much that a consistent policy is owed as it is that inconsistency could be legally relevant.

I realize IP is not the same thing as taxation, but in taxation if a regulation is inconsistent with the Internal Revenue Code or other regulations then the regulation is no longer given the deference of being considered law like other final regs are.  I haven't studied IP law, but it's certainly possible that a statute or judicial opinion may make consistency relevant to IP issues, as it is for deference to tax regs.


----------



## Umbran (Jan 3, 2016)

MechaPilot said:


> It's not so much that a consistent policy is owed as it is that inconsistency could be legally relevant.




I am not a lawyer - I am speaking only from my understanding.

If we were talking trademark, you'd be correct - consistency there matters.  

But for copyright, lack of a clear policy or enforcement thereof does not lose the holder's rights - they can be selective as they wish.  Lack of consistent policy becomes a defense - a consistent policy might imply a license or contract, while being inconsistent about policy and enforcement works against any such claim.

Quite simply - legally speaking, I don't think Axanar has a leg to stand on.  Their only real defense is the PR issue - to try it in the court of public opinion so that CBS/Paramount can't afford to shut them down.  And they went directly to a lawsuit, bypassing a polite C&D, so I don't think they're worried about the PR side of it.


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## Ryujin (Jan 3, 2016)

Umbran said:


> I am not a lawyer - I am speaking only from my understanding.
> 
> If we were talking trademark, you'd be correct - consistency there matters.
> 
> ...




No, they definitely aren't worried about the PR side of things. I've looked, but haven't found a statement by either CBS or Paramount Studios. They went straight to moving for an injunction rather than talking to people with whom they were well acquainted, on a professional level. No fanfare at all; just out came the axes.

As to having a leg to stand on I think they've got a three legged stool, missing one leg. They've got a shot, but it'll be a rather delicate balancing act.


----------



## Cor Azer (Jan 3, 2016)

Ryujin said:


> As to having a leg to stand on I think they've got a three legged stool, missing one leg. They've got a shot, but it'll be a rather delicate balancing act.




Care to elaborate, because honestly, the only actual leg I think fan fiction/films have ever really had is 'too small to bother with', and Axanar doesn't really seem to gave that either.


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## Ryujin (Jan 3, 2016)

Cor Azer said:


> Care to elaborate, because honestly, the only actual leg I think fan fiction/films have ever really had is 'too small to bother with', and Axanar doesn't really seem to gave that either.




The only thing that I think that they have is prior lack of action by CBS/Paramount, the meeting that Alec Peters had with them prior to production in an attempt to have some ground rules laid, and relying upon the vague non-guidelines issued by CBS/Paramount to the detriment of the production. They *might* be able to work an angle on that. Other than that, I'm looking at around US$100.00 going down the drain, along with all the other supporters.


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## Cor Azer (Jan 4, 2016)

Ryujin said:


> The only thing that I think that they have is prior lack of action by CBS/Paramount, the meeting that Alec Peters had with them prior to production in an attempt to have some ground rules laid, and relying upon the vague non-guidelines issued by CBS/Paramount to the detriment of the production. They *might* be able to work an angle on that. Other than that, I'm looking at around US$100.00 going down the drain, along with all the other supporters.




As stated a few times, prior action, or lack thereof, doesn't factor into copyright cases, so that's out.

I don't think having had a meeting in-and-of-itself helps any.

Maybe the vague guidelines give one leg, but we only have Peter's take on them, not any sort of even unofficial CBS/Paramount statement. I would suspect their existence (or lack thereof) will be a key element of pre-trial motions, if the case goes that far.


----------



## Ryujin (Jan 4, 2016)

Cor Azer said:


> As stated a few times, prior action, or lack thereof, doesn't factor into copyright cases, so that's out.
> 
> I don't think having had a meeting in-and-of-itself helps any.
> 
> Maybe the vague guidelines give one leg, but we only have Peter's take on them, not any sort of even unofficial CBS/Paramount statement. I would suspect their existence (or lack thereof) will be a key element of pre-trial motions, if the case goes that far.




Prior lack of action, in and of itself, isn't enough. Prior lack of action, coupled with the vague guidelines, might be.

At this point I think that Axanar is essentially dead. I figure that two things will happen; an injunction will be will be put in place and the suit will pass initial motions, leading to an actual trial. There goes any existing funding.


----------



## Mustrum_Ridcully (Jan 4, 2016)

If I remember correctly, Trademark and Copyright are seperate things, and it might be that this is more a Trademark issue.


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## MarkB (Jan 4, 2016)

Mustrum_Ridcully said:


> If I remember correctly, Trademark and Copyright are seperate things, and it might be that this is more a Trademark issue.



Have Axanar actually produced a product yet, or have they simply gathered funding using the Star Trek brand name? If the latter, then yes, this might be more about the trademark than a copyright violation.


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## Morrus (Jan 4, 2016)

MarkB said:


> Have Axanar actually produced a product yet, or have they simply gathered funding using the Star Trek brand name? If the latter, then yes, this might be more about the trademark than a copyright violation.




They made the 20-minute _Prelude to Axanar_.

[video=youtube;1W1_8IV8uhA]https://www.youtube.com/watch?v=1W1_8IV8uhA[/video]


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## HardcoreDandDGirl (Jan 4, 2016)

Morrus said:


> They made the 20-minute _Prelude to Axanar_.
> 
> [video=youtube;1W1_8IV8uhA]https://www.youtube.com/watch?v=1W1_8IV8uhA[/video]




man that looks really good... Maybe Paramount can take it over punch up the script and special effects a bit and put it out themselves...


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## Ryujin (Jan 4, 2016)

HardcoreDandDGirl said:


> man that looks really good... Maybe Paramount can take it over punch up the script and special effects a bit and put it out themselves...




A lot of the people who are working on Axanar have also worked on other Star Trek properties _for_ CBS/Paramount. The effects already would be at least as good as current TV effects would have been. Here's a clip that has a scene they shot for the movie:

[video=youtube;K723TV7GZFQ]https://www.youtube.com/watch?v=K723TV7GZFQ[/video]


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## Ryujin (Jan 5, 2016)

There seems to be a good deal of sense in this note, at least from where I sit, that was posted by David Gerrold (writer on "Star Trek", "Star Trek: The Animated Series", and "Star Trek: New Voyages Phase II (fan film project) among many other professional writing credits), on his Facebook page:



> So let me talk about the lawsuit against Axanar, by CBS and Paramount.
> 
> I will qualify my remarks by saying I have no dog in this particular fight, I am only a knowledgeable observer.
> 
> ...


----------



## HardcoreDandDGirl (Jan 5, 2016)

Ryujin said:


> There seems to be a good deal of sense in this note, at least from where I sit, that was posted by David Gerrold (writer on "Star Trek", "Star Trek: The Animated Series", and "Star Trek: New Voyages Phase II (fan film project) among many other professional writing credits), on his Facebook page:




basically yet another attempt to argue "The cops didn't stop THAT guy from stealing a TV so I thought it was legal..."


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## Ryujin (Jan 5, 2016)

HardcoreDandDGirl said:


> basically yet another attempt to argue "The cops didn't stop THAT guy from stealing a TV so I thought it was legal..."




I was looking more toward the end, where he made comments about how the whole thing could be handled.


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## Mallus (Jan 5, 2016)

Once again, David Gerrold is the wise old man of science fiction. They really should make a special Hugo for him.

I'm still left wondering what makes Anaxar so special & threatening to CBS. It took in more crowdfunding then any other Trek fan project, but it's not the only one to feature the work of industry professionals.

Fan-made Trek has been freely & widely available for many years now. Why target this one project?

Anaxar isn't competition, it's free marketing. Hell, it's better marketing for the brand than CBS has done in a dog's age.


----------



## Ryujin (Jan 5, 2016)

Mallus said:


> Once again, David Gerrold is the wise old man of science fiction. They really should make a special Hugo for him.
> 
> I'm still left wondering what makes Anaxar so special & threatening to CBS. It took in more crowdfunding then any other Trek fan project, but it's not the only one to feature the work of industry professionals.
> 
> ...




And that may well be it. Axanar has gone from being free publicity that keeps the franchise alive in the lean times, to something that they see as actual competition.


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## billd91 (Jan 5, 2016)

HardcoreDandDGirl said:


> basically yet another attempt to argue "The cops didn't stop THAT guy from stealing a TV so I thought it was legal..."




Maybe, but if Axanar decides to defend themselves, they probably have a good argument that the monetary damages of any copyright infringement is very small because CBS was lax about those other fan productions that clove even closer to the IP. If those caused no damage or so little that CBS did nothing about them, how much damage could Axanar really have done?


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## billd91 (Jan 5, 2016)

Ryujin said:


> And that may well be it. Axanar has gone from being free publicity that keeps the franchise alive in the lean times, to something that they see as actual competition.




That's probably the case - my guess is Axanar wouldn't be generating much notice from CBS if they weren't working on their own next Star Trek show.


----------



## Cor Azer (Jan 5, 2016)

Ryujin said:


> And that may well be it. Axanar has gone from being free publicity that keeps the franchise alive in the lean times, to something that they see as actual competition.




Maybe Axanar strays *too far* from Star Trek lore, and is thus becoming conpetition. The other fan films generally continue the adventures of the Enterprise or its crew, which in turn promotes the original Enterprise adventures. My understanding is that Axanar is based on a stray few lines about a historical period the Enterprise had nothing to do with.

Maybe CBS/Paramount simply doesn't want non-Enterprise related fan films.


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## Mustrum_Ridcully (Jan 5, 2016)

> 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.



I haven't looked i tup myself, but it might be that the transparency actually might have revealed something that could look concerning. Something about the funding being used to build a studio (whcih in and on itself might be neccessary to make the movie) that could be used for profit in later endeavours. That could be the problem, and an issue no other fan film had yet. (Or at least wasn't provable.)


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## Umbran (Jan 5, 2016)

billd91 said:


> Maybe, but if Axanar decides to defend themselves, they probably have a good argument that the monetary damages of any copyright infringement is very small because CBS was lax about those other fan productions that clove even closer to the IP. If those caused no damage or so little that CBS did nothing about them, how much damage could Axanar really have done?




Note that part of determining Fair Use is not just the potential damages from one instance, but the consideration of what would happen if a particular form of use became common.  If it would become damaging if common, then it is not fair use.

So, what would happen in million-dollar, high quality, professionally staffed fan-funded productions of Trek became common?  What would that do to the value of the property to CBS/Paramount?  I think we can say it would reduce that value quite a bit.  Thus, not fair use.

I doubt CBS really cares if they get paid damages in this particular suit - I suspect the request for damages is pro forma.

I am beginning to think that there's a difference between a fan production, and a fan-funded production.  Specifically, if there's professionals on the project getting paid, then they aren't really working as fans.  There comes a point when enough fo these sorts of people on the project make it no longer be a fan production.


----------



## billd91 (Jan 5, 2016)

Umbran said:


> Note that part of determining Fair Use is not just the potential damages from one instance, but the consideration of what would happen if a particular form of use became common.  If it would become damaging if common, then it is not fair use.
> 
> So, what would happen in million-dollar, high quality, professionally staffed fan-funded productions of Trek became common?  What would that do to the value of the property to CBS/Paramount?  I think we can say it would reduce that value quite a bit.  Thus, not fair use.




It's not even a question of fair use. I don't think there's any argument in favor of fair use with any fan films that aren't educational, parody, or excerpts used in review. New, derivative works simply aren't fair use. My point would be of use in defending against any claim for damages.


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## Mallus (Jan 5, 2016)

Ryujin said:


> Axanar has gone from being free publicity that keeps the franchise alive in the lean times, to something that they see as actual competition.



Maybe it's my ignorance talking, but I just don't see how a crowdfunded production that raised, in total, 1/5 of the average cost of a single 1 hour pilot episode can be seen by network executives as competition. To a franchise that has a $150,000,000 feature film coming out in the summer, plus another multi-million dollar spend on the new series. 

I mean, maybe if you factor in a few decades of coke-fueled paranoia on the part of the executives, but I'd rather not cast aspersions on the good people at CBS .


----------



## Janx (Jan 5, 2016)

Umbran said:


> Note that part of determining Fair Use is not just the potential damages from one instance, but the consideration of what would happen if a particular form of use became common.  If it would become damaging if common, then it is not fair use.
> 
> So, what would happen in million-dollar, high quality, professionally staffed fan-funded productions of Trek became common?  What would that do to the value of the property to CBS/Paramount?  I think we can say it would reduce that value quite a bit.  Thus, not fair use.
> 
> ...




Fair point, though the questions is, would it?

Right now, the market can bear a lot of star trek, because there isn't that much out there.  Trek fans would watch nothing but trek if there was new content streams of it to fill their time.

Possibly the danger is that CBS's product may not be as good/liked as well as the competition.  Which if we were talking about other sci-fi vs. Star Trek in a big studios only made stuff world, then Paramount would have to suck it up and make a better product or die.

Basically Paramount's concern is that they shouldn't have to compete with their own IP.  Which is true.  But maybe they should have been delivering more and better product so fans wouldn't seek out alternative sources.


----------



## Janx (Jan 5, 2016)

HardcoreDandDGirl said:


> basically yet another attempt to argue "The cops didn't stop THAT guy from stealing a TV so I thought it was legal..."




When it comes to trademarks, you have to litigate to protect.  If you fail to demonstrate taking steps to protect your trademark, you can lose it.

Thus, by not sending C&D/takedown letters on these other Trek projects that lifted everything including the kitchen sink if they could see it in an episode to replicate, Paramount is in danger of setting a precedent that they do not care to protect their trademark, thus abandoning their right to it.

I can't say that's how this case will work out, but part of this concept is at stake, and it is part of the point Gerrold is making.

I'd need a lawyer like Danny to explain it better (and correct a few bits of my explanation).  But the gist is, if you let too many people use your stuff without lifting a finger to even say "hey don't do that", a court can rule that you've abandoned it to public domain.


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## Ryujin (Jan 5, 2016)

Mallus said:


> Maybe it's my ignorance talking, but I just don't see how a crowdfunded production that raised, in total, 1/5 of the average cost of a single 1 hour pilot episode can be seen by network executives as competition. To a franchise that has a $150,000,000 feature film coming out in the summer, plus another multi-million dollar spend on the new series.
> 
> I mean, maybe if you factor in a few decades of coke-fueled paranoia on the part of the executives, but I'd rather not cast aspersions on the good people at CBS .




Maybe because it has a story in addition to 'splosions & stuff, rather than instead of? 

It could be that magic $1M mark they passed that flipped their switch, despite their really being no home in Hollywood for the $1M movie.


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## Umbran (Jan 5, 2016)

Janx said:


> Fair point, though the questions is, would it?
> 
> Right now, the market can bear a lot of star trek, because there isn't that much out there.  Trek fans would watch nothing but trek if there was new content streams of it to fill their time.




Actually, no, they wouldn't.  *Any* market can get saturated, and franchise fatigue is an issue.  



> Possibly the danger is that CBS's product may not be as good/liked as well as the competition.  Which if we were talking about other sci-fi vs. Star Trek in a big studios only made stuff world, then Paramount would have to suck it up and make a better product or die.




Except, no, they don't.  Because *THEY OWN IT*.  We *DO NOT* get to say, "I like it, and I can do it better, so I will take it away from you."  That's exactly the behavior that copyright prevents.  



> Basically Paramount's concern is that they shouldn't have to compete with their own IP.  Which is true.  But maybe they should have been delivering more and better product so fans wouldn't seek out alternative sources.




That sounds really great, when you are the one doing the stealing.  It sounds a lot less good when you're the one being stolen from.  I know it is not technically theft, but really, dude, you're advocating, "I get to take your stuff when I feel like it."   I know it feels like it is okay when the "underdog" does it to "big business", but the ethical quality really doesn't change that much.  Taking things you don't own generally isn't cool.  

Think about that for a minute - how far are you willing to go to justify behavior if, done in the other direction, you'd decry as being unconscionable behavior?


----------



## freyar (Jan 5, 2016)

Something I don't understand about this (and hopefully a lawyer like Danny will pop in and explain): how can this be a copyright issue?  I can understand that Star Trek (and logos, etc) would be trademarked, but my understanding is that Axanar is a new script.  In that case, how would CBS/Paramount have a copyright claim?  Are broad similarities or overarching ideas are enough for copyright protection?


----------



## Janx (Jan 5, 2016)

Umbran said:


> Actually, no, they wouldn't.  *Any* market can get saturated, and franchise fatigue is an issue.
> 
> 
> 
> ...




I don't think you understood what I said.

For instance: when you replied "Except, no, they don't. Because *THEY OWN IT*. We *DO NOT* get to say, "I like it, and I can do it better, so I will take it away from you." That's exactly the behavior that copyright prevents. "  it was in response to my point that CBS would have to compete better if we were talking Star Trek vs. non-star trek properties.

I am not actually advocating theft of Star Trek IP.  Technically, none of this fan stuff should exist.  But CBS has under served star trek fans such that they have created an alternate source of media.  Barring copyright law getting in the way, this is an economics problem.

Meaning, that CBS is free to exercise their legal rights.  But they might not have to if they tried to solve the problem the fans are solving.


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## Janx (Jan 5, 2016)

freyar said:


> Something I don't understand about this (and hopefully a lawyer like Danny will pop in and explain): how can this be a copyright issue?  I can understand that Star Trek (and logos, etc) would be trademarked, but my understanding is that Axanar is a new script.  In that case, how would CBS/Paramount have a copyright claim?  Are broad similarities or overarching ideas are enough for copyright protection?




I would bet this is really a trademark issue, not copyright.  Axanar isn't plagiarizing text or footage from a Star trek show or movie.

But they are basing it on the star trek universe which should have tons of trademarked terms like Star Fleet and Klingon for instance.

As you said, this is where Danny is needed...


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## Umbran (Jan 5, 2016)

freyar said:


> how can this be a copyright issue? I can understand that Star Trek (and logos, etc) would be trademarked, but my understanding is that Axanar is a new script. In that case, how would CBS/Paramount have a copyright claim?  Are broad similarities or overarching ideas are enough for copyright protection?




From Title 17 of the United States Code:
" 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."

I've read that one issue at hand here is in point 3.  While the amount of copyrighted material referenced may not be large in comparison to the overall Star Trek body of work, it may be *substantial* - meaning of great _substance_.  When you start talking about phasers _and_ warp nacelles _and_ transporters _and_ starfleet _and_ klingons _and_ referencing canon history _and_ you use visual symbology established in copyright protected works, etc, these things add up.  If you take, in essence, "the heart of the work", then you're likely not in fair use, even if those things you take are not trademarked.

For fan works, this means that if you take enough of the setting and dressing such that folks know without you explicitly saying that it is Star Trek, you're probably not in fair use, and are relying on the IP owner's good wishes.


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## Janx (Jan 5, 2016)

Umbran said:


> From Title 17 of the United States Code:
> " 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;
> ...




Good catch.  That was the kind of thing I was hoping Danny would clarify for us as they aren't copying sentences, but props, sets, and names of things (trademarkable).

Still Axanar would be clear if they renamed everything.  Then it would just be a sci-fi movie.  All the uniforms and props are different from any TV.  The ships are obviously derivative, so that might be a problem.

Whereas, the other projects are actually copying star trek TOS sets, uniforms, props, characters, etc.  You can't easily reskin that to avoid a lawsuit.


----------



## Ovinomancer (Jan 5, 2016)

Except fair use doesn't apply here.  Fair use only applies for limited uses, such as to comment or criticize, and for transformitive works -- ie, completely changing the nature of the work.  A new Trek story is not comment or criticism, nor is it a transformitive work -- it's the same format and purpose as the original work.

As for trademarks, yes those are an issue, but this can be a copyright claim because Axanar is taking much of the established, and copyrighted, lore for their film.  This would be like saying that it's not a copyright issue to take the world of Middle Earth and write your own stories in it.  It would still be a copyright issue, even if you don't directly take portions of previously written stories because the world is part of the copyrighted work.  Umbran's 'substantial use' analysis from above is apt, even if using the fair use isn't proper.

I found a copy of the filing.  CBS is suing everyone involved, including set builders, costume designers, directors, writers, etc.  They've thrown a wide net.  This has to be the first volley in a plan to destroy fan made Trek work, as I cannot see how the allegations they've making here don't apply to any and all Trek fan work.  The only real defense Axanar has is the long existence of other fan projects under the same set of conventions that Axanar is using.  Suing instead of issuing a C&D, especially given the ties CBS has with some of the people involved (who they've named as Doe defendants to boot) is a seriously duck move (ducks, as you well know, are the absolute jerks of the bird world).  

Axanar is dead.  Even if they win the lawsuit, the trial will be so expensive that they'll have to shut down anyway.  Given the nature of the suit (no warning, both barrels, widest net possible) it's clear that CBS wants to shut this project down with prejudice, and they don't even have to both winning the case to do it.  The US legal system is punishment enough without a verdict to do that.


----------



## Ryujin (Jan 6, 2016)

Someone on the Axanar Facebook page managed to dig up a link to the suit:

https://docs.justia.com/cases/federal/district-courts/california/cacdce/2:2015cv09938/636636/1


----------



## Umbran (Jan 6, 2016)

Janx said:


> Still Axanar would be clear if they renamed everything.
> 
> Then it would just be a sci-fi movie.  All the uniforms and props are different from any TV.  The ships are obviously derivative, so that might be a problem.




They'd need to rename everything, and change all the visual designs, yes - uniforms, ships, insignia, all of it.  I haven't watched Prelude, but some of the images I see have those uniforms as pretty solidly derivative.  

Basically, you'd have to be able to watch it and not be able to point at something and say, "Hey, that's Trek!"


----------



## MarkB (Jan 6, 2016)

Out of curiosity, what, if anything, is Youtube's liability if they continue to host Axanar videos at this point? Certainly, they must be aware of the alleged copyright infringement. Are they okay so long as nobody officially reports a copyright violation to them, or would they be guilty of illegal distribution if Axanar lose the case?


----------



## Ryujin (Jan 6, 2016)

MarkB said:


> Out of curiosity, what, if anything, is Youtube's liability if they continue to host Axanar videos at this point? Certainly, they must be aware of the alleged copyright infringement. Are they okay so long as nobody officially reports a copyright violation to them, or would they be guilty of illegal distribution if Axanar lose the case?




"Prelude to Axanar" was an original work, posted by the producers, so I would think that Youtube has a bit of protection there. If CBS gets an injunction and then sends a simple email to Youtube, I suspect that "Prelude" would be taken down in minutes. There are plenty of actual trademarked/copy written works already up on Youtube and they do seem to be taken down, when reported.


----------



## Ovinomancer (Jan 6, 2016)

MarkB said:


> Out of curiosity, what, if anything, is Youtube's liability if they continue to host Axanar videos at this point? Certainly, they must be aware of the alleged copyright infringement. Are they okay so long as nobody officially reports a copyright violation to them, or would they be guilty of illegal distribution if Axanar lose the case?



They have no responsibility to look for violations and police them on their own.  If CBS asks them to take it down and cites copyright infringement, though, they have to take steps.  I'm currently a bit confused as to CBS' legal strategy in that they are suing, but not issuing routine DCMA requests to pull the material.


Ryujin said:


> "Prelude to Axanar" was an original work, posted by the producers, so I would think that Youtube has a bit of protection there. If CBS gets an injunction and then sends a simple email to Youtube, I suspect that "Prelude" would be taken down in minutes. There are plenty of actual trademarked/copy written works already up on Youtube and they do seem to be taken down, when reported.



Axanar isn't an original work, it's a derivative work.  It infringes the Star Trek IP pretty clearly.  You're right, though, in that YouTube has no responsibility absent a takedown request from CBS.


----------



## Umbran (Jan 6, 2016)

Ovinomancer said:


> I'm currently a bit confused as to CBS' legal strategy in that they are suing, but not issuing routine DCMA requests to pull the material.




It is interesting.  I'm guessing that it is less a legal strategy question than a business strategy one.  Perhaps, in essence, they want to put the kibosh on big-crowd-funding, professionally-staffed infringing major projects.  "Prelude to Axanar" itself really isn't what will do the damage, so they don't feel a need to insist it go away right now, and insistign might well cheese fans off *even more*.  It is the larger Axanar work that could become a distressing precedent, that they need to deal with, and better to do that before it ever hits youtube.


----------



## Ryujin (Jan 6, 2016)

Ovinomancer said:


> Axanar isn't an original work, it's a derivative work.  It infringes the Star Trek IP pretty clearly.  You're right, though, in that YouTube has no responsibility absent a takedown request from CBS.




Of course you're right, from the standpoint of legal terminology, but I was simply trying to set it apart from all of the actual broadcast programming and movies, that are posted to Youtube wholesale. It's not a complete and copywritten work that someone has appropriated, then posted.


----------



## MarkB (Jan 7, 2016)

Umbran said:


> It is interesting.  I'm guessing that it is less a legal strategy question than a business strategy one.  Perhaps, in essence, they want to put the kibosh on big-crowd-funding, professionally-staffed infringing major projects.  "Prelude to Axanar" itself really isn't what will do the damage, so they don't feel a need to insist it go away right now, and insistign might well cheese fans off *even more*.  It is the larger Axanar work that could become a distressing precedent, that they need to deal with, and better to do that before it ever hits youtube.




And I guess, to some extent, having the video out there so they can metaphorically point to it and say "this is clearly a copyright infringement" may be more useful to them in the publicity war than outright banning it.


----------



## Ovinomancer (Jan 7, 2016)

MarkB said:


> And I guess, to some extent, having the video out there so they can metaphorically point to it and say "this is clearly a copyright infringement" may be more useful to them in the publicity war than outright banning it.




Yeah, no, not really.  By not asking for a DMCA takedown (which is heavily slanted towards copyright owners), they're introducing evidence that the damage the video does to the IP are small and/or negligible.  By doing so, they're essentially devaluing their copyright claims, especially when asking for damages.  It's hard to show that you've been harmed when you don't even take advantage of the immediate and trivial legal recourse to halt the infringing material.  It doesn't necessarily weaken their claim of infringement, or damage their ability to have the infringement enjoined (legalese for court order to stop doing that right now and never do it again), but, yeah, it doesn't help it either.


----------



## Ovinomancer (Jan 7, 2016)

Ryujin said:


> Of course you're right, from the standpoint of legal terminology, but I was simply trying to set it apart from all of the actual broadcast programming and movies, that are posted to Youtube wholesale. It's not a complete and copywritten work that someone has appropriated, then posted.




Ah, sorry, I see that now.


----------



## Ryujin (Jan 7, 2016)

Umbran said:


> It is interesting.  I'm guessing that it is less a legal strategy question than a business strategy one.  Perhaps, in essence, they want to put the kibosh on big-crowd-funding, professionally-staffed infringing major projects.  "Prelude to Axanar" itself really isn't what will do the damage, so they don't feel a need to insist it go away right now, and insistign might well cheese fans off *even more*.  It is the larger Axanar work that could become a distressing precedent, that they need to deal with, and better to do that before it ever hits youtube.




"Prelude" is also named in the document that I linked. As such whenever they name "the Axanar works" they are also referencing "Prelude to Axanar."


----------



## Janx (Jan 7, 2016)

Here's what Alec Peters the Executive Producer of Axanar is saying:
http://www.axanarproductions.com/captains-log-jan-4th-2016/

short of it is, this suit is not about the stuff we all speculate about.  It's about exactly what is cited in the filing.


----------



## Ryujin (Jan 7, 2016)

Janx said:


> Here's what Alec Peters the Executive Producer of Axanar is saying:
> http://www.axanarproductions.com/captains-log-jan-4th-2016/
> 
> short of it is, this suit is not about the stuff we all speculate about.  It's about exactly what is cited in the filing.




We can speculate all that we want but in the end that's all it is; speculation. On Facebook, in particular, calmer heads have tried to get the hotheads to cool down and stop with all the "boycott this & that" talk, as it's counter productive.


----------



## Janx (Jan 7, 2016)

Ryujin said:


> We can speculate all that we want but in the end that's all it is; speculation. On Facebook, in particular, calmer heads have tried to get the hotheads to cool down and stop with all the "boycott this & that" talk, as it's counter productive.




Yup.

Most every thing would be better if the hotheads who are angry would STFU and let the calm people come to a compromise.


----------



## Ovinomancer (Jan 7, 2016)

Janx said:


> Here's what Alec Peters the Executive Producer of Axanar is saying:
> http://www.axanarproductions.com/captains-log-jan-4th-2016/
> 
> short of it is, this suit is not about the stuff we all speculate about.  It's about exactly what is cited in the filing.




Huh, I read that and came away with an entirely different take.  He said that the suit was about more than what was in the filing, but no one except CBS can know what that is and speculating is just spinning wheels.

But, to point, yeah, the whys and wherefores don't matter a jot.  The bit in front of the court is exactly what's in the filing.  That and what comes out of discovery.  No more, no less.


----------



## Ovinomancer (Jan 7, 2016)

Janx said:


> Yup.
> 
> Most every thing would be better if the hotheads who are angry would STFU and let the calm people come to a compromise.




Did you read the filing?  I don't think there's a compromise possible here.  Maybe to reduce the breadth of the defendant pool.  But Axanar is deader than a doornail.


----------



## MarkB (Jan 7, 2016)

Ovinomancer said:


> Did you read the filing?  I don't think there's a compromise possible here.  Maybe to reduce the breadth of the defendant pool.  But Axanar is deader than a doornail.




Yeah, _threatening_ legal action would have been negotiating - but when your first move is to file legal action against every single person involved in the production, that's not the move of someone looking for compromise.


----------



## Janx (Jan 7, 2016)

Ovinomancer said:


> Did you read the filing?  I don't think there's a compromise possible here.  Maybe to reduce the breadth of the defendant pool.  But Axanar is deader than a doornail.




that would likely be due to more uncalm people being involved in the filing of the suit..

we need to calmly collect such people and calmly smother them with pillows.


----------



## Ovinomancer (Jan 7, 2016)

Janx said:


> that would likely be due to more uncalm people being involved in the filing of the suit..
> 
> we need to calmly collect such people and calmly smother them with pillows.




We need to murder people that disagree with your preferred course of action?!


----------



## Umbran (Jan 7, 2016)

Janx said:


> that would likely be due to more uncalm people being involved in the filing of the suit..




I'm guessing it was done in a quite calm manner.  Cold and calculated, even.  It isn't like Axanar was new to them - they've known about it too long to be shocked or excited.



> we need to calmly collect such people and calmly smother them with pillows.




I know you probably intend this as dramatic hyperbole.  We would really, deeply prefer if your hyperbole not extend to suggestion of causing harm to others.


----------



## Janx (Jan 7, 2016)

Umbran said:


> I'm guessing it was done in a quite calm manner.  Cold and calculated, even.  It isn't like Axanar was new to them - they've known about it too long to be shocked or excited.
> 
> 
> 
> I know you probably intend this as dramatic hyperbole.  We would really, deeply prefer if your hyperbole not extend to suggestion of causing harm to others.




Sorry.  I was joking, but as you say.  Will endeavor to not do that again.


----------



## HardcoreDandDGirl (Jan 8, 2016)

the real question isn't "is this the end of axanar" it's "Will this stop future big budget fan films"


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## Ovinomancer (Jan 8, 2016)

Janx said:


> Sorry.  I was joking, but as you say.  Will endeavor to not do that again.



Gotta watch out for Poe's Law.



HardcoreDandDGirl said:


> the real question isn't "is this the end of axanar" it's "Will this stop future big budget fan films"



For Star Trek, without express CBS permission?  I'd say you'd be stupid to try after this.


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## Ryujin (Jan 8, 2016)

The biggest drawback being no one knows what the lower limit of "big budget" might be.


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## Cergorach (Jan 10, 2016)

HardcoreDandDGirl said:


> the real question isn't "is this the end of axanar" it's "Will this stop future big budget fan films"




Not really, as long as they ask and receive permission from the IP holders. And afterward keep to the agreements made, there will be fan films from IP owners that will deal with fans on this matter.

Alec Peters didn't do that. Didn't ask permission as far as I understand the situation, didn't receive permission. He used the 'unwritten rule' that said (Wikipedia quote):


> Paramount Studios, who owns the Star Trek franchise, traditionally allows fan-made projects to move forward just "as long as they agree not to sell anything—including tickets, merchandise, or copies of the finished film or series.




Then with the Star Trek: Axenar kickstarter they sold: Merchandise and copies of the finished film...

Do we find it strange that the IP owner hit them with a hammer?

A real shame, because they got freaking Soval (Gary Graham)! I like that Vulcan! ;-)

Alec Peters is an attorney, he should know better. Also his skills with dealing with criticism online isn't exactly helpful, not to his project, not to people getting to understand the situation:



			
				 Alec Peters said:
			
		

> Wow, you really are a tool. Sorry buddy, but there is too much you have no clue about, and I have no time to explain the history of fan films to you.



This on a blog dedicated to w40k, made by Games Workshop, one of the most heavy handed companies regarding fan works. Many fan movies got shutdown by GW, that is until recently "The Lord Inquisitor" actually got permission to proceed...


----------



## Ryujin (Jan 20, 2016)

This from Alec Peters, last night. I only caught it a couple of minutes ago. Curse Facebook's crappy notification system.

"WOW, do I have some great news for you all. But I can't say anything till the paperwork is dry! I know, what a tease I am.

Also, the offices upstairs are finally coming together. Photos in tonight's Captain's Log which has up to the date info on all the goings on at Axanar."


----------



## Umbran (Jan 20, 2016)

Cergorach said:


> Then with the Star Trek: Axenar kickstarter they sold: Merchandise and copies of the finished film...
> 
> Do we find it strange that the IP owner hit them with a hammer?




It is a little inconsistent, as they have been allowing ST: Renegades to sell copies of the finished work.  They aren't required to be consistent, mind you, especially when Renegades has so many former cast members involved.

But, from what Ryujin just posted, I'm guessing they cut a deal, and can move forward.


----------



## Ryujin (Jan 20, 2016)

Umbran said:


> It is a little inconsistent, as they have been allowing ST: Renegades to sell copies of the finished work.  They aren't required to be consistent, mind you, especially when Renegades has so many former cast members involved.
> 
> But, from what Ryujin just posted, I'm guessing they cut a deal, and can move forward.




I'm hoping so but then again it could be a casting announcement for Peters' replacement as Captain Garth, when they still haven't cleared production yet.


----------



## Umbran (Jan 20, 2016)

Ryujin said:


> I'm hoping so but then again it could be a casting announcement for Peters' replacement as Captain Garth, when they still haven't cleared production yet.




"Great news, everyone!  We've got some sucker to sign on to a production that likely won't happen!"


----------



## Pauper (Jan 20, 2016)

The Axanar Productions website is gone -- every page replaced with a '522 - Request timed out' message combined with the web-hosts generic page that explains that the site is off-line.

The YouTube page is still up, but I suspect that's only a matter of time before it too joins the official website in Internet oblivion.

So long, Axanar. Was nice knowing you.

--
Pauper


----------



## Ryujin (Jan 20, 2016)

Pauper said:


> The Axanar Productions website is gone -- every page replaced with a '522 - Request timed out' message combined with the web-hosts generic page that explains that the site is off-line.
> 
> The YouTube page is still up, but I suspect that's only a matter of time before it too joins the official website in Internet oblivion.
> 
> ...




http://www.axanarproductions.com/ is alive and kicking.


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## Umbran (Jan 20, 2016)

That site was *extremely* slow in responding earlier today (I got a 422 as well).  Itseems to be back now, but not terribly snappy.  I suspect technical issues, rather than legal ones here.


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## Janx (Jan 21, 2016)

Umbran said:


> That site was *extremely* slow in responding earlier today (I got a 422 as well).  Itseems to be back now, but not terribly snappy.  I suspect technical issues, rather than legal ones here.




probably getting a lot of traffic.  Some of it hackerific since increased attention brings out the jerks.


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## Ryujin (Jan 22, 2016)

Seems that the announcement was about some high falutin' IP litigation firm representing Axanar, pro bono.


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## Ryujin (Mar 14, 2016)

A little more on the Axanar front: CBS/Paramount have started to refine their suit, based on the motion by Axanar's lawyers for more than a vague handwave regarding "thousands" of IP that were being breached. So far they're putting their money on the appearance of the Vulcan race, the uniforms, and the Kingon language.

http://www.hollywoodreporter.com/thr-esq/paramount-claims-crowdfunded-star-trek-874985

With respect to the appearance of the Vulcans the original series, itself, stated that they looked remarkably like classic devils (Satan himself, in point of fact, along with many "pointed eared hobgoblin" comments). It was used as a plot point ("The Omega Glory"). I think that's the only one that the Axanar folks can really fight. I thought that the Klingon language was developed and the dictionary released personally by a linguist who worked with CBS, but apparently that have the copyright. They might have gotten away with the uniforms if they had made up their own, instead of essentially using the ones from "Enterprise", "The Cage" (original pilot), and the first couple of original series episodes.


----------



## MarkB (Mar 14, 2016)

Actually, those just seem to be the examples the article picked out, presumably as the most photogenic / recognisable.

The amended suit linked in the article cites literally dozens more alleged infringements, in equal or greater levels of detail - twenty-nine pages' worth, in fact.


----------



## Ryujin (Mar 14, 2016)

MarkB said:


> Actually, those just seem to be the examples the article picked out, presumably as the most photogenic / recognisable.
> 
> The amended suit linked in the article cites literally dozens more alleged infringements, in equal or greater levels of detail - twenty-nine pages' worth, in fact.




Well that's a bit down from the undefined "thousands", that was being tossed around in the beginning. It's pretty hard to fight a legal battle against undefined encroachments


----------



## HardcoreDandDGirl (Mar 14, 2016)

Ryujin said:


> Well that's a bit down from the undefined "thousands", that was being tossed around in the beginning. It's pretty hard to fight a legal battle against undefined encroachments




I can't believe a lawyer looked at an obvious star trek movie and said "but what exactly do you think is star trek about it?"


----------



## Ryujin (Mar 15, 2016)

HardcoreDandDGirl said:


> I can't believe a lawyer looked at an obvious star trek movie and said "but what exactly do you think is star trek about it?"




Unfortunately, "Come on! COME ON!!" isn't considered a valid legal argument. There's a requirement for a certain level of specificity


----------



## Dannyalcatraz (Mar 15, 2016)

I'm not at all surprised that they went from "thousands" to mere "dozens".  They're probably cherrypicking a combination of the easiest ones to demonstrate and the strongest overall claims.  You'd see the same kind of thing in a criminal case involving an extremely large number of potential charges.  It avoids jury fatigue, and also gives the prosecutors some potential charges held in reserve if they need them for some reason.

The Vulcan appearance is easily demonstrable, but also pretty easy to defend against.  But things like the uniforms from the series pilot and ESPECIALLY the Klingon language?  The defense has a Herculean task to successfully defend against those.

And unless the defense wins against ALL the charges levied against them AND all related claimed are dismissed _with prejudice_- something pretty rare- the IP holder's legal team can use the remainder of those "thousand violations" as the basis of future lawsuits.  Put differently, it is theoretically possible for Axenar to win many of the IP violation battles, but still be bankrupted.

But given the strength of some of those specific claims, I don't see this particular David beating this particular Goliath.


----------



## Morrus (Mar 15, 2016)

It would be nice if they could just come to some kind of agreement, and continue with permission. Clearly Paramount is not willing to entertain that, which is a shame. I thought Axanar looked pretty decent, and was looking forward to it.


----------



## Ryujin (Mar 15, 2016)

Dannyalcatraz said:


> I'm not at all surprised that they went from "thousands" to mere "dozens".  They're probably cherrypicking a combination of the easiest ones to demonstrate and the strongest overall claims.  You'd see the same kind of thing in a criminal case involving an extremely large number of potential charges.  It avoids jury fatigue, and also gives the prosecutors some potential charges held in reserve if they need them for some reason.
> 
> The Vulcan appearance is easily demonstrable, but also pretty easy to defend against.  But things like the uniforms from the series pilot and ESPECIALLY the Klingon language?  The defense has a Herculean task to successfully defend against those.
> 
> ...




Oh, I've already said that they're toast. Seemingly unlike most of the other people who had supported the crowdfunding of "Axanar", I'm not labouring under the misconception that they have a hope in hell. I am finding the process interesting though.


----------



## Ryujin (Mar 15, 2016)

Morrus said:


> It would be nice if they could just come to some kind of agreement, and continue with permission. Clearly Paramount is not willing to entertain that, which is a shame. I thought Axanar looked pretty decent, and was looking forward to it.




As was I. It's a pity that they couldn't come to the sort of agreement that Disney has about the Star Wars properties.


----------



## Ryujin (Mar 15, 2016)

Double post.


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## HardcoreDandDGirl (Mar 15, 2016)

Ryujin said:


> Oh, I've already said that they're toast. Seemingly unlike most of the other people who had supported the crowdfunding of "Axanar", I'm not labouring under the misconception that they have a hope in hell. I am finding the process interesting though.



someone must belive they stand a chance, or why would a lawyer take the case?


----------



## billd91 (Mar 15, 2016)

HardcoreDandDGirl said:


> someone must belive they stand a chance, or why would a lawyer take the case?




To get paid.


----------



## Dannyalcatraz (Mar 15, 2016)

I think they mentioned it was pro bono, but that doesn't mean the lawyer has no ulterior motives.  Tilting at windmills can make you popular and get you publicity.  That can translate into higher billable hours.

It could also be the lawyer in question is seeking to build up some pro bono hours for the resume and state bar purposes.


----------



## Dannyalcatraz (Mar 15, 2016)

Ryujin said:


> As was I. It's a pity that they couldn't come to the sort of agreement that Disney has about the Star Wars properties.




It is still possible.  A lot of cases like this DO settle.  And, TBH, Paramount is pretty prickly, but the House of Mouse is notorious for defending its IP.  Their efforts in Litigation & Lobbying* are a big reason why copyright lasts as long as it does in the West, especially the USA.

So if Disney can settle, there's hope for whomever is sitting across from the Hired Suits of Paramount.




* my new RPG, due out Fall of 3141


----------



## Ryujin (Mar 15, 2016)

Dannyalcatraz said:


> I think they mentioned it was pro bono, but that doesn't mean the lawyer has no ulterior motives.  Tilting at windmills can make you popular and get you publicity.  That can translate into higher billable hours.
> 
> It could also be the lawyer in question is seeking to build up some pro bono hours for the resume and state bar purposes.




Yes, they did take the case pro bono. Building hours? Using it for notoriety? Actually support the production? Could be any reason.



Dannyalcatraz said:


> It is still possible.  A lot of cases like this DO settle.  And, TBH, Paramount is pretty prickly, but the House of Mouse is notorious for defending its IP.  Their efforts in Litigation & Lobbying* are a big reason why copyright lasts as long as it does in the West, especially the USA.
> 
> So if Disney can settle, there's hope for whomever is sitting across from the Hired Suits of Paramount.
> 
> ...




Here's an interesting aside: While "Axanar" is in litigation over use of IP "Star Trek Continues", who produce a show that's a direct use of IP, have just been declared a non-profit by the IRS. In other words if you're in the US and donated to their productions, retroactive to December 31, 2014, it's tax deductible.


----------



## Umbran (Mar 15, 2016)

Ryujin said:


> As was I. It's a pity that they couldn't come to the sort of agreement that Disney has about the Star Wars properties.




Has Disney had to deal with million-dollar Star Wars fan films before?    If not, then I don't think their agreement stands as a particularly good example.

In terms of their policy, I think Paramount has a point here.  Fan films are fine.  Fans paying a million bucks for professionals to make films?  That is less like fans doing something as a loving hobby, and more like paying someone to make movies.


----------



## Ryujin (Mar 15, 2016)

Umbran said:


> Has Disney had to deal with million-dollar Star Wars fan films before?    If not, then I don't think their agreement stands as a particularly good example.
> 
> In terms of their policy, I think Paramount has a point here.  Fan films are fine.  Fans paying a million bucks for professionals to make films?  That is less like fans doing something as a loving hobby, and more like paying someone to make movies.




No, of course they haven't, but they do appear to have rules in place for fan films. That's more than CBS/Paramount have.

How much does it cost if passionate professionals, who want to make a hobby film, decide to do so? They work with professional grade equipment, that costs serious money to rent. They do professional grade effects work that requires a certain minimum in computer hardware, or practical effects equipment/safety controls. By definition if a professional is going to do a passion project, it's going to cost more.

Leaving the current legal issue behind for a moment as for "professionally made films", Hollywood seems to have a bit of an issue. You've got the $50K to maybe $500K indie films, then you have the $20M to $200M films. The $1M to $5M don't seem to exist anymore. They just can't seem to get funding. The latest production by Zombie Orpheus Entertainment is going to run almost a half million dollars because that's how much it costs to make an hour and a half of video, when you're only paying people minimum wage. I estimated their budget at less than what it costs to shoot a minute and a half of "Big Bang Theory", including the talent. A million dollars isn't that much, these days.


----------



## Umbran (Mar 15, 2016)

Ryujin said:


> No, of course they haven't, but they do appear to have rules in place for fan films. That's more than CBS/Paramount have.
> 
> How much does it cost if passionate professionals, who want to make a hobby film, decide to do so? They work with professional grade equipment, that costs serious money to rent. They do professional grade effects work that requires a certain minimum in computer hardware, or practical effects equipment/safety controls. By definition if a professional is going to do a passion project, it's going to cost more.




The fact that what they *want* and have skill to do costs a lot of money is irrelevant.  We all have a great many things we'd love to do that we cannot afford, and the fact that I happen to really like Star Trek doesn't somehow mean I get a moral or ethical or legal pass on how I get it funded.  A fan film is a *personal* project - that means the funding should be more or less *personal*.  

If your funding base is hundreds to thousands of people who toss in bucks and wait for product, they're *buying*, and that's commercial.  If you want it to still be considered a fan production, all those people paying should also be part of production - they should be sewing, and building sets, and cooking food for the crafts table, and such.  



> Leaving the current legal issue behind for a moment as for "professionally made films", Hollywood seems to have a bit of an issue. You've got the $50K to maybe $500K indie films, then you have the $20M to $200M films. The $1M to $5M don't seem to exist anymore. They just can't seem to get funding.




I don't know if the equivalent (adjusted for inflation and production costs for the eras) was really ever *common*.  I think there's some natural ranges of "bang for the buck" - you can get some wonderful stories in low-budget, and you get spectacle and best-of-the-best acting at high budget.  But that low-middle space?  I don't know if you really get enough value added in that range for it to really increase the production's return on investment.


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## Ryujin (Mar 15, 2016)

Umbran said:


> The fact that what they *want* and have skill to do costs a lot of money is irrelevant.  We all have a great many things we'd love to do that we cannot afford, and the fact that I happen to really like Star Trek doesn't somehow mean I get a moral or ethical or legal pass on how I get it funded.  A fan film is a *personal* project - that means the funding should be more or less *personal*.
> 
> If your funding base is hundreds to thousands of people who toss in bucks and wait for product, they're *buying*, and that's commercial.  If you want it to still be considered a fan production, all those people paying should also be part of production - they should be sewing, and building sets, and cooking food for the crafts table, and such.




I haven't said that they have any moral or legal pass. In point of fact I've said that they're screwed, because to my mind it's pretty open and shut. What I am saying, is that the magic $1M limit is largely immaterial. It's merely the cost of doing business these days, especially when dealing with industry professionals and professional grade equipment. The guys at Dead Gentlemen Productions blew half of the overall budget for "Dorkness Rising" on one professional level camera's rental charge.

As to the fans who kick in actually helping to make the production happen in was other than just fiscal, that's not how any of the other "fan-made" productions work either. I haven't done any building, sewing, or computer setup (my personal area of expertise) for "Star Trek Continues", nor for "Star Trek: The New Voyages." I have given them money toward production, however.



> I don't know if the equivalent (adjusted for inflation and production costs for the eras) was really ever *common*.  I think there's some natural ranges of "bang for the buck" - you can get some wonderful stories in low-budget, and you get spectacle and best-of-the-best acting at high budget.  But that low-middle space?  I don't know if you really get enough value added in that range for it to really increase the production's return on investment.




Well clearly you get enough added that it gets noticed by CBS/Paramount


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## Ryujin (Mar 15, 2016)

Here's Wil Wheaton's take on it:

http://wilwheaton.tumblr.com/post/141057730914/do-you-know-what-the-deal-with-this-st-fan-film


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## Umbran (Mar 15, 2016)

Ryujin said:


> What I am saying, is that the magic $1M limit is largely immaterial. It's merely the cost of doing business these days




I think Mr Wheaton's article, that you quoted, suggests otherwise - fan films running at the $100,000 mark.  About 10% of what Axanar pulled in.

$1 million isn't *magic*, however, if it is 10x what most others use, then I think the point still stands that it is a lot of money.



> As to the fans who kick in actually helping to make the production happen in was other than just fiscal, that's not how any of the other "fan-made" productions work either. I haven't done any building, sewing, or computer setup (my personal area of expertise) for "Star Trek Continues", nor for "Star Trek: The New Voyages." I have given them money toward production, however.




And, on that measure, I don't htink I'd have a problem with CBS coming down on them, either.  There's a point where the funding is really pre-sales, and fan productions shouldn't be about sales if you want that pseudo-protected monkier.


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## Janx (Mar 15, 2016)

One of the danger zones of the Axanar project is they raised a ton of money and sounds like they've used that money for things like setting up a studio to be a long term venture, rather than "get money and use it directly for the making of the thing the kickstarter is for"

Which is suspiciously similar to the board game case that hit the news "thing that ate monopoly" or whatever, where the guy used the money to move himself to WA and start a company, pay his rent, rather than directly use it on production costs of the game that he was handed the rules/art for to make into a reality.

Given the outcome of that case, and the changes to Kickstarter requiring full reimbursement if the project fails, the danger for the Axanar guys similar, in that if they've spent money on things that are not "Axanar film assets" then they will have that much harder of a time getting the money back to the funders if this fails (which it may if Paramount wins).


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## Dannyalcatraz (Mar 15, 2016)

Ryujin said:


> Here's Wil Wheaton's take on it:
> 
> http://wilwheaton.tumblr.com/post/141057730914/do-you-know-what-the-deal-with-this-st-fan-film




Heh.  He called them, "epic douchecanoes".  I think I'll use Eric "Epic" Douchecano as the name for a hitman in a modern RPG campaign.


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## Dannyalcatraz (Mar 15, 2016)

Janx said:


> One of the danger zones of the Axanar project is they raised a ton of money and sounds like they've used that money for things like setting up a studio to be a long term venture, rather than "get money and use it directly for the making of the thing the kickstarter is for"




Yeah, that is EXTRMELY problematic; indefensible, even.  To me, it looks like they're using crowd funding with abuse of IP to cover the entry costs in setting themselves up in the movie studio business.  

Shady to the max.


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## Janx (Mar 15, 2016)

Dannyalcatraz said:


> Yeah, that is EXTRMELY problematic; indefensible, even.  To me, it looks like they're using crowd funding with abuse of IP to cover the entry costs in setting themselves up in the movie studio business.
> 
> Shady to the max.




The weird thing is, the head guy behind Axanar, is a lawyer.  You'd think he'd have smelled legal risks a mile away the moment he had the idea to film something about Star Trek.

Personally, and I suspect for Danny the Actual Lawyer as well, I see/hear ideas like this and I think of legal things to double-check before I assume something is kosher to just go ahead and start doing.  It's pretty freaking obvious that if you re-use the name of something from a TV show, movie or book, that you better make sure you have legal rights to do so.

Are people really this stupid or careless?  Or was Axanar really lawsuit baiting for Paramount?

I really like the material Axanar is doing.  But they've pretty much gotten people's hopes up over the cool factor, while the pitfalls were pretty obvious to someone in Hollywood who should be versed in such business.  It's kind of irresponsible.


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## Ryujin (Mar 15, 2016)

Umbran said:


> I think Mr Wheaton's article, that you quoted, suggests otherwise - fan films running at the $100,000 mark.  About 10% of what Axanar pulled in.
> 
> $1 million isn't *magic*, however, if it is 10x what most others use, then I think the point still stands that it is a lot of money.
> 
> And, on that measure, I don't htink I'd have a problem with CBS coming down on them, either.  There's a point where the funding is really pre-sales, and fan productions shouldn't be about sales if you want that pseudo-protected monkier.




I didn't present Wheaton's piece as any sort of support for my statements. It's there for informational purposes, as I'm just trying to keep folks up to date with what's going on. On the funding angle the reason why most fan projects cost so little is that all of the labour tends to be performed volunteers, with folks taking vacation or unpaid leave to do the production. The moment that you decide to pay people even as little as minimum wage, or base scale for the specific job, costs skyrocket. Axanar, like many indie projects, pay their people. From what they're saying it sounds like they're paying scale, even to people who command a much higher rate.


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## Ryujin (Mar 15, 2016)

Janx said:


> One of the danger zones of the Axanar project is they raised a ton of money and sounds like they've used that money for things like setting up a studio to be a long term venture, rather than "get money and use it directly for the making of the thing the kickstarter is for"
> 
> Which is suspiciously similar to the board game case that hit the news "thing that ate monopoly" or whatever, where the guy used the money to move himself to WA and start a company, pay his rent, rather than directly use it on production costs of the game that he was handed the rules/art for to make into a reality.
> 
> Given the outcome of that case, and the changes to Kickstarter requiring full reimbursement if the project fails, the danger for the Axanar guys similar, in that if they've spent money on things that are not "Axanar film assets" then they will have that much harder of a time getting the money back to the funders if this fails (which it may if Paramount wins).




The set building is definitely a sticking point, but not outside the realm of what other productions have done. For example "Star Trek Continues" have bundled set building into their crowdfunding efforts. "Kirkstarter 2.0", for example, raised over $200,000.00 and at least some of that went toward increasing, and improving their sets. Those are permanent assets.

https://www.kickstarter.com/project...rek-continues-2015-kirkstarter-20/description


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## MarkB (Mar 15, 2016)

Janx said:


> The weird thing is, the head guy behind Axanar, is a lawyer.  You'd think he'd have smelled legal risks a mile away the moment he had the idea to film something about Star Trek.
> 
> Personally, and I suspect for Danny the Actual Lawyer as well, I see/hear ideas like this and I think of legal things to double-check before I assume something is kosher to just go ahead and start doing.  It's pretty freaking obvious that if you re-use the name of something from a TV show, movie or book, that you better make sure you have legal rights to do so.
> 
> Are people really this stupid or careless?  Or was Axanar really lawsuit baiting for Paramount?




I'm guessing they saw the legal ambiguity as an opportunity and decided to see how far they could push it, with the expectation that even if Paramount / CBS took action, it would begin with a Cease & Desist order, at which point they could either cave or drum up public opinion. They decided to gamble on the studio not leading with a full-scale lawsuit, and they lost.


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## Janx (Mar 15, 2016)

Ryujin said:


> The set building is definitely a sticking point, but not outside the realm of what other productions have done. For example "Star Trek Continues" have bundled set building into their crowdfunding efforts. "Kirkstarter 2.0", for example, raised over $200,000.00 and at least some of that went toward increasing, and improving their sets. Those are permanent assets.
> 
> https://www.kickstarter.com/project...rek-continues-2015-kirkstarter-20/description




Here, I might wonder if I misunderstood a term.  I fully expect them to have physical assets like the set for filming.  And if the project goes bust, they can sell those assets to fans to help cover costs perhaps.

But I saw the term "studio" used with verbiage implying "to do other future business/film things" and assuming I read that write, that's farther than, some sets somewhere.


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## Ryujin (Mar 15, 2016)

Janx said:


> Here, I might wonder if I misunderstood a term.  I fully expect them to have physical assets like the set for filming.  And if the project goes bust, they can sell those assets to fans to help cover costs perhaps.
> 
> But I saw the term "studio" used with verbiage implying "to do other future business/film things" and assuming I read that write, that's farther than, some sets somewhere.




You're right that they did mention a studio. It's a warehouse space that's functionally little different from that of the other series that I've mentioned.

Star Trek Continues: "Our “Stage Nine” (an 18,500-square-foot studio named after the original soundstage at Desilu) houses the largest, most complete standing TOS sets in the world — including the bridge, corridors, turbolifts, quarters, sickbay, briefing/rec room, transporter room, Jefferies tube, engineering, auxiliary control, and shuttlecraft sets — precisely constructed using the original Star Trek blueprints (see our interactive virtual tour above)."

Axanar: "The Axanar team is happy to announce that we have signed a lease on 16,000sf warehouse in Valencia, CA.  The new home of Axanar Productions will be called “Ares Studios” and you are all part of it because of your donations to the Axanar Kickstarter.  We intend to turn this warehouse and office space into a fully functional sound stage.  This will allow us to not only make “Axanar” but other Star Trek projects after Axanar and other Sci-Fi projects. (Robert Burnett and I have already acquired the rights to a fantastic book series by David Gerrold.)"


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## Janx (Mar 15, 2016)

Ryujin said:


> You're right that they did mention a studio. It's a warehouse space that's functionally little different from that of the other series that I've mentioned.
> 
> Star Trek Continues: "Our “Stage Nine” (an 18,500-square-foot studio named after the original soundstage at Desilu) houses the largest, most complete standing TOS sets in the world — including the bridge, corridors, turbolifts, quarters, sickbay, briefing/rec room, transporter room, Jefferies tube, engineering, auxiliary control, and shuttlecraft sets — precisely constructed using the original Star Trek blueprints (see our interactive virtual tour above)."
> 
> Axanar: "The Axanar team is happy to announce that we have signed a lease on 16,000sf warehouse in Valencia, CA.  The new home of Axanar Productions will be called “Ares Studios” and you are all part of it because of your donations to the Axanar Kickstarter.  We intend to turn this warehouse and office space into a fully functional sound stage.  This will allow us to not only make “Axanar” but other Star Trek projects after Axanar and other Sci-Fi projects. (Robert Burnett and I have already acquired the rights to a fantastic book series by David Gerrold.)"




yeah, the term Studio meaning "place where our sets and offices are to do this project" is probably in-bounds, relative to proper use of the money.

Studio as in "big dream idea of being a full blown production company for lots of movies" starts getting into grey area.

Granted, the fact of any business where you setup infrastructure to do a project, leaves you with infrastructure to do another project.  But one likely has to be careful how one phrases that.


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## Ryujin (Mar 15, 2016)

Janx said:


> yeah, the term Studio meaning "place where our sets and offices are to do this project" is probably in-bounds, relative to proper use of the money.
> 
> Studio as in "big dream idea of being a full blown production company for lots of movies" starts getting into grey area.
> 
> Granted, the fact of any business where you setup infrastructure to do a project, leaves you with infrastructure to do another project.  But one likely has to be careful how one phrases that.




Axanar was planning on releasing their movie in parts, with how many at once being determined by the funding that they received. Their entire budget was projected to be $1.32M, with an approximate cost of $330K per "act". It was going to take significant time to shoot, produce, and post.


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## MarkB (Mar 15, 2016)

Ryujin said:


> You're right that they did mention a studio. It's a warehouse space that's functionally little different from that of the other series that I've mentioned.
> 
> Star Trek Continues: "Our “Stage Nine” (an 18,500-square-foot studio named after the original soundstage at Desilu) houses the largest, most complete standing TOS sets in the world — including the bridge, corridors, turbolifts, quarters, sickbay, briefing/rec room, transporter room, Jefferies tube, engineering, auxiliary control, and shuttlecraft sets — precisely constructed using the original Star Trek blueprints (see our interactive virtual tour above)."
> 
> Axanar: "The Axanar team is happy to announce that we have signed a lease on 16,000sf warehouse in Valencia, CA.  The new home of Axanar Productions will be called “Ares Studios” and you are all part of it because of your donations to the Axanar Kickstarter.  We intend to turn this warehouse and office space into a fully functional sound stage.  This will allow us to not only make “Axanar” but other Star Trek projects after Axanar and other Sci-Fi projects. (Robert Burnett and I have already acquired the rights to a fantastic book series by David Gerrold.)"



Yeah, those two don't quite sound the same to me. The Star Trek Continues one is explicitly dedicated to the production of that specific show. The Axanar one is explicitly intended to support other projects that nobody signed up for in the Kickstarter.


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## Ryujin (Mar 15, 2016)

MarkB said:


> Yeah, those two don't quite sound the same to me. The Star Trek Continues one is explicitly dedicated to the production of that specific show. The Axanar one is explicitly intended to support other projects that nobody signed up for in the Kickstarter.




Sure, except that the Axanar 'studio' will be full of the exact same sort of starship deck sets as the one for Star Trek Continues. Star Trek Continues also has more square footage than does Axanar. On the studio front, it's essentially a wash. Watch the Axanar Indiegogo pitch video and you'll see that the funding paid for something like a year and a half worth of their lease. That would pretty much cover production and after that, they're on their own.


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## Dannyalcatraz (Mar 15, 2016)

Janx said:


> The weird thing is, the head guy behind Axanar, is a lawyer.  You'd think he'd have smelled legal risks a mile away the moment he had the idea to film something about Star Trek.




This may come as a complete shock to many of you, but some of my colleagues are amoral and shady.  And a certain subset are so smart, they stupidly think they can get away with anything.


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## Dannyalcatraz (Mar 16, 2016)

I happen to live about 20 minutes from one of the biggest soundsages in America.  

There's a BIG difference between building movie sets and warehousing them, etc., and building a full-blown studio.  In the former, you're probably renting space for storage and have booked the soundstage for a finite period of time at a set rental fee.  When you're done filming or you're out of money, your out of there.

If you're actually building a studio, that's a permanent structure YOU (and whatever partners you may have) own, and can be used for projects beyond the first one.  One does not typically build a studio exclusively for the purposes of filming one project, even if it to be filmed and released over several years' time.


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## Ryujin (Mar 16, 2016)

Dannyalcatraz said:


> This may come as a complete shock to many of you, but some of my colleagues are amoral and shady.  And a spcertain subset are so smart, they stupidly think they can get away with anything,




Peters might be too smart for his own good. He might have honestly believed the vagaries he was given when he first met with CBS over the matter, prior to the initial funding efforts for "Prelude." We may never know. 



Dannyalcatraz said:


> I happen to live about 20 minutes from one of the biggest soundsages in America.
> 
> There's a BIG difference between building movie sets and warehousing them, etc., and building a full-blown studio.  In the former, you're probably renting space for storage and have booked the soundstage for a finite period of time at a set rental fee.  When you're done filming or you're out of money, your out of there.
> 
> If you're actually building a studio, that's a permanent structure YOU (and whatever partners you may have) own, and can be used for projects beyond the first one.  One does not typically build a studio exclusively for the purposes of filming one project, even if it to be filmed and released over several years' time.




In the two production teams I last cited they both have warehouse-like buildings, housing Star Trek corridors, bridges, engine rooms, and bridges. I don't know the terms for "Continues", but "Axanar" has paid for the first year and security deposit on their building from the crowd-sourced funds, out of a 3 year lease (referenced in this video, at around the 3:40 mark). Yup, sounds like they plan to use it for some time to come. It's still a rental, so they'll need to pay the ongoing costs somehow. Maybe more fan films in the Star Trek universe. Maybe subletting it to other productions. Maybe bankrupted by a lawsuit and reverting to the owners.

https://www.youtube.com/watch?v=S6TXDDoADIY


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## Umbran (Mar 16, 2016)

Ryujin said:


> I didn't present Wheaton's piece as any sort of support for my statements.




That's good, because Mr. Wheaton's piece actively stands against the point you made.



> It's there for informational purposes...




And, I'm using it for exactly that, to give perspective here.

By the information provided, a high-end fan film typically tops out at _one-tenth the budget_ of Axanar.  We should be completely unsurprised that CBS/Paramount are dealing with it differently.



> n the funding angle the reason why most fan projects cost so little is that all of the labour tends to be performed volunteers, with folks taking vacation or unpaid leave to do the production. The moment that you decide to pay people even as little as minimum wage, or base scale for the specific job, costs skyrocket. Axanar, like many indie projects, pay their people. From what they're saying it sounds like they're paying scale, even to people who command a much higher rate.




Look at what you did there:  "like many indie projects".  But *unlike* most fan-film projects.    I don't think we can actively show how Axanar is different from most fan films, but also sugest that its budget is, "the normal cost of doing business," for fan films.  I think part of the point is that fan films *are not business*.  A fan film should not be using the production cost model of an indie film.  Axanar is looking less and less like a fan film, and more like an indie commercial project trying to use someone else's IP under the guise of a fan film.

They may have stepped over the line while blinded by enthusiasm, but like Victor Frankenstein they were so filled with what they could do, they didn't stop to consider what they *should* do.  Or maybe, as Danny has suggested, their intent was a bit shadier.  I couldn't say, and to a large extent I don't care.  Either way, it looks like an overreach, and at this point I think they're doing the fan community a disservice by continuing to fight.


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## Ryujin (Mar 16, 2016)

Umbran said:


> That's good, because Mr. Wheaton's piece actively stands against the point you made.
> 
> And, I'm using it for exactly that, to give perspective here.
> 
> By the information provided, a high-end fan film typically tops out at _one-tenth the budget_ of Axanar.  We should be completely unsurprised that CBS/Paramount are dealing with it differently.




And I'm providing it in the manner that a good news agency would; to cover all bases and avoid colouring the whole debate with my own bias.

"Star Trek Continues" funded at over $200K. They tend to be the go-to comparison.



> Look at what you did there:  "like many indie projects".  But *unlike* most fan-film projects.    I don't think we can actively show how Axanar is different from most fan films, but also sugest that its budget is, "the normal cost of doing business," for fan films.  I think part of the point is that fan films *are not business*.  A fan film should not be using the production cost model of an indie film.  Axanar is looking less and less like a fan film, and more like an indie commercial project trying to use someone else's IP under the guise of a fan film.
> 
> They may have stepped over the line while blinded by enthusiasm, but like Victor Frankenstein they were so filled with what they could do, they didn't stop to consider what they *should* do.  Or maybe, as Danny has suggested, their intent was a bit shadier.  I couldn't say, and to a large extent I don't care.  Either way, it looks like an overreach, and at this point I think they're doing the fan community a disservice by continuing to fight.




I did that for a very specific reason, that I hoped I had made obvious. "Most fan films" end up costing their principals tens of thousands of dollars, out of pocket. Far from being "not for profit", they are usually made at a rather large loss. A well organized indie film tries to pay its people and to operate at break even, or better. This is a better model for making a fan film, since it doesn't result in people taking out second mortgages. I didn't suggest that it was the normal cost of doing business for making fan films. I stated it's the normal cost of doing business when you're using professionals and that, even if you're only paying minimum wage or scale, the costs are significantly higher than when you're using volunteer labour.

Overreach or not, they were banking on being able to use intellectual property owned by someone else. That creates the possibility of failure, beyond the usual issues with any production. In the comments section of one of the Axanar blogs I posted the following (currently awaiting moderation):

"How do you advertise for less than zero dollars? Easy. Settle the suit against “Axanar” in the following way.

Allow production on “Axanar” to continue. Permit fulfillment of the existing promises to the backers, who funded the movie through Kickstarter and Indiegogo. Once that is complete bring the movie in-house, making it a CBS/Paramount property to satisfy copyright. Release it to the world via an on-demand site like Vimeo on Demand for a nominal charge, like $5.00 per rental. Twenty percent of generated profits would go to Axanar Productions, which was not slated to make profit at any rate, with the remaining 80% going to the IP holders. A similar deal could be worked out for DVD/Blu-Ray distribution.

Copyright is satisfied. The backers are satisfied. The production gets to see the light of day."


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## GMforPowergamers (Mar 16, 2016)

Umbran said:


> at this point I think they're doing the fan community a disservice by continuing to fight.



I would respect them so much more if they appologized ninstead of doubling down...


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## Umbran (Mar 16, 2016)

Ryujin said:


> "Star Trek Continues" funded at over $200K. They tend to be the go-to comparison.




I think that, in figuring what the Studio's response should be, we should be looking more at the bulk of fan films, not a single other high-end example.  But, still, if we do that, we are still taking about something *five times* larger than the go-to comparison.



> I did that for a very specific reason, that I hoped I had made obvious. "Most fan films" end up costing their principals tens of thousands of dollars, out of pocket. Far from being "not for profit", they are usually made at a rather large loss.




Yep.  Guess what, people have to pay for their own hobbies and entertainment activities!  



> A well organized indie film tries to pay its people and to operate at break even, or better. This is a better model for making a fan film, since it doesn't result in people taking out second mortgages.




A well-organized indie film is a commercial venture, not a hobby activity.  If you want to turn your hobby activity into a commercial venture, that's fine, but then you don't get to continue to claim it is a hobby activity.  Basically, if you're getting paid for it, it is no longer "fan" work.  If you have customers who have paid and are waiting for product, you are in a commercial enterprise, not a fan production. 




> "How do you advertise for less than zero dollars? Easy. Settle the suit against “Axanar” in the following way.
> 
> Allow production on “Axanar” to continue. Permit fulfillment of the existing promises to the backers, who funded the movie through Kickstarter and Indiegogo. Once that is complete bring the movie in-house, making it a CBS/Paramount property to satisfy copyright. Release it to the world via an on-demand site like Vimeo on Demand for a nominal charge, like $5.00 per rental. Twenty percent of generated profits would go to Axanar Productions, which was not slated to make profit at any rate, with the remaining 80% going to the IP holders. A similar deal could be worked out for DVD/Blu-Ray distribution.
> 
> Copyright is satisfied. The backers are satisfied. The production gets to see the light of day."




Yes, but this also answers the question, "How do you make sure you'll have to have this concern over and over again?"

I think that Axanar, knowingly or not, took advantage of the fans and the studio's goodwill.  Whether it was underhanded or thoughtless, they should not be rewarded for it.  Sorry, Icarus.


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## Janx (Mar 16, 2016)

thought experiment:

Let's say Danny and I (who are in the same state, though separated by a zillion miles) decide to film a Star Trek series of YouTube videos of a pair of low-rank shuttle jockeys, making runs here and there.  A star trek buddy sitcom.

We do it using a third TX ENworld friend's iPhone camera and the iMovie app.

That's presumably a hobby fan film project.  Any money we spend on the set (spare bedroom somewhere and trips to the park for on-planet scenes) comes from us and we're not making any money.  Most likely we are clear of the wrathful eye of Paramount's lawyers with our one subscriber (Morrus, who will watch anything Star Trek related).

Now consider evolution off of that.

Morrus likes it, tells his friends, and now we have lots of views.  YouTube starts to send us a monthly check for our "revenue share".  Let's assume it's modest and Danny blows it on ingredients for his next fancy dinner that I wasn't invited to.

Now, are we in trouble from Paramount?  We just made money off our "fan film"

Now consider that we've been using an iPhone and the shakey cam effect has got to go.  We hire a cut-rate pro camera man who happens to own a 3-gen old pro video camera to do the shoot.

Are we in trouble because we employed a "professional" to help with the creation of our Fan Film?

Let's say fan response to the improved video quality was high, but we could only afford that one episode paying for it ourselves.  So we start a KickStarter to raise funds for 10 episodes, shot by a professional.

Now depending on how much we raise, we consider that we can also:
rebuild the sets/green screen to be better
hire some actual actors to play other roles
hire an FX company to do a better job on the intro/outro and CGI
hire a composer to score and record an original score for our episodes
replace Danny and myself with real actors who don't stare at the camera

At some point, this obviously smells less like Danny and I doing a hobby thing, and more like Danny and I arranging the production of a better version of our fan film.

Additionally, where initially we were the fans, funding our hobby, it could be said that now the KickStarter people are fans, funding their hobby of getting a star trek fan film made.

The obvious gray area is where us hobbyists doing the work and paying for stuff shifts to other people doing the work (and getting paid), and other people (kickstarter) funding the activity.

One thing to keep in mind, is that there is likely always a grey area.  In just about every hobby, you are still paying somebody for supplies, equipment, services that you yourself can't do.  That doesn't detract from it still being a hobby, even though you technically didn't personally do 100% of all the activities to get to the end goal.


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## Ryujin (Mar 16, 2016)

Umbran said:


> Yes, but this also answers the question, "How do you make sure you'll have to have this concern over and over again?"
> 
> I think that Axanar, knowingly or not, took advantage of the fans and the studio's goodwill.  Whether it was underhanded or thoughtless, they should not be rewarded for it.  Sorry, Icarus.




I'm just going to skip to the bottom because we could go back and forth on the rest for days, without convincing each other of anything. It's pointless for me to continue in that vein.

The concern is answered, "If you make it and we don't like what you've done we either own it, or sue you into the Stone Age." It enforces the IP ownership. It locks out what the producer might consider to be methods of profiting from the work in future, in violation of the IP. It does this without punishing the fans, who are a source of income for the IP holder.

Or it just goes through court, everyone is out hundreds of thousands if not millions of dollars, and "Axanar" is dead. The IP holder has every legal right to do this. It's just a very bloody way to go forward. You win the game by not playing.


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## Ryujin (Mar 16, 2016)

Janx said:


> thought experiment:
> 
> Let's say Danny and I (who are in the same state, though separated by a zillion miles) decide to film a Star Trek series of YouTube videos of a pair of low-rank shuttle jockeys, making runs here and there.  A star trek buddy sitcom.
> 
> ...




Technically speaking, CBS/Paramount could shut you down at any point in this supposition. In practice they would likely use your distribution method, Youtube, against you by filing a claim that would immediately halt monetization, with a likely eventuality that they would assume control of it and monetize it themselves. It happens and there are plenty of Youtubers who are unhappy about it, especially when their videos actually fall within "fair use" guidelines.

Another question directly related to the Axanar thing is, "What if I am actually a professional myself, who has a bunch of professional friends, and want to make a fan film?"

The IP holder has an absolute right to their IP, provided it isn't being used under "fair use" guidelines. If the IP is being used straight-up and not for parody, review, or educational purposes, then you're pretty much hosed if the take a dislike to you.


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## Dannyalcatraz (Mar 16, 2016)

There are all kind of possibilities, here, and one I'd like to point out.  The Verve got into a legal squabble with the Rolling Stones over sampling one of their rarer songs without credit for the making of their hit, "Bittersweet Melody".  The Stones sued for IP infringement and won- they were awarded a written co-writer credit on on future releases of the song and all profits from the Verve's recording.  The Stones and their record company got everything, The Verve and theirs got zip.  No other singles were released from that album*, and the band broke up.  Lead singer Richard Ashcroft (possibly the others as well) continued to record under different names, but never again reached the success of that single.

Similarly, Paramount could indeed settle for something as simple as they get ownership...and shelve it, never to release it.  The people behind Axenar get ruined by their debt.  There isn't a flood of similar overreach of crowdfunded IP infringement.

As for "punishing the fans": part of the reason IP holders are granted such an impressive array of rights is because that allows them to control how the IP is managed.  While in all honesty it doesn't always work out that way in practice, IP law _theoretically_ allows the IP owner to exercise quality control over the IP so that the fans are reassured that when they buy "______" IP, it's going to live up to certain standards.**  There are no such guarantees with unauthorized fan fiction & hobby products.

At the very least, IP law guards against misleading the fans as to the nature of the product.  Disney won some..."colorful"...fights against people who used Disney-esque imagery & character names to advertise and produce pornographic movies- the antithesis of their brand identity.  Or, to put it another way, just because it is fan fiction doesn't automatically make it good, and, for good reasons and bad, humans improperly prejudge all kinds of things that have similarities to each other- TV shows, movies, cars, and even things like enchiladas.

IOW, if a fanfic hobby movie ISN'T good, not only is the maker of the knockoff hurt, the actual IP holder could suffer backlash from the fans.  Imagine if Paramount greenlighted a script and produced a movie based on substantially the same general plotline as Axenar (assuming it got released, and panned).  A certain number of fans will not see the authorized production simply based on their negative experiences with the fanfic.  







* in part because that wasn't the only song with uncredited sampling or other forms of plagiarism.  I _personally_ contacted both The Verve's and another copyright holder's record company on a second one.  Another song was written so as to use substantially re-record a song by Aphrodite's Child- Vangelis's original classic rock band from the 1970s- AGAIN without crediting the original songwriters.  IOW, whoever was writing for The Verve wasn't exactly being original.

** George Lucas, I'm looking at you.


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## Janx (Mar 16, 2016)

Ryujin said:


> Technically speaking, CBS/Paramount could shut you down at any point in this supposition. In practice they would likely use your distribution method, Youtube, against you by filing a claim that would immediately halt monetization, with a likely eventuality that they would assume control of it and monetize it themselves. It happens and there are plenty of Youtubers who are unhappy about it, especially when their videos actually fall within "fair use" guidelines.
> 
> Another question directly related to the Axanar thing is, "What if I am actually a professional myself, who has a bunch of professional friends, and want to make a fan film?"
> 
> The IP holder has an absolute right to their IP, provided it isn't being used under "fair use" guidelines. If the IP is being used straight-up and not for parody, review, or educational purposes, then you're pretty much hosed if the take a dislike to you.




Bear in mind, YouTube is chock full of Star Trek "episodes" that are blatant IP violations like Star Trek Continues (that's how I watched it).  So Paramount has knowingly or unwittingly allows a number of these to slide.  They are clearly not reviews, parody or educational purposes.

Your example of the "we're professionals and we have pro friends who will volunteer to help do this for free in Bradd Pitt's basement" being another variation of the kinds of "have we crossed the line past 2 friends shooting a crappy video" for Paramount to care about.

Here's my basic understanding of IP, Trademark and Copyright.  If you don't demonstrate effort to enforce it, you lose it.

By allowing Star Trek Continues and some others (Renegades, New Voyages, etc), Paramount/CBS has tacitly given approval to using their IP.

This may be the real legal battle Axanar was gunning for (remember, their leader IS a Lawyer, they do stuff like this).  By coming in as "yet another IP infringer", Axanar may be trying to force Star Trek out of Paramount's hands by way of their lack of consistent enforcement on the other projects.

I of course could be wrong. But when the metric for "now Paramount will sue you" is fuzzy and we're left guessing where the line is based on conversations like this, that seems like ripe grounds for an argument to sway a jury.

The darn shame of it is that Axanar itself looks like a really cool project.  Outside of the legal wrangling, I suspect the people making it really care about Star Trek and are trying to make a good product.  Thus, I take exception to Wheaton calling them bad names.  I think it's more complicated than that.


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## Dannyalcatraz (Mar 16, 2016)

You don't have to sue everyone; you can be inconsistent in enforcement.  IP holders are not required to scour the Internet looking for violators.  No court is going to say to an IP holder that they lost their rights because they didn't enforce their rights on X% of the millions of IP violators who downloaded their stuff illegally, or thousands who made Youtube vids with their IP.


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## Janx (Mar 16, 2016)

Dannyalcatraz said:


> You don't have to sue everyone; you can be inconsistent in enforcement.  IP holders are not required to scour the Internet looking for violators.  No court is going to say to an IP holder that they lost their rights because they didn't enforce their rights on X% of the millions of IP violators who downloaded their stuff illegally, or thousands who made Youtube vids with their IP.




Good to know.

I've heard of some older trademark cases that ended up getting "lost", but the internet changes the mechanics by a larger margin that it may be infeasible for an IP Holder to truly be aware of most violators.


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## Morrus (Mar 16, 2016)

Dannyalcatraz said:


> You don't have to sue everyone; you can be inconsistent in enforcement.  IP holders are not required to scour the Internet looking for violators.  No court is going to say to an IP holder that they lost their rights because they didn't enforce their rights on X% of the millions of IP violators who downloaded their stuff illegally, or thousands who made Youtube vids with their IP.




And - correct me if I'm wrong - enforcing your IP does not have to mean "sue the living bejeezus about of somebody".  It can mean reaching out to them and either guiding them into compliance or reaching an agreement. There's no obligation to sue people or lose your IP.  Is that correct?


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## Umbran (Mar 16, 2016)

Janx said:


> Good to know.
> 
> I've heard of some older trademark cases that ended up getting "lost", but the internet changes the mechanics by a larger margin that it may be infeasible for an IP Holder to truly be aware of most violators.




That's trademark.  CBS is using *copyright* law here, which is different.


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## Ryujin (Mar 16, 2016)

Morrus said:


> And - correct me if I'm wrong - enforcing your IP does not have to mean "sue the living bejeezus about of somebody".  It can mean reaching out to them and either guiding them into compliance or reaching an agreement. There's no obligation to sue people or lose your IP.  Is that correct?




I have enforced my own ownership of IP (photographs) in just this way. I've never had to sue anyone and, given the tiny level that the damages would rise to, it would be rather pointless to take it any further than small claims court. In only one case have I had to take it further than a friendly request to either pay or remove pictures from a website, and that resulted in me having the person's provider kill the offender's website.


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## Janx (Mar 16, 2016)

Umbran said:


> That's trademark.  CBS is using *copyright* law here, which is different.




yes and no.  Granted for us laymen, we use the phrase Intellecutal Property (IP) to cover all the bases of trademark, copyright, patent, etc.  We'd need Danny to set us straight in lawyerful terms.  Personally, I have more experience in patent IP than the others.

That said, trademark is more likely to apply to concepts like Romulan, Star Trek, and Klingon in this Axanar case than Copyright, which as I understand generally covers specific text, speech, music, art, video.  This is akin to TSR trademarking Nazi, and how you can't copyright protect game rules only the implementation of the text explaining them (thus the Player's Handbook is copyrightable, the rules to 3e are not).

Unless Axanar steals footage or a script from Paramount, it's not a straight up copyright case (as in plagiarism kind of copyright violation).

If using the words Klingon, etc are indeed covered under some copyright law, obviously I don't know that.  However it smells exactly like trademark infringement.

As both patent and trademark have rules about failing to enforce them, I suspect copyright has similar clauses.  We'd need Danny to confirm or refute that hunch.


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## Dannyalcatraz (Mar 16, 2016)

Morrus said:


> And - correct me if I'm wrong - enforcing your IP does not have to mean "sue the living bejeezus about of somebody".  It can mean reaching out to them and either guiding them into compliance or reaching an agreement. There's no obligation to sue people or lose your IP.  Is that correct?




Yep.


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## Janx (Mar 16, 2016)

Morrus said:


> And - correct me if I'm wrong - enforcing your IP does not have to mean "sue the living bejeezus about of somebody".  It can mean reaching out to them and either guiding them into compliance or reaching an agreement. There's no obligation to sue people or lose your IP.  Is that correct?




in a more friendly world, you bet.

I imagine that in most cases, the victim of a violation doesn't take kindly to it, and their initial feeling is not positive enough to let them slow down and try to talk to the perpetrator.  After all, they have no responsibility to do so, they are the victim.

Consider if I was making unauthorized add-on material to WOIN.  And you found out.  Would you shoot me a polite email saying "hey, um, legally, you can't do that, but if you work with me, I may be able to guide you into compliance with my rights, so I won't have to sue the stuffing out of you."

Or is it easier to just send the idiot named Janx a C&D and be done with it.


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## Dannyalcatraz (Mar 16, 2016)

Something can be covered by multiple forms of IP protection.  So, Copyright AND Trademark might apply in a given case, and loss of one does not extinguish the other.


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## Umbran (Mar 16, 2016)

Janx said:


> That said, trademark is more likely to apply to concepts like Romulan, Star Trek, and Klingon




IANAL, but I don't think so.  Trademark is applicable to *specific* images, and phrases, not to concepts.  They may Trademark the *word* "Romulan", but you can't trademark general concepts of something generally like "Space Soviets".  And, since you have to defend them or they might be lost, the number of terms they've trademarked is probably small.  Moreover, I think trademarks have to be registered *for* something.  The point of trademark is to have a mark that folks cannot confuse, and if used on an entirely different product, then arguing that folks will get confused is difficult.  See the old argument between Apple Corps (the Beatles' record company) and Apple Computers - it isn't like anyone confused the two, so Apple ultimately won the conflict.

Enforcing copyright on general concepts is hard, too - "look and feel" suits are difficult to make stick.  My understanding is that CBS isn't pushing that, and is instead going after the more clear specific times their particular artistic expressions are used.



> Unless Axanar steals footage or a script from Paramount, it's not a straight up copyright case (as in plagiarism kind of copyright violation).




No, they don't need to steal footage or script.  It is enough to copy designs of costumes and ships too closely.  Take a look, for example, at the costume design comparisons that are floating around.  And take a look at the Klingon language (which is covered by copyright), which is pretty darned specific. 



> I suspect copyright has similar clauses.  We'd need Danny to confirm or refute that hunch.




Nope - as Danny has already noted above your post.


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## Ryujin (Mar 16, 2016)

Just so that you can see I'm getting hit from both sides... 

This link is to a comment by "Mike Snyder", in response to a post that I made on the Axanar blog page and partially quoted in this thread. Unfortunately a fairly large number of my fellow backers are blind to the reality of the situation:

http://www.axanarproductions.com/ar...hooting-themselves-in-the-foot/#comment-14979


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## Dannyalcatraz (Mar 16, 2016)

"Free commercials" for the IP?  Not exactly.


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## Ryujin (Mar 16, 2016)

Dannyalcatraz said:


> "Free commercials" for the IP?  Not exactly.




Yeah, that was a bit much to swallow. There's also that nagging inability to admit someone else actually holds the IP.


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## Dannyalcatraz (Mar 18, 2016)

Yep.  I'm pretty sure Ford would be fairly unswayed by "free publicity" generated by kit-car "Ferd Mustangs" being produced in largish numbers "for the fans".


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## Ryujin (Apr 30, 2016)

Well this is interesting; the response to the response. The CBS/Paramount lawyers are arguing the exact opposite of what they did, in a previous similar case, in order to have that case dismissed. Common practice, no doubt, as you make the argument that suits the case, but it must suck to get called out for it. Especially so when the original action follows applicable case law.

PDF Document


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## trappedslider (Apr 30, 2016)

This may have some relevance http://www.cinemablend.com/television/We-Finally-Know-CBS-Star-Trek-Going-Start-Filming-134727.html

No more kirk's rock


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## Ryujin (Apr 30, 2016)

trappedslider said:


> This may have some relevance http://www.cinemablend.com/television/We-Finally-Know-CBS-Star-Trek-Going-Start-Filming-134727.html
> 
> No more kirk's rock




""Vasquez Rocks"


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## Ryujin (Jan 21, 2017)

Settlement reached. Doesn't sound too favourable to Axanar.

http://www.hollywoodreporter.com/thr-esq/cbs-paramount-settle-lawsuit-star-trek-fan-film-966433


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## Dannyalcatraz (Jan 21, 2017)

...but about as good as they could have hoped for after some of the court's rulings.


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