Axanar Plaintiffs Objection to Defense SJ Motion

Janet Gershen-Siegel

Jespah (Janet Gershen-Siegel) has been a fan of Star Trek since probably the first set of reruns of The Original Series. She has an eclectic background, including an undergraduate degree in Philosophy, a JD (she practiced insurance defense law for a few years in New York and is a lot happier since she retired from that in 1990), and a MS in Interactive Media, which is a real-live social media degree.

Along the way, she has about a decade and a half of data analysis work under her belt and currently works as a blog coordinator for a high-end wedding blog and also as a blogger for hire (topics include diverse subjects like ad retargeting but also the nursing job market), and has a shingle out to work on social media presence, with a focus on independent authors as she is also a published science fiction author. Plus, she has been a community manager for a large Q & A website since 2002, which is before that existed as a job title.

She was raised on Long Island so, when she is riled up, the accent gallops back out and she can sound like Fran Drescher with a law degree. She lives in Boston with her husband of over 20 years and more computers than they need.

She can always be bribed with pie.

Axanar Plaintiffs Objection to Defense SJ Motion

So I have the plaintiffs objection to the defense’s summary judgment motion. This is another one of the documents filed with the court on November 29, 2016. However, the documents may have been filed out of order in terms of who responded to whom. Instead of trying to sort that out, I will post blogs in the documents’ numerical filing order with the court. Because that’s just easier for me, folks.

Substantial Similarity

Because we have seen these arguments before, I won’t repeat them here in detail. Most noteworthy, the plaintiffs reiterate their position on the defense’s appropriation of races, ships, characters, plot points, etc. Furthermore, plaintiffs feel the ‘original’ characters created by defense are not truly original as they are derivative of plaintiffs’ races, organizations (e. g. the Federation), etc. However, see page 16 of the document for a side-by-side comparison:

Axanar Plaintiffs Objection to Defense SJ Motion, Opposition Document, page 16

Axanar Plaintiffs Objection to Defense SJ Motion, Opposition Document, page 16

Fair Use


Fair use has four elements:

  1. The Purpose and Character of the Use
  2. The Nature of the Copyrighted Work
  3. The Amount and Substantiality of the Portion Used
  4. The Effect of the Use upon the Potential Market.

Purpose and Character

First of all, on page 7, plaintiffs state:

The primary question in any fair use analysis is whether a work is “transformative.”
The Axanar Works do not “transform” Plaintiffs’ intellectual property into any new
or different medium. Defendants intended to, and did, create audio visual Star Trek
works. Defendants have expanded upon a Star Trek story, and they have set that
story a few years before the timeline of the original Star Trek television series.

Nature of the Copyrighted Work

In addition, on page 7, plaintiffs say:

Defendants also argue that their work should be protected as a “criticism” or
“commentary” on the “horrors of war.” This argument is specious and the Axanar
Works themselves demonstrate the falsity of Defendants’ position.

The Garth of
Izar character that Defendants have taken from Plaintiffs’ Star Trek Copyrighted
Works is not described as having “PTSD” or suffering from any other malady.
Indeed, he is portrayed as a near-infallible hero and military strategist, who helps
lead the Federation in The Four Years War against the Klingon Empire. This
character and plot are taken directly from Plaintiffs’ works, and there is no
commentary, satire, parody or criticism whatsoever in the Axanar Works.

Amount and Substantiality of the Portion Used

Furthermore, on page 8, plaintiffs add:

Defendants
have taken vast amounts of material from the Star Trek Copyrighted Works,
admittedly so in order to be true to “canon” and to create authentic Star Trek works.
Defendants appropriated numerous specific Star Trek characters, along with
fictional species, organizations, ships, costumes, makeup, dialogue and plots from
the Star Trek Copyrighted Works.

Defendants argue that they did not take a large
amount of material from Plaintiffs because their works are not as lengthy as the
“hundreds of hours of film encompassed by Plaintiffs’ catalog,” and because some
of the elements in their works were not directly copied from Plaintiffs. This
argument mischaracterizes the relevant analysis. The “substantiality” of the copying
does not require a comparison of the overall length of the works at issue. Further,
this factor addresses the elements that Defendants copied from the Star Trek
Copyrighted Works, regardless of whether their infringing works include other
elements.

Effect of the Use upon the Potential Market

Finally, on page 9, plaintiffs say:

The Supreme Court has clearly held that a use is not
rendered “fair” simply because a plaintiff cannot precisely quantify the damages
resulting from the creation of unauthorized derivative works.

Distribution Systems

In addition, on page 11, plaintiffs state:

However, prior to the filing of this
lawsuit, Peters made clear that he, in fact, intended to supplant Plaintiffs’ products
by providing high-quality Star Trek films on a low budget:

But Axanar is not just an independent Star Trek film; it is the
beginning of a whole new way that fans can get the content they want,
by funding it themselves. Why dump hundreds or thousands of dollars
a year on 400 cable channels, when what you really want is a few good
sci-fi shows? Hollywood is changing. Netflix, Hulu, Amazon, and
other providers are redefining content delivery, and Axanar
Productions/Ares Studios hopes to be part of that movement.

SGI 167; see also SGI 169 (“Axanar is a ground-breaking independent film that
proves the idea that a studio doesn’t need millions of dollars to produce a sci-fi
feature with big-budget production values.”). The cable channels that Peters was
suggesting fans eschew in favor of his “content” is one of the very means by which
the Star Trek Copyrighted Works are distributed.

Furthermore, a lot of the document is redacted; however, I think you get the idea. So let’s move on.

Grossman Declaration Supporting Plaintiffs Objection

Axanar Plaintiffs Objection to Defense SJ Motion – Grossman Declaration

For the most part, the David Grossman declaration acts as a vehicle for introducing a myriad of exhibits. In addition, a lot of it is redacted. Most noteworthy, on page 4, he writes:

On Defendants’ website, Axanarproductions.com, Mr. Peters stated:
“While Axanar is more professional, and has raised more money than all other Star
Trek fan films combined, we use less Star Trek IP than almost all of them…Yes, we
use several characters from Star Trek and we are clearly set in that universe.”

Janet Gershen-Siegel

Jespah (Janet Gershen-Siegel) has been a fan of Star Trek since probably the first set of reruns of The Original Series. She has an eclectic background, including an undergraduate degree in Philosophy, a JD (she practiced insurance defense law for a few years in New York and is a lot happier since she retired from that in 1990), and a MS in Interactive Media, which is a real-live social media degree. Along the way, she has about a decade and a half of data analysis work under her belt and currently works as a blog coordinator for a high-end wedding blog and also as a blogger for hire (topics include diverse subjects like ad retargeting but also the nursing job market), and has a shingle out to work on social media presence, with a focus on independent authors as she is also a published science fiction author. Plus, she has been a community manager for a large Q & A website since 2002, which is before that existed as a job title. She was raised on Long Island so, when she is riled up, the accent gallops back out and she can sound like Fran Drescher with a law degree. She lives in Boston with her husband of over 20 years and more computers than they need. She can always be bribed with pie.

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