CBS To Star Trek Horizon: Let That Be Your Last Fan Film

You know, I really wanted to make my next post about something other than the happenings surrounding the CBS/Paramount lawsuit against Axanar (I have been musing lately on the similarities between Trekkies and Van Halen fans, for instance). However, there has been some unfortunate collateral damage to this lawsuit that I feel I must speak up about.

Just this past Febuary, an intrepid young filmmaker named Tommy Kraft released his Star Trek fan film, Star Trek: Horizon, on YouTube (the trailer is above, and here is a link to the full movie). Set in the Enterprise era of Trek lore, it tells the story about the crew of the NX-04 Discovery and their, well, discovery of an ancient weapon that the Romulans hope to use to destroy Earth. Tommy spent 4 years of his life making this movie, and managed to raise almost $23,000 to complete it. This is certainly what I would call a labor of love, not to mention one of the better fan films I have had the pleasure of viewing, and I applaud him for his efforts (as well as his parents for supporting him in the pursuit of his dreams).

Horizon has been quite a success, if YouTube views are any indication. As it stands right now, the movie has been viewed over 975,000 times in the 2 months it has been out. While initially reluctant to, Tommy was eventually persuaded by one of the actors to follow up Horizon with a sequel. On April 17th, the following post appeared on the Horizon Facebook page:

"BREAKING NEWS: Star Trek - Federation Rising, a sequel to Horizon, will begin crowdfunding on Saturday, April 23rd at 12:00am EST. The countdown begins"

 

Unfortunately, a mere three days after the announcement, the following was posted to the page:

"BREAKING NEWS: “STAR TREK - HORIZON" SEQUEL, "FEDERATION RISING", SHUT DOWN.

Earlier today, executives from CBS reached out to me and advised me that their legal team strongly suggested that we do not move forward with plans to create a sequel to Horizon. While this is a sign of the current climate that we find ourselves in with Star Trek fan films, I want to personally thank CBS for reaching out to me, rather than including us in their ongoing lawsuit against Axanar.

It was conveyed that the reason CBS was reaching out to me was due to the legal troubles stemming from the Axanar case. Again, CBS did not have to reach out personally. The message I received felt more like they were giving me a heads up before we got too involved in another project, rather than a group of angry executives swinging a hammer.

On behalf of myself and Ryan Webber, my co-writer and co-producer on Federation Rising, we appreciate your initial support and are saddened that we cannot bring you what we believe was a fantastic feature film. However, rest assured that Ryan and I are committed to continuing our storytelling partnership with an original project. We also welcome other fan productions and fan film lovers to join us on this new venture."

Certainly, this has to be a body blow to Tommy and his writing partner Ryan Webber. However, in a classic case of making chicken salad out of chickens$%t, they have decided to move forward with this: 

 

From their Kickstarter page:

"Project Discovery is a feature length science fiction space epic that tells the story of a group of scientists and engineers uniting people all over the world in a common effort: taking humanity to space. The year is 2060, much of the world is caught up in unrest. Focused more on solving the problems we have on our home planet, people have given up on the notion of travel to the stars. Then, a multicultural group of scientists and engineers is able to captivate the world once again with a daunting plan: launching humanity's first faster-than-light spacecraft: The IV-202 Explorer."

This sounds like a neat idea! First off, it is a 21st century echo of what created the inspiration for the US space program (scientists and sci-fi writers used to have bull sessions post-WW2 about pushing for a "space race" with the USSR to keep the two superpowers from blowing each other to smithereens). Secondly, while I'm not saying that it has any actual connection to Star Trek, the timeframe it takes place in is around the same time of Zefram Cochrane's first test of his Warp Drive. Therefore, it seems to be like a First Contact-ish kind of story (without cyborgs from the future trying to ruin the party.....), and that is a movie I am seriously interested in watching. Being one who tries to put his money where his mouth is, I have donated to Tommy & Ryan's endeavors, and I hope all who read this do as well. Horizon showed what they are capable of as filmmakers and they deserve to have their efforts justly rewarded.

However, what they do not deserve is to be used as fodder for either side of the ongoing debate about the Axanar lawsuit. Tommy has steadfastly remained neutral on this matter, expressing only a wish that the matter be settled amicably. Tommy recently appeared on the TrekGeeks.com podcast to discuss in detail the call he got from CBS, and the current scene regarding CBS' relationship to fan projects. It is vitally important to actually listen to the podcast, and hear all of Tommy's words and, more importantly, the tone of his speech when he says what he says, as those are the things that get lost in translation when someone excerpts those words and drops out context, as the Axamonitor website has done.

Here's a good example (from Axamonitor's article):

Kraft, however, rejected that notion. “I've tried from the beginning to maintain a neutral standpoint on this,” he said, “There have been a lot of productions that have raised a lot of money … and a lot of feature-length stuff, but it was something about the Axanar project in general, I believe, that caused [CBS] to have a change of opinion. … It's too coincidental that everything was hunky-dory until this one production and then all of a sudden things change.”

Now, reading that, one could get the idea that Tommy had a change of opinion regarding the Axanar lawsuit. At the very least, that's how I read it.

Now, here's the full text of what he said:

"I've tried from the beginning to maintain a neutral standpoint on this, and what the reasons might be. And all I can say, that I know for sure, is there have been a lot of productions that have raised a lot of money, and there have been productions that have raised little to no money, and there's been a lot of feature length stuff, and it was something about the Axanar project in general, I believe, that caused them [CBS] to have a change of opinion. Now, whatever that may be, people can speculate on. And there are some facts to the situation that some people know and others don't, but there..it's too coincidental even if you don't have any facts that everything was hunky-dory until this one production and then all of a sudden things change."(emphasis added to show what was redacted)

That reads a little differently, doesn't it? Now, I can see taking out a few of the words here and there for brevity and conciseness, but Axamonitor's redaction pretty much removed all his moderation from that statement. 

Now, you may not think this is such a big deal. But today, someone posted a link to Axamonitor's article on a Star Trek page at Facebook, and it caused quite a fracas. While I'm certain the writer of Axamonitor's article thought he was just adding one more piece to his collection of "ammunition" to his case against Axanar, it had an unintended side effect. A number of people on the pro-Axanar side of things took the article at face value, and many were ready to drop their support of Tommy's project. I, however, took the extra step and listened to the podcast, and noted the discrepancy between what Axamonitor's article reported, what Tommy actually said, and the tone in which he said it. Finally, Tommy himself was brought in to the conversation and had this to say:

Tommy shouldn't have had to do this. No matter what your opinion on the Axanar lawsuit is, I think we can all agree that nixing Federation Rising is a terrible and unfortunate piece of collateral damage, that Project Discovery deserves nothing less than our full support, and that the Trek Geeks guys were correct in saying that Tommy has handled this whole situation with grace.

Note to commenters: As I have left my opinion on Axanar completely out of this particular post, I would appreciate that any comments made address the article topic and not the lawsuit.

“Direct Financial Benefit” and Vicarious Infringement. Or, I Don’t Think That Means What You Think It Means

Well, last week’s post brought this blog back from the dead, and did it with a bang! I had more page hits in the two weeks than I’ve had in the entirety of the blog’s history! Apparently, this got shared around Facebook rather extensively, and last week, David Post, who writes for The Volokh Conspiracy on the Washington Post website, linked to my post for his op-ed piece on the Axanar lawsuit (calling my post an excellent summary of the background)!

Since I’ve garnered so much attention, I figure it would be near criminal of me to let this blog lay fallow again. Fortunately, I have more to say, and specifically on the topic of the last post.

As I said in my last post, Mr. Peters has a number of detractors. They are the ones who go on about how Mr. Peters used the money donated for Axanar to build a “for-profit” studio, or Mr. Peters’ salary, or how he “sold coffee” to fund the production, and how all this was his way of “making money” off the IP of Star Trek. Moreover, they say this is why CBS and Paramount are suing Axanar.

For his part, Mr. Peters has said repeatedly that this lawsuit is not about money, but about allegations of copyright infringement. Presumably, he’s in a better position to know what CBS/P’s concerns than the general public is. However, there is a line in the complaint which alleges the defendants receive a “direct financial benefit”. The detractors have used that line to bolster their narrative, and call Mr. Peters a liar.

It does seem to pose an apparent paradox. How can a lawsuit not be about money when it says “direct financial benefit” right in the complaint? However, to paraphrase a line from The Princess Bride, that line doesn’t mean what they think it means.

The suit claims all the different type of copyright infringement that can be claimed, of which there are three. The first is direct infringement, which is rather self-explanatory. The other two are what are known as “secondary infringement”. It is somewhat analogous to aiding and abetting infringement. These are called contributory infringement, and vicarious infringement.

In order to claim vicarious infringement, two things must be true:
1) The person this is claimed against must have the right or ability to influence or control the actions of the infringing party.
2) The person this is claimed against must receive a direct financial benefit from the actions of the infringing party.
One example of this would be if a theater hires a band to play music, and that band plays copyrighted music they don’t have license to play. Another would be a flea market or swap meet renting space to a person who sells pirated DVDs. In either case, the venue owners would be guilty because they have control over the actions of the infringing parties, and they benefit financially from the infringing actions. For a more concrete example, this is one of the two ways Napster was found guilty of copyright infringement (contributory infringement being the other).

Now, of the three types of infringement that can be brought, only vicarious infringement carries with it the necessity of proving a financial component to it. And sure enough, if you look at the complaint, the only place that phrase occurs in the complaint is in the section which alleges vicarious infringement. Therefore, mentioning “direct financial benefit” is basically boilerplate language for making that allegation. So while the language is there (mainly because it has to be), the intent which it is a part of is to allege copyright violation. In which case, Mr. Peters is not lying when he says this suit is about copyright. Only those who practice the dark art of Pedantry could argue otherwise.

Moreover, (and this is where me being not-a-lawyer comes in) I’m at a loss to figure how that type of infringement comes into play in this particular situation. Personally, I’m inclined to go with my previous speculation that this complaint was written mainly to intimidate Axanar Productions into bending to their will.

But, most importantly, I don’t see how the paying of salaries, building out a soundstage, the amount of money donated to the production, or any of the other things the detractors bring up to say that it’s about money and Mr. Peters is a liar fits into the specific meaning of the phrase “direct financial benefit” as I’ve just outlined above. It’s really not a brush one can paint the production with.

In other words, I’m pretty sure that phrase doesn’t mean what the detractors think it means.

Paramount/CBS vs. Axanar: Where No Fan Film Has Gone Before

I should change the title of this blog to The Blog Of Nine Lives for the amount of times I have let it lay fallow....

Anyone who knows me knows I'm a Trekkie. And if you don't know me, now you know, I'm a Trekkie. I was reared on Original Series reruns. I saw pretty much every Trek movie the weekend it came out. TNG, DS9, Voyager and even Enterprise were appointment televison (or, at least, I'd watch the tape as soon as I got home....).

There was a pretty bleak time there for lovers of Trek, from 2005, when Enterprise was cancelled, until May 2009, when the first rebooted Trek movie came out. (There are those who would say the bleak times haven't ended yet, but that's a blog for another day.....). In the interim, there has flourished what I like to call the Golden Age Of Fan Films.

Now, fan films, particularly for Star Trek, have been around almost as long as Trek itself is. But in the last dozen years there has been a veritable explosion in the creation of Star Trek fan productions. With CGI software becoming more accessible, and websites like youtube making it possible to distribute them to a wide audience, the ability to make and distribute fan films of surprisingly decent-to-good quality has grown by leaps and bounds. There are fan productions that seek to fill in the rest of the USS Enterprise's original "five year mission", such as James Cawley's Star Trek: New Voyages (the Godfather of the modern Terek Fan Production!), Vic Mignona's Star Trek Continues (their Mirror, Mirror sequel "Fairest Of Them All" is, in my opinion, the best original series fan episode made). There are others that take place in the same timeline, but on different ships, such as Starship Exeter and Starship Farragut. There are plenty more that explore the era of Then Next Generation, Deep Space 9, and Voyager. And recently, Star Trek: Horizon, which takes place during the Star Trek: Enterprise era, made its debut. I could go on and on about all the different productions out there, but that's not what I really want to talk about.

Sometime in 2012, a man named Alec Peters announced he intended to make a fan production called Axanar. Axanar is to be the story of Captain Garth of Izar (from the original series episode Whom Gods Destroy) and his actions during the Battle Of Axanar during the Four Years War with the Klingons. In announcing his project, he set the bar for himself rather high. His goal was to produce a film that had the look, feel, and quality of a Star Trek movie you or I would plunk $15 to go see at a movie theater, but do it for a small fraction of the cost of a true Hollywood production. This meant that his cast would be filled out with actual actors, and directed and produced by people who do this kind of work for a living.

The first step in this journey was to make a 20 minute short called Prelude To Axanar. Filmed as a mock-documentary with the flavor of something you might see on the History Channel (other than Ancient Aliens), this would act as a proof-of-concept that could show that Mr. Peters could pull off what he intended to do. Using the recent advent of "crowdfunding" via Kickstarter, he managed to raise $100,000 to make Prelude. Here is the result:

Prelude To Axanar

With the results in hand, he proceeded to fundraise via a Kickstarter (and later, another at Indiegogo) campaign, and managed to date to raise a staggering $1.2 million dollars! That may seem like an insane amount of money, but given the lofty goals set, that means that he is trying to make this movie for about 1% of what it cost to produce 2009's Star Trek.

Now in the process of procuring and outfitting a soundstage in which to film, and finalizing the script for shooting, Axanar Productions hit a fairly nasty speed bump. On December 30 2015, CBS (who owns the rights to Star Trek televison) and Paramount Pictures (who owns the rights to Star Trek movies) slapped Axanar Productions and Mr. Peters with a copyright infringement lawsuit.

Now, my intention is not to discuss the merits of the case. On the face of things it would appear that CBS & Paramount do own the rights to Star Trek, and, perforce, all Star Trek fan films infringe on said rights. Also, the extent of my legal expertise amounts to hours of watching Judge Wapner, Divorce Court, The Practice, some of Boston Legal, a season and a half of Better Call Saul, and whatever I can look up on Google and Wikipedia. That and about $3 will get me a latte at Starbucks. Rather, I'd like to discuss the public relations aspect of their actions.

Now, while it is true that any Star Trek fan production may potentially infringe on their intellectual property, the fact of the matter is that CBS & Paramount have looked the other way when it has come to fan productions for well over a decade. Generally, their attitude has been, "As long as you give it away for free, we'll pretend to not notice." Besides begging the question of why Axanar and not all the other productions, right off the bat this has the appearance of a David vs. Goliath situation. And almost no one roots for Goliath (well, except maybe the Philistines....).

Now, to be certain, there is something that CBS and Paramount expect to gain from taking this sort of action. So much so that they are willing to potentially alienate a portion of the Star Trek fanbase in the process. Now, if one looks around the wide, wonderful world on the Internet (Giving Stupid People A Voice Since 1993!), one can certainly find a ton of speculation on the subject. There are those who think that Axanar is somehow a threat to the upcoming Star Trek Beyond. Personally, I highly doubt that. There are still others who are actually rooting for Goliath (I guess Philistines still exist!) because, well, they think David's kind of a dick and he's running a scam to line his pockets. I doubt that even more. If salaries, "for profit studios", and coffee were really what CBS & Paramount were honked off about, they'd have put that in their complaint.

What I will speculate on is what kind of response CBS/Paramount (herein, they will be known as CBS/P, as I'm tired of typing both names out!) expected, and what actually happened.

I suspect that CBS/P expected to scare Mr. Peters and Axanar Productions with the suit into rolling over, playing dead, and begging them not to continue the suit if they promised to go away. If you read the original complaint, it smacks of someone trying to bludgeon their target into submission. Plus, the simple fact that a big studio with (presumably) millions to burn on lawyers is no match for a small production company with limited resources. They probably thought that the best they might be able to muster is a lawyer the caliber of Saul Goodman.

Well, that's not what happened. Mr. Peters managed to engage the services of Winston & Strawn on a pro bono basis. W&S has extensive experience with intellectual property law, and apparently like taking the side of David. Look around for anything on the GamesWorkshop vs. Chapterhouse lawsuit, and you'll see what I mean.

At any rate, W&S took a look at the complaint, saw how vague the infringement claims were ("thousands" of copyrights, "innumerable" violations......), and proceeded to file a motion to dismiss that said, "Hey, what exactly are we violating?", "Which one of you owns what?" and, "Um, we haven't made the movie yet. Isn't this a little premature?"

The Lawyers for CBS/P responded by filing an amended complaint, in which they list in excruciating detail all the ways they claim Axanar infringes on their copyrights. Here's a link to the amended complaint: https://www.documentcloud.org/documents/2757228-Axanar-Klingon.html

It's quite a lengthy list! It is a fine example of lawyers throwing in everything they can think of (I swear I saw "kitchen sink" listed somewhere.....). There's a couple problems with it, though.

1) Many of the things they try to claim are not protected like copyright. Names, short phrases and such are not copyrightable. To get a more detailed breakdown of this issue, please check out The Back 40K Blog, as they have provided a much better breakdown of the problems with some of CBS/P's claims then I ever could.

2) By throwing in so much stuff, the lawyers for CBS/P have opened up their clients to ridicule in the public media. Here's a couple of examples:
 Helpful CBS Lawyers Explain the Many, Many Ways a Star Trek Fan Film Is Ripping Them Off
Paramount Claims Crowdfunded 'Star Trek' Film Infringes Copyright to Klingon Language

But the kicker is Justin Lin, the director of the upcoming Star Trek Beyond, decided to put his two bits into the conversation!

https://twitter.com/trailingjohnson/status/709285689095917568

I don't know about you, but having the director of your upcoming blockbuster Star Trek movie publicly calling your efforts to sue a fan film "ridiculous" seems to me to be not good for CBS/P. Naturally, this got even more press on the situation. More importantly, it got more people putting eyes on the Axanar Productions, their website, and their Prelude To Axanar film (the latest round of press has bumped its YouTube views over two million). The net result is there are now more eyes of the "Joe Public" variety on the situation than CBS/P expected. I'm willing to bet those eyes are more likely to root for David than they are Goliath. I'm also willing those are eyes they are counting on to watch Beyond this summer, and to pony up 5 bucks a month to watch the upcoming series on CBS All Access starting next year.

So, my question is this: at what point will the something that CBS/P want to get out of this lawsuit not be worth the public ridicule and alienation that is occurring? At what point will they realize that the victory they seek to claim may end up being Pyrrhic?