Paramount Lawsuit Becomes Studio’s Own Kobayashi Maru?

axanarAn Editorial by Reece Watkins

Paramount Pictures’ copyright suit against the crowdfunded fan film “Axanar” could very well turn out to be a no-win scenario for the beleaguered studio, much like the “Kobayashi Maru” test from “Star Trek II: The Wrath of Khan”. What appeared to many to be an open-and-shut infringement case against a handful of fans now threatens to become a legal quagmire far beyond the quick-and-out victory the plaintiffs had hoped for. Indeed, there doesn’t seem to be ANY upside for Paramount, even if it prevails in the case.

How can I say that? Well, let’s take a look at the best-possible outcome for Paramount first. If the case goes to trial, it will most likely take at least two years before a decision. Even if the jury finds in their favor on all counts, the best result would be that the Axanar film will never see the light of day, and they would be awarded a monetary settlement of damages. Axanar Productions could be held liable for damages, legal fees, and court costs. Except, of course, that the small company doesn’t HAVE any real assets to hand over, and Alec Peters, the executive producer of Axanar, certainly doesn’t have it, either. The judgment would be virtually unenforceable, as the company would simply fold, and Alec would be forced into bankruptcy. Paramount would receive nothing for their outlay of time, energy, and legal fees, which will certainly run into the millions of dollars. And remember, this is the BEST POSSIBLE outcome should they pursue this case to the very end.

There’s a lot more at stake for Paramount, however. Axanar’s legal team are top-notch intellectual-property attorneys, and they are not about to let Paramount off the hook without a fight–and one that may reveal far more than Paramount is willing to expose. Due to the vagaries of many company mergers and splits since the original show first aired in 1966, Paramount only holds the theatrical/film rights to Star Trek. CBS holds all the rest, most importantly to the original television material. What Axanar’s attorneys have pointed out in their motion to dismiss the lawsuit is that the theatrical Star Trek films are themselves derivative works of the original television material, so the only bits that Paramount truly has any real copyright over are the things that were wholly original to the films themselves. Paramount does not own Captain Kirk et al; CBS does, as the current owner of the copyright on the 1966-69 series. This is legally significant, because unless Paramount can prove that Axanar is infringing on material that they truly hold the copyright to, Paramount has no legal standing to sue and could be removed from the case by the court. That would be a colossal embarrassment for Paramount.

The question of ownership is vital, and should Paramount refuse to settle this case, the defense will almost certainly demand the plaintiffs prove chain of ownership all the way back to 1966, and that’s not as easy as it sounds. When large corporations merge or split, it’s not at all uncommon for things to fall through the cracks, and when talking about the most beloved American science fiction franchise of all time, the one thing you do not wish to find if you are a plaintiff in this case is that one of your tentpole properties has fallen into the public domain through some paperwork foul-up four decades ago. If Paramount does not find a way out of this lawsuit quickly, Axanar’s defense team will absolutely force them to turn over that stone and see what scurries out, which could be disastrous for the studio.

But that’s not all Paramount has to worry about. Even if they can manage to produce an unbroken ownership chain all the way back to 1966, and convince a judge that somehow Axanar infringes on material in films that all take place at least fifty years after the time period in which Axanar is set, there is still a huge amount of money at risk for the film studio, namely in the form of the upcoming “Star Trek Beyond” film. With a budget well into nine figures, the slightest whiff of bad publicity could easily reduce the opening weekend box office for their summer blockbuster by more than they could hope to be awarded in damages, even if Axanar Productions did have millions to pay out.

This is the 50th anniversary year for Star Trek. This should be the marketing department’s field day for pleasing old fans and pulling new ones toward the franchise. Yet, a lawsuit is hardly the best choice for a marketing tactic. The news media do love a good David vs. Goliath story, and this lawsuit has already received national coverage. If the lawsuit is not settled before the release date for Star Trek Beyond, it is almost certain that the major news outlets will bring it up again that week. A single poorly-edited YouTube trailer for the film received such harsh reaction from the fans last year, that the film’s writer and director were on social media doing spin control within forty-eight hours. Even though Star Trek Beyond has nothing to do with Axanar, and vice versa, unless the lawsuit is settled, every time the film is mentioned, the lawsuit will be as well. The director of Beyond, Justin Lin, has already tweeted publicly that the lawsuit is a bad idea.

Moving past even the broad net that Star Trek casts, the lawsuit has nothing but bad implications for the studio as a whole. It has been reported that Viacom is looking to sell their stake in Paramount, after the studio failed to meet Viacom’s earnings expectations. If this lawsuit proceeds into the discovery phase, where one of the most valuable properties Paramount has claim to may be found to be legally shaky, Viacom could lose tens of millions in Paramount’s value before the first interested buyer steps forward. That’s the sort of loss where studio executives’ heads go on the chopping block. Disney may have been able to afford tanking their own $250-million-dollar film “John Carter” a couple of years back, but Paramount certainly is not sitting on the piles of cash Disney has to fall back on.

To sum up, Paramount is either looking at winning a worthless judgment, or losing millions of dollars, and fifty years of goodwill of the fans, all by pursuing a lawsuit that they may not even have been legally entitled to bring in the first place. Or worse, both. They can win absolutely nothing by continuing to press this case. But there is a way out for them–by dropping the case now and letting Axanar proceed with their blessing, they can go from bully to savior with the stroke of a pen. By working with Axanar, the story goes from “Studio Bullies Fan Film” to “Paramount blazes new media trail with landmark deal”. That can only help the box office for Star Trek Beyond, and when a CBS approved Axanar hits the retail channel, Paramount could stand to make millions of dollars-the only way it can possibly make any money at all off the whole fiasco. That’s the studio’s only hope to solve its own Kobayashi Maru — stop the test now, before they sink their own ship.

This is an Editorial

As such, it represents the views of the author and may or may not represent the views of Krypton Radio, Krypton Media Group, or its employees or affiliates.

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About Reece Watkins

Reece Watkins is a freelance blogger and lifelong science fiction fan. Of all the places he's lived, Earth is the most recent. Interested parties may inquire about opinionated commentary at reasonable rates, but there are easier ways to frustrate oneself.

14 Comments

  1. As an aside, if Anaxar Productions is a corporation or LLC only the entity has to worry about the lawsuit. Meaning Paramount gets even less money.

  2. Jenny Everywhere

    This lawsuit pisses me off about as much as the authors who threaten Dire Consequences if you write fanfic, or comic publishers who threaten to sue if you create a different superhero that even remotely resembles theirs.

    It all hearkens back to the old Superman vs. Captain Marvel (now known as Shazam because, well, Marvel). The claim was that having a powerfully-gifted man in a distinctive costume with a cape, beating up bad guys *in itself* infringed on the *concept* of Superman, that even though Captain Marvel didn’t come from an alien world, and got his powers from an Earthly wizard, just because he was invulnerable, super-strong, super-fast, etc., that made him DERIVATIVE of Superman.

    I disagree with that decision. Copyright law is pretty straightforward once you get past the legalese. Basically, you own what you put in tangible form, and control how it is copied. The right to copy your work. But it has to be a work you actually factually created, because it’s what you control is how it is COPIED. That means there must be an original that is being duplicated, or modified somehow and derived something from. But you can’t derive anything from an original that was NEVER CREATED.

    Paramount/CBS never created a story about the time period in question. They never created anything like it. The character Garth of Izar WAS portrayed, but as an insane shapechanger in an insane asylum, not as a heroic space ship captain engaged in space warfare.

    Here’s where I have the problem: Copyright law does not protect “universes”. It doesn’t protect concepts. It doesn’t protect ideas. It only protects things you have put in tangible form, i.e., made a movie or television show or script or book. It does not protect the “universe” in which those things were set.

    If you create something that appears to be inspired by something they created previously, but uses none of the characters they portrayed, and none of the ships they showed, and derived no “words in a row” that they put in their original work, where is the infringement? Did they do a show or movie about the Battle of Axanar? NO, they DIDN’T. The Axanar people created a NEW story, out of whole cloth. All they used was a setting, a “universe”, and copyright doesn’t protect that.

    The ambiguity is in cases like Superman vs. Captain Marvel, where for some reason they decided that the “idea” of a super man was what the copyright on Superman protected, not the tangible images OF Superman, which is what the law actually says is protected.

  3. I do not buy any of the writer’s predictions.
    If the producers really don’t have any money, then their attorneys are not “top-notch” intellectual property attorneys, and they might lose.
    Axanar was not created out of “whole cloth” – it was created on the coattails of a fictional universe created and made valuable by others.
    If Paramount “only” owns the film rights – then they own the right to keep others out of the film space; and they may yet win.
    If Paramount wins – they could ink a licensing deal; let the film go into production; and make a lot of money, along with the writers of Axanar.
    If the writers of Axanar have an interesting story – that does not depend on it taking place in a fictional world they did not create – then they can create their own fictional world, like hundreds of others before them have. If they want to ride on the coattails of Star Treks that went before them, perhaps they should pay some sort of licensing fee or royalty.
    If Axanar really sucks – and would damage the Star Trek franchise – then winning a judgement, even without collecting damages, would preserve the value of their previous investment and keep Star Trek strong.

    • Charles R Batchelor

      Not true, their lawyers can still be top notch as they will make their money on the counter-suit.

    • Jenny Everywhere

      First off, look up the term “pro bono”.

      Second, you’ve essentially made my point. The ONLY thing Axanar didn’t create is the SETTING, a “universe”. And “universes” are NOT protected by copyright, since only tangible EXAMPLES of creative works IN that “universe” are protected. You can’t protect the copying of something intangible, and a “universe” is intangible. Once you instantiate something IN that setting, the specific tangible work — a story, a film, a TV script, a videotape, a book, a set of photographs — those tangible creations that physically exist are protected.

      But IDEAS CANNOT BE COPYRIGHTED, and a “universe” is nothing but an idea.

      Taken directly from the Copyright.gov circular on copyright:

      What Works Are Protected?
      Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:
      1 literary works
      2 musical works, including any accompanying words
      3 dramatic works, including any accompanying music
      4 pantomimes and choreographic works
      5 pictorial, graphic, and sculptural works
      6 motion pictures and other audiovisual works
      7 sound recordings
      8 architectural works
      These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”

      What Is Not Protected by Copyright?
      Several categories of material are generally not eligible for
      federal copyright protection. These include among others:
      • works that have not been fixed in a tangible form of
      expression (for example, choreographic works that have
      not been notated or recorded, or improvisational speeches
      or performances that have not been written or recorded)
      • titles, names, short phrases, and slogans; familiar symbols
      or designs; mere variations of typographic ornamentation,
      lettering, or coloring; mere listings of ingredients or contents
      • ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
      • works consisting entirely of information that is common
      property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

      http://www.copyright.gov/circs/circ01.pdf

      The upshot is, “Klingons” are not copyrightable. They’re an IDEA. Specific pictures taken of specific actors PLAYING Klingons CAN and ARE copyrighted. You can’t copyright the NAMES of characters, as proper names are not copyrightable. That’s why, in ST:TNG books and beyond, you’ll find the initial reference to a character name followed by the trademark ™ symbol — Paramount TRADEMARKED all of the Next Generation character names. They did NOT, however, trademark the Original Series character names through an oversight, and thus they are NOT protected.

      Starships? A blueprint can be copyrighted. So can photographic representations of specific starships. But if it’s not a starship that Paramount/CBS has ever designed or photographed, it’s NOT copyrighted, since bare ideas without a tangible representation are NOT copyrightable.

      A case is being made that Axanar is using “Klingons” and “Vulcans”. They didn’t trademark those terms, and a case might be made that with all the pop culture references to them over the past HALF CENTURY, they’ve become generic terms, like “Orcs” or “Elves”, and thus may not have any protection at all at this point, especially when you consider that works such as Star Trek Continues (which I like) and Star Trek: Horizon (a kickstarted fan film that was recently released) and who knows how many fan organizations writing fanfic and putting on LARPS and conventions have NOT been targeted for court action. Paramount/CBS has not assiduously attempted to protect their trademarks in those cases.

      Because of the expense of litigation, a lot of things that are NOT actually codified in the law have been simply assumed to be true. One of these is that a “universe” can be copyrighted, and that tangible examples of creative works FROM that “universe” are sufficient to establish protection for it. There is no such law, and no such case law that I’m aware of.

      Don’t bring up the Maltese Falcon case, it is commonly believed to be a complete farce and is largely disregarded by competent attorneys. It’s also not germane.

      The CLOSEST cases that might have any bearing are the Superman vs. Captain Marvel cases, the Superboy cases, and the Siegel & Shuster copyright cases. In those, there is an implication that it’s the concept of a super man that is being protected, not simply tangible representations of a specific super man. Those cases were billion-dollars-at-stake cases, and they were fought until senior citizens that had worked hard to create this specific super man were rendered destitute…not until justice was actually served…and it’s STILL ambiguous whether or not a “universe” has any specific protection.

      What we have is a pile of apocrypha, mostly authors threatening fanfic creators with fire and brimstone if they try to “steal their universe”, something that isn’t specifically codified into the law. If creators want to protect their settings in this fashion correctly, they need to lobby to have copyright law modified to include it.

      • Klingons, Vulcans, The Federation, and Star Fleet are as much “ideas” as Jaba the Hut, The Rebellion, and an army of Cloned Storm-troopers. The real universe is not copyrighted, and the “idea” of a universe may not be copyrightable, but a specific, fictional “universe” may be. If Axanar is so great – think up some new names for the characters and something more original than the same Star Fleet and Federation. The fact that they copy all of those details suggests to me, at least, that they are not all that creative.

    • Between what we think of as fair, reasonable and common sense, and what is legally defined by copyright, there lies an ocean. Paramount owns the right to develop Star Trek movies as sold to them by Desi-Lu, but owns none of the things that make the TV show what it was. In fact, they couldn’t wait to divest themselves of it, thinking it would drive them into the poorhouse. What’s left is only the new elements which they introduced themselves that also happen to be copyright-able. There’s a big question as to whether the Klingon language is, for example. In their response to the second request for dismissal laid by the defendants, they claim that the plot situations necessary for a Star Trek story are copyrightable, but whether that’s true in this case is also an open question. A lot of their response comes down to whether it is possible to copyright a fictional universe, and there is no particular guidance available from other cases. The question has never been decided in a court of law, so Paramount and CBS appear to be grasping at straws here.

  4. And – if Paramount wins their suit, and keeps a movie that no one has heard of from being made, it seems doubtful that they will ruin 50 years worth of good will; except, perhaps, the good will of the few people who donated money to produce a film without first securing the intellectual property rights.

  5. Unless enough people hear about Paramount’s bullying through the ‘net, this could go viral. Fan loyalty is to the show, the characters, the story, and to a great degree the actors, not to the studio and their green eye shade bean counters.

  6. Maybe before making sweeping claims about Paramount’s standing, you should have taken a look at the actual complaint that they filed, which names CBS as a co-plaintiff.

    https://www.documentcloud.org/documents/2660454-Startreklawsuit.html

    • If you read the article, you’ll see that it focuses on Paramount’s part in it. Everything in the article is actually just common knowledge, not sweeping claims. Paramount used to own the entire property, but wanted only the film rights, selling off the television rights. That’s how CBS ended up with them. Anybody can look this stuff up.

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