A significant copyright tussle over the appropriate scope of “fan films” — and, by extension, fan fiction and the whole genre of “fan-generated” works — has erupted in the Central District of California. Late in 2015, Paramount Pictures and CBS Inc., who jointly claim the copyright in the “Star Trek”  motion pictures, sued Axanar Productions, a crowd-formed and crowd-funded production company that raised more than $1 million in donations to create a professional-quality “Star Trek” fan film, for copyright infringement. The film, entitled simply “Axanar,” concerns “the fortunes of Garth of Izar, Captain Kirk’s hero, during the Four Years War with the Klingon Empire that almost tore the Federation apart.”* Axanar released a 20-minute prequel, “Prelude to Axanar,” in 2014.

* I have, I should point out, no idea what this means, not being much of a “Star Trek” fan myself.

“Star Trek” has generated fan films by the thousands, and apparently, Paramount and CBS have been somewhere between tolerant and mildly encouraging of the phenomenon in the past, viewing them (correctly, I think) as a supremely effective marketing tool that costs them absolutely nothing. “Axanar” may have triggered a more aggressive response because, unlike the vast majority of fan films, it was going to have serious production values built in. It would look a lot more like a “real movie” (whatever that might mean these days).

The studios’ somewhat schizophrenic reaction to the whole fan-film phenomenon was reflected in an incident last year. J.J. Abrams — a major figure in the “Star Trek” ecosystem, director of the 2009 “Star Trek” big-screen reboot and its 2013 sequel (“Star Trek Into Darkness”) and producer of 2016’s Justin Lin-directed “Star Trek Beyond”– announced in June that the lawsuit against Axanar was being dropped, with both his and Lin’s blessings. As reported in the Los Angeles Times, Abrams told a crowd at a “Star Trek fan” event that

“[Lin and I] started talking about it and realized this was not an appropriate way to deal with the fans. The fans should be celebrating this thing. Fans of ‘Star Trek’ are part of this world. So [Lin] went to the studio and pushed them to stop this lawsuit and now, within the next few weeks, it will be announced this is going away, and that fans would be able to continue working on their project.” [Justin Lin’s tweet about the lawsuit — “This is getting ridiculous! I support the fans. Trek belongs to all of us" — is here.]

A nice thought, perhaps, but the suits at Paramount and CBS apparently never got on board; the lawsuit continued apace, and indeed while I was writing up this post the judge issued an order denying the parties’ motions for summary judgment (more on that below).

Paramount’s complaint, summarized nicely at Ars Technica here, lists some 57 instances of infringement, divided into categories such as characters (including Garth of Izar and Vulcan Ambassador Soval), races and species (Vulcans, Romulans and Tellarites), costumes (e.g., “Uniform with a gold shirt” and “Triangular medals on uniform”), settings (the planet Axanar and the Klingon planet Qo’noS), as well as space docks and the Starship Enterprise, the Federation logos, and plot point similarities, including the concept of dilithium, phasers and the Klingon Empire.**

**See * above.

To my eye, the prima facie case of copyright infringement is pretty strong; looking through the complaint, it’s difficult not to agree that there are at least some elements of Axanar — the characters’ costumes, their visual appearance, the settings and backdrops — that are “substantially similar” (to use the relevant copyright standard) to copyrightable elements of the “Star Trek” movies. It would be surprising if it were otherwise, of course; after all, the whole point of these fan films is to re-interpret and modify the original stories, bending them into new shapes, to tell new stories involving these characters wearing these uniforms in these settings.

Indeed, the plaintiffs’ motion for summary judgment quotes Christian Gossett, the director of “Prelude to Axanar,” as acknowledging in deposition testimony that his film “infringes upon the Star Trek intellectual property … in that it is an unlicensed filmed entertainment that uses countless elements of the Star Trek fictional world without — yeah, unlicensed.”

The court, in an order issued this past Tuesday, agreed:

Defendants set the Axanar story in the Star Trek universe…. Klingons in the Axanar Works use some of the same weapons as those in Plaintiffs’ works. The physical appearances of Klingons and of Vulcans (including Ambassador Soval) resemble those in Plaintiffs’ works. In fact, the same actor who played Soval in the Star Trek: Enterprise series reprised his role in Prelude, a fact Defendants noted in its Kickstarter promotion. The U.S.S. Enterprise and Klingon D-7 Battlecruiser from The Original Series each make a short appearance in Prelude. Star Trek fans love Defendants’ faithfulness to the Star Trek canon; Peters considers himself “the keeper of faith with fans.” The many excruciating details Defendants intentionally duplicate from the Star Trek Copyrighted Works surely contain some “specific details of [prior creators’] rendering of ideas” that are protectable.

Second, Defendants use many elements from the Star Trek universe in their works, not just Garth of Izar and the general events surrounding him. Indeed, Defendants use and reference so many distinctive and widely recognized elements from the Star Trek universe that the Axanar Works invoke Star Trek in the minds of viewers. Together these elements are “qualitatively important” enough for a finding of substantial similarity, even if they are “relatively small in proportion to the entire work” (which they arguably are not).

That looks right to me.

But the prima facie case in copyright can be overcome by a showing that the defendants made “fair use” of the copyrighted work. The court went awry, I believe, in holding additionally that the defendants “are not entitled to the fair use defense,” a holding that illustrates much that is wrong with copyright law these days.

To begin with, the fair use defense, involving a complicated balancing of defendant’s motives and purposes, the effect of the defendant’s use on the market for the original work and any number of other relevant factors, is hardly ever appropriate for disposition on summary judgment; there’s too much fact-finding required.

But more to the point, “Axanar” uses copyrighted material for a transformative purpose — creating a new and original work of art. It is not a substitute, in the market, for the original; if anything, it enhances the value of the original. This is precisely what our copyright law, through the fair use exception, should be encouraging — the production of new and original works of art that build on prior works to create something new and valuable.

Courts are supposed to weigh these factors — the extent to which the defendants’ work is “transformative” and “the effect of [defendants’] use on the market for or potential value of the copyrighted work,” but in this case, the court’s rather crabbed analysis renders the fair use defense relatively toothless.

Regarding “Axanar’s” “transformative” nature, the court looked only at the question of whether the work was a “parody.”

For the purposes of copyright law, however, parody must use some elements of a prior work to create a new work that criticizes the substance or style of the prior work. Campbell v. Acuff-Rose [the “2 Live Crew" case], 510 U.S. at 580. “The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole.” Id. at 597.  “The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.” Id. at 582.  Here, the Court has difficulty discerning from the Axanar Works any criticism of the Star Trek Copyrighted Works. This is not surprising since Defendants set out to create films that stay faithful to the Star Trek canon and appeal to Star Trek fans.

But parody is not the only kind of “transformation” that deserves fair use protection, and the absence of “criticism” doesn’t mean that “Axanar” isn’t a transformative work, and it’s a misreading of the 2 Live Crew opinion*** to suggest otherwise.

*** As a totally irrelevant sidenote, the 2 Live Crew case is responsible for my presence on this blog, because Eugene Volokh and I first met when we talked about this case while at our respective clerkships (he for Justice O’Connor, me for Justice Ginsburg), and the rest, as they say, is history.

As to whether “Axanar” will somehow diminish the value of the original, the court — consistent, it must reluctantly be admitted, with much of the current misguided caselaw on the question — held that it would. Not that “Axanar” would somehow serve as a market substitute for the original works on which it is based; the court wasn’t suggesting that people will watch/purchase “Axanar” instead of watching/purchasing “Star Trek Beyond.” But “Axanar” could serve as a substitute for a movie that CBS/Paramount might want to make (or license someone else to make) in the future, the “kind of potential derivative [that] Plaintiffs would in general develop or license others to develop,” and therefore the “market harm” factor weighs against a finding of fair use.

Plaintiffs have already developed a 2003 novel and licensed a role-playing game based at least in part on Garth of Izar and the Battle of Axanar from one episode of The Original Series. The second Star Trek motion picture was a derivative work that expanded on another episode of The Original Series. Although the Axanar Works are set twenty-one years before The Original Series, it is not outside the timeframe for Plaintiffs’ potential derivative work. Indeed, the Star Trek television series to premiere in 2017 goes back in time and takes place ten years before The Original Series. Judging by the success of Defendants’ fundraisers, the Axanar Works are the type of work “for which there [is] a separate demand that [Plaintiffs] may one day seek to exploit.” Ty, Inc. v. Publications Int’l Ltd., 292 F.3d 512, 519 (7th Cir. 2002). Defendants’ attempt to treat the Battle of Axanar as a private little war is unpersuasive. [emphasis added]

This is the ratio circularis — circular reasoning — of copyright law today; making a film like “Axanar” is not a fair use (and you have to pay us for making it), because it deprives CBS/Paramount of the licensing fee that others would pay them to make a film like “Axanar.”

The problem is that saying that others will pay a licensing fee to make a film like “Axanar” assumes that it’s not a fair use, because if it’s a fair use, no licensing fee would be required. So this amounts to saying: Assuming it’s not a fair use, it’s not a fair use. Sure, copyright owners “may one day seek to exploit” the market for films like this; but it does not follow that they are entitled to the protection that they need in order to do so. Copyright is supposed to be concerned with the public benefit derived from bestowing the private right on creators; a rule that “because copyright owners would benefit from protection, we will give it to them” does not serve the cause well.

*****

There is one small but interesting additional feature to this case. What initially caught my eye in regard to this case, not being a “Star Trek” fan, was an amicus brief submitted to the court by the Language Creation Society (LCS), arguing that the invented language used by the Klingons is not copyrightable and that its use by the Klingons in the “Axanar” films cannot be the basis for a copyright infringement claim.

Whether you can obtain copyright protection for an invented language is just the sort of quirky little question that copyright nerds (like me) love. It’s not an entirely trivial or hypothetical question — invented computer languages (Java, or C+, or the like) are very valuable works, and one might imagine that the question of whether (or the extent to which) they get copyright protection is of some interest to those who develop and use them.

Moreover, as the LCS brief points out, the Klingon language — in keeping with the general craziness surrounding all things “Star Trek” — has very much taken on a rather remarkable life of its own; there are Klingon debating societies, a Klingon Language Institute, published Klingon dictionaries, important works of Western civilization (from “The Epic of Gilgamesh” to “Hamlet”) translated into Klingon, etc. etc.

I’m very sympathetic to LCS’s position; I don’t think that copyright law protects languages per se, and I don’t believe that the creator(s) of an invented language can, or should be able to, assert a copyright infringement claim based on someone’s use of the language.

But the longer I looked at this case, the less it looked like a good vehicle to decide the question; it wasn’t at all clear that CBS/Paramount was asserting that the Klingons’ use of the language was an infringement, so the issue wasn’t really squarely posed here.  The plaintiffs’ papers do mention the use of Klingon by some of the Axanar characters, but only as an aspect of the similarity between the “Axanar” films and the “Star Trek” films; the same concerns would have arisen if both sets of characters had been speaking French, or Armenian.

It seemed a stretch to suggest that the plaintiffs were claiming copyright in the Klingon language itself, and the court agreed, taking the somewhat unusual step of denying LCS’s motion to file its brief, on the grounds that the court didn’t have to “reach the issue of whether languages, and specifically the Klingon language, are copyrightable” in ruling on the case.

The LCS has declared victory — at least to the extent that the final ruling in the case will not hold that the Klingon language is protected by copyright. Its statement — with a translation into Klingon, for those of you who read Klingon — is posted here.