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.
Join the discussion 43 Comments
“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.”
So… if they don’t see things our way, we’re going to drag them through the mud? Sounds like True Trek spirit if I ever heard it and does “Roddenberry’s Vision” proud.
By the same token Bill, I’m not sure “Roddenberry’s Vision” would be that large corporations should be able to bully smaller companies by filing lawsuits but rather to at least initially contact those smaller companies and work something out.
It looks to me like your bias against Axanar Productions and/or Alec Peters is forcing you to take a negative interpretation of that statement. Don’t you think people should defend themselves if they’re sued?
I’ve got to say, that honestly, I don’t believe the lawsuit is the first time that CBS/Paramount attempted to contact Mr. Peters about putting a stop to his activities.
“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.)
That was from August 2015, right after Mr. Peters had claimed to have spoken to CBS.
But, let’s say that the lawsuit was the first time that Peters was asked to stop? There is still this article and we all know how “in-the-know” Mr. Peters is with all things Axanar. I find it incredibly hard to believe that he didn’t know this article existed.
At the end of the day, all a man has is his word. Mr. Peter’s word was that if CBS told him to stop, he would stop. They told him in the most emphatic means possible to stop, yet here we are.
I know you may read this as “PR spin” but I’m going to put it out there anyway …
1.) The quote so often cited by folks consists of two parts. The first part, that “CBS has not authorized, sanctioned or licensed this project in anyway, and this has been communicated to those involved,” is verified from Axanar Production’s point-of-view in Alec’s statements regarding the meeting he had with CBS. He asked for guidance and guidelines and they refused to give any. They would not tell him what Axanar Productions could do or couldn’t do in producing AXANAR.
The second part of that quote reads in the present tense: “We continue to object to professional commercial ventures trading off our property rights …” If that statement was supposed to tie to what was communicated to Axanar Productions in Las Vegas, the statement would have been worded in the past tense and they might have even called out Axanar Productions by name to make it clear who the other party was. They didn’t.
To think that a generally broad statement about “professional commercial ventures” is solely directed at Axanar Productions is, I think, a reach. Furthermore, if CBS wanted to say “stop” all they had to do was call or send a letter. They did neither. A statement to a entertainment blog does not serve as “proper notice” of any kind. Certainly you’d agree with this if you were on the receiving and of such a notice, wouldn’t you?
2.) Alec’s word is still good. If CBS told him to stop, he’d stop. Suing someone for copyright infringement and asking for $150k per infraction is not telling someone to stop, it’s a stick-up. Sitting down with someone and telling them why you want them to stop is the appropriate course of action here – and Axanar Production’s position, from the first day we were aware of the lawsuit, is that we want to address the concerns Paramount and CBS may have with the production and see if we can find a middle ground somewhere that will allow us to tell the story of AXANAR. What form that story might take is entirely dependent on what is learned from those good-faith, sit-down meetings when (and if) they occur.
Thanks for your comment, Bill. We don’t necessarily agree, but I think it’s good to sit down and parse that CBS statement in the Wrap in some detail.
That’s not what I’m saying. It’s not malicious, it’s the inevitable consequence of the discovery phase. In order for the case to move forward, the plaintiffs must show the court they have rightful title to the copyrights they claim have been infringed. The defense must have access to the chain so they can adequately prepare a rebuttal to the claim against them.
The danger lies in the chance that the chain IS broken. Finding that out through your own efforts is one thing, but having it done through a public action is devastating. There’s no chance to correct the problem or take any sort of mitigating action before it goes public.
Reece, I think this whole thing is an education lesson for folks who don’t know the legal process. “discovery phase” IS – what CBS/Paramount should be worrying about…. but the way large corporations work, who knows if any of the Executives have even seen anything more than the latest bill from their law firm.
Thanks again for a great post!
Bil, CBS/Paramount has elected to drag itself through the mud. Axanar simply finds itself in the unfortunate position of defendant. Part of defending oneself is hitting back. That’s what defense *IS*.
Well said, Bob. It seems like many people see this as CBS/Paramount telling Axanar to stop and then Axanar and their legal team trying to strip IP rights away to make their movie anyway. Not only is that chain of events false, but it conflates who is attacking whom.
CBS/Paramount didn’t tell Axanar to stop. Instead they attacked Axanar Productions and Alec Peters with a lawsuit which puts Axanar on the defensive. Axanar isn’t trying to drag CBS or Paramount through the mud or strip away anyone’s IP rights. They’re trying to defend themselves and find a way where they can still make their movie or, at the very least, keep from losing all of their supporters’ donations and Alec’s financial well-being to CBS and Paramount’s legal department.
So you have been there for the behind-the-scenes meetings between CBS and Peters?
Who else was in those meetings besides Peters and CBS?
I’m not saying anything here that isn’t public knowledge.
Alec and the rest of the Axanar team consistently claim that they were never given a cease and desist from CBS or Paramount prior to being served with the lawsuit. All posts made by anyone associated with these actions made around that time that I’ve seen support this claim and I have not heard anyone from CBS or Paramount state otherwise, so this claim can be reasonably assumed to be true.
Both the initial and amended lawsuits claim damages in excess of what Axanar Productions and Alec Peters can reasonably expect to pay without the entire project folding and Alec facing financial ruin. I believe that qualifies as an “attack” and is made public for all to see.
Axanar’s legal team is responding in the best way that they see fit. They’re the experts here, not Alec or the Axanar team, so I seriously doubt they’re directing Winston & Strawn to “drag CBS/Paramount through the mud.” All they’re trying to do here is to get the charges dismissed so Alec and the Axanar team can settle this dispute with CBS/Paramount in the best way possible.
Your facetious claim that I must have been present for private meetings and privy to secret information to follow a logical flow of events based on publicly available information is, quite frankly, ridiculous.
Then you don’t know anything. Seriously. If you haven’t been in meetings you know no more than I do.
You’re simply regurgitating talking points from the Axanar folks.
Again, I’m not saying I know more than you do. I’m saying that your statement that Axanar is trying to drag Paramount through the mud is a logical fallacy because you’re conflating who is attacking whom. This is a gross misrepresentation of what we know to be facts based on claims made by both legal teams, which are public record, and on a general understanding of how the legal system works. I don’t need to be privy to any inside information or regurgitate Axanar talking points to spot a strawman argument.
You’re a genius. I love it. I love it in so many ways I have lost count. Thank you! I hope your audience listens.
Beautiful summary, and highlighted several items I’ve not been willing to say publicly for fear of jinxing something! haha. Keep up the good work!
Not to sound mean or like a hater, but please tell me how and why exactly Paramount/CBS should worry at all about Axanar? Besides the ‘legal problem’ over IP?
Also can I ask why my last comment wasn’t approved? I was even nice! It might because you’re busy Mike…just curious.
Hi Ed. I approved it and actually made a point about how nice you were in it. Maybe you just didn’t see it. It’s the last comment on the “Shiny, New FAQ” blog post: http://ap.billwatters.com/our-shiny-new-faq
Thanks for that.
You would think that Paramount would take a page out of Lucille Balls’ play book ( Desilu at the time ) and work with Axanar on this.
The quality and the base story I have seen so far from you guys/gals has only gone to promote Roddenberry’s vision. It’s a shame that they would take this tact with you when they could have used it to their own advantage in promoting their films. So much for a win/win.
I wish you luck and hope this turns out well, still looking forward to it.
EXCELLENT post, Mike! =)
my take: I agree with your inference that paramount is driving this… (they are desperate)
however, i strongly suspect that their motive is attempting to clear the field for their next steaming pile of nu-trek crappiness… they (rightfully) fear that “beyond” is a *FLOP*, which cannot bear any form of competition / distraction =P
their gambit is: that protecting “beyond” will save them more money than not screwing Axanar…
they don’t care about the fans! or the long-term… all they care about is the quarterly report!
not sure how the profit would be distributed, but jj, boborci, badrobot, et al, are probably driving this too… (and these guys are greedy and underhanded)(not to mention: hacks)
i agree that all of the relevant IP will trickle down to cbs… nu-trek has NOTHING we want… (barf)
paramount is circling the bowl, thanks to their poor decision to go with jj, boborci, et al… =P
they are trying to avoid the financial disaster that you hint at, by trying to kill the competition =(
but i agree that paramount ultimately has no standing! they WILL ULTIMATELY LOSE!! =P
…now, hopefully cbs will come to their senses, and support Axanar so they don’t lose more of the fans good will!
come on cbs! don’t be a jerk! please!? 😉
Thanks Herbert (or not), but I can’t take credit for this post. It’s all Reece Watkins. He’s da man.
Kudos indeed, for Reece Watkins! =)
btw: “not Herbert” works if you don’t want to use my full moniker… 😉
…or: “IANH” works too =P
I still think Paramount’s best play would be to work out a deal where Alec gets to make Axanar with their blessing, and Paramount gets to tack Prelude onto the beginning of Star Trek Beyond, like Pixar puts shorts in front of their main films. It’s a PR stunt that would cost them very little, and expose Axanar to the entire world. All of a sudden, Axanar isn’t a threat to Paramount, it’s a profit center that they didn’t have to do anything to make–just take their foot off the hose!
But they never ask me. I’d have told them that for nothing! 😉
…i agree, except on the specifics:
i think cbs should support Axanar and air it on cbs-all-access, as a warm-up for the new show… =)
(…and possibly any Axanar sequels) =)
Axanar should scrub out ALL “nu-trek IP”, and let jj, boborci, badrobot, et al (and their patron: paramount) go to hell (for the suit, and foisting fraudulent nu-trek [sic] on us…) =P
Rod Roddenberry appears in nu-trek, so that probably explains his loyalistic input… =(
I loved Wil Wheaton in Stand By Me, and as Wesley Crusher… but i think the Wesley backlash turned him into kind of a jerk, plus the interweb eats that stuff up… so, he’s just playing to his (jerk-loving) base… =P
“Will Paramount’s Lawsuit Become the Studio’s Own Kobayashi Maru?”
Glad I could help.
I sat with a smile on my face the whole time I read this, plus the motion filed by the fabulous team defending Alec Peters and Axanar. They totally destroy any credibility Paramount has in this lawsuit. One apparent issue, that was pointed out in the motion to dismiss was the “prior restraint” section. That alone makes the suit worthless. How can you sue somebody for copyright infringement for something that doesn’t even exist??!! I quite frankly wonder how Paramount can even sue to begin with, since their movies are all derivative works of the original Star Trek Copyright material anyway….
Oh how well put this article has been presented.Stop the foolishness and make this a win win senario.
“i agree that all of the relevant IP will trickle down to cbs… nu-trek has NOTHING we want… (barf)”
i’m thinking that Axanar should perhaps be pro-active on the paramount / nu-trek side?
i think you should go back right now, and scrub out anything that could be construed as “nu-trek IP”… like, isn’t the deflector on USS Ares kinda nu-trek-lookin’? …stuff like that.
This probly means no Capt. Robeau, but maybe just change his name…?
this will make for a more enjoyable film, for me, actually! =D
While I appreciate your enthusiasm, I.A.N.Herbert, high-level decisions like these are Alec and Rob’s call, not the PR guy’s. LOL!
And, frankly, I think Tobias’ ships are awesome in PRELUDE TO AXANAR.
…don’t get me wrong, I *LOVE* Tobias’ work! …i told him so myself, that i haven’t been SO impressed with the ships since TMP! =) (off the top of my head, the deflector is the only “nu-trek” feature that i can think of, that i would change… 😉
does Alec still read / moderate replies to his own posts?
Man, you really are on a crusade against all things “nu-Trek,” aren’t you?
I’m not a fan of the new movies either and I think that their design for the Enterprise is ugly as sin, but I thought the design elements for the Kelvin looked really good. The blue glows on the deflector dish may not be quite true to the Enterprise of the 60’s, but I think they look great and make sense. Besides, I doubt Paramount can make a valid argument that blue glowing deflector dishes are covered by their IP of the new Trek movies, and they’re much more likely to succeed in getting Chang scrubbed from the script than Robeau.
I love your moniker, but I wish you wouldn’t be such a Herbert about any and all details, even positive ones, that originated from “nu-Trek”. No one trying to shove red matter down your throat or foist a ridiculous Spock-Uhura love story on you here. I, for one, appreciate how Alec and Tobias have cherry-picked the few redeeming qualities from the new movies and used them to enhance their own storytelling and visuals and make them (makes triangular sign with hands) One.
Don’t be so stiff on the nu-Trek stuff, brother. There’s room for the new to live with the true. We reach?
(By the way, I think “The Way to Eden” is a very underrated episode.)
Brother Danny 😉
…while it IS true that I hate nu-trek, I DO agree that the small amount incorporated into Axanar IS well and tastefully done, and otherwise I would have no problem with it… (in fact, i like the “connections”)
…however: use of IP is the problem here, and i believe nu-trek is pushing it. So, my motivation is trying to avoid that… (by eliminating use of nu-trek IP) =P
Now, the General Chang stuff i don’t understand… I suspect Kharn wears Chang’s costume in Prelude, and that Axanar’s Klingons are Chang-style (no big wigs or heavy ridges), but i’m not aware of Chang being portrayed in Axanar… (?)
…for the most part, i think we DO reach, brother! =)
I remember some of the conversations in the Axanar Podcast talking about including a young Chang as a supporting Klingon character. I don’t know if that’s still the plan, but I don’t remember hearing anything about them dropping Chang from the script. Since this is the same Chang that was created for Star Trek VI: The Undiscovered Country, the character would fall under Paramount’s IP.
The only character that I can think of that is unique to Pramount’s Star Trek movies and has been mentioned as appearing in Axanar is Chang, and that is a very tenuous thread to tie to this lawsuit. If worse comes to worst, I imagine the Axanar team would be prepared to cut Chang out of the script if that becomes a major sticking point with Paramount.
While I’m concerned about how this lawsuit will effect Trek in the long run, I’m also concerned how this will effect fans. Some fans have taken to ‘drawing lines in the sand’ as it were if you’re standing on the opposite side (either Axanar or CBS) you’re no longer a ‘true’ Trek fan.
I don’t think a person willing to ‘draw a line in the sand’ and then go to one side or the other is in any danger of not caring about Trek. Nor do I think that a person that enjoys fan made material and corporate made material is any less of a fan. Its unfortunate a lawsuit has been thrown in the mix because all it will do for the fans is sully something that shouldn’t be sullied.
I’m starting to suspect that Paramount does indeed have a little problem with a solid chain of IP ownership, & I think they’re AFRAID.
PRESS THE ATTACK!!!! 🙂 🙂 🙂
Pretty sure the lawsuit wasn’t filed to protect “Nu-Trek Beyond” at all. CBS are promising a new ST SERIES for early 2017 for their “CBS All Access” streaming site.
…WHICH is well after the blu-ray release of Beyond Crappiness =P
you were saying…? =P
This is a really really well written article making very valid points.
The only thing I would have liked to have seen would have been a breakdown of the figures.
Something like :
“Star Trek Into Darkness earned $467,400,000 at the box office according to Wikipedia, but if the poorly considered PR decision taken to sue Axanar leads to just 1% less people seeing Star Trek Beyond, that’s $4,674,000 gross profits lost – far more than can ever be gained by enforcement of any judgment against Axanar.”
Someone should write an Axanar parody in which the Klingon High Council is played by Paramount suits and the Star Fleet Captains are played by the Axanar legal team. The parallels are striking.
I think the overall IP point is being missed here. It is incumbent on the owner of IP to defend that IP so that the next guy and the guy after that can’t point to the first guy as evidence of the dilution of the of the ownership of the IP.
Whether some legal maneuvers and mudslinging prevail and end up diluting the ownership of the IP, and not matter if there is a payoff at the end or not, it is incumbent on Paramount to defend their rights as the owner, or co-owner, of the IP.
Like it or not, Star Trek, the universe that it is set in, the premise, timelines, the “federation”, Klingon, Andorians, etc., are all products of a property that Paramount has rights to. They are obligated to defend those rights. The fact that some don’t like that path they have taken with the reboot has nothing to do with it. And, in the comments I have seen statements alluding to expectations the Roddenberry would be on the side of the Axnar team. I think that is pretty presumptuous. I think he would be pretty ticked off that someone was using his creation to make money without his permission. Just my take.
All that being said I liked the prelude video and think this would make a great story.
Instead of suing you guys they should hire you.
The prelude movie is way better than any of the recent ST movies.
When you love what you do it shows.
This is movie quality stuff at episode level prices.
With their backing you could make an excellent TV series.
Instead they are trying to destroy this, and keep on pushing those action flicks.
It’s just sad.
Paramount / CBS should partner with Axanar? What exactly would they get out of this? Also WHY would they do it?
Fan films are a niche market with a small percentage of the regular public or even Star Trek fans being the least bit interested.