[David Post] Copyright in Klingon

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 A