“The defense seems to have been prepared according to the old rules. ‘If the facts are against you, hammer the law. If the law is against you, hammer the facts. If the fact and the law are against you, hammer opposing counsel.'”
- from Golden Book Magazine, as cited by quoteinvestigator.com
When I was in Ireland over New Year's, I was introduced to Star Trek: Axanar, a 20-minute long fan film that was made as a proof-of-concept of a potential, longer, fan-film to be crowd-funded through Indiegogo. The fan-film is a faux-documentary of the Four Years War between the Klingon Empire and the nascent United Federation of Planets, and features the role of Garth of Izar, a legendary Starlet captain and Star Trek Captain James T. Kirk's hero, in preserving the Federation by defeating the Klingons.
You'd think I'd be excited about this. After all, I'm not excited about the current direction that J.J. Abrams has taken the Star Trek franchise, so you'd think a return to 'classic Trek' style storytelling would excite me. And, thanks to advances in CGI compositing and filmmaking, the special effects sequences actually look really good when compared to original series Trek, so you'd think I'd be OK with that, too.
You'd also think I'd be mightily upset with the decision of the Star Trek rights holders -- Paramount and CBS -- to bring a lawsuit against the makers of Axanar, alleging numerous violations of copyright in a number of different ways. If successful, the lawsuit would effectively shut down production of the full-length film and guarantee that it would never see the light of day. Big media corporations, using the threat of intellectual property rights to crush independent creators? You'd think I'd be all over that.
After watching the short film, though, I was left cold. Not because of the film itself, I should point out -- the production seemed professional and even made use of some professional and recognizable acting talent. No, I was left cold mainly for two reasons, one of which that it was patently obvious that if this thing was going to be made professionally, it wasn't going to survive.
The second, and more important reason, was that the story just didn't feel like Star Trek to me.
The short film is basically a series of monologues; scripted interviews with a number of Federation captains, including Garth, as well as one Klingon commander and the Vulcan diplomat who was involved as an intermediary between the two sides. They describe a scenario where the Klingon Empire doesn't have any respect for the Federation as a fighting force, then develops a super-weapon in the D7 Battlecruiser that threatens to tip the balance of power permanently in the Klingons' favor, until Garth helps the Federation hold off the Klingons until the Federation can deploy the Constitution class starship that would even the score and convince the Klingons that the Federation were worthy opponents. As stories go, it's pretty good and has the potential to be interesting, though it's a bit too military-focused for my taste. (More on this later.)
My biggest problem with the story is that almost none of it is actually supported in Star Trek canon.
Garth of Izar is an actual character -- Kirk meets his old hero in the original series episode "Whom Gods Destroy", when he encounters Garth after the latter's descent into madness and imprisonment in the Elba II asylum, and the Battle of Axanar was a thing that happened in the Star Trek Universe. But it didn't happen during the Four Years War, because the Four Years War wasn't a thing that happened in any Star Trek television or movie episode. In fact, it's not entirely clear who the Four Years War was fought with; the canon history of Star Trek cites that the Romulans hadn't yet re-established contact with the Federation following the establishment of the Neutral Zone a century earlier -- and wouldn't until the original series episode "Balance of Terror", while the Federation and Klingon Empires had been at war since first contact in the mid-22nd century, long before the events of Axanar. (This is noted both in the original series, during the classic episode "The Trouble With Tribbles", as well as in a Star Trek film, "Star Trek: First Contact", where Jean-Luc Picard also notes the disastrous first contact with the Klingons.)
Here's where things first begin to get wobbly -- the source for the idea that Garth's battle was against the Klingons comes from a role-playing game sourcebook. The idea that the D6 was replaced by the D7 also doesn't occur in Star Trek canon, as the D6 never actually appears in the original series. This idea appears to come from another game, Star Fleet Battles, yet in that game, the D7 is a mere incremental improvement over the D6, with the D7 adding a couple of extra phaser banks and a couple of extra power plants to power them. The idea that the D7 is some kind of massive upgrade over the D6 is complete fabrication, as the only (non-canon) source that ever defined the D6s capabilities defined it as being almost identical to that of the D7.
So, Axanar is playing fast-and-loose with the Star Trek canon to tell a good story. Is that such a crime? Well, it is if the story ends up not being as good as it should be. After all, even though every Star Trek series features Starfleet as a military organization, the series almost never features militaristic stories. If anything, the original series went out of its way to avoid glorifying war and war stories, which while a product of the time of the show's production, also became a hallmark of Star Trek storytelling. (During the Next Generation series, for example, pretty much every plan thought up by the warlike Lieutenant Worf, the Klingon serving in the Federation, ended up being a Bad Idea.) Axanar, meanwhile, wants to follow in the footsteps of their beloved Four Years War RPG sourcebook, dedicated to Robert Heinlein and Joe Haldeman, both writers of hard, militaristic SF. While Heinlein certainly serves as an inspiration to Star Trek, a story written by Heinlein is not, to my mind anyway, a Star Trek story, and I can't say I'm terribly excited to see it.
Not that it's likely I ever will see it, given the lawsuit.
The original complaint explains why the attorneys for Paramount and CBS believe that Axanar rises to the level of work that infringes on Paramount's and CBS's copyrights in Star Trek. It is in the response to that complaint that we finally reach the point mentioned in the opening quotation.
First, let me be blunt -- though I am neither a lawyer or a judge, there is no chance that this lawsuit ends well for Alec Peters and Axanar Productions. Copyright in the United States includes the exclusive right of the copyright holder to prepare or assign the preparation of derivative works. There is zero chance that the court finds that Axanar is not derivative of the existing Star Trek material -- the entire reason that Axanar is popular among fans of classic Star Trek is exactly that Axanar is trying to invoke both the feel and the environment of classic Star Trek. Characters, worlds, and ships are taken from the Star Trek canon. This is not Galaxy*Quest, which used the tropes of Star Trek to both parody Trek and to tell a very Star-Trek-like story.
With that said, while the Axanar defense is likely futile, that doesn't mean it is useless. The argument as to why the court is supposed to dismiss the suit against Axanar boils down to two things: first, that the plaintiffs don't provide enough detail about the ownership of their copyrights to identify which entity owns which copyright and which copyrights are being infringed, and second, that without an actual film to analyze as to the nature and character of the 'borrowing' from the original work, the court cannot determine how much Axanar would actually infringe on Star Trek's copyright. Neither of these will succeed, but each raises valid points that may require CBS and Paramount to file an amended complaint to address those points.
In the first defense argument, the defendants raise the argument that the plaintiffs have not shown a chain of title to demonstrate which entity owns which copyrights, and observes that it is implausible that both Paramount and CBS own all the copyrights jointly. This is significant because the entities involved in the production of Star Trek through the years have morphed and changed as they have acquired, been acquired, and been spun off from other corporate entities. You might think, since CBS is a television network and Paramount is a movie studio, that CBS would thus own the copyrights to the television series and Paramount the movie rights, but it's not quite that simple. The official Star Trek wiki, Memory Alpha, notes that Paramount actually owned Star Trek before CBS did, when Gulf and Western Industries acquired Desilu (the original producer of Star Trek and the studio created by Lucille Ball and her husband Desi Arnaz). CBS enters the picture in 2000 when they were acquired by Viacom, the same company that owned Paramount. Then in 2005, Viacom split into two companies, one that renamed itself the CBS Corporation and the other that retained the Viacom name as well as ownership of Paramount Pictures, the producer of the Star Trek movies. While it's pretty clear that CBS and Paramount, between them, still own the rights to Star Trek, determining which entity holds which copyrights would be significant for determining the distribution of any damages. It would also be significant if a determination was made that Axanar only violates copyright in the television series and not in the motion pictures, because in that case one of the plaintiffs might have to exit the lawsuit for lack of standing.
In the second argument, the Axanar defense claims that they can show that their use of Star Trek material is 'fair use', and thus not infringing on the Star Trek copyrights. As part of their defense, they argue that the only way to demonstrate this is for the defendants to complete their film so that the court can compare that film with other Star Trek material to determine whether the use of Star Trek material amounts to fair use, and claims to prevent the film from being completed amounts to 'prior restraint'. On one hand, this assertion is ludicrous on its face; the right of a copyright holder to determine the manner and creation of derivative works means little if every such potential work must be allowed to be completed before it can be judged infringing, yet the Axanar defenders do have a point -- the preliminary work may not be representative of the final work, and, if the filmmakers are made aware of what specific parts of the Star Trek copyright they are violating, they may (in theory) be able to change the way they put the film together in such a way as to avoid infringing those copyrights. I personally don't see how that can succeed -- the filmmakers are not trying to make a new and different Galaxy*Quest, after all, they've explicitly stated to their fans that they want to make a Star Trek fan movie, and producing a film that those fans will enjoy would all but require exploiting copyrighted material, at least in my opinion.
So I'm not too upset about the likelihood of Axanar never actually being made. It's not as though it was a project that was made to appeal to what I find exciting about Star Trek, and it's not as if it's likely to survive what will almost certainly turn out to be a long, protracted legal battle, during which it is all but certain that no actual progress is going to be made on the film itself. Though in all honesty, I'm not all that excited about the new Star Trek TV series announced by CBS, either, given that the named executive producer co-wrote and produced the only Star Trek movie I've ever walked out of.
Maybe Star Trek: Timelines can satisfy my fix?
