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The guys live long and prosper by welcoming Star Trek expert Michael Liberto to discuss the Prelude of Axanar fan film and the copyright infringement claims alleged by CBS and Paramount.

Full Podcast Transcript

NASIR: Welcome to our podcast where we cover business in the news and add our legal twist.
My name is Nasir Pasha.
With us, we have our Star Trek expert, Matt Staub.

MATT: Oh, no. Well, we talked about Star Wars – it was in December, right? Or maybe January?

NASIR: The last thing you want to do is basically say Star Wars and Star Trek are the same thing but go ahead. Please, go ahead.

MATT: I know. I almost didn’t because I know it was going to be bad. But, yeah, I only brought it up because of this. We talked about Star Wars a month or two ago – or whenever the movie came out – and I knew some but Star Trek I know even less – actually, very little at all. So, I’m not the expert by any means. But, luckily, we found somebody who is a Star Trek expert and this is Michael Liberto.
MICHAEL: Hey! How are you doing?

NASIR: Thanks for joining us!
Just so everyone knows, he is our resident Star Trek episode for all our Star Trek episodes that we’ve had and will have going forward which I’m sure will be a ton. But thanks for joining us!
MICHAEL: Yeah, thanks for having me.

NASIR: So, Matt, why do we have him on? What are we talking about here?

MATT: Michael is going to chime in on a lot of this but let me give the premise as I understand it.
There was a group of fans that actually started a Kickstarter to raise some funds to produce this fan movie, essentially, about Star Trek called Axanar and I think, at this point, they’ve only produced kind of the prelude of it – not the full-length picture that they ultimately want to end up doing. You know, to be honest, I looked at it and it’s actually pretty good quality. It looked very professional in my opinion.
They’ve put out this prelude to it. Now, CBS and – I can’t remember who else.
MICHAEL: Paramount.

MATT: Yeah.

NASIR: We’ll fill in the blanks for you.

MATT: Basically, they’re saying, “Look, this is straight up copyright infringement. There’s a lot of issues with this. You can’t be doing this. Blah blah blah.”
In order for us to kind of explain the legal side of things, we need to understand the factual side of things. That’s why we were hoping, Michael, that you’d be able to fill us in on some of these holes that we can’t really help with.
My first question – and maybe this is a stupid question – what is Axanar?
MICHAEL: Well, Axanar is a planet that’s part of the Federation. It’s nearby Vulcan and Andoria and a bunch of other Federation planets. But, more importantly, it would be kind of a Prelude to Axanar – you had mentioned that before – is this brilliant piece done. Seriously, the quality of this is exceptional. But it’s a pretty long story. Axanar is basically a planet where the Federation Admiral Ramizer is the gentleman making the Constitution class vessel which we know could be the original Enterprise.

NASIR: I’ve heard of that.
MICHAEL: Yes, they’re kind of warship models because the Federation didn’t have any warships until four years’ war with the Klingons and Axanar where it is being produced. In the Prelude to Axanar, we can see in this documentary feature the Supreme Warlord sending their brand new D7 battle cruiser to Axanar to wipe out the Federation’s ability to fight this war. Prelude to Axanar is the beginning of this huge battle that’s going to decide the four years’ war.

NASIR: Everything you’re describing is completely new stuff, right? This isn’t something that Paramount or some of their Star Trek writers came up with. This is a spin-off, right?
MICHAEL: It is a spin-off but there are a couple of caveats. First of all, Garth of Izar is mentioned in a couple of original series – well, actually, in one original series show – and he is the role model of Captain Kirk. Also, Ambassador Soval – who is played by an actor named Gary Graham – he is in the Enterprise shows that was shown for four seasons and then went off in 2005. And then, you have another character, General Chang from undiscovered country who is supposedly going to be in this film, Axanar, Axanar is actually – from what I remember – they got so much money, they’re going to make it into four parts.

NASIR: Wow! They raised over one million dollars, is that right?
MICHAEL: One million dollars and I think they’re doing about $360,000 per part.

NASIR: That’s a modest budget, I think. By the way, Matt, you took notes on that, right? I’m testing you later.

MATT: Yeah, I’m trying to write things down, yeah.

NASIR: This is obviously interesting. I mean, I can see, if you’re a Star Trek fan, it’s interesting. But what are the fans saying? It is understandable that you have someone that owns this brand – Star Trek. They make money off of it. If you have this other group of people that have their own story, they want to have fun with it, that’s fine. But, if they start actually making money off of it, it seems like, you know, they should have some legal protections there, don’t you think?
MICHAEL: Well, there’s a bit of a split. The new production movies of Star Trek are polarizing and the problem really is they don’t necessarily capture the Star Trek spirit that we’re used to with the original series with Next Generation. I mean, they’re fantastic films but it’s much more action, less story, less character development. The outpoutingfor Prelude to Axanar is just immense. You have these Monoliths science fiction in the show like (00:05:50 unclear) who was a great character actor; Gary Graham who was in Enterprise; (00:05:57 unclear) from Battlestar Galactica; Richard Hatch, he’s in it as well; and they liked the story that they provided. Tony Todd as well, he was a great character actor in every major production of Star Trek.

NASIR: Okay. Well, if I may interrupt you, Mike, I get what you’re saying. I mean, it seems like the fans want these kind of spin-offs and I can see that. But the question is, “Should these spin-offs make money off of brands and stories and characters where these other production companies have spent millions of dollars to produce?”
MICHAEL: I think most of the fans believe that, if they stick to the spirit of Star Trek, they’re not really too concerned about what Axanar Productions would make. I mean, it was a Kickstarter and they asked people for the money. They didn’t go out and try to sell something. They’re not making any money off of it.

NASIR: That’s interesting. I didn’t realize that they got money to produce it but they don’t plan on making a profit or they’re probably trying to break-even, is that right?
MICHAEL: Well, yeah, they’re trying to break-even but, from what I understand, they have a fair bit of money left over because they, of course, got that $1.1 million and they’ve got a couple of hundred thousand to do whatever with which is one of the problems. What are they going to do with that money? One of the arguments I think the plaintiffs is making. But this isn’t unheard of. There have been other productions before and CBS and Paramount, there has never really been cooperation, but they will say these fan-made series, “Hey, do us a favor, don’t make any money. Just don’t make money.” They let it be for the most part. They did it for a couple of fan-made films, Of Gods and Men. There’s a decent series called Phase II and then there is a series called Renegades. They just told these people in these production companies – who I don't know if we're right to call them that – they told them just to not make money. It’s kind of how they feel about that. But the fans would love to see more.

NASIR: That’s interesting because you’re basically describing a history of non-enforcement, actually, from the part of the production company if they don’t make money. Here, you said, you know, they raised some money. They haven’t necessarily made the money yet. Pretty interesting.
Matt, do you have any other questions? I’m trying to go over my notes and all these characters still.

MATT: Michael brought up a good point about the previous runs and the executive producer on this even I guess had met previously with CBS and they said exactly what Michael just said. “You’re fine – or you should be fine – as long as you don’t make money.”
I mean, Michael, I assume you’ve seen some of the previous fan films. Are they concerned just because this one is much greater quality or a much better idea than some of the previous ones?
MICHAEL: Yeah. Well, their statement basically says they had a substantial budget and they can really make a film worth of calling Star Trek. It’s never been a big deal before. You see book companies that allow for fan fiction to be produced. I mean, Fifty Shades of Grey was this massive fan fiction that became this book and this movie and it took over the fans of its universe. Beforehand, the production value of the shows was minimal. They were strictly for fans – you know, their story and character development. But the problem is that Axanar is really good – the prelude is – and they’ve shown that they can make a quality movie and it honestly feels to me that CBS and Paramount are coming in and they’re doing this because they don’t want it to end up with Star Trek Beyond for their new TV series they’re going to have in 2017.

NASIR: Let me just ask you one question. The defendants – or Axanar – the owners of them, they describe their short film – it’s called a Prelude to Axanar – have you got a chance to watch that?
MICHAEL: Yeah, I think it’s excellent.

NASIR: They describe it as a mockumentary. What do you think about that description?
MICHAEL: Well, it is, I guess, a mockumentary if you want to specifically get into the legal argument of rights.

NASIR: That’s where I’m getting at. I’m just curious what you think about that title or that adjective.
MICHAEL: There have been mockumentaries of Star Trek.

NASIR: But would you consider this movie a mockumentary? I’m putting you on the spot.
MICHAEL: I don’t know. To be honest, I would like to consider this as a canon.

NASIR: Okay.
MICHAEL: It’s very well-made. It’s an excellent story for the Star Trek fans. We have the Romulan War and books that we can read about and discover and look through and there hasn’t really been a discussion of the Klingon world which is what this is.

NASIR: Yeah.
MICHAEL: If you want to call it a mockumentary, that’s fine.

NASIR: Okay. Yeah, that’s to each their own.
But, Michael, I appreciate you kind of giving us some facts background. I think I got it.

MATT: Yeah, definitely help.

NASIR: But thanks for joining us.
MICHAEL: Thanks for having me.

NASIR: All right. We’re beamed back in. That’s a Star Trek pun – somehow. Or, no, we beamed Michael out. That’s what I should have said. Dang it!

MATT: I was going to say something. I was going to embarrass myself.

NASIR: So you let me do it.

MATT: Well, I was so hesitant with that Star Wars-Star Trek thing and I knew. I was like, “I probably shouldn’t say this.” You might get offended so, hopefully, I didn’t offend him. That wasn’t the intention.

NASIR: Well, I pushed him a little at the end.
Okay. Here’s the deal. This is what the issue is. Michael seemed to know a little bit about this already.

MATT: Yeah.

NASIR: So, if it’s copyright infringement, first, are you infringing on the copyright? I think it’s pretty clear, like, you have Star Trek that they developed and they’re using the same characters, same kind of plotlines or continuing plotlines and things like that. So, it’s hard for them to argue that it’s not infringing. The question is, is there an exception such as fair use? That’s why I found it interesting basically in the defendants’ response. They call themselves a mockumentary – or at least one of their films. What do you think about that? Obviously, you know what they’re trying to do, Matt.

MATT: Yeah, exactly. Well, I’ll preface it by saying I don’t know if I can even answer this. I mean, I probably have seen a Star Trek movie a long time ago but I don’t really remember any. Let me compare it. You watch something and then you watch South Park make fun of it. I mean, that’s pretty obvious.

NASIR: Yeah, classic parody.

MATT: I could be wrong on this. To me, this seems like something that fans wanted to fill a hole in the story or just have another part of the story told and so they produced this film. And so, it’s complimentary or just part of the long storyline.

NASIR: And there is a lot of grey area when it comes to what exactly is a parody in fair use in the sense that what may be comical and being shown in a parody fashion from one person may be different from the other and there’s been different tests that courts have applied and we can kind of dive into that but there is definitely some interesting kind of conversation going on here because most people, when they think parody, they think – like you said – South Park, SNL. But, at the same time, there seems to be more of a clear distinction. Here, I don’t think it’s a distinction enough. Like you said, I think it seems like this is just a group of people that I think innocently, they just want to produce more content on Star Trek but they’re using Star Trek copyright and trademarks and they want to use it for themselves – for other reasons which, again, innocently, there’s nothing wrong with it – but the copyright holder or the trademark holder has a problem with that. And so, what are you going to do? They have the rights.
Interesting enough, I mean, it’s not as simple as that, of course, because I think what’s illustrated in Axanar’s or the defendants’ kind of response is (1) okay, they call themselves a mockumentary so we’re in the realm of fair use, but (2) all these copyrights that they claim to own, which copyrights exactly do they own? I mean, the plaintiffs – Paramount and CBS – they claim to basically own all the episodes and all the characters.

MATT: Yeah.

NASIR: But that’s hard to claim, too. And so, one of the responses was basically, “Okay, well, prove that. Which copyrights do you actually own? And then, be specific and let’s see if we are actually infringing on this.”

MATT: Yeah, and that’s why I kind of hesitated at the beginning when I mentioned CBS and Paramount, et cetera. It was just that’s one of the claims that’s involved in this is the plaintiff’s stance is “we own everything.” I think they even said, “Thousands of copyrights,” or something to that effect. One of the defendants’ responses is, “Well, tell us which ones. You can’t just say you own everything.”

NASIR: Yeah.

MATT: Stuff is shifted around so much that, you know, there’s just no way.

NASIR: That’s right.

MATT: I mean, that’s an argument, I guess. I mean, they do need to be more specific with it and I think, if anyone’s interested in the actual legal requirements and sufficiency of stating these claims, it’s laid out in this motion.

NASIR: I’m just wondering, I kind of want to see it but I’m going to have no idea what’s going on. If you watched a Star Trek movie, even if you’re not a Star Trek fan, you can walk in there and go, “Okay, this is a movie that has a plotline that I can understand.” But I feel like it’s just going to be kind of you have to know what’s going on. It’s a little intimidating.

MATT: Yeah. Well, if it gets to the point where a judge or jury has to decide, I mean…

NASIR: You have to make them watch it, right?

MATT: I just don’t get how they would even know.

NASIR: They need a Michael.

MATT: Yeah.

NASIR: You could bring a Michael in and he starts talking about Klingon wars and some of the jurors – no offense to anyone – they may start falling asleep but some of them may be interested.

MATT: Well, that’s the thing. It’s a lot to take in, you know, in a short period of time – to learn all that and understand it.

NASIR: We should talk about the fact that there was some complacency when it came to others that were doing this. I mean, there were even other Star Trek former writers that were involved with these other kind of spin-off and fan fiction. Always low budget, always kind of like they weren’t selling anything and kind of just doing it for fun, but it’s that $1.1 million that they raised that I think is the issue. It’s like, “Okay, well, we have to draw the line somewhere,” because, even if it’s not for profit, that $1.1 million goes to somebody. It goes to production and someone’s making money off of this film. It may not be the producer but it could be the actors, it could be the film editors and so forth. And so, there’s some economy going on that CBS and Paramount are missing out on, you know?

MATT: Yeah. I see it as this. Let’s say I own a juice or a beverage store, restaurant. You know, one day I show up to my business and there’s a person across the street selling lemonade at this little stand. I’m like, “Well, are they really going to make any money? Probably not. It’s not a big deal.”

NASIR: Yeah.

MATT: But then, I show up a couple of months later, a couple of years later, and someone has a 50-person operation. They’re producing tons of lemonade and a whole assortment of other juices. Well, I mean, I guess that’s a bad example because that’s technically probably fair competition, but let’s just say for some reason it wasn’t.

NASIR: But they’re using your mark somehow. Let’s say they’re using your logo.

MATT: Yeah, exactly.

NASIR: Like they put Jamba Juice on there and they’re selling lemonade. And then, they grow up to like they’re selling all these different juices. Jamba Juice is going to start caring.

MATT: Exactly.

NASIR: Good analogy, Matt.

MATT: There are go.

NASIR: I had to correct it a little bit but it worked out.

MATT: I should just say you finished it but I was on the right “trek” on my hypothetical.

NASIR: I like the only pun that you had to use was using the actual Star Trek name within the pun but that’s okay. Mine was much more advanced even though I messed it up, too.

MATT: Yeah.

NASIR: Anyway, that’s our Star Trek episode – almost a month or so after our Star Wars episode or a couple of months maybe or so. It came out in December but thanks for joining us.

MATT: Yeah, keep it sound, keep it smart.

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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