On January 3, 2017, in Paramount Pictures Corp. v. Axanar Productions, Inc. et al., a United States District Court held that Axanar could not rely on a fair use defense during the upcoming trial over whether Axanar infringed Paramount’s copyright in the popular Star Trek television and motion picture franchise. Axanar has an existing twenty-one minute film Star Trek: Prelude to Axanar (“Prelude”) and at least two trailers for a planned full-length feature film (the “Axanar Motion Picture,” and, collectively with Prelude, the “Axanar Works”). Central to the Court’s rejection of that defense was Axanar’s inability to convince the Court that the Axanar Works had the characteristics of the sort of works, such as parodies, that are recognized as deserving of a fair use defense under 17 U.S.C. § 107, as further explained by the United States Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). While seemingly a solid analysis under the applicable U.S. copyrights laws and cases, one perhaps should ask whether a different result could be supported in a parallel copyright universe. (This does, after all, involve Star Trek, where, since the Original Series episode “Mirror, Mirror” episode, examples of parallel universes have existed.) But to get to that parallel universe here, one need not experience a transporter malfunction, nor travel multiple parsecs—one perhaps need only look the United Kingdom (not to be confused with the United Federation) and Section 30A of its Copyright, Designs and Patents Act 1988. Understanding more fully the Axanar case and the Axanar Works will help the parallels emerge.

Here, Axanar set out to create a motion picture “prequel” to Star Trek The Original Series. Although the Axanar defendants wrote their own scripts for the Axanar Works, they used the copyrighted Star Trek source material “as a bible” in developing the script of Prelude and the final shooting script of the Axanar Motion Picture, each of which revolve around a human character known as Garth of Izar (“Garth,” played by Steve Ihnat). Garth appeared in one episode (“Whom Gods Destroy”) of The Original Series as a former starship captain famous among Starfleet officers for his exploits in the Battle of Axanar. Planet Axanar seems to be the namesake of Defendant Axanar Productions. The Axanar defendants intentionally used or referenced many elements similar to those in the Star Trek Copyrighted Works to stay true to Star Trek canon down to excruciating details. These defendants were “interested in creating alternative ways for fans to view Star Trek,” and “expressly set out to create an authentic and independent Star Trek film that [stayed] true to Star Trek canon,” especially in Axanar’s use of Klingon and Vulcan characters. As the Court noted, “Star Trek fans love Defendants’ faithfulness to the Star Trek canon” and the primary creator of the Axanar Works, Alec Peters, “considers himself ‘the keeper of faith with fans.’” Far from discerning any criticism of the Star Trek franchise in the Axanar Works, the Court found that the “Defendants set out to create films that stay faithful” to the Star Trek series and “appeal to Star Trek fans.” That finding became the death knell of any fair use defense under U.S. law.

That is because U.S. courts have protected parodies, but not imitations, as fair use under 17 U.S.C. § 107. Under the fair use test, parodies have been protected by first focusing on the “the purpose and character of the use” factor. That is because a true parody allows an affirmative response to the question of “whether and to what extent the new work is transformative,” in other words, whether the new work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579. 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, 510 U.S. at 580 (emphasis added). “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 (Kennedy, J., concurring) (emphasis added). “The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.” Id. at 582. Because the Axanar Works were a faithful homage to the copyrighted Star Trek franchise, the parody and criticism argument failed.

Read more: http://www.ilnipinsider.com/2017/01/maybe-axanar-could-klingon-to-its-fair-use-defense-in-a-parallel-copyright-universe/