To boldly go where no copyright suit has gone before

|The Volokh Conspiracy |

The crew of the USS Enterprise from "Star Trek." (Paramount Pictures)

Now that we've settled the question of whether monkeys can own copyright, we can move on to the intergalactic portion of our copyright primer. Paramount and CBS, owners of the copyrights in the "Star Trek" film series, have sued Alec Peters and Axanar Productions, producers of the Star Trek based fan film "Axanar," for infringement of their copyrights. [The complaint is here, and an excellent summary of the background can be found here]

This is probably a lawsuit that is more interesting as a sociological or cultural phenomenon than for the strictly legal questions it raises, and I'm probably the wrong person to comment on all of that. I've never understood the whole "Star Trek" phenomenon; personally, the whole genre leaves me cold. Obviously, a lot of people feel otherwise. I certainly admire the achievement; telling a story that touches that many people is an accomplishment, in any age. And it's one of those always-fascinating phenomena that, like Catholicism or the English language or the Internet, somehow reaches that point where the positive feedback loops take over, and it becomes more compelling to people because it is more compelling to (other) people.

"Axanar" is a "fan film" in the sense that it fills out, as fan films generally do, a portion of the larger story that hasn't been told as part of the authorized, released versions. "Axanar" will (apparently) tell the story of "Captain Garth of Izar (from the original series episode Whom Gods Destroy) and his actions during the Battle Of Axanar during the Four Years War with the Klingons."

It's a somewhat unusual fan film, though, in one respect: It would have high, Hollywood-level production values—the "look, feel, and quality of a Star Trek movie you or I would plunk $15 to go see at a movie theater." To prove he could do it, Peters produced a 20-minute teaser—"Prelude To Axanar." Based on that, he was able to raise more than $1 million in a crowd-sourced Kickstarter campaign, for the full version (as yet unfinished).

The complaint asserts that

Prelude to Axanar copies many elements from the Star Trek Copyrighted Works, including the United Federation of Planets, "beaming up," Klingons, Vulcans, the Starship Enterprise, spacedocks, the interrelationship between species, planets and alliances. Defendants have intentionally sought to replicate the Star Trek Copyrighted Works (down to copying costumes, makeup and jewelry) and, in doing so, they have sought to create a "Star Trek" film.

It goes on to list dozens of specific infringing elements, ranging from specific characters, what they look like, what they wear, particular plot points, etc. [The complaint, starting at page 10, illustrates many of these with photographs.]

It's also unusual in that the defendants, unlike the ordinary fan film purveyors who fold up their tent when confronted with the legal army commanded by Paramount and CBS and the prospect of statutory damage awards in the millions of dollars, have retained Winston & Strawn, a large and very well-regarded litigation firm, to represent them pro bono.

It could prove to be an interesting fight. Many of the infringement counts (based on similarities in costume design, backdrops, logos, and the like) look pretty straightforward to me, though I'll be interested to see what arguments the defendants advance in support of their borrowings. [Fair use, which might ordinarily be counted on to give safe harbor to a fan film, might be difficult to sustain here, given the ostensibly commercial nature of the defendant's production and the plaintiffs' argument that the defendants have deprived them of licensing revenues to which they are entitled.]

At the same time, I can't quite understand why Paramount and CBS are going to the litigation mat here, even if they have good legal grounds for doing so. In a nice twist, Justin Lin, who directs Paramount's own "Star Trek Beyond," scheduled for release in July, has come out against the suit (tweeting "This is getting ridiculous! I support the fans. Trek belongs to all of us!"), perhaps concerned that it will turn "Star Trek" fans against the whole enterprise (including his film).

A couple of things in the complaint, though, did catch my eye as raising some interesting legal questions deserving of mention. The plaintiffs assert an infringement claim based upon the use of "Stardates" as a means of designating dates in the "Axanar" film, calling Stardates "a fictional manner of designating dates that was developed for the Star Trek universe [and which] appear in nearly every Star Trek Copyrighted Work, including the episodes 'Where No Man Has Gone Before' and 'The Man Trap' from The Original Series'."

I'm pretty certain that claim gets tossed, on the grounds that "Stardating" is an un-copyrightable "procedure, process, system, [or] method" that the Copyright Act explicitly excludes from protection. [Sec 102(b)]

There is also an infringement claim based upon "Axanar's" use of "Klingonese or Klingon, the native language of Qo'noS [the planet from which the Klingons originated], which was first spoken in 'Star Trek—The Motion Picture' in 1979."

This is a harder call … are languages protected by copyright? That's never been squarely resolved in any of the cases. My instincts tell me the answer is "no," relying on the same provision of the act that knocks out Stardating; a language, after all, is nothing more (or less!) than a "procedure, process, system, or method" used by human beings to communicate with one another, and therefore outside the realm of copyright protection.

But there's considerable uncertainty on this score, and it's a question of some importance in copyright law. When Oracle sued Google for infringing its copyright in Oracle's API—its "application programming interface," the interface specifications that allow computer programs to communicate with one another, Google raised a similar argument (that APIs are basically "languages" that can't be copyrighted because they are just "systems or methods" used by computers to communicate with one another).

Made sense to me—but not to the Federal Circuit, which ruled in Oracle's favor back in 2014. So I'll also be curious to see whether this infringement count, too, survives in any form.