Friday, January 27, 2017
The Star Trek Fan Film Case, part 2 - Thoughts on the Fair Use Opinion
The Star Trek copyright lawsuit I previously wrote about settled last Friday. This was not a surprise. Defendant Axanar’s best bet was arguing that its fan film made fair use of the Star Trek works. The court, however, foreclosed that defense a few weeks ago. This post addresses a few points (out of many) from the opinion ruling against Axanar’s assertion of fair use. I’m not certain that the judge got the multi-factor analysis incorrect, but I do worry about how some aspects of the opinion will be applied in the future.
When assessing fair use, courts must review whether the work is commercial or not. For-profit use weighs against the defense. Axanar argued that its film was non-commercial because it would be freely downloadable. The court rebuffed, positing that “indirect commercial benefit” is sufficient to render a use commercial. While there is precedent supporting this proposition, the opinion expanded the idea of indirect commercial benefit a step too far.
The court held that defendants’ intent to create “other job opportunities” through the Axanar project rendered it commercial and thus, disfavored fair use. The problem is that almost any author, film producer, etc. hopes that their projects will be successful and create future job prospects. Accordingly, this consideration will disfavor fair use in almost all situations under the Axanar opinion.
To be fair, there was evidence that defendants attempted to leverage their project into new business opportunities, and that probably supports the “commercial” determination. This fact, however, was not elaborated on in the opinion, and that nuance is unlikely to be referenced in future citations to the case.
My second concern with the fair use analysis pertains to the court’s assessment of the “Amount and Substantiality of the Portion Used.” Under this factor, the more of the copyrighted work that is used (in both volume and importance), the less likely the defense is applicable. The court found that Axanar’s use of many details from the Star Trek universe (e.g., Vulcans, phasers, etc.) disfavored fair use. There was no discussion of whether Axanar used primary plots or characters from Star Trek.
This precedent again casts broad shadows. Under the opinion, stories that take place in a preexisting fictional world (e.g., fan works) will almost always be disfavored as a fair use (regardless of how much of the actual plot is used). Works of that type commonly use small details to stay consistent with the original universe, and thus, under the Axanar opinion, will usually be disfavored as a fair use. I doubt the court intended the “amount used” consideration to disfavor fair use for almost all works of this nature (including most fan productions). Again, while the court’s final conclusion may be correct, the precedent it established seems to be unnecessarily broad.