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According to The Hollywood Reporter, a judge ruled Wednesday that a 20-minute Star Trek fan video and proposed feature-length film produced by Axanar Productions cannot be considered fair use, and therefore may constitute copyright infringement. Paramount Pictures and CBS, owners of the Star Trek copyrights, filed the lawsuit against Axanar last year after Axanar began a Kickstarter campaign to raise money to produce the film. The public quickly took notice of the case because many fan-made works had been unchallenged in the past, and the proposed fan film only focused on a minor character from one Star Trek episode. Despite this, the California federal judge ruled that Axanar’s works “have objective substantial similarity” to the Star Trek works because they use copyrighted characters such as Klingons and Vulcans, as well as clothing, items, and settings from the copyrighted movies. By employing these detailed elements, Axanar is clearly intending to “stay true to the Star Trek canon.”

While the judge ruled on this extrinsic objective test, he decided to leave the intrinsic test of whether an ordinary, reasonable person would find the works substantially similar to a jury. However, during trial, Axanar will not be able to raise the defense of fair use. Fair use is a defense to copyright infringement when the work is a commentary, critique, or parody of the copyrighted work. The judge looks at four factors when deciding if a work is fair use: the purpose and character of the use, the nature of the copyrighted work, the importance of the copyrighted elements, and the effect of the use on the market. In this case, the judge decided all four factors weighed against Axanar. The Axanar works are not parodies because they are intended to stay true to the original films. The 13 Star Trek films and six television shows are expansive and entitled to copyright protection. The copyrighted elements used by Axanar are important because they are what make Axanar’s films feel authentic. Finally, because Axanar has released parts of the proposed films online for free, fans may choose the free films over official Star Trek releases, thus affecting the market for Star Trek films.

Prudence Ng is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2019).

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