Copyright

It's becoming clearer that streaming, the supposed "savior" of the music business, is not up to the task. Despite millions of songs being made available at a low cost or even free, music piracy continues to increase.[ref]Wait: I Thought Music Piracy Was Going DOWN. It's Not, Huh?[/ref] A recent study found that music piracy increased 16.5% in the second half of 2015 in comparison to the first half of 2015.[ref]Id.[/ref] As this article succinctly states, it seems that people love music, they just don't want to pay for it.[ref]Guest Blog: Consumers Love Music. They Just Don't Want to Pay for It[/ref] "Artists who speak out against streaming services are often dismissed as whiny millionaires upset that they can't add further to their fortunes. What does not appear to be understood is that the revenue earned from record sales is what allows labels to invest in the next generation of emerging artists." Precisely. As well as the fact that a musician who cannot earn a living stops being a working musician. The "progress of the useful arts" designed to be promoted by the Copyright Act, comes to a grinding halt if no one respects the copyright of a musician enough to pay a piddling $1.29 for a download from iTunes. I spent 26 years in private practice as an entertainment attorney, and my clients were primarily in the music business. So come along and see how the music business actually works, how it's supposed to work, and how respect for copyright is the foundation on which it all rests. Meet Charlie Mars.[ref]What Does a Singer Do When the Music Business Collapses?[/ref] Never heard of him? Me, neither. But Wall Street Journal ran a very telling article about him which provides a lot of insight. He used to be signed to a record label, way back in 2004. The label was V2, founded by Richard Branson, one of the richest men in the world.[ref]Id.[/ref] When Charlie signed, he was paid $250,000 and a monthly stipend of $5,000. Aha! Rich whiny musician! That's an awful lot of money! It is a lot of money. But it's not income to Charlie. This is a loan to Charlie by the record company, which is to be paid back to the label through the sale of records. This is what is known as an "advance against royalties" in the music business, and Charlie must use these funds to write and record the first album, as well as paying the rent. He made the record. It sold 15,000 copies. A huge flop. The label dumped him.[ref]Id.[/ref] So let's do a little math here. Add his $60,000 a year living expenses stipend plus the $250,000 recording fund, this totals $310,000. Which is a sum the record company is never going to be repaid. It bet $310,000 on Charlie Mars. And lost. This is what record companies are supposed to do. Find new talent and invest in them. When music sales are thriving, they can afford a few misses or give the musician time to find and develop his fan base. When music sales are off, and they are down 62% since 1996,[ref]Copyright Piracy and the Entertainment Industries: Is the Effect Massive or Negligible?[/ref] these investments do not happen because the finances will no longer support it. This is precisely what has happened. As reported by Digital Music News, for the first time in the history of recorded music, in 2015, sales of catalog albums (more than 18 months old) outsold newly released albums.[ref]For the First Time Ever, Older Albums Are Out-Selling Newer Albums[/ref] "This fact is inescapable: newer artists (and their newer albums) cost a lot more money to produce, and their failure rate is obviously higher. Younger artists also have younger fans, a group that is far less likely to buy albums (or pay anything at all)."[ref]Id.[/ref] And don't get me started on the kid with a $1,200 MacBook Pro and a $50 a month high speed internet connection who thinks that $1.29 is too much to pay for a song. But you can tour to make back the money! You can sell T-Shirts! To which I reply: "Do you have any idea how expensive it is to tour?" I had the good fortune to count Leon Wilkeson of Lynyrd Skynyrd as one of my clients. I learned a lot about the touring business from watching them operate. For a Skynyrd concert to go on, there are seven guys in Lynyrd Skynyrd, plus two lady back-up singers. Then there are these helpful people who help put the show on:

• Tour Manager
• Road Manager
• Assistant Road Manager
• Tour Accountant
• Production Manager/ House Sound Engineer
• Lighting Designer/ Director
• Production Assistant
• Stage Manager
• Wardrobe Personnel (2)
• Guitar Technicians (2)
• Piano Technician
• Drum Technician
• House Sound Technician
• Monitor Mixer
• Lighting Technicians (4)
• Rigger
• Carpenter
• Bus Drivers (4)
• Truck Drivers (4)

That is a total of 39 people. Now consider that every single one of these people must be fed and either housed or transported every day that the tour runs, which for this particular tour, lasted two months. So take your last vacation, figure out what it cost you, then make it last two months, add in 35 extra people, and you'll begin to see how the expenses mount up. And we haven't even started to figure in the amount you will have to pay the crew and drivers to actually perform their services. But this is Lynyrd Skynyrd we're talking about here. They are the biggest selling rock band in the history of MCA Records, (and yes, this includes The Who). They can reliably depend on the fact that thousands of people are going to turn up for their shows. They can also reliably depend on hucksters selling bootleg T-shirts outside their concert venues as well (trust me, I know). And so will you if your band achieves any kind of name recognition, which kind of puts a dent in the whole "you'll make up the money selling t-shirts" argument. But what if you're not Lynyrd Skynyrd? What if you're… Charlie Mars? You still tour, because it's the only way you can make money. And forget two months on tour, Charlie pretty much has to tour constantly.[ref]What Does a Singer Do When the Music Business Collapses?[/ref] And forget the roadies. Heck, forget the band. He can't afford any backing musicians. He performs solo.[ref]Id.[/ref] To make a CD, it costs him $25,000 to $40,000 each. He made a video which cost him $10,000.[ref]Id.[/ref] These were partially funded through Kickstarter campaigns. Sound like a glamorous, wealthy existence to you? There used to be an old music business saying that "touring sells records," and that was why you toured for so long. Now, your record is simply a loss leader for your concerts. And what if you get sick or hurt, and can't tour? What happens then? My client Leon was in the famous Skynyrd plane crash that killed Ronnie Van Zant, Steve Gaines, and several others. He told me he doesn't remember the crash at all. But he spent months in the hospital and was the most severely injured person in the crash that survived. At least he had his record royalties to fall back on, because this was pre-internet and people didn't take your songs without paying for them. Besides, being in the hospital for months on end with multiple broken bones and a diaphragmatic hernia (this is where all of your internal organs have been squished into your ribcage) kind of puts a dent in the whole "you'll make the money back touring" business model. And let's not forget Buddy Holly and Ritchie Valens, dead in a plane crash while on tour, or Cliff Burton of Metallica, killed in a bus crash while on tour, or Gloria Estefan, badly injured in a bus crash while on tour. Or, as this columnist in the New York Times stated: "Every couple of months, I see another post in my Facebook feed about a band that was cut off by an 18-wheeler or skidded on a patch of black ice and rolled their van into a ditch. Some members are injured, and they're launching a Kickstarter campaign to pay for medical bills and to get back on their feet. My heart (and often, money) goes out to them. But if you need to crowdfund your hospital costs, you were never on your feet to begin with."[ref]Touring Can't Save Musicians in the Age of Spotify[/ref] And further: "Last summer, Foo Fighters' Dave Grohl was forced to cancel shows when he fell from a stage in Sweden and broke his leg. Other artists with 2015 tour-date cancellations on account of injuries, surgeries and other health issues included Sam Smith, Miranda Lambert, Steve Aoki, Little Big Town, Meghan Trainor, Nickelback, the Black Keys and Kelly Clarkson."[ref]Id.[/ref] So it's "No Play, No Pay." At least they are successful enough to be able to afford health insurance. Not so for your indie band on tour, trying to make up for lost revenue. So let's look at what's driving this: the lack of sustainable revenue from use of your copyrighted work. I have written several posts about the incredibly low rates streaming services pay.[ref]How Spotify Pays (or Doesn't Pay) Songwriters[/ref] Now let's put these numbers in context. I wrote recently about a client's song that had been played 642,558 times without any payment by Spotify.[ref]Id.[/ref] So let's round it up to 650,000 and do the math. The fee paid to a songwriter for the right to make a recording of a song is called the "mechanical fee." The rate I can charge as a songwriter is effectively capped by the U.S. Government who allows anyone to make a recording of my song as long as the "statutory rate" is paid to me. This rate is 9.1 cents per copy sold, and it has not gone up in 10 years.[ref]Mechanical License Royalty Rates[/ref] So if a recording of my song sold 650,000 copies, I would make $59,150. Pretty good money. If Spotify streams my song 650,000 times, I get paid $279.50. To be fair, these are streams, and not copies sold. But if a Spotify customer can stream my song any time they want, as many times as they want, why would someone find the need to buy it? At some point, on demand streaming cannibalizes sales. According to Billboard, 64 streams is the equivalent of one paid download.[ref]Business Matters: Did You Know 64 Streams Equals One Download?[/ref] So, 650,000 divided by 64 = 10,156.25 X 0.091 cents = $924.21. This would be 3.3 times what I would earn from Spotify. And of course there are the people who download it illegally and pay me nothing. Why is there such contempt and disrespect for the creative artist who creates music? I spent three years in law school learning how to become an attorney. I spent 12 years learning how to become a musician, including 4 years in music school. Yes, there are occasional prodigies who are seemingly born with the ability to play music at a high level, but for the rest of us, it's a tough slog. I've spent hours and hours and hours in the practice room, honing my craft, trying to get better, and it would probably add up to years if I could go back and tally up my practice time. I wrote bunches of songs, and let me assure you, unless you are Elton John or Paul McCartney, great songs do not just fall out of your sleeve. And if you are lucky enough to catch the public's fancy enough to actually make a living as a musician, there is no guarantee that you will stay there. Those that do are truly exceptional people. I was backstage after a concert and Brett Michaels of Poison was there. He was wearing chaps made from rattlesnake skin and there were several circles of fans surrounding him. His band had several multi-platinum albums to their credit. And what no one in that room knew was that it was all over for Poison. Done. Finished. You see, these bands from Seattle had come out with this new sound called "grunge" and it was going to kill "hair metal" deader than a doornail. Poison‘s next album was a flop, and they would end up cancelling most of their tour after it was apparent no one was coming. The same thing happened to Motley Crue. Then consider this. Do you know who Max Martin is? Here are some of the songs he has written and co-written:[ref]Ask Billboard: Max Martin Has Written How Many Hot 100 Top 10s?![/ref] "Can't Feel My Face," The Weekend "Teenage Dream," Katy Perry "DJ Got Us Fallin' in Love," Usher feat. Pitbull "Dark Horse," Katy Perry feat. Juicy J "Problem," Ariana Grande feat. Iggy Azalea "Break Free," Ariana Grande feat. Zedd "Shake It Off," Taylor Swift "Blank Space," Taylor Swift "Daylight," Maroon 5 "Roar," Katy Perry "We Are Never Ever Getting Back Together," Taylor Swift "One More Night," Maroon 5 "I Knew You Were Trouble," Taylor Swift "Bad Blood," Taylor Swift feat. Kendrick Lamar "California Gurls," Katy Perry feat. Snoop Dogg "Dynamite," Taio Cruz "Since U Been Gone," Kelly Clarkson "Hot N Cold," Katy Perry "I Kissed a Girl," Katy Perry "So What," P!nk "Quit Playing Games (With My Heart)," Backstreet Boys "Everybody [Backstreet's Back]," Backstreet Boys "...Baby One More Time," Britney Spears "I Want It That Way," Backstreet Boy "That's the Way It Is," Celine Dion "Show Me the Meaning of Being Lonely," Backstreet Boys "Oops!...I Did It Again," Britney Spears "It's Gonna Be Me," 'N Sync He lives in Sweden. He does not tour. Ever. This is obviously a very talented man who deserves our respect. Is he supposed to be content with taking less because people can't be bothered to obey the law? Then consider this. The Yellowjackets are one of the most successful modern jazz groups. Their bass player, the renowned Jimmy Haslip, ceded his bass chair in 2012 to Felix Pastorius, son of jazz legend Jaco Pastorius.[ref]Felix Pastorius: Next in the Continuum[/ref] The reason? "'The primary reason is so that I can spend more quality time with my family,' says Haslip. ‘I spent 10 months on the road last year. The break will give me an opportunity to spend more time at home as well as work on other artistic endeavors.'"[ref]Id.[/ref] Think about this. Ten months on the road. Away from your family while you are trying to earn a living to support them. Wouldn't it be nice if there was another income source he could depend on, you know, like actual royalties from people making copies of his recordings? "You have a failed business model!"... says the internet. I say: What's so hard about simply obeying the law? What's so outdated about the concept of paying for something that has value? How about respecting the artist, respecting their hard work and respecting their copyrights? There's a further connection to be made here. Felix Pastorius' father died when he was five years old, leaving Felix's mother and twin brother Julius, to fend for themselves. Fortunately for them, this was pre-internet, and royalties from the sale of recordings and fees from licensing musical compositions still existed. Because, being dead, you know, puts a big dent in that whole "you'll make the money back touring" business model. And of my client Leon Wilkeson? He died in 2001. He died in a hotel in Ponte Vedra, Florida, between, you guessed it, legs of a Lynyrd Skynyrd concert tour. He was 49 years old.[ref]Skynyrd's Leon Wilkeson Dies[/ref] And that, my friends, is the real cost of the music business.

On December 29, 2015, Paramount Pictures and CBS Studios filed a lawsuit against Axanar Productions, Inc. and its principal Alec Peters.[ref]2015 WL 9584038[/ref] The essential facts which support the complaint by Paramount are: "Defendants have made a short film entitled Star Trek: Prelude to Axanar ("Prelude to Axanar"), and are in the process of producing a film called Axanar (the "Axanar Motion Picture") (collectively, the "Axanar Works"). The Axanar Works infringe Plaintiffs' works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes. The Axanar Works are intended to be professional quality productions that, by Defendants' own admission, unabashedly take Paramount's and CBS's intellectual property and aim to "look and feel like a true Star Trek movie." On information and belief, Defendants have raised over $1 million so far to produce these works, including building out a studio and hiring actors, set designers, and costume designers. The Axanar Works are substantially similar to, and unauthorized derivative works of, Plaintiffs' Star Trek television series and movies, in contravention of the copyright laws of the United States."[ref]Id.[/ref] Axanar instead claims that it is "fan fiction."[ref]How $1.1 Million 'Star Trek' Fan Movie Has Escaped Studio Shutdown (So Far)[/ref] Essentially, fan fiction (FF) arises when fans of a particular movie, book or series of movies or books, create new works involving the same characters, settings and events. This is almost universally done without the express permission of the creators.[ref]Fan fiction[/ref] The works are inevitably self-published via the internet, using several websites devoted to fan fiction, on essentially a non-commercial basis.[ref]Id.[/ref] The most famous example of FF is Fifty Shades of Grey, which started as a piece of FF using the characters from the Twilight series by Stephanie Meyer.[ref]Id.[/ref] The author, E.L. James, changed the names and attributes of the characters and removed other identifying information, the result being an international best seller and later a movie version.[ref]Fifty Shades of Grey[/ref] Predictably, the creative community is split on whether fan fiction should be encouraged, merely tolerated, or met with stiff opposition. Stephanie Meyer (Twilight) not only approves of fan fiction but runs a list of them on her website.[ref]Twilight Series Fansites[/ref] J.K. Rowling (Harry Potter) has been quoted as saying she is "flattered" that people want to write stories about her characters,[ref]Rowling backs Potter fan fiction[/ref] but in the same article, her literary agent pours cold water on the notion that FF has her complete support. "Her concern would be to make sure that it remains a non-commercial activity to ensure fans are not exploited and it is not being published in the strict sense of traditional print publishing."[ref]Id.[/ref] "The books may be getting older, but they are still aimed at young children. If young children were to stumble on Harry Potter in an x-rated story, that would be a problem."[ref]Id.[/ref] George Lucas reportedly had the same policy towards Star Wars FF, and would order the takedown of any Star Wars FF that contained pornographic or sexual scenes.[ref]Fan fiction[/ref] The concern about pornography in FF is not without precedent. Two subgenres of FF include the "Mary Sue" line of stories in which a female protagonist has a sexual relationship with the well-known hero of the series and "Slash" which imagines a homosexual relationship between two male characters of a series.[ref]Id.[/ref] In the "anti FF" faction are Game of Thrones author George R.R. Martin, and Anne Rice (Interview With a Vampire). Sometimes this is an issue of creative control. Sharon Lee (co-author of the Liaden series) put it this way on her website: "[T]here is so little Liaden fanfic out there, though, frankly, I wish there were none. I don't want "other people interpreting" our characters. Interpreting our characters is what Steve and I do; it's our job. Nobody else is going to get it right. This may sound rude and elitist, but honestly, it's not easy for us to get it right sometimes, and we've been living with these characters. . .for a very long time. I created the prototypes for Val Con and Miri when I was 12 — so that's almost 50 years together at this point, and there are still misunderstandings. So, my position with regard to fanfic of our work? We built our universes, and our characters; they are our intellectual property; and they are not toys lying about some virtual sandbox for other kids to pick up and modify at their whim. Steve and I do not sanction fanfic written in our universes; any such work that exists, exists without our permission, and certainly without our support."[ref]The second answer[/ref] For their part, the operator of FF site FanFiction.net states: "It is our long standing policy of fanfiction.net to respect the wishes of original writers and will remove or ban fan fiction categories at their request."[ref]Rowling backs Potter fan fiction[/ref] For others, it can be a question of being hemmed in creatively by an unauthorized piece of FF. As George R.R. Martin relates on his website, the plight encountered by another author: "Most of us laboring in the genres of science fiction and fantasy… had a lesson in the dangers of permitting fan fiction a couple of decades back, courtesy of Marion Zimmer Bradley. MZB had been an author who not only allowed fan fiction based on her Darkover series, but actively encouraged it... even read and critiqued the stories of her fans. All was happiness and joy, until one day she encountered in one such fan story an idea similar to one she was using in her current Darkover novel-in-progress. MZB wrote to the fan, explained the situation, even offered a token payment and an acknowledgement in the book. The fan replied that she wanted full co-authorship of said book, and half the money, or she would sue. MZB scrapped the novel instead, rather than risk a lawsuit."[ref]Someone Is Angry On the Internet[/ref] Yes, only in the upside-down world of the internet, where every creative work is deemed up for grabs, could you find a successful writer being threatened with a copyright infringement lawsuit by the creator of an unauthorized derivative work. Can't happen? Sure it can. In the 1989 case of Anderson v. Stallone[ref]11 USPQ2D 1161 (C.D. Cal. 1989)[/ref] a writer of a "speculation script" for a proposed Rocky IV sued Sylvester Stallone for copying elements of his script in Stallone's own script for Rocky IV. While the court did rule that the scripts were not "substantially similar," it went even further stating: "The Court finds that Anderson's treatment is not entitled to copyright protection. This finding is based upon the following determinations that will be delineated further below: (a) the Rocky characters developed in Rocky I, II and III constitute expression protected by copyright independent from the story in which they are contained; (b) Anderson's treatment appropriated these characters and created a derivative work based upon these characters without Stallone's permission in violation of Section 106(2); (c) no part of Anderson's treatment is entitled to copyright protection as his work is pervaded by the characters of the first three Rocky movies that are afforded copyright protection."[ref]Id.[/ref] And finally there is this concern. Again, as George R. R. Martin states: "Myself, I think the writers who allow fan fiction are making a mistake. I am not saying here that the people who write fan fiction are evil or immoral or untrustworthy. The vast majority of them are honest and sincere and passionate about whatever work they chose to base their fictions on, and have only the best of intentions for the original author. But (1) there are always a few, in any group, who are perhaps less wonderful, and (2) this door, once opened, can be very difficult to close again."[ref]Someone Is Angry On the Internet[/ref] Which is precisely the problem being faced by Paramount Pictures with the Axanar project. The proposed Axanar movie makes no bones about the fact that it is based upon elements created by others in the Star Trek universe. "Axanar is the story of Garth of Izar, the legendary Starfleet captain who is Captain Kirk's hero. We met Garth in the third season TOS episode Whom Gods Destroy. Kirk called Garth the role model for all future Starfleet Officers. Garth charted more planets than any other Captain and was the hero of the Battle of Axanar, the story of which is required reading at the academy. This is that story."[ref]Axanar - The Story[/ref] A visit to the main page of the website will lead you to animation which portray a modern version of the Enterprise and a clearly recognizable Klingon warship.[ref]Axanar[/ref] So why do they think they are able to make a $1 million movie set in the Star Trek universe using some of the Star Trek characters? Because CBS Studios was nice enough to allow others to make FF short films. As reported by the website The Wrap: "'CBS has a long history of accepting fan films,' [Defendant Alec] Peters said. ‘I think ‘Axanar' has become so popular that CBS realizes that we're just making their brand that much better.' Previous Kickstarter- and Indiegogo-funded fan films include "Star Trek: Of Gods and Men," which generated $150,000 in donations in 2006 and "Star Trek: Renegades," which drew a collective $375,000 from both platforms in 2014."[ref]How $1.1 Million 'Star Trek' Fan Movie Has Escaped Studio Shutdown (So Far)[/ref] Peters even contends that he got tacit approval from CBS: "Peters said he and his team met with CBS last week but the network didn't offer any specific guidelines concerning what his crew can and cannot do — the network simply told him that they can't make money off the project."[ref]Id.[/ref] CBS says otherwise. "'CBS has not authorized, sanctioned or licensed this project in any way, and this has been communicated to those involved,' a representative from the network told TheWrap. ‘We continue to object to professional commercial ventures trading off our property rights and are considering further options to protect these rights.'"[ref]Id.[/ref] And now CBS and Paramount have made good on their threats by filing a lawsuit to stop Anaxar dead in its tracks…err… space. Predictably, Peters went to social media to plead his case, and also, just as predictably, the hue and cry was "corporate greed," "they're not making any money," "everyone else is doing it," "free speech" and "fair use act." Well, faithful readers of this blog will know that there is no "fair use act," but let's examine these one by one.

Corporate Greed

Well, this is half-correct. Paramount and CBS are "for profit" corporations. Their job is to earn as much profit for their shareholders as possible. If anyone is able to make a Star Trek movie, then this will have a negative impact on the earnings potential of an "official" Star Trek motion picture with a concurrent detriment to the bottom line of the corporation and its shareholders. And the suit does not say that Axanar cannot be made at all, it just cannot be made in its present form. The filmmakers are free to make any film they want, and tell the same story, just remove all the elements borrowed from the Star Trek TV series and motion pictures. This is what E.L. James did with Fifty Shades of Grey and it seemed to turn out fine for her.

They're Not Making Any Money

This argument just doesn't hold up. The budget for Axanar, by their own admission, is over $1 million. Somebody is getting paid with that money. Presumably, this would include the top line actors, the Director of Photography, the film editors, and the people who create the special effects. In other words, the people listed as part of the production team on their official website.[ref]Axanar - The Production Team[/ref] And as "Executive Producer," is Alec Peters getting paid? Has he written a salary for himself into the budget so he can keep body and soul together while he oversees the production of the film? If he has, then he is making money on the project. Further, if you donate to the project, you get Axanar merchandise, which includes copies of the movie on DVD, Blu-Ray or by digital download.[ref]Axanar - The ground-breaking independent Star Trek film[/ref] How is this different from when a studio releases movies on DVD or sells related merchandise? You pay money, you get tangible goods back. This is making money on the project, regardless of whether Axanar is made available on their YouTube channel without charge. And since the movie is not complete, how are we to know there will not be advertising on the page or before the film is streamed? That would certainly be making money on the project as well. One last point before I move on, the whole purpose of crowd-funding is that the payment is a gift, and as such is not income to the recipient. I am not a tax lawyer, but it would seem to me, that offering tangible merchandise in return for a payment, and increasing levels of merchandise for increased levels of payment, make the crowd sourced funds no longer a gift, but income on merchandise sold by the Axanar production team. As a result, they would owe tax to the IRS on that income. Remember, this is $1 million of income. It will be interesting to see if the IRS takes any action.

 Everyone Else Is Doing It

So allowing other FF to be made means that all FF should be allowed? This has never been the case, as noted above. Content creators do place restrictions on what kind of FF they will tolerate, especially when it starts to veer into the territory of pornography. Further, Axanar has a budget three to four times what was tolerated before. At some point, a line has to be drawn, and it's the original creator that gets to draw it, not the FF creator that wants to use valuable elements without permission. The logical conclusion of this, a content creator should not allow any FF to be produced at all, lest it be seen as a tacit approval for all future FF to be produced. Is that what the FF community really wants?

Free Speech

This argument doesn't get to first base. Again, no one is saying the Axanar movie cannot be made. The objection is to incorporating elements into the film that they did not create. People are not donating to the project because it's an Alec Peters production. People are donating to it because it's Star Trek. This is really the crux of the issue. Axanar is trading upon the world-wide popularity of Star Trek as a way of attracting attention and interest in their film, using elements that they did not create or have anything to do with. There have been six Star Trek television series and twelve Star Trek motion pictures,[ref]2015 WL 9584038 at page 4[/ref] all presumably made and marketed at considerable expense by Paramount. Now, Axanar wants to take advantage of all this effort and expense without obtaining permission or the payment of a proper licensing fee. In short, they seek to reap where they have not sown. This is not free speech. This is taking someone else's speech and claiming it as their own. As the Supreme Court ruled on this very point, the First Amendment "securely protects the freedom to make—or decline to make—one's own speech; it bears less heavily when speakers assert the right to make other people's speeches."[ref]Eldred v. Ashcroft 537 U.S. 136 Supreme Court of the United States 2003[/ref]

Fair Use

Here, we have the advantage of a case on point. J.D. Salinger v. Colting[ref]641 F.Supp 2d 250 District Court for the Southern District of New York (2009)[/ref] pitted the world renowned author of The Catcher in the Rye against the author of a totally unapproved sequel to Catcher in the Rye, which was titled 60 Years Later: Coming Through the Rye. Colting, of course, claimed his unauthorized sequel was "fair use" and "transformative." The Court cuts to the heart of the matter and offers this quote from Judge Pierre Leval's influential article Toward a Fair Use Standard:[ref]103 Harvard Law Review 1105[/ref] "The first fair use factor calls for a careful evaluation whether the particular quotation is of the transformative type that advances knowledge and the progress of the arts or whether it merely repackages, free riding on another's creations. If a quotation of a copyrighted matter reveals no transformative purpose, fair use should perhaps be rejected without further inquiry into other factors. Factor One is the soul of fair use. A finding of justification under this factor seems indispensable to a fair use defense."[ref]641 F.Supp 2d 250 at 256 emphasis added[/ref] The Judge there ruled the sequel was not fair use, and granted a preliminary injunction. On appeal, the Second Circuit reversed on the issue of the preliminary injunction, but stated "we conclude with the District Court that Defendants are not likely to prevail in their fair use defense."[ref]Salinger v. Colting, 607 F.3d 68 at 83 Second Circuit Court of Appeal (2010)[/ref] So what is the "justification" for Axanar copying various elements form Star Trek? There is no indication that Axanar is in any way, shape or form, a criticism, commentary or parody of the numerous Star Trek offerings made by Paramount. It simply takes various elements of the Star Trek canon and spins a new story around them. So what we are left with is a film that "merely repackages, free riding on another's creations" that Judge Leval warned about. So, all indications are that the "free speech" and "fair use" arguments that Mr. Peters and Axanar are going to put forth will be rejected at trial. So why not do what the creators of Star Trek did? Come up with a fresh and interesting set of characters and plot elements, instead of boldly going where a lot of people have gone before.