A judge rules that the 'Axanar' production company can't claim fair use, but a jury will decide the question of subjective substantial similarity.

Paramount Pictures and CBS have scored major successes in their copyright lawsuit over Axanar, a 20-minute YouTube video and a proposed feature-length version touted as a professional-quality Star Trek fan film. But a California federal judge on Wednesday stopped short of declaring the Star Trek rights holders the victors in the closely followed case, reserving for a jury the key question of whether the works would be seen by lay people as substantially similar to older Star Trek films and TV shows.

The lawsuit was filed almost exactly a year ago after Alec Peters' Axanar Productions aimed to raise more than $1 million on Kickstarter for a prequel to the 1960s Gene Roddenberry series. Peters' work focused on Garth of Izar, an obscure character who appeared in a 1969 episode. Scripts were prepared for a film to be set around the Four Years War between the United Federation of Planets and the Klingon Empire.

Last May, the case survived a motion to dismiss and began drawing attention to whether Paramount and CBS could take ownership of everything from "pointy ears" to the Klingon language, especially in light of many fan-made works that have been permitted through the years without controversy. Despite some hopes expressed by Star Trek Beyond director Justin Lin that all this would go away, Paramount and CBS marched forward, and the parties each delivered summary judgment motions.

On Wednesday, U.S. District Court Judge R. Gary Klausner released his much-anticipated opinion (read in full here).

"With respect to the first core issue, the Court finds that the Axanar Works have objective substantial similarity to the Star Trek Copyrighted Works," he writes.

Klausner rules that the character of Garth is entitled to copyright protection, has well-delineated physical and conceptual qualities, and contrary to defendants' arguments, isn't obscure. He notes the appearance in Axanar of Klingons and Vulcans as well as the use of other copyrighted elements like a Klingon officer's uniform from the 1991 motion picture Star Trek VI — the Undiscovered Country. He also points to the fan film including settings from Star Trek copyrighted works such as planets Axanar, Qo'noS and Vulcan.

"Under the extrinsic test, the Axanar Works are substantially similar to the Star Trek Copyrighted Works," writes Klausner. "This conclusion finds strong support in Defendants’ intent for the Axanar Works. 'Defendants expressly set out to create an authentic and independent Star Trek film that [stayed] true to Star Trek canon down to excruciating details.'"

But that doesn't end the dispute, because under the second part of the copyright analysis, the so-called intrinsic test that asks whether an ordinary, reasonable person would find the total concept and feel of the works to be substantially similar, the judge finds that a jury will best answer this. Thus, he denies the summary judgment motion made by CBS and Paramount.

When it does go to trial (assuming no settlement), the defendants won't be able to lean on fair use as a defense. Judge Klausner takes a look at all four factors that comprise fair use of copyrighted material and decides they weigh in favor of the plaintiffs.

To the purpose and character of the use, the judge writes that Axanar attempts to "stay faithful" to the Star Trek canon with nary any criticism, seemingly shrugging off defendants' arguments of staging a "mockumentary."

To the nature of the copyrighted work, the judge writes that after 13 Star Trek motion pictures and six television series, these types of works "are given broad copyright protections."

Klausner also writes that the elements from Star Trek being used are qualitatively important "because they give the Axanar Works the Star Trek feel and enable Defendants to stay true to the Star Trek canon," and to the last factor of the effect of the use on the potential market, the judge notes, "The fact that Defendants distributed Prelude and the Vulcan Scene for free online and intend to likewise distribute their future works may likely increase the risk of market substitution as fans choose free content over paid features."

The judge adds, "Defendants further argue that the Axanar Works, through their promotional value, actually increase the sale and visibility of the Star Trek Copyrighted Works. But 'the boon to the [latter] does not make [Defendants’] copying fair.'”

"The Court thus finds that all four fair use factors weigh in favor of Plaintiffs," sums up the judge in denying the defendants' bid for summary judgment. "If the jury does not find subjective substantial similarity, Defendants did not infringe and fair use defense is moot. If the jury finds subjective substantial similarity, the Axanar Works are rightfully considered derivative works of the Star Trek Copyrighted Works. Rejection of Defendants’ fair use defense is consistent with copyright’s very purpose because derivatives are 'an important economic incentive to the creation of originals.'”

Klausner also leans toward finding Peters liable for contributory and vicarious infringement depending on what the jury decides on intrinsic similarity. However, the judge won't grant declaratory and injunctive relief at this time until the jury has a chance to put forward its own verdict. A trial could happen sooner rather than later as the parties have already submitted evidence lists, questions to sort prospective jurors and other preparation needed for one to occur.

Paramount and CBS are represented by David Grossman, Jonathan Zavin and Jennifer Jason at Loeb & Loeb. Alec Peters and Axanar Productions are represented by Erin Ranahan, Andrew Jick and Kelly Oki at Winston & Strawn.