In a motion filed last week, CBS and Paramount asked a judge to rule that (PDF) fan-funded Axanar Productions infringed Star Trek copyright. A day later, the small production company filed its own motion (PDF) claiming that its only existing 20-minute film, called Prelude to Axanar, was shot in a “mockumentary” style, unlike a true Star Trek TV show or movie, and that Axanar Production’s output was always intended to be non-commercial.

The company also contended that CBS and Paramount don’t own “the idea of Star Trek or the Star Trek universe as a whole."

CBS and Paramount allege that Axanar's work copies from the “plots, themes, settings, mood, dialogue, characters, and pace,” of Star Trek works and that, by raising nearly $1.5 million on Kickstarter, the production studio didn’t operate non-commercially.

While those arguments aren’t new from the studios, the recent motion cites several statements by Axanar’s own top players that controvert the idea that they were mere fans producing fan art. The plaintiffs’ attorneys write that Axanar representatives wanted to make a “professional”-looking film and that Executive Producer Alec Peters “attempted to meet with Netflix to become a producer of Star Trek productions and even attempted to trademark (for use in commerce) the word ‘Axanar.’”

The motion also includes testimony from Christian Gossett, director of Prelude to Axanar, who told Axanar's attorneys that the movie he made infringes on Star Trek copyright. The motion includes the following snippet of that testimony:

Q. Do you think Prelude to Axanar is—infringes upon the Star Trek intellectual property?

A. Yes.

Q. And in what way?

A. In that it is an unlicensed filmed entertainment that uses countless elements of the Star Trek fictional world without—yeah, unlicensed.

The plaintiffs sought to deflate Axanar’s arguments that it had created a separate, untold story within the Star Trek universe. They allege that the idea for the feature film’s premise was first recorded in a (licensed) 1980s RPG called Star Trek: The Role Playing Game that came with a supplemental section called “The Four Year’s War.” That fictional conflagration is set against the backdrop of “the ‘arms race’ between the Klingons and the Federation to create new and more capable starships.”

Lawyers for CBS and Paramount wrote:

It is beyond dispute that Defendants’ works were not created for purposes of criticism, comment, news reporting, or teaching. Similarly, the Axanar Works do not constitute either parody or satire, and (prior to this lawsuit) Defendants never claimed they were. Indeed, Defendants expressly set out to create an authentic and “independent Star Trek film” that stayed true to Star Trek canon down to excruciating details.

The “mockumentary” defense

As for Axanar Productions, the company is now calling Prelude a free “mockumentary.” Axanar contests that it shouldn’t be liable for any perceived infringement with respect to the planned full-length film because that film hasn’t even been made—except for a three-minute scene called “The Vulcan Scene”—and the script could change at any time.

The most recent script for the full-length film has more than 50 original characters out of 57 total, the defendants said, adding that the project had changed the script to accommodate CBS and Paramount. “In fact, through the many scripts, Defendants have attempted to create drafts to alleviate Plaintiffs’ concerns regarding alleged infringement, and [Defendants] are now leaning towards more mockumentary style works.”

In June, CBS and Paramount published a list of 10 rules for fan film creators to avoid copyright infringement suits like Axanar’s. Among other things, that list mandates that no fan film be longer than 15 minutes, and no fan film can exceed two episodes in length.

Furthermore, "Plaintiffs own a limited number of Star Trek episodes and films, but they do not own a copyright to the idea of Star Trek, or the Star Trek universe as a whole," the defendants wrote.

“While Plaintiffs do have copyright registrations to central Star Trek characters such as Spock and Captain Kirk, Defendants Works’ do not include those or any other characters to which Plaintiffs own separate copyrights,” Axanar’s motion says, adding that the 20-minute Prelude video was inspired by M*A*S*H, Band of Brothers, Babylon 5, The Pacific, and The Civil War as much as it was inspired by Star Trek.

Finally, Axanar Productions argues that films like Prelude and the feature film it was going to make don’t harm CBS and Paramount, but help it financially. Axanar said:

Star Trek fans have produced and disseminated fan fiction for over 50 years, without complaint, and rather with encouragement from Plaintiffs. Plaintiffs have benefitted from the unpaid and often unacknowledged labor of fans, who have helped to maintain engagement in Plaintiffs’ Works during leaner years in Plaintiffs’ cycle of production.

The production studio cited comments made by Star Trek film directors J.J. Abrams and Justin Lin that they were “outraged” by CBS and Paramount’s suit. “We started talking about it and realized this was not an appropriate way to deal with the fans,” Abrams had said at the time.

In a separate statement, Axanar PR director Mike Bawden said the production studio will set up an Independent Financial Review Committee to make sure fans’ funds are being well used. Bawden wrote: