A federal judge recently held that an unauthorized “Star Trek” fan film created by Axanar Productions was “objectively substantially similar” to Star Trek. The court found that Axanar sought to make a “professional production” with a trained crew, including many individuals who had worked on authentic Star Trek productions, while raising over $1 million in funding. The court was unwilling to find copyright infringement at this stage in the case, leaving the jury to ultimately determine whether the film is “subjectively substantially similar.” Importantly, the court rejected Axanar’s fair use claims, holding that: (a) the films are a commercial use even if the films were to be distributed for free, and (b) the films are not a parody because they do not criticize the substance or style of the underlying work – rather the films are intended to serve as a prequel to The Original Series.
Takeaway: Advertisers may wish to rely on parody as a fair use defense to copyright infringement. To successfully allege a parody defense, advertisers must remember that their ads must criticize the substance or style of the underlying work.