The General Data Protection Regulation (GDPR) will govern how personal data is processed by data controllers and processors from May 2018. I share with you why we all need to start preparing now…

The GDPR

Despite the UK deciding to leave the EU, the GDPR will govern how personal data is processed by data controllers and data processors. Although the GDPR won’t kick in until May 2018, you should consider taking some steps now to get ahead of the game.

Step one – scope the changes

Not only should you be aware of the changes the GDPR will implement from May 2018, you should make sure your employees are, too. You and your employees should also be up to speed about the effect the changes will have and their potential impact.

Step two – review your personal data

You should review what personal data you currently hold, where it’s held and how you received it. It’s also a good idea carry out an audit to determine whether any data you hold has been shared with any third parties. This will determine whether any risky processing activities are being carried out, and how these may need to be addressed.

Step three – review your privacy notices and policies

A review of your privacy notices and policies should be carried out to make sure they’re presented clearly and in plain language. If any notices or policies need amending under the GDPR, this will be highlighted. You can then put plans into place to update notices and policies where necessary, to make sure you comply with the GDPR from May 2018. Notices and policies need to be easily accessible, so get this in order if needed, too.

You should be monitoring, reviewing and assessing how you process data to establish whether you meet the required standards, and if there’s a need to build in safeguards to reduce data processing and the retention of data.

Step four – review the rights of your data subjects

A data subject is the person the data is about. It’s crucial the policies you have in place cover the data subjects’ rights. Under the GDPR, these rights are:

1. the right to be informed, for example transparency of how personal data is used
2. the right of access to their personal data, confirmation as to how it’s being processed and other supplementary information
3. the right to rectify their personal information if it’s incorrect. If the personal data has been disclosed to a third party, the data controller must update this within one month of being notified of the rectification, three months where it is complex
4. the right to be forgotten and request the removal and deletion of personal data, and notify third parties of such wishes where the data has been passed on
5. the right to restrict processing by blocking or suppressing the use of personal data
6. the right to portability and using their own data for their benefit
7. rights related to automated decision making and profiling, for example safeguarding data subjects from risks, which potentially would otherwise occur without intervention
8. the right to object to:
   • 8.1 processing based on legitimate interests or the performance of a task in the public interest/exercise of an official authority, including profiling
   • 8.2 direct marketing, including profiling
   • 8.3 processing for purposes of scientific/historical research and statistics.

Step five – access your requests

You should review the way you handle access requests and make sure the timescales provided by the GDPR will be complied with.

Data subjects may also exercise other rights, such as erasure and rectification, as listed above. You should make sure you have procedures in place to deal with any and all data subject access requests, including those who may have unrealistic expectations of their rights.

Step six – processing your personal data

You should review how you process personal data and whether the GDPR will impose new obligations on you. Some organisations will be required to appoint a Data Processing Officer (“DPO”) or other supervisory authority who would be responsible for complying with the GDPR in respect of processing personal data. You should consider how this role will fit within your organisation.

You should document how and what data you’re processing and the legal basis for carrying out such processing. If you receive data processing services from a third party, you should also review any responsibilities you have and document them.

Step seven – consent

Putting procedures in place to show how you seek, obtain and record consent is really important. You may also wish to review whether you can show you have a legitimate interest in processing the data without consent, and that any such interest is not overridden by the data subject’s interests. If you do rely on receiving consent from data subjects, you’ll bear the burden of proof to show consent was both informed and provided freely.

You should also put verification procedures in place to confirm your data subject’s ages, to determine whether parental consent is required. Parental consent was previously required for children under the age of 16. Member states can now legally lower this to 13 years old.

Step eight – data breaches

You should put policies in place to make sure data breaches can be detected, reported and investigated. If there are any breaches, you’ll need to react quickly to comply with time limits, so bear this in mind when you create these policies.

Step nine – privacy by design

You need to consider privacy and develop procedures early on, so it complies with any processing or the deployment of a product. Think about how you’ll implement it in your organisation, too.

Step ten – international transfers

If your organisation operates internationally, you should think about the effect the GDPR will have. In particular, you should identify whether you need to appoint a DPO or other supervisory authority.

Where you’re transferring data to a jurisdiction, which does not have an adequately recognised data protection regulation, you’ll need to show you have a legitimate interest for transferring to any such jurisdiction. You could be liable to pay a fine of up to 20 million euros or 4% of your annual worldwide turnover for non-compliance.

If you’d like any support or advice about data protection or privacy matters, or would like to arrange an appointment to see one of our Solicitors, please contact us on 01908 660966 or feel free to email me on Christopher.Buck@franklins-sols.co.uk.

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Back in the 1980’s, photographers Barry Levine and Neil Zlozower took many photos of American heavy metal band, Motley Crue, during their rise to international fame. The pair claim the photos were used as part of the band’s farewell tour, without their consent. We discuss the importance of Copyright law…

The photos

Motley Crue has sold over 100 million records worldwide and had a string of hit albums, including the chart-topping 1989 album, Dr Feelgood.

Since 2014, Motley Crue merchandise, including t-shirts, crop tops, vests, stickers, flags, patches and even baby grows, with photos taken by Levine and Zlozower, have been printed and sold. The sales of the goods lead to the band making more in merchandise sales than ever before. Levine and Zlozower insist they didn’t give their permission for the photos to be used, and are suing for a percentage of the profits.

The photographers maintain that they own the copyright to the photos. So what’s the likely outcome? That will heavily depend on the agreement made at the time, and whether Levine and Zlozower were employed to do the work, commissioned to do the work, licensed the rights to the work or sold the rights to the work.

Copyright explained

Copyright arises automatically and protects artistic output, so it requires no registration. Generally, it prevents the unauthorised copying of a work for the lifetime of the author, and for 70 years after the end of the calendar year of the author’s death.

For a work to be protected by copyright it must be original, recorded and should comply with the requirements of the country of first broadcast or publication, and/or those of the permanent home country of the author.

Infringement of copyright can be categorised into primary and secondary infringement. Primary infringement includes providing work, or details of the work, to the public and making copies of it. Secondary infringement is where copies of the work, which infringe the rights of the rights owner, are provided and where they are imported.

Levine and Zlozower are claiming to own the copyright of the photos used on Motley Crue’s merchandise, and that the band has infringed their rights by producing and selling items with their work on to the public, without their consent.

Commissioned work

It’s a common error of commissioners to assume that, as they’ve paid a contractor to undertake work, they own the work’s copyright. This is in fact not the case under UK law. The copyright of work produced by a contractor for a commissioner is owned by the contractor, unless there’s a written assignment of the work.

It’s worth discussing ownership at the time the work is created, to prevent disputes, such as the current one between Levine and Zlozower and Motley Crue. This then allows for any assignment of rights or licensing, and makes for a clearer representation of copyright ownership. Where there’s no legal assignment, there may be equitable assignment inferred. But it’s still always best to deal with ownership from the outset, to prevent disputes and potential breaches further along the line.

Remedies available for breach of copyright

The following remedies are available where Copyright is infringed:

• injunctions
• costs
• damages – this is the most common remedy sought
• delivery up/destruction

If you have any queries about copyright law or need advice, please contact our Intellectual Property department on 01908 660 966 or email me directly on christopher.buck@franklins-sols.co.uk

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Taking client data without permission is a serious matter. On 26 May 2016, Mark Lloyd, a former employee of Acorn Waste Management Limited, attended Telford Magistrates Court. He pleaded guilty to unlawfully obtaining client data, and was prosecuted under section 55 of the Data Protection Act 1998…

The case study

When Mark Lloyd was preparing to leave his job at Acorn Waste Management Limited to work for a rival company, he forwarded the details of 957 clients to his personal email address. The Information Commissioner’s Office confirmed that the documents Mr Lloyd emailed to himself contained details of clients’ personal information, including their purchase history and contact details.

Further to entering his guilty plea, Mr Lloyd was fined £300, ordered to pay a £30 victim surcharge and £405.98 in costs.

The facts

It’s a criminal offence to take client information, without permission, to a new job. Currently, the offence is only punishable in a Magistrates Court or Crown Court and by way of a fine.

The Information Commissioner’s Office has, and continues to argue, that the threat of prison, and other effective deterrent sentences, should be enforced, to prevent personal information, including client data, being unlawfully obtained.

It is essential for the eight principles of Schedule 1 of Part 1 of the Data Protection Act 1998 to be complied with by anyone who processes personal information. These eight principles are…

1. Personal data should be fairly and lawfully processed
2. Personal data should only be processed for limited and lawful purposes
3. The personal data which is processed should be adequate, relevant and not excessive
4. Personal data should be accurate and, where possible, kept up to date
5. Personal data should be kept for no longer than is necessary
6. The processing of personal data should be in accordance with the rights of data subjects under the DPA 1998
7. Personal data should be stored securely so as to prevent accidental loss, damage and destruction
8. Personal data should not be transferred, without adequate levels of protection, to a country or territory outside of the European Economic Area.

Businesses, individuals, partnerships, employers and employees all need to be aware of their responsibilities surrounding personal data and its ownership. Documents worked on and created by employees containing personal data remain the property of the employer, even when the employment ends

If you’d like further information about any of these issues or would like to arrange an appointment to see one of our Solicitors, please contact us on 01604 828 282.

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After Jeremy Corbyn complained of overcrowding on Virgin trains, CCTV footage was released by the railway company showing Corbyn walking past empty seats before seating himself on the floor. It is believed that the intention was to disprove Corbyn’s claims of a “ram-packed” train. However, there is now an investigation being undertaken by the Information Commissioner as to whether there has been a breach of data protection in releasing the CCTV footage.

Possible breach of Data Protection Act (DPA)

Inquiries are being made as to whether Virgin broke the rules of the Data Protection Act in releasing both videos and stills from the 3 hour journey from London to Newcastle. The stills and videos both showed Corbyn and at first one showed the un-blurred faces of other passengers. This image was later removed and images and videos which had blurred out the other passengers’ faces were uploaded instead. At no point was Corbyn’s face blurred out.

Corbyn appears to have been trying to make the point that trains are overcrowded. He attempted to execute this by being shown to have to sit on the floor of the carriage as a result of the busy train. Virgin has, in releasing images to the contrary, attempted to disprove Corbyn’s claims. Instead, they may find they have opened themselves up to an allegation of breach of data protection.

How may Virgin have breached the DPA?

Corbyn, as a passenger of the train, was technically a data subject and, as such, was protected by the laws on data protection.

The Information Commissioner’s Office (“ICO”) have confirmed that they “are aware of the publication of CCTV images of Jeremy Corbyn and are making inquiries. All organisations have an obligation to comply with the Data Protection Act (“DPA”) and must have legitimate grounds for processing the personal data they hold.”

Where the ICO’s code of practice deals with data protection, it is detailed that the disclosure of footage must be “consistent with the purpose(s) for which the system was established”. The code continues and goes on to say that “it would not be appropriate to place them (surveillance images) on the internet in most situations. It may also not be appropriate to disclose information about identifiable individuals to the media.”

Previous serious DPA breaches have been subject to fines of as much as £500,000. In order to avoid being found guilty of breaching the DPA you must show you have legitimate grounds for publishing images.

There also appears to be the distinct possibility that Virgin has breached its own policy which states CCTV footage will only be used to:

• “prevent, deter and detect crime;
• apprehend and prosecute offenders, and provide evidence to take civil action in the courts;
• help provide a safer environment for our staff;
• protect public safety;
• help to provide improved customer service, for example by enabling staff to see customers requiring assistance;
• monitor operational and safety related incidents; and
• assist with the verification of claims.”

Virgin have reportedly confirmed they are aware of their obligations.

If you have any queries in relation to data protection or require advice on the same, please do not hesitate to contact our experienced Intellectual Property department who would be delighted to assist. You can email me directly on christopher.buck@franklins-sols.co.uk or call one of our team on 01908 660 966.

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They say a picture is worth a thousand words, but could a photograph be worth $20 million? Matt Cardle’s songwriters claim Ed Sheeran’s 2014 song Photograph as copied from Cardle 2011 track ‘Amazing’ and are suing Sheeran. Here’s the story so far.

A Pricey Picture

It’s being claimed by Matt Cardle’s songwriters, Martin Harrington and Thomas Leonard, that Ed Sheeran’s 2014 Photograph was copied from Matt Cardle’s ‘Amazing’ in 2011.

The claim was brought in early June 2016, and it’s not currently thought Matt Cardle is a party to the proceedings. The claimants have instructed attorney Richard Busch, who recently successfully represented Martin Gaye?’s family in their copyright claim against Robin Thicke and Pharrell Williams. The pair were ordered to pay 5.3 million for copying Gaye Got To Give It Up’ 1977 hit, for their 2013 chart topper Blurred Lines.

Same Score

The claimants allege ‘The chorus sections of ‘Amazing’ and the infringing ‘Photograph’ share 39 identical notes meaning the notes are identical in pitch, rhythmic duration, and placement in the measure?. Before taking the matter to court, it’s stated that Harrington and Leonard attempted to settle the matter without the need for proceedings.

The similarities are said to be beyond substantial ‘which is itself sufficient to establish copyright infringement, and are in fact striking?.

Copyright Claims

Copyright claims can be against one person, or, as is the case above, against several defendants. It’s important to make sure that no work is infringed, and where works have been infringed, the correct steps are taken, both in ‘ where required ‘and out of court, to attempt to address any issues.

Our Intellectual Property team is experienced in both protecting and enforcing rights. They can help you where additional protection may be required, and also in claiming infringement.

If you’d like further information about copyright issues or would like to arrange an appointment to see one of our Solicitors, please contact us on 01604 828282 or send us a message via our online service.

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‘Jose Mourinho’ was recently confirmed as the new Manchester United manager as may well know. During the negotiations, it was confirmed that Chelsea still own trade marks of Mourinho’s name. So what does this mean for Manchester United and Mourinho’s name?’

The mark of a name

Jose Mourinho is the new Manchester United manager, replacing Louis Van Gaal after he was sacked, despite winning the FA Cup. But before Mourinho signed on the dotted line, it was confirmed that Chelsea still own trade marks of his name.

The club registered both Mourinho’s name and signature in 2005 as Community trade marks, meaning Chelsea own the trade marks and can use them on merchandise. It’s been said the trade mark regarding Mourinho’s signature expired earlier this year. However, the trade mark for his name remains owned by Chelsea and could be until 2025.

Whose name is it anyway?

It’s quite unusual for the trade mark of Mourinho’s name to be held by the club and not Mourinho himself. Usually, it’s the individual that holds the trade mark for their own name. And since Chelsea’s registration of the trade mark, Mourinho has managed Inter Milan and Real Madrid.

These teams appear to have found a way around possible conflicts by potentially either acquiring the rights from Chelsea, or managing the use of Mourinho’s name. It’s clear the trade marks have not prevented Mourinho managing other clubs and it appears the situation has not deterred Manchester United.

The name forecast

Depending on what has been agreed, the options available to Manchester United in respect of the Mourinho trade marks are’

1. The trade mark of Mourinho’s name could not be used by United against the exhaustive list of items Chelsea have registered ‘ in five categories according to the Intellectual Property Office ‘ from football boots to watch straps, lingerie to calculators, and aftershave to umbrellas
2. Chelsea could licence their trade marks to United, for an agreed fee, so they can use Mourinho’s name on promotional items and merchandise
3. Mourinho, either of his own accord or as asked by United, could look to buy the trade mark back
4. If United feel that they could show the trade mark has not been used by Chelsea, they could challenge the trade mark.

United will no doubt have considered these options during the negotiations. Licensing or buying the trade mark could result in large costs being agreed, but the club may have decided they are a necessary or worthwhile investment, so they can sell merchandise using the Mourinho trade mark without being in breach of it.

When dealing with trade marks, it’s important to consider ownership, renewal, and who owns the rights. Our experienced solicitors can give you advice and assistance in all areas and the process as a whole. Whether you need advice on protection or a potential infringement, our team would be happy to discuss and help you with any concerns and/or queries.

If you’d like further information about trade marks or would like to arrange an appointment to see one of our Solicitors, please contact us on 01604 828282 or send us a message via our online service.

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Musician Brian May brought a claim against a neighbour’s developer for nuisance arising from a basement development. The claim itself settled relatively early in the proceedings when May and his wife accepted £25,000 in compensation.

A cost claim followed by May for compensation against developer Wavell Group Limited. Costs Judge, Master Rowley, reviewed the costs incurred and determined that the costs sought of £208,236.54 including VAT should be reduced to £35,000 plus VAT. Master Rowley considered the costs in two stages:

• First of all cutting the cost to £99,000 which incorporated specialist acoustic expert fees and not just legal fees. These costs and the reduction he considered to be reasonable.
• He then went on to apply a second reduction  based upon proportionality. The Judge considered what costs should have been incurred proportionate to the dispute and arrived at £35,000 plus VAT, significantly less than the costs claimed.

The Courts have made it very clear that if a party to a dispute wishes to pursue a matter beyond the key issue in dispute, they cannot reasonably expect to recover their costs for doing so even if they are ultimately successful with their claim.

It continues to be important for all parties to a dispute to find solutions that are proportionate and relative to the sum claimed thereby taking a commercial view of the dispute overall.

If you find yourself in a situation needing specialist advice on a matter that may result in you having a claim made against you or you having to make a claim against someone else – please do get in touch. My team and I would be pleased to discuss your matter with you. You can reach me by email or call our Litigation team on 01604 828282 (Northampton).

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Commercial agents are entitled to either compensation or an indemnity payment when an agency agreement is terminated. Read on to find out how it’s calculated…

The Compensation Rule Book

The compensation for commercial agents is set out in regulation 17 of the Commercial Agents (Council Directive) Regulations 1993 (SI 1993/3503) (1993 Regulations).

If the agreement by all parties states that, on termination, the agent is entitled to an indemnity payment then this is upheld. If compensation is set out, or if no mention of either option is made, the agent will receive compensation. Compensation is the default rule, as confirmed in regulation 17(2).

As well as being the default, compensation isn’t capped like an indemnity payment. Indemnity payments are capped, as set out in regulation 17(4) at the average annual remuneration, which the agent has earned over the previous 5 years – or the contract term where this is less than 5 years.

Calculating Compensation

The correct way to calculate compensation is by referring to the loss of value of the agency. This can be determined by how much a hypothetical buyer would buy the agency for at the time of the termination.

In essence, the compensation is for the damage suffered, and in particular, is deemed to occur either where:

1. the agent is deprived of commission that they would otherwise have earned under the agreement; or
2. any costs and expenses incurred by the agent through performing its duties under the agreement can’t be mitigated.

The intention behind compensation is more clear cut than its calculation. The European Court of Justice has stated that each Member State can calculate compensation differently. This means there’s no maximum cap on what can be awarded as compensation. The compensatory outcome will vary depending on whether the agency was doing well at the time of the termination, and may be valued at a greater sum than if the agency was doing badly at that time.

A Compensation Case Study

The case of Lonsdale v Howard & Hallam Limited [2006] involved an agency agreement between T and A, which required 12 months’ notice of termination. It was found by the court that, further to discussions between the parties regarding A’s performance, and the possibility of termination, T terminated the agreement. As such, A, as the agent, was entitled to compensation.

The court evaluated the compensation A was entitled to by:

1. Reviewing and considering A’s future earnings;
2. Assessing the post-tax sum; and
3. Multiplying the post-tax sum by a multiplier of four.

After considering the above factors, the court held that A would be entitled to £130,000 as a fair representation of what a hypothetical buyer would have been happy to buy A’s agency for at the time of termination.

The notice period of 12 months was found to be irrelevant by the court, who stated that when calculating the value of A’s agency, this should be done under the assumption that the relationship between the parties would have continued.

The Lonsdale case outlines the factors you need to consider when calculating a commercial agent’s compensation on termination. The intention of compensation is to benefit the agent who, according to the 1993 Regulations, is the weaker party in the relationship.

If principals wish to limit the payment made to an agent on termination, an indemnity clause should be entered into the agreement, as this can be capped and provides a more certain valuation. It also avoids the default position of the compensation. Against this background, it’s clearly advisable to seek legal assistance when entering into a contract with agents. Claims for both compensation and indemnity must be made within a year of termination.

If you’re a principal or an agent and have any queries regarding commercial agencies, our Commercial Solicitors would be delighted to talk to you and give you the best advice tailored to your circumstances. You can also comment below if you would like to ask a question right now.

You can reach me by email or call our office to speak to one of my team on 01908 660 966.

Since the enforcement of the Defamation Act 2013, there’s been a decrease in defamation cases. The Act is viewed to have raised the bar when an action was made against a publisher for making false statements. On the flip side, social media cases in relation to people posting on social media sites and other forums have shot up by 38% – and that figure doesn’t include unreported cases…

Testing the law

Most defamation cases settle before they progress to a contested hearing, so the Act isn’t largely effecting the volume of work received by solicitors. That said, there is an increase in cases involving people posting on social media.

Claimants are testing the law and looking to other actions they can take. The misuse of private information, breach of data protection and harassment are on the up, and they’re not subject to the strict requirements as now required for libel under the Act.

‘Serious harm’ test

Previously, to test ‘serious harm’ the claimant had to prove there was a defamatory tendency in the words used. The Act now means the previous ‘threshold of seriousness’ is no longer used. Instead, the Act requires proof of the libel. The case of Lachaux determined claimants must prove, factually, that on the balance of probabilities, serious harm to the party’s reputation has been caused, or is likely to be caused, as a result of the publishing of the defamatory article.

Only in obvious cases, such as sexual crimes or conspiracy to murder, where they are widely published, can serious harm be inferred.

The test itself has been said to remain an unknown quantity, and will be reviewed in the Court of Appeal this November where it will be determined how the test is applied.

The effect of the Act is that claims, which would previously have succeeded, are now subject to a different test, meaning they wouldn’t be successful now. This is potentially part of the reason parties looking to bring actions are considering alternatives to libel.

The limitation date for a defamation claim – from the date of publication – is one year. This, along with the requirement to show serious harm, makes it even more difficult to make a successful claim.

Social media and the Internet

Most social media posts alone won’t meet the test required to show serious harm. The reason? Although many people posting on social media don’t seek legal advice in respect of what they’re writing, it’s not deemed to be a sufficient publication.

Although social media does produce new claims and further exposure, there’s often an increased problem where the papers feature an article relating to something on social media.

As well as looking to litigate on matters regarding defamatory posts, there are other methods solicitors take in order to deal with unwanted and untrue comments. Requests for removal can be made. Also, efforts can be made with the assistance of private investigators to establish the source of the original article or comment. This can then assist with having the article or comment taken down.

Although most social media posts won’t amount to successful libel claims, it’s always prudent to take care and consider the consequences of any article or post made online, as well as by any other means. There are instances where the person posting the comment, post or tweet for example, has a large base of recipients, where it may be deemed a sufficient publication.

This situation arose when Katie Hopkins tweeted a defamatory post about Jack Monroe in a supposed case of mistaken identity. Hopkins’ tweet was easily viewed by her some 600,000 followers on Twitter. It could also be read by anyone else who went on to her public profile. Hopkins has had proceedings issued against her further to tweeting the untrue remarks about Jack Monroe, as it’s likely to be found that in personally attacking an individual in sight of 600,000 followers will amount to a publication. Furthermore, it has been discussed that had Hopkins’ had fewer followers, but one of her followers (with a larger following) retweeted her post, then it would be deemed to have been published by the person (i.e. Hopkins’ follower) who retweeted the post (and therefore published to all of Hopkins followers too).

Claims under the Data Protection Act 1998

Claims being made under misuse of private information (tort) and the Data Protection Act 1998 (“the DPA”) are likely to rise. Claims of this nature don’t have to show they are subject to ‘serious harm’. Instead, actions are brought in relation to personal information, which has been shared without consent, regardless of whether it’s true or not. It was confirmed in the appeal courts of Google Inc v Vidal-Hall that misuse of private information is a tort, and the proof of the loss is unnecessary. As such, more claims under the DPA may continue to come about – and libel claims may continue to decrease.

Summary

Whether online or in a published article, it’s always advisable to consider the source and the truth behind any comments, posts or articles. It’s also always worth considering the likelihood of the success of the claim, or whether the claim itself is worth bringing, as the party making the comment or post may not be financially worth suing.

Our experienced team would be more than happy to assist you if you find yourself in a position of needing some legal advice on this subject. You can also comment below to ask a question.

Please do contact me, or a member of my  team by emailing me or calling us on 01908 660 966.

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​Axanar Productions (‘Axanar’) have boldly gone where no other filmmakers have gone before and raised over $1,000,000 to produce a feature-length movie set 21 years before the first Star Trek episode. Does this infringe copyright laws? CBS and Paramount certainly think so…

Course Heading for Court

CBS and Paramount are suing fan fiction writers, Anaxar, for copyright infringement.The opposition arose after Axanar released a short advertisement promoting the production. Court documents have since been produced by CBS and Paramount, which provide examples of the “unauthorised exploitation” of the original Star Trek series.

Axanar’s film is based at the time of the Four Years War – 21 years before Captain Kirk and his crew beamed onto our TV screens. CBS and Paramount are claiming Axanar have infringed the rights of Star Trek in numerous ways. And when Axanar looked to challenge the claim, the broadcasting giants responded with details of the alleged infringements, which included…

1. using names of characters and planets
2. characters wearing gold uniforms
3. displaying triangular medals on the left breast of dress uniform
4. the use of phasers, warp drive and beaming up transporters
5. portraying Vulcans with pointy ears
6. using similar Klingon make-up as in the original series
7. using the fictional Klingon language

Simple Logic?

In total, Paramount and CBS have given 45 examples where Axanar has “intentionally sought to replicate the Star Trek copyrighted works”. The Vulcan scene in Axanar’s YouTube clip alone is allegedly guilty of 12 instances of infringement. Further to making their claim, CBS and Paramount have requested that the matter be heard and decided by a jury

Axanar is supported by George Takei, an actor from the original Star Trek series, and stars of the prelude, including Battlestar Galactica’s Richard Hatch and Tony Todd. It has been argued that fan fiction is, in essence, free publicity and marketing for the original production. Axanar believes “fan films are like free commercials for the Star Trek franchise!” They also go on to say how, in fact, the fan films could be more than free commercials thanks to the social media traction as a result of new productions being shared and discussed.

There is clearly a lot of support and drive behind the fan fiction production, but this may not be enough to allow it to go ahead. Saying that, according to a recent article on Axanar’s blog, it is debatable whether CBS and Paramount may be shooting themselves in the foot by not allowing for the production of essentially free promotional material.

The Final Frontier                                                                                                         

If CBS and Paramount are successful in their argument, it could have to a major impact on fan fiction productions, both in relation to Star Trek and other franchises. The decisions made in this case will affect how fan films are viewed, especially by producers of original productions, and to what extent they may or may not be produced.

The claim for copyright infringement means it is now uncertain whether Axanar’s fan fiction production will live long and prosper.

Expert advice

It is always worth considering what, if any, implications may arise from any actions you are looking to take. Whether that is looking to produce fan fiction without infringing the rights of the original material, or protecting your own original material from infringement.

If you find yourself in a situation where you need advice on whether or not you have infringed on a copyright then please feel free to get on contact with me on chris.buck@franklins-sols.co.uk or on 01908 850 616.

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