Paramount Pictures v. Axanar Productions: identifying the infringed work when an unauthorized production is set in an existing fictional universe

Abstract

The copyright status of the fictional universes that form the foundation of many interactive and conventional entertainment franchises is unclear, making it difficult to determine how to assess copyright infringement claims when the universe is appropriated for use by an unauthorized work. A recent American case, Paramount Pictures v. Axanar Productions, represents one of the only known examples of such a case that does not involve the corresponding use of major plot elements or characters from within the main franchise works. This paper uses the Paramount Pictures v. Axanar Productions case as an example of the effect that decisions about how to identify the infringed work have on both the substantial similarity and fair use inquiries. The aggregation approach adopted by the court is critiqued, and an alternative approach – treating the fictional universe itself as a copyright protected work – is suggested as an alternative consistent with existing law. However, even that approach is likely to have potential pitfalls. Ultimately, those interested in copyright as applied to multi-work franchises should be aware that this is an area of lingering uncertainty, with both the nature and the extent of the copyright protection afforded to fictional universes undefined at the current time.