"The court went awry, I believe, in holding additionally that the defendants “are not entitled to the fair use defense,” a holding that illustrates much that is wrong with copyright law these days.
To begin with, the fair use defense, involving a complicated balancing of defendant’s motives and purposes, the effect of the defendant’s use on the market for the original work and any number of other relevant factors, is hardly ever appropriate for disposition on summary judgment; there’s too much fact-finding required.
But more to the point, “Axanar” uses copyrighted material for a transformative purpose — creating a new and original work of art. It is not a substitute, in the market, for the original; if anything, it enhances the value of the original. This is precisely what our copyright law, through the fair use exception, should be encouraging — the production of new and original works of art that build on prior works to create something new and valuable."
