AXANAR enters DISCOVERY! (Part 2)

Axaanr splash image2Last time: well, last time there was just way too much to summarize, so just click here to read it if you haven’t already.

Basically, with a trial date set for January 31, 2017 and no settlement announced yet, the case has entered the discovery phase. (So yes, “Star Trek: Discovery” now means two totally different things to CBS!)

During discovery, both the plaintiffs and the defendant must provide the other side with any piece of evidence they ask for that is relevant to the case. Witnesses are questioned (deposed), documents are collected and shared, and queries are submitted in writing requiring honest and open answers…and all this months before a jury is ever seated and the clerk says, “This courtroom will now come to order.”

The vast majority of civil cases never get past the discovery phase…believe it or not. Most cases are settled at some point before the trial begins because one side or the other either realizes 1) they can’t win, 2) settling for an agreed upon amount would cost less than a drawn-out litigation or a large punitive verdict, or 3) something comes out in discovery that one side or the other doesn’t want becoming a matter of public record.

As I’ll explain shortly, I suspect CBS and Paramount will encounter the third scenario. That said, I need to state up front that I am not a lawyer and I have no formal legal training. And although my wife is a litigator with a large firm here in Los Angeles, she refuses to discuss the Axanar case with me at all. She has simply confirmed to me that, yes, the vast majority of civil cases she handles do, indeed, settle before they reach trial.

Now, this might just be my view from the cheap seats, but Ares Studios and Axanar only date back about three years while Star Trek dates back fifty years. In other words, I suspect Alec Peters’ legal team at Winston & Strawn will be requesting and receiving a LOT more evidence from CBS and Paramount during discovery than the studios request of him.

One thing I suspect will be requested is all documentation relating to the transfer of ownership of the Star Trek copyright over the years from Desilu Studios through CBS…with stops along the way at Paramount, Gulf+Western, and Viacom. As was mentioned in Axanar’s first response to the initial legal complaint:

Which Plaintiff owns which alleged copyrights is critical to Defendants’ investigation into Plaintiffs’ claims, as it could be that the only works that Plaintiffs are actually alleging Defendants infringed are owned by one Plaintiff as opposed to the other. Plaintiffs’ joint ownership allegation is not plausible in light of the contradicting information in the Complaint regarding assignment, presenting another ground upon which dismissal is proper.

In other words, there might be aspects of the Star Trek copyright that are still owned by Paramount and not CBS, or vice versa. This will affect which studio can make money from licensing what elements. Right now, the two studios have it worked out that CBS pretty much owns everything Star Trek except for the three most recent “Kelvin-verse” feature films, which were specially licensed to Paramount by CBS for the purpose of producing movies. If it sounds kind of convoluted and confusing (and potentially messy), it is. But both studios enjoy a “gentleman’s agreement” of sorts where they don’t push the other to grab more than they have. It works for them.

But if documents produced during discovery threaten to upset that apple cart, the studios will have to think very carefully about proceeding further in the case. Any evidence produced during discovery becomes a matter of public record once the actual trial starts. And a judge’s ruling, such as, “Paramount Pictures has no legal standing to remain as a plaintiff in this case because they do not own the Star Trek copyright,” can have a potentially disastrous impact on Paramount’s ability to generate revenue from licensing Star Trek in any form. And right now, Paramount can use all the revenue it can get!

And speaking of disasters, transferring the ownership of a copyright properly is a very well-defined procedure in law. If it wasn’t handled properly along the way (and remember that we’re talking transfers dating back to the 1960s), the judge could actually rule that neither CBS nor Paramount can claim any legal ownership of the Star Trek copyright. I’m NOT saying that such a thing will happen, but if it does: triple red alert! CBS and Paramount do NOT want such a determination of their non-ownership of Star Trek to EVER be uttered aloud…especially by a federal judge! If the case is suddenly dropped (not settled but dropped) seemingly for no reason before reaching trial, chances are, that’s what happened.

But there are actually a few other things that could go wrong during discovery or at the summary judgment phase. What is summary judgment? It’s basically one side or the other asking a judge to decide an aspect of the case (or the whole case) before the trial even begins. In this way, the court and both parties can avoid the time and hassle of a trial entirely if the ruling is so obvious as to not even require a jury. To use my example above, if it turns out that neither CBS nor Paramount has the legal documentation to prove proper transfer of copyright ownership through the entire 50-year history of Star Trek, then neither party has standing to sue, and the trial isn’t necessary. The judge can make that ruling before the trial ever begins. Similarly, if it turns out that CBS owns Star Trek but Paramount doesn’t anymore, then the trial can still continue, but Paramount is dismissed as a plaintiff. Ah, law…

So what else could go wrong for the studios before the case ever gets to trial?

If you look over the infamous amended complaint from the studios, you’ll see that it lists nearly five dozen separate infringing elements from Star Trek featured in Prelude to Axanar…including the uniforms with a gold shirt, triangular-shaped medals, and the Klingon language itself! Each of these elements could present a separate potential legal damages award of $150,000…or $8.55 million in the worst-case scenario for Alec Peters. Yeesh!

So as you can probably imagine, Alec and his defense attorneys are going to want to whittle this list of five dozen violations down at least a little…and so will the judge, most likely, because each alleged violation will take time to defend separately in front of a jury. Just picture in your head the expert witness sitting on the stand, speaking Klingon, in an effort to explain that it’s actually a living language and not subject to copyright. While it could be fun to have a Klingon testify, with 56 other alleged violations to get through, this could be a very looooong trail, and the judge probably doesn’t want that.

And thus will the defense team ask for summary judgment on most, possibly all, of the five dozen violations listed. And let’s say, for the sake of argument, the judge agrees to dismiss the violation dealing with the uniforms because you can’t copyright clothing.

Stop for a moment and consider what this means. A judge has just said that CBS does NOT and CANNOT own a copyright on Star Trek uniforms! There are official licensees making Star Trek uniforms—from Halloween costumes to the amazing Anovos reproductions—and they pay tens or even hundreds of thousands of dollars to CBS for that license. Well, not anymore! A judge has just ruled that CBS doesn’t own Star Trek uniforms, and suddenly anyone can make and sell them.

Uh, oh! This trial to sue an upstart little twerp of a Trekkie making a fan film is now not only costing the studios hundreds of thousands of dollars in legal fees, but it’s also just cost CBS hundreds of thousands in licensing revenue! If I’m Leslie Moonves (head of CBS), I’m gonna tell my general counsel that he’s got some serious ’splainin’ to do!

And that assumes just ONE violation is dismissed by the judge. What if there’s more than one? What if it’s 25 different violations that are ruled not part of the Star Trek copyright? Well, now the licensing revenue impact has just potentially climbed into the millions! And this is a bell that can’t be easily unrung once it comes out of a judge’s mouth in federal court.

So once again, if there’s suddenly an unexpected settlement offered by the studios to Alec Peters that lets him off scot-free, or if the suit is suddenly dropped with no explanation, something like this has probably happened.

But what if the case goes to trial?

Well, there are a number of ways that CBS and Paramount could win the case and still lose. The first is in the amount of judgment awarded.  Remember the Chapterhouse case from part 1 of this blog where the final judgement was only $26,000 rather than millions?  What if the same thing happened with Axanar?  It’s not as far-fetched as some (including the studios) might think!

You see, that $150,000 penalty per violation is based on something known as willful infringement of copyright. But if the infringement wasn’t willful, the legal damages can be as little as $200! Check out this web page and this quote (bolding added by me):

In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

I can hear some of you typing those irate comments already! Please wait one moment and consider something. Before Prelude to Axanar was released, there were about a hundred different Star Trek fan films and series (I counted!) covering more than 250 hours over the span of four and a half decades. NONE of them was ever sued by any Star Trek copyright holder…not Paramount, not Gulf+Western, not Viacom, and not CBS. So if those other fan films weren’t sued, why should Alec Peters have assumed that his fan film suddenly constituted an infringement of copyright?

I would expect blog sites like Fan Film Factor and Star Trek Reviewed will be entered into evidence (geez, maybe I’ll get a subpoena!) by the defense.  Their goal won’t be to get all the violations dismissed (although that’d certainly be welcome by the Axanar team).  Instead, they’ll be focused toward showing that any infringement that happened was not willful (according to the legal definition I cited above, not the definition by fans rooting against Axanar).  Indeed, the burden of proof will likely fall on the plaintiffs to show how Alec had some reason to believe he was infringing…despite him meeting four separate times with studio representatives and not being told by them to stop or alter his proposed film.  It’ll be an uphill battle for the studios to get that $150,000-per-violation price tag to stick.

Of course, damages don’t have to be as low as $200 either.  Maybe the judge awards $1,000 each for 26 different violations of copyright for example. And that’s $26,000…the same award as was given in the Games Workshop v. Chapterhouse lawsuit. Suddenly, CBS and Paramount don’t look quite as scary. Maybe some Star Trek fan productions even decide to risk a future lawsuit themselves figuring that, with enough crowd-funding, they can likely cover potential minor legal damages. Meanwhile, CBS and Paramount have just risked or even lost hundreds of thousands or millions of dollars of licensing revenue for a measly $26,000 judgment and the effective neutering of their new fan film guidelines.

Another thing that could come out in trial is that Prelude to Axanar was indeed fair use because it was transformative. In other words, a documentary-style fan film would be considered legally permissible because established Star Trek isn’t presented in documentary format. If that happens, expect nearly every major fan film to switch to a documentary style like Prelude to avoid lawsuits in the future. Imagine Tommy Kraft finally producing his Federation Rising sequel to Horizon as a two-hour long documentary about the end of the Romulan War…with no risk of getting sued successfully.  If the judge rules fan film documentaries are fair use, then the door is now open to that and the genie is out of the bottle.

So even if CBS and Paramount win this trial, they could still lose. And even with a $26,000 judgment (or even $100,000 or more), Alec Peters could still win. How, you ask?

It’s been reported in a number of places that Alec Peters and Axanar director Rob Burnett are planning to produce a documentary about this whole saga, from making Prelude to Axanar to raising $1.2 million to getting sued. And no matter what happens in this lawsuit, there’s no way for the two studios to stop this ancillary project, as a documentary about the making of a Star Trek fan film is journalistic and does not violate any copyright. So yes, folks, even if we never see the final Axanar movie, Alec Peters could still have the last word.

Now, assuming Alec and Rob are still planning to make this documentary film, going to trial is actually the best possible outcome…regardless of the verdict. Trials make documentaries even more interesting and dramatic. Without the trial, the documentary ends, “And they settled the case quietly.” With a trial, either David beats Goliath or vice versa—happy ending or heartbreaking tragedy. Either way, there’s an emotional punch, and the distribution rights could be worth millions (or so I’m told by a few people in the entertainment business). So if Alec has to pay a judgment in the five- or even six-figure range, and he makes seven figures for his documentary…well, you do the math.

I suspect that, right now, CBS and Paramount can only imagine one outcome to this case: they win outright, the damages are significant, and Alec Peters and Axanar are totally ruined. (And I’m sure some of you folks reading this right now are fist-pumping a “hell, yeah!”) And that is certainly a possible outcome.

But as this editorial points out, even though there’s one way for the studios to win big, there’s a lot of ways where they win but still lose a little, and there’s a few where they potentially lose big. As discovery goes on, it becomes less about desiring the moral victory and seeing justice done and more about crunching the numbers and asking, “Is this really worth it?”

So before you start typing your comments, complaints, rebuttals, and epithets, please remember that I’m not predicting any specific outcome here, my friends…only possibilities. And as Spock said, “There are always possibilities.”

67 thoughts on “AXANAR enters DISCOVERY! (Part 2)”

  1. Personally, I don’t care if they dismiss the charges, and hand over the copyright to Peters, or find him guilty and take him and hang him from the highest yardarm. I’m simply angry at Peters, at CBS, and at Paramount for actions that have led to Star Trek: New Voyages/Phase 2 shutting down. The whole bunch of them- Peters, Paramount, CBS, Viacom, Gulf Western, Desilu, all of them- can simply ESAD.

    I’ve lost any faith in anything Star Trek at this point.

          1. Don’t count on it. I’m dealing with my wife gone for two weeks to the Philippines and the drama of her company and the airlines screwing up just about everything, a father in law who just had a stroke, and trying to keep my MiL treading water until she can get things on her own plus my brother just losing his job. You have no idea how long the last week has been for me.

      1. “Someone should come back and read my blog tomorrow!”

        Why? Are you going to speculate on how we (STNV) feel about it?

    1. I was almost there with you, then my inner Klingon woke up and got angrier than usual.
      Now I just want to make a Star Trek music video with as much open defiance toward C&P as I can cram into it.

    2. I read various articles that indicated that Star Trek Deep Space Nine was a rip off Babylon 5 so if there are any notes proving concerted efforts to rip off Babylon 5 it may result in the lawsuit not going to court

      1. Nice dream, Borg, but not too likely. Even B5 creator J. Michael Straczynski commented that he didn’t think it was a blatant rip-off. At a convention appearance I attended in Springfield, MA back in 1992, JMS commented that he felt that the Paramount “think tank” was probably seated around a table trying to come up with an idea for the new Trek series, and someone suggested a space station. That someone may or may not have been part of his pitch years earlier, but even if they were, they probably weren’t thinking, “Oh, I’ll just take that other guy’s idea.” And even if that is what they were thinking, it’s unlikely anyone else seated a the table knew of his pitch 5 years earlier. They probably just thought it was their colleague’s idea and ran with it. And of course, the similarities weren’t all that egregious. Most were just generalizations that couldn’t likely have been copyrighted for uniqueness. When all was said and done, JMS was classy in not making an issue out of the similarities.

        As for the Axanar lawsuit, there’s little chance of a smoking gun because, back in 1992, almost no one used e-mail. Things happened at meetings and on phone calls. There’s likely no paper trail tracing the origins of the DS9 concept and linking them to the B5 pitch back in 1987. And even if there were, it would likely be a “So what?” moment. B5 is over and done. The deed is more than 25 years past and likely beyond the statue of limitations to file a claim.

        There’s a lot that could go wrong for the studios in this Axanar lawsuit, Borg, but a B5 rip-off scandal, I doubt that would be one of them.

        1. The basic concept of DS9 actually came from Brandon Tartikoff, head of Paramount at the time, who said he wanted Berman to make “The Rifleman” in space- a new sheriff and his some come to a small town on the lawless frontier.

  2. NO! Spock would have said,….
    ” Fascinating!?! ”
    I read with an excitement about this case, I’ve longed for, THANKS !
    I was positively giddy. And, oh man, what a documentary it will be too. I don’t want CTO get ahead of myself, but, maybe the settlement even allowed Axanar to be made in the end. The Studios have to be off their rockers to not capitalize on this whole affair too. If I was running them, heck, I’d even offer to help in any way possible. Think of that monumental goodwill it would generate. Well, time will tell.

    And, the whole time I was reading, I kept thinking of ALL the people the Studios will need to divert to dig up the massive amount of historical data, likely filed away in ten’s or more of places, still on PAPER! ROFLMAO!
    No wonder Alex is not too bothered about the whole affair. This just got a whole lot more fun.

    Sorry Axa-haters LOL !

    1. Make no mistake, Alec Peters is absolutely bothered about this lawsuit. He and his legal defense team are taking everything VERY seriously. I’d love to do an interview with Alec, but the lawyers are keeping a tight rein on any commentary from Alec and company. I’ve spoken with Alec, though, and he has anything but a flippant or over-confident attitude at the moment. He’s determined, of course, and showing a heck of a lot more backbone that I probably could in the same situation. But don’t assume that Alec is treating this lawsuit in any kind of casual way; he’s not.

      1. Sorry, but of course you are right.
        I did not really mean that Alex is not being serious, but only that his typical positive outlook on life enabled him and the other guy to envision making lemonade from the lemons he was given. There’s a saying in political circles: “never let a bad situation go to waste” (paraphrased)

      2. Could one outcome be that CBS/Paramount lose the franchise altogether & if so who WOULD get it? would it be a free for all Or could the prize go back to The Roddenberry estate & NBC?

        1. Very interesting question, but I suspect we’ll never find out. If it’s looking like there is even a chance this judge could make that ruling (and CBS will know if it’s looking iffy on the paperwork side), you’ll see this case dropped faster than a warp core on overload.

        2. Since NBC only purchased the show from Desilu who owned Star Trek Roddenberry sold all interest in Trek long ago. Desilu was purchased by what turned into Paramount Television. And when Paramount and CBS split, CBS got the copyrights from 1960 forward: Its (Desilu) entire library is currently owned by CBS Television Studios. The pre-1960 library is copyrighted to CBS Broadcasting, Inc., while CBS Studios, Inc. holds the copyrights to the 1960s library (previously copyrighted by Paramount Pictures Corporation).

  3. …a very thought-provoking and seemingly complete analysis of the POSSIBILITIES – thank you! =)

    I love Axanar, but I think it is doomed (as envisioned); the (attempted) making-of documentary should be quite interesting tho! Micheal Moore-esque i hope! =P

    Attn: CBS / Paramount – you are making me hate you over your handling of this! I am ready to leave you behind for a better future!

    the fans (IMHO) should leverage the studios to drop the suit in exchange for the death of Axanar. Axanar should then regroup and start over with a new show: Roddenberry Trek Re-branded.

    They don’t own sci-fi, and they don’t own the concepts promoted by GR. Maybe call it “Solar Warden”? Vulcans become Nordic Inner-Earthers (advanced spiritualists), Klingons become the Draco Reptilians (negative agenda) allied with the Nazis; with anti-gravity and portal technology instead of warp drive! YES! =D

  4. I’m curious if Paramount and CBS have looked at Beyonds less than stellar profits from the North American market and put two and two together and thought….HEY….I wonder if this lawsuit has pissed of a segment of Star Trek fans who refused to go see the new movie because of this??

    I personally am one of those fans and quite a few of my friends who are Star Trek fans also refused to go see the movie.

    So Paramount/CBS….from my city alone your lost revenue from at least 10 people that I know of that didn’t buy tickets to go see Star Trek Beyond. I would think at least the same goes for countless other cities across North America and indeed the entire of the world.

    So again Paramount/CBS….who is really the loser in all of this….that’s actually a toss up in my opinion. Not only did I miss seeing a movie I really wanted to see, I’m watching a franchise get picked apart by the greed of corporations…which is one of the many things Star Trek as a series (and vision of the future from Gene Roddenberry), was against!

    Going after your fans like this is just plain stupid…and we’re ALL going to lose because of it.

    1. I haven’t seen Beyond either, and it had nothing to do with Axanar.
      The Kelvin time line, or Abrams-verse, or whatever they’re calling the reboot just plain sucks. Add in the Fast&Furious and it just gets worse.

      Along with other armchair litigators, I’m convinced CBS/Paramount is fighting a long, losing battle. Sure they might win, but lose the war in the long run with loss of revenue, profitability and credibility.
      A good deal of Star Trek’s traditional fan base has lost interest in anything the studios are putting out, squelching any possible way to create a fan film in such a heavy-handed and inconsistent manner may just alienate the rest.

    2. It’s also possible that fans have realized that these soulless Abrams effectaculars contain less genuine Trek over six hours than Prelude has in 20 minutes.

  5. I’m a Star Trek fan that loves all good efforts at Star Trek fan films. I also recognize that Star Trek is an IP developed to make a studio or two some money and it’s copyright needs to be protected. My only major concern has been the future of these fan endeavors. Besides more official Trek (looking forward to future TV and movies), I want to see more fan-films produced by people who love the show. Could have CBS/Paramount have handled things differently? Yes. So could have Alex and Anxanar. (I’m also not a lawyer so my opinion is just as flat as the next fan observing this) Unfortunately we are now looking into this legal quagmire and wondering what the output will be.

    I’d like to thank the author for making this a neutral article (and very well done). I’ve had enough of the pro/con forces butting heads online. With how slow the legal process is, I’ll be returning to this blog for informative updates. LL&P

  6. Talk about a crap shoot on the part of CBS/PARAMOUNT. You have put in plain English everything I have had rolling around in my head since December. To think that they would take this gamble is amusing. When the bean counters walk into their respective offices and say “we think you need to re-evaluate this case”, … I just wish I could be a fly on the wall. They have stepped on their Johnson’s and just have not felt it yet.

  7. If their goal is to protect Discovery, CBS may want to drag this out as long as possible before dropping it late this year.

  8. Jonathan,

    You’re forgetting the other way Alec can make money on this fiasco, namely, to insist CBS/Paramount STRONGLY ENFORCE the guidelines AS CURRENTLY WRITTEN and then rent out the sets in Ares Studio for anyone who wants to make a fan film for as many minutes or hours as they can afford on the bridge of the “SSU Inspirator” commanded by “Crick” Sirebit, First Officer Cops (an alien from the planet Elf), Chief Medic Yocim, with bridge team Aruhu, Ulus, Vokech, and Master Chief Engineer Toscy as they fight a bunch of bad guys in space whose names also happen to be reversed from their TOS Trek counterparts.

    There’s where the money is: set up an alternate universe and define fan guidelines where Paramount/CBS CAN’T sue because everything was changed from the TOS original, but the audience still gets that ‘Crick’ is Kirk and the ESSENCE of the show is preserved, albeit in an alternate presentation. Everyone can write their own universe, of course, but if Alec is the first to write the bible for this ‘new’ universe, then if all subsequent creators use this same Rosetta Stone for future fan productions then all audiences will be accustomed to the same universe and will be more willing to see every new production that comes along. It might be worth another 10 million or two in its own right.

    Just a thought.

    –DR

  9. You missed a few points with the clothing. Logos can be trademarked, even if it the uniform can’t be copyrighted, some of the Starfleet insignia’s are trademarked (some are too simple to trademark) and would still need a license. I Think Axanar went through a lot of trouble to avoid trademark issues.

    Also one of the exhibits from C/P used images from Star Trek Phase II and and not Axanar of Alec dressed as Garth.

    Some of the Costumes worn in Prelude were the purchased originals, the judge could rule that the rights to use the items in production transferred with items. A large number of movie props and costumes are sold and reused in the industry.

  10. First of all, the questions about copyright transfers or changes of ownership were all dismissed outright by Judge Klausner when the Motions to Dismiss were denied. He stated that the current copyright filings were enough so all of your speculation is for nothing.

    Secondly, where exactly did you get your information about how CBS licences Star Trek to Paramount for the movies? What is your source and can it be verified? I really hope Mr Peters isn’t slipping you confidential court documents from discovery.

    1. When a judge doesn’t grant a dismissal of a lawsuit, John, he/she isn’t saying that everything in the dismissal pleading is invalid. He/she is simply saying there is enough of a question that the court should hear full arguments rather than just dismissing them outright. You should expect the transfers of copyright ownership to play a very significant part in both discovery and, if the case goes to trial, in court in front of the judge and jury.

      As for CBS and Paramount’s licensing arrangement, it’s covered in many places on the Internet, but here’s the first hit I got when I googled it:

      1. From Judge Klausner in the denial of the MTD:
        “To establish copyright infringement, Plaintiff must demonstrate “(1) ownership of a valid
        copyright, and (2) copying of constituent elements of the work that are original.”
        Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
        Defendants argue, on several grounds, that the Court should dismiss Plaintiffs’ claims
        for failure to plausibly allege copyright infringement.
        Both parties do not dispute that Paramount and CBS own the copyrights to the Star Trek
        Copyrighted works. Plaintiffs have identified the copyright registrations for the first episode of each television series and the registrations for each motion picture. (FAC App. A, ECF No. 26.)”

        This is saying that both parties (meaning Alec’s lawyers and the plaintiffs) have already agreed who owns the copyrights and that’s enough. Bringing this up again at trial will only piss him off and he apparently doesn’t suffer fools gladly.

        Your reply was missing a link. I’m not going to google it myself, you made the assertion so you can back it up.

        1. Alec’s defense team is very familiar with this judge, John (they’ve argued in front of him many times–such is not the case for the New York-based Loeb & Loeb lawyers who usually argue in front of the 2nd circuit, not the 9th), so I’m certain the Winston & Strawn attorneys are quite aware how to proceed. (Did you know that this judge was the same one who who ruled on the “Stairway To Heaven” copyright lawsuit? Infringement, indeed!)

          Anyway, I’m just commenting on what was brought up in the original motion to dismiss, which was the defense’s “confusion” about which plaintiff owned which copyright. That means they can, during discovery, request any documentation on the transfer of copyright ownership dating all the way back to the late 1960s. If any of that turns out to be inadequate to prove the studios actually own Star Trek (or that CBS does but Paramount doesn’t), do you really think Alec’s attorneys are not immediately going to request a summary judgement from the judge and ask again for the case to be dismissed on that ground? If so, I’m sure glad you’re not MY lawyer! 🙂

        2. Again, the dismissal of a Motion to Dismiss, or a Motion for Summary Judgment, is not a final ruling on the merits: any and all issues there raised may be raised again at trial- iunless a Motion to Dismiss is actually granted, which hasn’t happened in this case.

      2. Jonathan: At the Motion to Dismiss stage, the Judge is required to view all evidence in the light most favorable to the non-moving party, according to the Federal Rules of Civil Procedure. In essence, the judge looks at the Plaintiffs’ case as if every single word of it were true, and if there is still some fatal flaw remaining after that, only then would the motion to dismiss the case be granted. An example of such a flaw would be that the Plaintiffs lacked “standing”, or the right to sue. If you sued Axanar over copyright infringement, and you showed reams of evidence that it was all deliberate, your case would have to be dismissed because you have no standing to sue–you don’t own Star Trek, so it doesn’t matter if you’re 100% correct. The law does not allow you to sue unless you can show standing.

        Incidentally, that’s precisely what you were talking about when you said the discovery phase can be a minefield for the plaintiff. I wrote about this in a blog for Krypton Radio a few months back. If CBS suddenly finds the copyrights were not properly assigned each time the companies merged and split, there is a very real chance the chain of ownership will be broken, and the copyright on TOS could vanish, if the assigning entity no longer exists. That probably wouldn’t affect TNG and later series, but throwing the door open on TOS would be a bonanza of epic proportions for fan films–and we’ll have one man to thank: Alec Peters.

  11. At this point, as a result of this tyrannical lawsuit, I’ve pretty much lost the last interest I ever had in Star Trek. Paramount should have approached this differently, with a “cease and desist” order with maybe a confidential explanation, instead of pissing off their primary clientelle by trampling on them with a lawsuit.

    It’s so sad that our legal system has boiled down from being about Justice and Liberty, to being about personal gain, Greed, and Power over what people can [or can’t] do with their passions.

    I may watch Beyond when it comes on TV, and I’m not at all interested in Discovery.

    The article about Discovery vs. Axanar in Star Trek chronology tempered me down a bit, but it’s really too late. The way that Paramount has used Big Gov/Big Biz tyranny to trample the zeal and creativity of the fans continues to piss me off. The utopic and hopeful future of Star Trek has become fascist and oppressive to me. Star Trek leaves a sour taste in my mouth.

  12. Re: “Prelude to Axanar was indeed fair use because it was transformative. In other words, a documentary-style fan film would be considered legally permissible”…

    If this is true, then why don’t they just make “Axanar” as a documentary-style fan film? Wouldn’t that be the logical thing to do at this point?

    1. If the judge agrees with the fair use reasoning, then that is precisely what I think you will see! Likewise, I might try to talk Tommy Kraft into doing the same thing, since I REALLY want to see “Federation Rising”! 🙂

      1. hmmm… i doubt that the judge would go for that =P

        …plus, documentary works for a promo, but not sure it would for feature or episode?

        THAT steps too far away from “Star Trek” format, for me… 😉

        1. So here’s the thing, Not Herbert. There’s two genres that are covered completely under fair use: porn (anyone for AXXXanar?) and educational. (The latter is good news for Starship Grissom, by the way!) But that doesn’t mean the rest are all NOT fair use. Is a documentary “educational” to count as fair use? If not, is it different enough anyway from the original? That’s for a judge and/or jury to determine, but I’m guessing the legal team will at least take that shot.

  13. As a 40k fan and player, the chapter house lawsuit is something that I got to be very familiar with. So when I heard the same legal team that represented chapter house was representing Axanar, I flipped my assumptions about how the case was going to go, as Axanar has an actual chance fighting this. My thoughts are that if this goes to trial, and thats an if, it will end up similar to the chapter house case. It will be a “victory” for CBS, but not a resounding one.

  14. What makes you think that Fan Passion overrides the Right of CBS or Paramount or both to make money off their IP? Do you get that any Fan Production can undermine the Audience for Officially made stuff?

    I get Trekkies didn’t like the last 10 years of any Trek on TV and some people like or dislike the Kelvin verse but this doesn’t give us the right to say we own Star Trek and we can Dictate to CBS and Paramount what can or can’t be done .

    CBS and Paramount want to grow the Trek Audience this means going beyond the Loyal fan base in the process they may piss off some of the old Guard but this is a business decision not about hate for what has come before or hate of the fan base.

    Axanar is a Nich thing with-in Trek, your basically creating this for the Core Base and Pandering to them alone and saying we should be able to make money off our fan based Star Trek, we need to have no Restrictions on what we do, Alec at one point to sell the project called it better than the stuff the IP Holder were making this doesn’t make them play nice, I get it, many people like the Berman Era, they like the feel, but you know what times change and tastes change, I as a fan can Accept the Kevin verse and all another form of Trek cause I believe in IDIC, are Fan Flim fine, most of the time yes, but when you start crossing lines that could harm the Offical Stuff Paramount and CBS make it makes it makes me Uncomfortable cause you’re spitting in the eye of those who have given us Trek for over 50 years of Trek, I Get it you want to keep the Era you like alive but CBS and Paramount as a Business has to have Trek go where the Tastes go, and where they can make the most bang for the buck with new audiences not just the core base, this isn’t about hating the fans, it’s about the fact that projects like Axanar undermine the Profitability of Trek made by CBS or Paramount.

    For everything Star Trek is too us the Fans, to CBS and Paramount it is still a Business..

    1. Some (including myself) have argued that fan films make the franchise even more profitable by drawing eyeballs to the property in an excited and enthusiastic way. Think of Axanar as a 20-minute long commercial for Star Trek that didn’t cost the studio anything to make and that attracts millions of views. If Axanar didn’t exist, fans would be spending those 20 minutes playing a video game or reading a blog or vegging out in front of the TV or viewing a cat video. Instead, they’re engaged with Star Trek for those 20 minutes. The studios can’t afford to market and advertise Star Trek 24/7, but with fan films, the studios are benefiting from this creative and loyal segment of Trekkers.

      So that’s just another way to look at it from a business perspective…in this case, the business of marketing outreach, publicity, and public awareness. That’s not the same “business” as a lawyer looks at, so both arguments can be thought of as valid in their own way.

      1. To many Fans, Star Trek is more than a TV Show, but to CBS And Paramount it is a Business, anything that Underminds that Business doesn’t help it in their view, it creates Competition where there doesn’t need to be any.

        I get we have Passion for Trek, but that doesn’t mean we own it, Anymore then my Passion for the Cubs means I own the Cubs, IP Holders have the right to make money off their IP and say who else gets to as well. IF you have a Passion for Trek then Sell your skills to those who make offical Trek.

        1. As I said earlier, Bill, part of the business equation of Star Trek is marketing and publicity. Fan films offer copious amounts of both to the studios…for free! I used to be a creative director of a company that developed marketing websites for major Fortune 500 companies like Disney, Nestle, Transamerica Asset Management–the list goes on quite a bit–and the one thing that was always a goal was to have users spend time on our websites because that meant time interacting with that brand. The Willy Wonka website, for example, used to average 20 minutes per user visit, and Nestle paid hundreds of thousands of dollars a year for fresh content. I can only imagine how ecstatic the marketing people at Nestle would have been if Wonka fans were making their own commercials for Nerds and Gobstoppers and Laffy Taffy and encouraging people to buy those products.

          Business has many moving parts, Bill. If you look at only one part, you might miss opportunities for growth, revitalization, and expansion.

          1. I LOVE Laffy Taffy!! ‘specially banana… but I can’t eat sugar anymore…

            I used to love the GIANT Gobstoppers too! heh! =D

            Happy Star Trek Day, Everybody!! Long Live (Real) Star Trek!! =D

          2. The problem is what does Ananar add too Trek for Paramount or CBS? How is it helping the Brand? doesn’t it partly pander to the core fans who don’t like what CBS and Paramount did, how does that help them?

          3. Without trying to sound too flippant in my response, Bill: “Well, if you have to ask…” 🙂

            But seriously, what Axanar and other fan films with millions of views add is something called “engagement with the franchise.” In this cluttered, Internet-digital-TV-app-music-social-media-filled cacophony of a society in which we live, a media property is constantly competing with a thousand, thousand different properties and activities to gain the consumer’s attention. So if Axanar and Continues and Renegades and all the rest didn’t exist, would those users still be doing something related to Star Trek in that vacuum? Or would they be talking about “Rogue One” or Marvel films, or the next video game release? Or would they be watching cats on Youtube?

            Time not spent viewing, supporting, and/or discussing Star Trek fan films is time the fans get can distracted by other franchises. An God forbid they get too distracted…

            Anyway, if this didn’t explain it to you sufficiently, I’m pretty much out of Marketing 101 lectures I can give at this point.

      2. Jonathan, really? Not cat videos…fainting goat videos. IN fact, probably what I will be doing during “Discovery”….

    2. Bill Peters is a classic protector of the (corporate) status quo =(

      Bill Peters worships profit, and does not understand IDIC =(

      this POV does NOT align with the core values of Star Trek.

      therefore, it is rejected.

      1. Wow…and YOU know what the “core values” are somehow? Because it seems like people like you want some kindergartner deciding the future of Trek. Instead of the studio that owns the peroperty. Movies are a business, but fan films are supposed to be a “love letter.” Sine you can’t seem to distingguish between this, you need to shut up. Just shut your pie hole and go back under the rock where you ave been hiding.

        1. I’m approving this post conditionally, Cecil. Telling someone to “shut up” is not acceptable on FAN FILM FACTOR. We each have opinions, and should respect others who choose to post here…even if their opinions don’t match our own. Feel free to disagree and debate civilly. But if I see outright rudeness like this in a future comment from you, Cecil, I will NOT approve it and it will vanish into the Internet aether. So please be respectful of others here. Argue if you must, but be respectful.

          1. Doesn’t have to be Landru-level civil, but doesn’t have to be FESTIVAL!!!-level either. (Jayden and I watched the first half of “The Return of the Archons” tonight.) 🙂

  15. My position might be selfis and a little bit narrow minded. But I just what to see more and more great Star Trek content. I do not care for gready studios that make medicore films that do not hold to legacy (and yes I consider first two “New” Star Treks medicore that is my opinion I am entilted to it 😛 – heve not seen newest one, do not know if I ever will). If people can coudfound something awsome – power to people! Even from economic standpoint this big firms could get nice revenue out of it. So yest this film is not making money. But what about all the related stuff that can be made and sold. New uniforms, models, figures… Just name it. To sum it all up. I dislike how boig corporation like enteties are holding progres. If there are technical posibielieties to create awsome films that are not same old boring Hollywood stuff we are force fed recently I would be delighted. So I hope Anaxar wins this big time. I know chances are slim but hey, guy can hope.

  16. Jonathan, overall excellent summation and analysis of possibilities. It seems the Axa-haters seem to want to just lay Trek to the altar of business. That it is all about the money, and it is “property”. I agree with the idea of ownership, but when the “property” has migrated through so many owners, and the whole basis of it’s success is the mythical universe that is the “property”, a transformation occurs where it ceases to be “property” and becomes a wider social structure. There is so much Trek influence in things today (like, say, the flip phone?) that the logic of property could be extended into a huge number of devices and technology. The “property” logic breaks down when you start drawing lines saying “well the communicator was a flip phone, but a flip phone is not aa communicator”. It all breaks down over time.

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