Bombshells begin in discovery phase of AXANAR lawsuit! (Part 2)

Axaanr splash image2Yesterday, we began discussing the two documents filed by the opposing parties in the Axanar copyright infringement lawsuit last Friday.  (There’s actually three documents, but more on that later.)

Both of the new documents are significantly shorter than the 60-page Joint Stipulation document from the previous week that argued for and against the court to compel the studios to produce a boatload of documentation related tot he case.

While the plaintiffs’ supplemental memorandum was only a page and a half and repeated most of what they argued previously, the defense’s supplemental memorandum used the full five pages permitted by the court.  When last we left off, we were talking about President Gerald Ford.  No, seriously.  Go back and read yesterday’s blog, and then come back here to see how team Axanar‘s strategy is becoming much clearer now…

The Gerald Ford lawsuit was a verdict for the plaintiff in a copyright infringement case Harper & Row Publishers v. Nation Enterprises that went all the way to the Supreme Court.  In it, the justices ruled that, in determining fair use, the potential financial damages to the marketability of the infringed property must be the primary consideration.  All CBS and Paramount have to do is show that Axanar is damaging their potential market for Star Trek, and–WHAM!–no fair use defense.

Or maybe not.  The Defense isn’t planning to make it quite that easy…

First, there are a number of important differences between the two cases (and not simply that Gerald Ford is no longer alive).  Most notable is that the financial harm done in the 1985 lawsuit was specifically because the memoir had not yet been published and, by stealing even a small part of the memoir (arguably the most compelling part) and publishing it first, the work became significantly less commercial since it would no longer be a surprise revelation.

Conversely, Star Trek has already been around for 50 years, and it’s already been VERY lucrative for the studios.  It’s hard to imagine a 20-minute fan film (no matter how professional it looks or how many millions of views it gets) stopping Star Trek from making money…lots of money.  Unlike Ford’s memoirs, Star Trek beat Axanar to the general public…by 48 years!

And this leads us to the second and much more interesting quote from the defense in addressing this case:

The Harper court further held that a copyright holder must “establish[] with reasonable probability the existence of a causal connection between the infringement and a loss of revenue…”

That’s a biggie because it shifts the responsibility squarely onto the shoulders of the plaintiffs to show exactly how Axanar caused or will cause financial damage to Star Trek.  The studios can’t just give a vague answer either, like “Fans will likely watch Axanar and this not watch our new series.”  The studios will have to prove that causal relationship…and I can’t imagine how they’ll manage to do that.

And here’s where we get to our next bombshell in the case (we had three bombshells yesterday)…


BOMBSHELL #4: THE NEW GUIDELINES MAY ACTUALLY HURT THE CASE FOR THE STUDIOS!

(Okay, I can already hear many of you starting to type angry or challenging comments at the bottom of this page.  Please hear me out first.)

As I was just saying, in order to negate the fair use defense, the plaintiff must show a direct, causal link between the existence of Axanar and financial damages (or potential damages) to Star Trek.  So let’s switch for a moment to Vulcan logic mode.  Logically, one would assume that neither CBS nor Paramount would knowingly do anything to cause direct financial harm to Star Trek.  (And no, you can’t say that letting J.J. Abrams direct Star Trek counts as causing financial harm…mainly because the 2009 movie was a blockbuster hit.)

So assuming that the studios would not do anything to harm their own brand’s marketability, then why do they allow ANY fan films?  If there’s even the smallest chance that fan films could make Star Trek less marketable, then don’t allow them at all!  But the guidelines do allow them.  In fact, by having such guidelines, the studios are endorsing and even encouraging the practice.  Why would the studios do such a thing unless they realized that fan films actually have some value to their brand?

Now, before you start typing(!!!!), I know what you’re going to say: Axanar (or rather Prelude to Axanar) violates most of the guidelines.  It raised more than $50,000, distributed perks, and used professional actors and paid professional tradespeople.  Of course, so did many other fan productions, including Star Trek Continues, Star Trek: New Voyages, and Star Trek: Renegades.  By suing only Axanar and allowing those other fan productions to exist, weren’t the studios recognizing the value of those other fan productions?  So why not recognize the value of Axanar, as well?

BUT!!!  You say that those other fan films will need to adapt to the new guidelines in order to continue?  Fair enough, but then, if those other productions were given the opportunity to adjust themselves to follow the new guidelines, why not give the same opportunity to Axanar?  Why sue first and ask questions later?  And remember that Alec Peters approached the studios on four separate occasions to see if he was going too far.  Each time, they said, “We can’t tell you.”  One would assume at least some of the other fan films did likewise (and have publicly claimed to).  Again, why was Axanar specifically targeted and not, say, Renegades…which raised $375,000, offered perks, paid industry professionals to work on their production, and cast Star Trek veteran actors to reprise their roles?  Renegades was even 90 minutes long while Prelude was only 21 minutes.  This is not meant to single out or pick on Renegades (I was a donor!), but it begs the obvious question: “If the studios allowed Renegades to be made without taking legal action, then how was Alec Peters to know he’d stepped over some invisible line if the studios refused to tell him?”

And thus are we brought back to whether the infringement was willful or non-willful, a distinction I covered in more depth in the bottom half of this previous blog.  So not only do the guidelines suggest the fan films might actually be valuable to the franchise (making a claim of monetary damages from Axanar less believable), but simply by the studios now officially allowing fan films, it adds to the claim that Alec Peters had a reasonable belief that he was not infringing…since the studios are now allowing for fans to infringe on their copyright with the studios’ blessing and the studios are likewise not forcing the existing fan films to be pulled off of YouTube.


Now, if you’ve been reading carefully, you might have noticed something: I’m litigating the case!  I shouldn’t be doing that at this early stage, as we’re still in the discovery phase, and the only question before Magistrate Judge Charles Eick right now is whether or not to compel the studios to produce more documents for discovery.

So why am I arguing the case itself in this article?  Because both the plaintiffs’ attorneys and the defense team are doing it, too.  In other words, they started it!  But seriously, if you read all of the documents filed over the past couple of weeks, you’ll see a LOT of arguments sneaking into the discovery phase that should be saved until the trial.  And since both sets of lawyers were making those arguments in their filings, I wanted to include them here, as well.

However, the defense did realize that their true goal was to convince the magistrate judge to compel discovery, so Erin Ranahan made sure to conclude her argument about other fan films and the guidelines with this to-the-point statement:

Defendants are seeking information regarding Plaintiffs’ treatment of other fan films that could demonstrate that Plaintiffs recognize the promotional value of fans creating their own fiction—a fact that can be inferred by the very existence of the fan film guidelines, and may be bolstered by other internal documents.

Defendants’ expert(s) cannot analyze such documents for this purpose if Plaintiffs refuse to provide them to Defendants.

Hard to argue with that.  And as for bringing in the Harper (Gerald Ford) case as a way to get out of providing discovery documents (something the plaintiffs tried to do on pages 24, 26, and 29 of the  Joint Stipulation document), the defense deftly countered that strategy with this very simple response:

But Harper assessed the merits of fair use—not discovery—and does not justify Plaintiffs withholding this basic discovery at this stage.

A fair point to make that the Harper case isn’t even relevant in the discovery phase.  Granted, it’s still up to the magistrate judge to make the final decision, but I am sure both legal teams will be arguing hard in court.


BOMBSHELL #5: THE DEFENSE WILL BE USING THE PLAINTIFFS’ OWN WORDS AGAINST THEM

Okay, this one isn’t a true bombshell– more of a landmine–and I listed some examples of this in Part 1 of this blog.  Here’s a couple more places where the plaintiffs may have hoisted themselves on their own Picard, er, petard…

So one of the main arguments that the plaintiffs used in not turning over documents relating to the guidelines or the e-mails to and from J.J. Abrams and Justin Lin was that nothing that happened after the lawsuit was filed is relevant to the case.  After all, Axanar was served way back in December, and the guidelines weren’t announced until the following June.  How could such things have possibility influenced what Alec Peters thought or did?  The same is true for any discussions that J.J. Abrams and Justin Lin had after the suit was filed.

Sounds solid and reasonable, right?  Well, as I said, the defense is NOT going to make this easy for the plaintiffs.  Check out how Erin Ranahan responded to that argument from the plaintiffs:

Plaintiffs argue that statements made after the lawsuit was filed “could not possibly” have any bearing on Defendants’ state of mind in creating the works at issue in this action—and yet this action is admittedly about one Axanar work that had yet to be created at the time the lawsuit was filed.

In other words, if the studios want to lump in the full Axanar movie (which hasn’t even been filmed yet) with what they’re suing Alec Peters for, well, then they’re talking about something that happened (or will happen) after the lawsuit was filed.  Oh, there was a 4-minute “Vulcan scene,” but the lawsuit doesn’t limit itself to only that.  They reference the full script and the potential damages this full-length feature could cause the studios.

But the plaintiffs can’t have it both ways: arguing for potential future damages while cutting off all documentation at the moment the lawsuit was filed.  Either the financial damages are capped at whatever happened before December 28, 2015 or else the studios have to allow for discovery of documents from December 29 forward.

The next example of the studios accidentally putting their collective foot into their mouth was actually something I brought up in my blog about the previous filing.  The Plaintiffs make a big deal about Axanar NOT being a “fan film.”  But then the defense noticed something that I also noticed:

Plaintiffs’ insistence that Defendants are somehow not a fan film is especially curious considering that Plaintiffs objected to the use of the phrase “fan film” as vague and ambiguous in discovery responses.

So I suspect it’s likely that any attempt by the plaintiffs to define Axanar as NOT being a fan film will be swiftly objected to be the defense.

And I saved the biggest bombshell for last…


BOMBSHELL #6: THE PLAINTIFFS LIED TO THE COURT IN THEIR FILINGS!!!

Oh, that is NOT good!  And it’s not a little lie, either.

In both the Joint Stipulation document and in the plaintiffs’ supplemental memorandum the plaintiffs make one particular claim over and over again (the following is taken from the second sentence of the latter document):

Defendants failed to meet and confer.

Oh, really?  Then how do the plaintiffs explain this defense declaration and exhibits (also filed along with last Friday’s supplements)?  This filing contains an e-mail chain between Axanar lead attorney Erin Ranahan and Loeb & Loeb attorney David Grossman (for the plaintiffs) that took place starting on September 26 and continued through October 4.

In the back-and-forth exchange, the two lawyers discuss an in-person meeting that happened back in June (in the main memorandum, Erin Rahanan confirms to to the court that the specific date was June 21) as well as their latest in-person meeting on September 8.  Nowhere in the e-mails does Mr. Grossman dispute that the two meetings happened.  And yet, in both his filings, his team stated to the court that the defense refused to meet in person and confer, which is extremely prejudicial in front of the magistrate judge.  Pants on fire here, people!

As for the content of the e-mails themselves, you are welcome to read through them yourself (start from the bottom–oldest–e-mail and read them upwards to the most recent).  I personally found them fascinating and eye-opening…especially when I realized that my own wife (also an attorney at another firm) has to deal with this kind of passive-aggressive confrontation daily, as well.  It’s not an easy life to live, and my heart goes out to both my wife and to Erin Ranahan.  (Not so much to Mr. Grossman, though, but I’ll leave it to you to decide who’s bullying whom.)


So what happens next?  A week from tomorrow (on October 21), lawyers from both sides go into the U.S. Ninth Circuit Federal Courthouse on West Temple Street across from Los Angeles City hall and argue the the motion to compel discovery in front of the the Honorable Charles F. Eick, magistrate judge for the Central Division.

Judge Eick will most likely have already looked over all of the filings closely, and he’ll probably ask both sides some very pointed questions.  There will be lots of arguing by the attorneys, I’m certain.  Then Judge Eick will make his ruling, which will become public record, on what documents–if any–the studios must provide to the defense team.

Because the discovery period ends on November 2, there will only be about 10 business days for the studios to produce whatever discovery items are required by the magistrate judge.  Depending on how much they are compelled to produce (and it could be nothing, a little, or it could be a lot), it’s possible the studios will ask for an extension, which could delay the trial start date until sometime later than January 31, 2017.

But we’ll have to see what happens.  And when it does, you can expect I’ll write a ridiculous amount about that, too!

181 thoughts on “Bombshells begin in discovery phase of AXANAR lawsuit! (Part 2)”

  1. Before the Lawsuit, when talking to other fans, Axanar made us excited for it self and revitalized interest in the Studio Trek.
    The lawsuit and not following through on JJ’s comments about dismissal diminished interest in the official studio trek.

    The damage if any seems to have been done by the CBS&Paramount Legal teams. The Plantiff’s case would have to be because Axanar existed they made us decide to hurt ourselves….

  2. Gee if the trial gets moved back does that mean the studio is gonna find another excuse to delay the premier of STD?

  3. Thanks for these posts Jonathan, they’ve been quite insightful (and much better than having to read legal-ese myself!). I do have a question for you regarding CBS/Paramount’s not providing any details re: potential financial harm caused by Axanar/fan films in general. If [generally] only those items produced during discovery can be entered into evidence during trial, and if CBS/Paramount don’t produce any financial information, what’s to stop Ranahan from arguing for fair use on the grounds that there’s no financial harm while CBS/Paramount and stuck unable to counter that claim since they’ve produced no documentation proving otherwise? Phrased differently: is it the defendant’s obligation to prove that there are no financial damages, or the plaintiff’s obligation to prove that there are? Thanks!

    1. Excellent question(s), Dave, and to be honest with you, I don’t know the answers. In theory, and according to the filings of last Friday, the onus is on the plaintiff to demonstrate a causal link between the infringing item(s) and the original property. So in that way, if the studios don’t produce their “proof” during discovery, the defense could object to it being brought up during trial. But the judge could conceivably say, “Well, I’ll allow it anyway…” leaving the defense to bring up their objection again during appeal (assuming they lose). Or the judge could sustain the objection. But there’s always a risk of things going badly when an attorney doesn’t know what’s coming. There’s an old saying in litigation, “Never ask a question that you don’t already know the answer to.” (My wife told me that one.) So it’s better to know ahead of time everything that the opposition knows so you can ask them the “right” questions that you know they’ll answer in a certain way. And if they don’t, then you say, “Well, doesn’t this e-mail you sent on May 2 contradict what you just said?”

      But as I said, I don’t know enough to properly or confidently answer your question. I can only conjecture that there must be a really good reason for the defense to so aggressively go after all the discovery documentation that they can.

      1. Jonathan, I had a small civil lawsuit against my neighbor (who had 300 alpacas on 3acres and never picked up any manure for 4 years) as a nuisance, and went through all these steps. I also had that eye opening experience of discovery, since State Farm had agreed to cover their defence (for some insane reason, they then filed suit against both of us to bail out as none of it was covered under a homeowners policy). The local lawyer did the same to us, asked for the moon , got a rock, and we did the same and got 2 rocks. The thing I found out, was a judge can admit anything they damn well please in court, as 45 of our exhibits we had not provided to them and 5 of theirs (all 5 at all) also were allowed. So, maybe in the big leagues they have stricter rules, but the door is always wide open, and the Judge can actually drive the whole case (allow all of Axanars stuff and none of CP’s, or vice versa). That is one reason I learned, “Never, ever, ever sue anyone for anything”. It became a huge money drain, they filed bankruptcy, we won 140K judgement, and I spent 20K killing their bankruptcy. I hope Axanar and Alec don’t have the same luck we did, but I do not hold the legal system even in low regard, nor our corporate masters and their minions. Everything argued so far seems to back up my belief that fan films are a brilliant “pro bono” bonus to any brand, if used wisely. The right thing to do is to have a corporate person who is competent in the brand, act as a liasion and help those fan films and guide them, then if they are real genius’s, pick the best and make deals to develop them into their own work. Had CBS allowed Axanar, and it had been the success it promised, they could have co-opted it, and created Axanar:The Series or some such, and put that up with another series built in the JJ verse, and then attracted both camps of ST fans. The fact they cannot fathom such marketing skills shows that their management is not very savvy, nor fan centric, and the dude who did the radio show podcast was blowing smoke (I would say a liar but that might be rude), up the fans collective rears. How there can still be the “defendants of CBS and Freedom” who rant about Axanar and Alec’s efforts after this is indicative that they are not working fom a base of logic and facts, but of emotional and corporate insecurity. Thanks for another well written and executed analysis.

        1. One of the reasons that 95% of lawsuits settle before reaching trial is because litigation is so expensive! Lawyers can bill upwards of $500-$1,000 per HOUR!!!! I read recently on another blog that CBS and Paramount wouldn’t quite or settle this case due to the cost because they are each corporations valued in the billions of dollars. That may be true, but they still have expenses that must be accounted for, and departments have budgets If CBS and Paramount spend $150,000 on legal fees in this lawsuit and the judgment is only for $25,000…someone’s gonna get a talking to, regardless of how much the companies are worth. And worse, if CBS suddenly loses the rights to their Starfleet uniforms and/or the Klingon language, that affects future licensing revenue. If I were the studios, I’d try to settle ASAP.

          In the meantime, Alec Peters lucked out in getting representation pro bono. The studios assumed that they could come in like a wrecking ball and make Alec pee in his pants. Most fans would have because they wouldn’t have been able to afford a decent legal defense. So the studios somehow managed to make the absolutely worst choice in deciding which fan film producer to sue.

          1. The legal fees would probably be closer to 1.5 million than to 1.5 thousand especially if appealed all the way to the supreme court. The cost might even be more than 1.5 million if appealed all the way to the supreme court. If they lose their rights to starfleet uniforms and/or Klingon language they could lose millions and have nothing to show for it.

          2. The studios’ legal fees are already likely in the hundreds of thousands, so an appeal would likely take them to a half million. Not sure if this’ll ever make it to the Supreme Court, but ya never know! Hopefully, we’ll be back to nine justices by then. 🙂

          3. i kenny Smith, as a star trek fan, for many years. i to would go after both cbs and paramount studio who want to try to stop us for have any thing to do with star trek. as a veteran of 66 yr old. will do my best to keep star trek alive as long i am liveing. to the lawers of cbs be real care full of not going after a lot of trek fans. you will fine out we can boy cout your cbs stuido in hollywood ca. as my home town is LA CA.
            i know my way in town by walking and by bus. i also know how to read a phone book real good. i also know how to track down people by keeping track by where or witch way you live at in LA?.
            please let everyone to read this and please keep this on this site for others to read this please.
            i like star trek and axanar for standing up for the little people who don’t have a voice.
            p.s if any one like to talk with me here is my email
            get2it88@yahoo.com

          4. I am approving this post for only one reason: I want to state publicly that FAN FILM FACTOR does not condone any kind of personal threat to ANYONE…even implied. While organizing a protest campaign like SMALL ACCESS threatens studio revenue, it does NOT threaten any employee of CBS or Paramount in any way. Note that I only published publicly available corporate addresses for the seven studio executives to whom I suggested we mail the Focus Group Report. I did not even include e-mail addresses, and I certainly did not look through the phone book for home addresses.

            In the future, any comment even implying any threat to anyone personally–be they studio executive, fan, or anybody–will be immediately deleted without getting posted.

  4. Remember that this decision will set precedent for all such entertainment franchises. Star Wars, James Bond, Harry Potter et al, will be subject to the same ruling. If Axanar wins in district court, look for Disney and Warner Bros to file amicus briefs on appeal.

    1. Not necessarily. Disney is very pro-fan films when it comes to the Star Wars and Marvel franchises. Warner seems to be equally unconcerned about the DC universe of superheroes. James Bond has already passed into the realm of quasi-public domain, so Sony is probably out. Warner might have an issue with Harry Potter, although that usually comes more from JK Rowling than the studio. I suspect the other studios are closely watching this case, but not in a fearful way. In fact, I wouldn’t be surprised if the marketing departments at the other studios were looking at what CBS and Paramount were doing as a guide for what NOT to do. But we’ll see.

      1. I enjoy reading your posts. Great fun discussing this with you.

        Remember, the distinction between “fan film” and “independent film” is not a legal one. CBS/Paramount may choose to define fan films differently than Disney, or vice versa, but one does not affect the other because they are not codified. Rather, they are marketing choices made by the various IP rights holders as to how much infringement they will allow before pressing their rights in court. My understanding is that Lucasfilm has actually been very restrictive towards their fan film community. Sure, they’ll celebrate and promote your fan works but only if they fall within the limited guidelines. Try to make a Star Wars version of Axanar, however, and we’ll see how friendly Disney is towards them.

        There is no “quasi-public domain”. Perhaps you’re referring to the fact that the character and the book-specific elements that define him has entered PD in several countries. This is effectively irrelevant for us in the US since any PD use of the character would be limited to those countries.

        I think that every studio in Hollywood is watching this case very closely, particularly those with major money-making franchises. In fact, I’ll bet that the studio PACs and trade organizations are already lobbying congress to tighten-up copyright protections to protect them from the next Axanar.

          1. Actually in the US too. The first James Bond book is now past its copyright expiration date (which I believe is either 50 or 75 years since published, in US copyright law). It’s been over 75 years since the first one was published.

    2. CBS/Paramount will appeal no way around it they’ll have to and everyone who has a copyright will join the suit because they will want to protect what is theirs period. And who can blame them, seriously would any of us want something we owned used without permission. You might let someone you know and trust use your car, but that doesn’t mean you’d let someone you don’t trust use it.

        1. No I do understand the appeals process not trying to argue with you. Simply because some one doesn’t agree doesn’t mean they do not understand or are wrong.

          1. My apologies, Brenda. I didn’t mean to sound so critical or accusatory. Please let me explain what I meant. You said, “CBS/Paramount will appeal no way around it they’ll have to and everyone who has a copyright will join the suit because they will want to protect what is theirs period.” No one gets to join a lawsuit on appeal. The plaintiffs and defendant remain the same as in the original case: CBS, Paramount, Alec Peters, and Axanar productions.

            And even if other copyright holders wanted to sue Axanar separately (such as other studios like Disney or Warner Brothers), they would not be able to because they do not have standing. In other words, Axanar does not directly affect their properties…even if it sets a legal precedent concerning copyright ownership and fair use. The only way other copyright holders could move to protect their interests would be by lobbying Congress to change the current copyright laws or add new ones. In fact, that’s how copyright laws became as strict as they are. Copyrights used to expire much sooner than they do today (75 years after the death of the creator, I believe).

            But no, no one can join the suit at this point, Brenda.

      1. Brenda, and pigs fly on wings of silk. Star Trek has been around long enough to have established itself as a pervasive force in society, up to and including a space shuttle, many decices made after the ideas in it, and so on. You simplistic statement indicates the “wonderlandf approach” to this issue. There are a myriad of issues in copyright. Just because you own the copyright to a body of work does NOT give you total, absolute ownership of anything and everything involved with it. That is one of the basic issues here. Do I have the right to make a Star Trek movie of my own, using the Star Trek Universe, if I never mention or use any of their existent material. If I create the adventures of the USS Neversail, and her crew of incompent idots, and all their adventures, does CBS immediately own it? That is eesentially where this is at, it needs to be settled, either out of court (which will probaly never happen now because CBS/P do not want any precedent set), or in court. The car analogy is completly meaningless in this case, it has nothing to do with “trust” I wouldn’t trust a corporation 2 nano meters with the way they have treated fans, or the franchise. Your argument is also false in the face of the fact CBS has produced NOTHING in 10 years to “protect what is theirs” or the “use what is theirs”. They essentially abandoned it to the tender mercies of the fan films, another reason this needs to go to court. It goes to many, many other pieces of IP that is “copyright” today. If you want to see what happens when this is allowed to drift around, look at why MS made W10 the way it is, 2 Billion licenses lost in China because of lack of enforcement, and that was a clear, unambiguous case.

        1. Whoa there, cowboy! Copyright law DOES allow CBS/Paramount to keep full ownership of Star Trek…even if they’d made no new episodes or movies since 1969. Harper Lee wrote and published “To Kill A Mockingbord” back in 1960 and didn’t publish another novel until 2015. That 55-year gap did not for one second constitute an abandonment of her copyright on her original work.

          1. I understand that. My point was, an argument that “they are protecting their IP” from something that does not even exist as such, is much weaker when they have not used that IP, and have allowed others for 10 years to use it to their no doubt provable profit. Had there been no fan films, I believe an argument could be made that they would have needed a lot more advertising to reach an audience. Disco will tell that tale. In fact I wonder if they have a connection between trial schedules and release? Anything done for profit off a copyrighted wrk is very risky, the grey area is when it is fan based, and declared non profit, noin charging from the get go.

      2. No other companies can join this particular suit. This suit is specifically about the actions of the defendant, with regard to the plaintiff. If the defendant has also violated other company’s copyright, then those other companies will have to file separate suits, or together as a class action. But this particular suit is about one specific incident.

  5. I have also read Janet Gershin-Siegel blog a lot the last joint motion and one on this. Her’s has a copy of the motion including exhibits of letters and emails from both firms. While this has a certain entertainment value, it is long on personal opinions on short on non bias facts.

    1. Brenda, are you saying that I’m short on non-bias facts or Janet is? Janet isn’t short on anything, I must say, although I mean that in a good way. She is ultra-thorough, just snarky enough to keep it all interesting, and the best cure for my own guilt whenever I worry that I’m writing blogs that are way too long!!! 🙂

      (For anyone wanting to check out Janet Gershen-Siegel’s excellent analyses of the Axanar case and documents, here’s a link to the edge of the rabbit hole.)

      But I wouldn’t call Janet unbiased. Indeed, she frequently (and often, it seems, mercilessly) mocks the defense rather than simply criticizing them. I tend to simply criticize (although my “pants on fire” comment crossed into mockery…but that’s the exception that proves the rule, IMHO).

      In the end, I see Janet and myself as opposite sides of the same blogging coin, balancing out each others’ biases. We’re both intelligent people and above-average communicators. We’re both whimsically funny. Janet’s got the legal smarts while I have the perspective of a non-legal lay-person. That’s why she gets into all the nitty gritty detail while I tend to fly the plane a little higher. In some cases, that means she sees things that I don’t. In other cases (like understanding why previous fan films are relevant to determining willful versus innocent infringement), I’m seeing something that she isn’t…or if she is, she isn’t including it in her analysis.

      So my recommendation: if you have a LOT of free time, read BOTH blogs and you’ll be the smartest kid in the room! 🙂

      1. No Jonathan I am not saying Janet is short on facts, I just read her post about the latest filing including emails and what I am saying is she is an attorney granted retired, but in good standing with the Bar. And in her blog she has copies of the brief including actual exhibits and you can read the emails Ranahan and Loeb and Loeb attorneys exchanged. I just find it interesting to be able to read actual documents is all.

        1. Yeah, I didn’t include all the e-mails, as they weren’t critical to my reporting. Also, I’d already written nearly 5,000 words over a 2-part blog. I didn’t want to overload my readers.

    1. Oh, that’s easy! In fact, if I were the defense, I’d depose me. Small Access is made up of both pro- and anti-Axanar Star Trek fans planning to either watch Star Trek: Disco in groups with a single designated subscriber or boycott it entirely. We also had a lot of people in our group saying they would boycott Star Trek Beyond. They were not doing so because they saw Axanar and decided not to waste their money on studio-produced “real” Star Trek. Instead, they were rallying against the new fan film guidelines issued by the studios.

      So if the studios claim that Axanar cost them money, the defense can bring up Small Access and ask, “How do you know the financial damages were due to Axanar and not to your release of guidelines that angered many fans?” From that point on, any conclusion that the studios try to draw about a causal relationship being Axanar and financial damaged can be called into question. This would be the civil law equivalent of “reasonable doubt.”

      And thus would Small Access actually be quite useful to the defense. (Maybe I should e-mail Erin Ranahan…what do you think?)

      1. Jonathan, since CBS and Paramount are stating lost revenue because of Axanar and that I’m sure we’ve all seen individuals swear they are boycotting the network and studio and never buying any official Star Trek anything unless and until they drop their suit against Axanar. And Small Access’ goal, if I understand correctly, is to limit the number of individuals who subscribe to CBS All Access there by limiting their potential revenue. Does this not feed into the Plaintiff’s claims?

        Let me say in all fairness I have never seen any of the Axanar production staff encourage the boycott.

        1. The plaintiffs need to prove a direct causal link (that’s from the Supreme Court ruling) between the existence of the infringing product and the loss of revenue from the original work. So in the case of that Gerald Ford memoir, Time magazine was paying for an exclusive right to first publication. The Nation magazine published the excerpt first and, in so doing, removed Time magazine’s opportunity to be first to publish. Without that incentive, Time pulled their offer from Harper Publishers and refused to pay them $12,500. So the infringing action by the Nation directly resulted in a loss of revenue of $12,500 for Harper.

          So let’s say that CBS and Paramount decide to argue that Star Trek Beyond took in way less at the box office than the previous film (like, $100 million or thereabouts). Now, they probably can’t blame Axanar for all of that revenue loss (after all, they did a piss-poor job of marketing the film). But let’s say the studios try to pin at least $1.2 million of losses on Axanar, saying that the money donors gave to the the crowd-funding campaigns would have otherwise gone to buying movie tickets. This is just a hypothetical, by the way.

          Now, imagine you’re the defense and are trying to convince the judge that this is hogwash. Well, then bring up Small Access! Our raison d’être is to protest the guidelines. Both Axanar backers and Axanar detractors joined Small Access, and their reason was not Axanar but rather anger at the guidelines. So anyone on Small Access who threatened a boycott of the movie wasn’t doing so because they’d spent their money donating. They were making a protest statement about the guidelines. And if that’s true, then the causal link among fan film fans is not between the existence of Axanar and the failure of Star Trek Beyond but instead between the issuing of the new guidelines and the failure of Star Trek Beyond. So as I said in an earlier response to someone’s comment, if I were Erin Ranahan, I’d bring me up on a stand as a witness for the defense.

          1. And you don’t thing all those Axanar supporters vowing to boycott CBS/Paramount won’t help the Plantiffs case? Because as Rob has put it we’re making a better movie than anything the studios have produced to date will hurt? I recently saw a screen shot where Alec was asked if it was OK to boycott, his response was ” absolutely”.

          2. Most of the boycotters I’ve read the comments of have listed their reasons as one (or more) of three things:
            1) They’re pissed off at the fact that the studios sued a fan film.
            2) They’re pissed off about the guidelines (which were issued by the studios).
            3) They feel that the JJ-verse movies are not true Star Trek…or they just plain suck.

            In none of those examples (except maybe, obliquely, the last one) does the blame for the boycott rest on Axanar’s shoulders. In the first two cases, the studios did something to rile the fans to actively revolt. In the third example, you could argue that Axanar was good and true Star Trek that the fans wanted to see, and that’s why they’re boycotting. The only problem with that logic is it ignores the other half of the equation: Paramount and JJ Abrams produced three movies than certain fans didn’t like (and two of those movies predated Axanar).

            The problem for the plaintiffs is that they have the burden of proof to demonstrate a direct “causal link” between the existence of Axanar and lost revenue. If the three reasons given by fans for the boycott include two that are solely the responsibility of the studios themselves and one at least half or more is Paramount’s fault, it will be challenging to sustain their burden of proof. They might still convince the judge–anything is possible. I’m just saying it seems unlikely.

        2. Brenda, was Small Access in existence when the lawsuit was filed? No. Was Axanar in existence when the lawsuit was filed? No. There for, could they have impacted anyone’s revenue? No. All is in reaction to the lawsuit, and as such is what happens when you leave pizza on the stove and the dog turns the stove on. You earned it. I joined Small Access because it was SOMETHING to get back at people who seem to have no concept of marketing, using the tools they are presented by the media fairies, or understand their customers and clients. They are a big corporation that is seemingly staffed by people who do not understand how markets work, as well as the passion Trek engenders in fans. If they did, there would have been more shows made after Enterprise, instead of relying on the same fan films they seek to kill, to keep the interest alive. Axanar can not have impacted CBS financially because there WAS NOTHING TO IMPACT! Paramount is the only one with such a claim, and with their JJ Verse, they broke Trek into 2 distinct entities, and since Axanar is old Trek, is not part of their revenue stream. To prove this, Axanar needs the audit trail of data, and Paramount needs to provide it. Without it, their claim is a wisp of smoke.

          1. It is true that Small Access did not exist at the time of the lawsuit, Brian. And if CBS/P want to argue that nothing post-December 28, 2016 counts in this case, then Small Access is inadmissible in this case. However, I doubt the judge will stipulate to that, especially if the studios are arguing that the making of the full Axanar movie would impact them directly on a financial level. They can’t have it both ways.

            As for whether CBS knows what they’re doing when it comes to Star Trek, that’s kinda irrelevant, Brian. They can treat the franchise any way they want to; they own it. Making a TV series is never a slam-dunk. Just because Trek fans think a new series will do well doesn’t mean it will. And because a new series will require a $30 million investment (or thereabouts), it isn’t a decision made lightly by the studios. There remain a lot of very sound business reasons for NOT making another Star Trek TV series…and a lot of good business reasons FOR making one. Neither decision is easy or obvious.

          2. I guess it will come down to what a jury believes. After all Ranahan is trying to prove Axanar didn’t affect the income for Beyond, yet I’ve seen where Axanar supporters have taken credit for its poor showing in the US.

            You really believe these statements aren’t falling into the hands of the Plantiffs?

          3. Brenda, I’m trying to follow your logic here….It seems you are trying to say that people who have claimed or are claiming to boycott CBS & Paramount Star Trek productions due to them suing Axanar helps the plaintiff that brought the suit. That doesn’t make sense to me, as any potential boycott effect was brought about because of the filing of the lawsuit, not because of an as-yet-unproduced fan film.

          4. It does when the defendants encourage a boycott, I had until a couple days ago never seen any of the Axanar folks promoting the boycott. A friend showed me a screen grab where anAxanar fan asked if he should still boycott the Plantiffs and Alec said absolutely.

            I was surprised as I had never seen him say anything to the contrary .

          5. Alec saying “you should boycott” and the existence of Axanar causing a boycott are two totally different things. That said, I’ve seen Alec say on multiple occasions that he did not think anyone should boycott STAR TREK BEYOND (haven’t seen him commenting on DISCO yet) and actually encouraged people to go see it. He wrote multiple blogs saying so and even dedicated an entire podcast to the film, still encouraging people to see it.

            So if Alec said all of that and then there was one example of someone asking “Should I boycott?” and Alec saying, “Sure, if you want to,” I don’t think that’s enough to convince a judge that AXANAR–or even Alec Peters–cost the studio money. At worst, him telling one person to boycott DISCO might cost the studios a few hundred dollars…maybe. But certainly not thousands or millions. Heck, I’ll be lucky if SMALL ACCESS costs them $60K over the course of a year, and I’ve been nursing that campaign for four months! Alec answered one post on Facebook buried deep inside a discussion.

          6. Brenda, the case is about copyright infringement. What the plaintiffs need to prove in order to determine it was willful infringement (as Jonathan has covered before), is show that Prelude and the as-yet-unproduced movie did financial harm to their productions. As far as I know, any boycott, regardless of whether Mr. Peters has expressed tolerance or approval, that has come about as a result of filing the lawsuit in the first place would have no bearing on that.

            As for this screenshot you say you were shown, I’d need to see the full context. What I do know is that Mr. Peters has gone to great lengths to encourage people to see Beyond on the Axanar Fan Page, and drew quite a number of critical responses from people as a result. As Jonathan notes below, what you were shown was apparently an answer to a question in a comment thread. If he was actively advocating boycott, surely everyone paying attention to this case would have heard about it long before now, as he does not strike me as a man who does things smally and quietly.

  6. It doesn’t really matter which side anyone is really on, the tactics in use by the studio are dirty and it makes me want to side with Alec.

    Maybe it is like watching a thief get dragged into court for stealing a peppermint toothpick from Benz dealership.

    1. Lawyers can be pricks, but it’s part of the job. And it doesn’t always hurt them in the courtroom. I certainly don’t like what I’m seeing from the plaintiffs, but the judge might. Ya never know!

    2. In defense of the studios, I don’t think that they want to force Peters into bankruptcy. They have to ask for top dollar for each infringing element, but that doesn’t mean that they intend to collect. If, as I suspect, Axanar loses, the plaintiffs will likely only seek three things from the defendants: 1) the immediate shuttering of any and all business entities that benefitted from funds raised from infringing IP, including liquidation of tangible assets, 2) agreement to reimburse in whole those donors who request it, and 3) a signed agreement stipulating that all further financial penalties will be deferred as long as defendants never come within 100 miles of using CBS/Paramount IP ever again including “legal” fan films.

      Of course, I could be wrong.

      1. No, you’re not entirely wrong. In fact, I suspect you’ve been talking to some of the same industry insiders that I have, James. 🙂

        That said, you need to define “lose.” A $26,000 judgement against Alec Peters would be a loss, certainly, but it wouldn’t really be a win for the studios. And if it costs them licensing revenue, which I strongly believe it will when things like Starfleet uniforms and the Klingon language are ruled outside of their copyright holdings, the studios actually could end up losing quite significantly.

      2. Studios won’t ask donors be reimbursed but I can easily see the other two being enforced.

        Reimbursement will only come if enough diners complain to the Attorney General of CA. And who knows what will come of that.

        1. Don’t be so certain that reimbursing all of the Axanar donors wasn’t part of the studios’ requirement for a settlement back in May and June. But I’m saying nothing more than that, Brenda.

  7. To see my Comments about Bombshells 1 through 3. Click http://fff.trekbloggers.com/2016/10/12/bombshells-begin-in-discovery-phase-of-axanar-lawsuit-part-1/#comment-910

    This will be my last comment on the Harper Case because …. frankly it’s just silly that it’s being used in this way. All this only matters if Axanar first proves that it’s use of Star Trek materials was fair use.

    But onto Bombshell #4…

    Wow, it seems the Axanar Legal team has a rather odd infatuation the Market Damages… but anyway. Point is how does CBS/Paramount’s Guidelines change the damage that Axanar may or may not have made to CBS/Paramount? None. 1stly damages that other people/groups may or may not have inflicted on CBS/Paramount doesn’t matter. Only what Axanar has done. 2ndly The guidelines only imply that CBS/Paramount are fine with whatever (possibly zero but untested) mitigated damages result from usage of the guidelines by fan films. 3rdly once again, market damages is only one potential aspect of damages. Your blog posts seem to indicate that it’s the be all and end all of copyright infringement and fair use when that is simply not the case.

    Bombshell 5:

    So to summarize everything in this section… basically the Axanar Legal team are saying that the Axanar motion picture film hadn’t been made yet so there’s no justification for sueing it and that CBS/Paramount basically agree with us.

    The Axanar legal team had already tried this method with Judge Kleisner with their motion to dismiss. The entire motion got thrown out, so it looks like that argument doesn’t hold any water. Though they are taking the same argument to Eich. Basically the legal version of asking dad because mum/mom already said no.

    And one other comment here. The Plaintiff’s are saying that Peters said it was an “independent Star Trek film” not a “fan film” which in other words. He wasn’t creating Axanar because he loved Star Trek, he was creating Axanar because it was something that he thought he could make money out of. In other words not fair use of Star Trek IP.

    Bombshell 6.

    To quote Inigo Montoya from the Princess Bride. “You keep using that word. I do not think it means what you think it means.”

    Out of all your usage of the word “bombshell” this might (and I stress MIGHT) be the only one that is even remotely accurate in its usage. A bombshell or a landmine, is an explosive that comes out of nowhere. It shakes up the status quo and things no longer will be the same afterwards. Pretty much everything you’ve said so far is either incorrect, suspect or simply not anywhere near as impactful as you make it seem to.

    This one however, may actually have an impact. You’ve accused CBS/Paramount of lying. I do not pretend to know the truth so I don’t know whether CBS/Paramount, Axanar’s legal team, both or neither lied. However, there is a big difference between accusing someone of lying and being able to prove it, especially in court. There has to have been meetings, and there has to have been conferings as otherwise there wouldn’t have been a joint stipulation. The question here is whether the specific matters at hand were discussed and if either side can prove their version of events or if neither version of events are accurate.

    So if neither side can prove their version, the judge should give both sides a talking to and say talk about this stuff, if Axanar can prove their version of events then CBS/Paramount will get some form of censure (not sure what it would be, or how much of an impact it will have on the broader case – my guess fairly minimal and would most likely be financial) if CBS/Paramount can prove their version then Axanar would probably would receive the same censure and the case would continue with limited impact and if the truth falls between where both Axanar and CBS/Paramount are technically right then there would probably be an instruction for a new meeting to confer about this stuff with no impact one way or another.

    So that doesn’t seem very bombshelly to me… though there is always a chance that the censure might shake things up more than I’m assuming. Though this does require that one side is able to prove that the other side is lying and being purposefully misleading to the point where something majorly negative happens to their case. Which personally I’m betting not.

    Anyway, congratulations on your “fair and balanced” blogging on a subject where you are only getting information from one side.

    1. You’re kinda overthinking this one, Andrew, so I’ll try to keep this as short an answer as I can…

      BS #4 (BS…get it?)
      Market damages are the only damages defined by law that can be measured for a financial penalty in a copyright lawsuit. How much money will the studios lose because of Axanar? The plaintiffs have indicated that they will likely ask for statutory damages, which have certain values based on the kind of infringement. Willful infringement can be an award of up to $150,000 per violation, although the typical range is $750-$30,000. Non-willful infringement can be as low as $200 per violation.

      So let’s say that the judge finds that Alec Peters committed WILLFUL infringement on 10 violations. The judgement could be as little as $7,500 or as much as $1.5 million. How does the judge decide how much to penalize Alec? Well, it depends mainly on the amount of financial damages done to the plaintiff. If the studios can show that Axanar cost them $500,000, then the judge can reimburse them for that loss by awarding them $500,000. But awarding them the full $1.5 million is punitive (punishment) and not statutory. So that’s why it’s so critical for the studios to show how much Axanar has cost them.

      BS #5
      There is a general misconception out there that Judge Klausner, by not granting the defense motion to dismiss the case, was saying that the arguments didn’t hold any water (as you phrase it). That’s an incorrect assessment. When a judge doesn’t grant a dismissal request (and few judges ever do), the judge is simply saying, “I think there’s enough here to justify a full hearing at trial.” You don’t have to take my word on this one–just ask any lawyer. Or just wait until February when the defense brings up the same points they made in their original motion to dismiss. You’ll see that I’m right on this one.

      Oh, and trying to prove that Alec Peters created Axanar as something to make money off of will need to explain the fact that the film was being distributed for free over the internet, had no other source of ongoing revenue, and also that hundreds of thousands of Alec’s own dollars have been sunk into the project. Doesn’t sound like profit to me. But beyond that, a fair use defense does not necessarily mean that no money can have been generated from the project. So even if Alec made $10 million, the judge could still determine that 1) Axanar was fair use, and/or 2) the infringement was non-willful. The fact that Alec has not only made zero dollars but is now deep in a personal financial hole just from keeping the lights on and rent paid will likely blunt any effort the plaintiffs make to paint him as only in it for the money.

      BS #6
      There’s no censure involved, Andrew. This is simply a blemish on the plaintiff as they argue in front of the magistrate judge next week. Judges don’t like being lied to by anyone, so Eick might be a little less sympathetic to the plaintiffs than he would have been otherwise. Also, the lie (that the defense refused to meet and confer) was intended to make the judge think less of Team Axanar. Judges also don’t like it when someone is falsely accused of something, so he may wind up more sympathetic to the defense.

      As for either side proving their version, that’s a done deal. The submitted e-mail chain documents the very in-person meetings that the plaintiffs claimed never happened. The proof is in the plaintiff attorney’s own words in the e-mails he wrote. So no need to prove anything–it’s been proven. The plaintiffs lied in both their filings.

      – – – – –

      And finally, I don’t understand what you mean by “only getting information from one side.” I’m getting my information from three sources: 1) the filings themselves, 2) Internet research, and 3) consultation with two California attorneys and one L.A.-based legal consultant who are familiar enough with the case to comment on it freely (albeit anonymously for professional reasons). Neither the defense nor the plaintiffs attorneys are at liberty to speak freely on the record to me (neither is Alec), so I don’t get information from one side or the other. So could you explain what you meant by your comment, as it doesn’t seem to make any sense. Thanks.

  8. All I will say is Thank you Jonathon for telling us as much as possible.I would say though that as just a regular guy doing a regular job.My Idea about “the Damages to CBS/Paramount” are being brought on about by CBS/Paramount.If they supported this like some of the other companies supported fan based work I would want to see all that is made for my Fav TV/Movie show and would support both wholeheartedly.Thats all I want.Thanks again.Cheers

  9. The only thing clear about all this is that the author is having a really great time following and telling us about the suit. It’s easy to imagine him slowly spinning in a chair and yelling, General Chang style.

    Keep going!! 🙂

  10. Yes, yes… I get it :p

    BS4:”Well, it depends mainly on the amount of financial damages done to the plaintiff.”

    Okay, financial damages are one aspect… but I don’t get why everything from you and the Axanar Legal team are focusing on Market Damages. It’s up to CBS/Paramount to produce evidence if they want those figures taken into consideration. The CBS/Paramount legal team is going to try for the 150K max, it’s their job to maximise the return from this case just as much as it’s Axanar’s Legal Team’s job to minimize or negate any payment to CBS/Paramount. So I don’t know why Axanar’s legal team are pushing for something that is seemingly working against their client’s best interest. As I’ve said I’m not American or a lawyer and I’m not privy to any plans that Axanar’s legal team has but to me it’s just baffling.

    BS5:

    Then why file the motion to dismiss anyway? If they knew it was going to fail why spend the limited amount they had?

    also “had no other source of ongoing revenue” o, rly?
    What about Axanar Coffee? The Donor store? Axanar has raised 1.5 million dollars… with most of that going to building a studio. Peters and RMB used the Star Trek IP to attract people and entice them to give the defendants their money. Peters and RMB had 2 years to create Axanar as a film. However instead of creating they film they funneled the money into their own enterprise creating resources and assets in the form of Ares… I mean Valkyri…. I mean Industry Studios.

    This was all done off the back of their association with the Star Trek IP and if I was mean I could argue that this was money that due to it’s promotion as Star Trek and the usage of IP that a significant portion of it rightfully belongs to the holders of the Star Trek IP and punitive measures based on the willful abuse of the Star Trek Franchise and other potentially shady practices including the co-mingling of funds.

    Also… while Peters may have technically donated a significant portion of his own money that was 1. After he had already taken almost 40,000 US Dollars in a salary. Which by the way is another reference to how Peters is profiting from Axanar. The donation he made wasn’t to the film (once again he drew a salary) it was so that he could continue fighting the case. As you have previously said this stuff is damned expensive. Also technically did he donate? the money came from Propworx selling off it’s material which as I said co-mingled it’s finances with Axanar. So there is an argument that could be made it was Axanar’s money already.

    There are others more skilled in determining what’s fair use and what’s not … btw… in Australia (my home) there is no such thing as ‘fair use’ so… just be glad Axanar isn’t being sued here. However, from what I could see from the Vulcan Scene and Prelude it was a faithful recreation of Star Trek aka a rip off. Now don’t get me wrong it’s a great rip off and what I saw was well executed but there’s nothing that adds to or changes it to make it more than just Star Trek aka “Transformative” and so I can’t see a judge following the fair use claim by the Axanar’s Legal team. And as for willful. Did Peter’s know Star Trek, did he do so with the intention of ripping off Star Trek, yes, yes he did. There’s just so much stuff out there saying that Peters wanted to make a Star Trek movie. That it was Star Trek, with Star Trek characters, Star Trek Theme…. basically Star Trek pouring out from every orifice of the film. Any infringements therefore had to be willful.

    Anyway that’s well and truly enough for that “BS”

    BS #6. Okay, then I was wrong… this potential maybe real bombshell turned out to be worse than all the others. This has now become completely and utterly stupid. It’s become worse than playground antics. So much for a bombshell, heck, I’d be excited even if it was a dud. As for the actual content. We know that a Meet and Confers happened.There are two questions 1. Did the Grossman/Leiden meeting count as a ‘Meet and Confer’ since those have a specific role in resolving document production issues and maybe have a specific legal meaning. Hardly IMO proved though honestly I don’t know why I am even bothering as we’ve already established that it doesn’t matter in the slightest.

    —-

    As far as the last bit and “only getting information from one side.

    Well let’s lay this out… you’ve made out that there are 6 bombshells that aren’t even fire crackers as we’ve established.

    Each of those had a clear a bias, making big things out of nothing based on the tiniest of even ridiculous slip ups. Oooo Axanar got theirs in later so that CBS/Paramount can’t respond wooo go Axanar they’re going to win this case by their accute legal senses. Sorry, a bit too much sarcasm there.

    As you said, you’ve talked with two lawyers(Let me guess, the Two Lawyers are Alec Peters – he’s a lawyer by trade you know – and Erin Hanrahan), read the “internets” which is so vague to be worthless and apparently read the additional motions. Good on you.

    What I’m saying is you have clearly not even tried to approach this blog from a balanced point of view.

    As you said “And I saved the biggest bombshell for last…” which turned out to be so minor that ants wouldn’t even notice it. If your biggest bombshell is a bombshell that in practical terms has no impact on the case what so ever then you clearly are just talking to these two lawyers then all I can say you are getting some bad information from the two lawyers that you are talking to.

    1. Whew…you are REALLY keeping me on my toes, Andrew! You’re making me earn every inch of ground. Good for you, mate–I shouldn’t be able to get off so easy! 🙂

      Okay, here’s a few more inches for you, because there’s a lot of points that I think you’re misunderstanding…

      1) Everything one side brings out in court, they other side gets to challenge. In fact, that’s kinda the whole idea behind a trial. One side says “guilty” and provides their evidence, and the other side says “innocent” and provides their evidence. Along the way, both sides get to cross-examine the others’ evidence by asking questions of witnesses and bringing out their own experts.

      Of course, it’s much easier to challenge evidence in court if you know what’s coming and can prepare for it beforehand. So if the studios are planning to say, “Okay, we know Axanar has cost us a million dollars and here’s how we know that…” then the defense is going to want to bring on experts to challenge those assertions. Such is the way of the legal system. So the more that the defense knows before trial begins, the better they can prepare their counter-arguments for the judge rather than being blindsided.

      2) Motions to dismiss are made all the time. They usually aren’t granted. Why do it at all? Why do I play the lottery every week when the chance of my wife and I winning is less than the chance of one of us getting hit with a falling piece of an airplane at some point during our lives? (Um, yeah, why DO we play the lottery?!?!) Well, we think it’s worth taking the chance for the big payoff. Had Judge Klausner dismissed the case pre-trial, that would have been awesome and saved the defense team tens of thousands of dollars or more in free legal work for Alec (his lawyers aren’t charging him–best price in town!). But just know that a judge refusing to dismiss a case does not mean–in any way, shape, or form–that the defense has already lost. If that were the, um, case, then there would never be any need for an actual trial!

      3) Okay, moving onto the “Axanar generated revenue”/”Alec Peters took a salary” arguments (which I hear a lot). I’m going to need to break these down a little further…

      3a) Axanar coffee is irrelevant to the case. Aside from the fact that the coffee didn’t contain any intellectual property from Star Trek specifically (didn’t use a character or a starship or a logo, etc.), the coffee wasn’t even included in the original complaint. Indeed, none of the perks were included. The coffee is a straw-man created by a group of Axanar detractors outside of the case as some kind of “smoking gun.” It’s neither a gun nor is it smoking, and I doubt you’ll ever hear it mentioned in the courtroom.

      3b) Axanar didn’t really have two years to make a film. They kinda suffered from cinemus interruptus when the lawsuit was filed. But just so you know, many Hollywood movie productions take way more than two years to make. And even fan films sometimes take a very long time. Star Trek: New Voyages still has three unreleased episodes that were left in either production or post-production. Starship Exeter’s second episode took SEVEN YEARS to finish. Tommy Kraft worked on HORIZON for more than three years. So damming Axanar for not producing its film in less than two years is, well, it’s just not cricket. (Did I get that idiom right, Andrew?)

      3c) I’m not sure whether or not you’re aware, but Axanar’s second Kickstarter campaign (the one that raised $638,000) was specifically for creating the studio. This is from their Kickstart page: “This first Kickstarter will be for the sound stage and set construction.” So we donors knew what we were getting, and so did CBS and Paramount…a year and a half before the lawsuit was filed! In fact, Alec even told the studios directly that he was building a studio to film Axanar–four times! CBS never said, “Hey, don’t do that!” Instead, they waited for 17 months and then filed a lawsuit. That fact will very likely be brought before the judge during trial.

      3d) Co-mingling of funds from Propworx is irrelevant, as well, Andrew. The studios can’t sue (and aren’t suing) for money that Alec took in to make Axanar which “should have gone to the studios instead.” That doesn’t count as market losses. The judgement award, if any, will be based on the number, kind, and severity of violations proven in court. Period. And the amounts will be commensurate with how much revenue the studios can prove they lost because of Axanar. Since neither CBS nor Paramount was planning to build a sound-stage in Valencia, CA, neither studio can claim that Ares Studios (or Industry Studios) was a lost opportunity for them.

      3e) Alec Peters donated approximately $50,000 of his own money to Axanar long before he ever paid himself a “salary.” And the reason I put “salary” in quotation marks is because–and you’re not going to like this, Andrew–it WASN’T a salary. I mean that in a legal tax sense. I know Alec SAID it was a salary, but that’s not the way the U.S. government see it. Ares Studios never actually issued Alec a tax form 1099 or W2. So according to the Internal Revenue Service (IRS) of the United States government, that $38,000 was NOT a salary…regardless of what Alec Peters called it. Without the tax forms, it doesn’t count as income. But because of funds Alec put into the project prior to the payout, the $38,000 can be considered compensation for paid expenses. And you’d better believe Alec Peters will be legally classifying it as such (if he hasn’t already) prior to trial.

      Now, is reclassifying the salary as reimbursement just “getting off on a technicality”? Perhaps. Or you can say that, had Alec not been flying by the seat of his pants on this project and doing almost all of the accounting himself, he’d never have made the mistake of calling the $38,000 a salary in the first place…because technically it wasn’t a salary. He’d never paid taxes on it. And why would he even want to pay taxes on it if he didn’t have to? Consider it any way you want to. The fact remains that, in the eyes of the legal system and the IRS, Alec never received a salary from Ares Studios, regardless of any statement he made to the contrary.

      By the way, self-funding start-up costs for a fan film is not unheard of, Andrew. James Cawley did it for New Voyages to the tune of $125,000 (reportedly). Vic Mignogna did it for Star Trek Continues to the tune of $40-60,000 reportedly (I’ve heard both the higher and lower number). Alec Peters previously worked with both these guys and knew that $50,000 was probably a reasonable amount that he’d have to “seed” into his project to get it going.

      4) You’re definitely not understanding willful versus non-willful infringement, my friend, so let me elaborate. And just so you don’t think I’m making this up or getting it from a biased source, here’s a link for you to check out.

      I’ve discussed this at length in previous blogs, as well, but non-willful infringement has a very specific legal standard: the infringer “…was not aware and had no reason to believe that his or her acts constituted an infringement of copyright.” This will be a HUGE point of contention during the trial! Did Alec Peters have reason to believe that his actions were an infringement of copyright? I’m sure you will say, “Of course, he did! It’s frickin’ STAR TREK, mate!!! His Kickstarter even said, ‘”Star Trek” is a licensed property of CBS and so they have the final say in any Star Trek venture.’ How can you expect anyone to believe Alec didn’t know he was infringing on copyrighted material???”

      Let’s assume you just said that, shall we? 🙂

      So here’s why the lawyers are so interested in discovery documents about OTHER fan films. Y’see, even though the studios don’t have to sue anyone else in order to protect their copyright (there is a different standard for protecting a trademark, by the way–you actually do have to sue everyone–but not so for copyrights), the fact that the studios didn’t sue any other fan production for nearly 50 years–and there have been over a hundred different Star Trek fan productions made–works in the defense’s favor. How so? Well, let’s look at the mindset of Alec Peters circa 2014 and 2015. He’d worked on numerous Star Trek fan films by that point. He’d worked with CBS professionally. He knew the landscape of fan films pretty well. He knew that CBS (and Paramount before them) had taken a mostly “don’t ask/don’t tell” approach with fan films, letting them exist, build studios (NV, STC, Starbase Studios), pay professionals (NV, STC, Renegades, Of Gods and Men), and feature Star Trek veteran actors reprising their iconic roles (same list as my last one)…and none of those productions were ever sued. So why should Alec have expected to be sued? Moreover, he met with the studios on four separate occasions to say, “Here’s what I’m doing…what do I need to do to make sure it’s okay with you guys?” And they said they couldn’t tell him.

      So all of the above will be brought before the judge by the defense to argue that any infringement done by Alec Peters was not willful because he had no reasonable expectation that the studios would treat him differently than any previous (or concurrent) fan production. Will the argument work? Well, that’s the $8 million question now, isn’t it?

      5) To answer your question “Did the Grossman/Leiden meeting count as a ‘Meet and Confer’?” Yes, it did. They met in person and discussed the issues related to the case, including which documents for discovery were available and would be asked for by both parties. So when the plaintiffs repeatedly stated in their two most recent filings that the defense team refused to meet and confer, the plaintiffs’ attorneys were lying. That is not an opinion or me getting my information from just one side and not the other. It’s just an objective fact. Now, whether or not such an action by the plaintiffs will influence the judge’s predisposition toward them in ruling on the motion to compel discovery, I have no idea. It certainly could, but that’s just my conjecture. But the lie itself is a fact…and it could be significant. Or not.

      6) Erin Ranhanan is keeping herself (quite purposefully) at arm’s length from me, and I understand that. So I haven’t pressed her on comments about the case, and she has never shared with me her legal strategies or opinions regarding the lawsuit. As for Alec Peters, here’s a copy/paste of a recent IM exchange we had on Facebook:

      JONATHAN: Hey dude. How’s discovery going?
      ALEC: Good.
      JONATHAN: Seriously??? That’s all I get?
      ALEC: Yep. I can’t talk about it. You know that.
      JONATHAN: Yeah, but I at least had to try.
      ALEC: And I have to not talk about it.
      JONATHAN: Fair enough. Good luck.

      So no, Alec isn’t my legal consultant either. Please stop trying to guess. The people I’m dealing with are not litigants in this case.

      As to whether or not I’m approaching this blog from a balanced point of you, please point to someone who is. The important thing is that I’m taking the time to explain all this as carefully as I can, Andrew, to people like yourself who clearly have some misunderstandings. It’s not your fault. This is a very complex case, and it’s clear that you’ve gotten a lot of your information from biased sources that have similar misunderstandings. It’s not surprising that you’d find the things that I say, which don’t match to your misunderstandings, to seem biased. But I suspect that, if you show these comments to someone with no knowledge of the case and no opinions about Axanar at all (a friend, relative, or coworker) and ask them–and you don’t prejudice them beforehand by telling them any of your opinions–that you’ll find that, to an unbiased person, the things I’ve written will not sound nearly as biased.

      Thanks for playing!

      1. 1) And that’s a good argument. The only problem is that it’s premature. So premature infact that I don’t think the baby has even been conceived. This is an argument for trial, not discovery. If CBS/Paramount’s legal team tried to slip in market damages, or whatever it’s called, without giving the defense enough time to process, prepare and respond at TRIAL then the surely you would have cause to for a motion then but even then it would most likely be a delay so that Axanar could. Me, I’m going to assume basic competence on the part of the CBS/Paramount legal team.

        2) I have nothing to add here, really. Axanar is well entitled to try again. We’ll just see how it turns out.

        3a) Sorry, have to disagree. These are the labels for Axanar branded coffee.
        http://i.imgur.com/KzKra03.jpg
        http://www.mobys.ws/wp-content/uploads/2016/01/TheRamirez3-206×300.jpg
        http://i.imgur.com/zTnF6xZ.jpg
        http://i.imgur.com/l7gaRTV.jpg

        I see a Star Trek race (Klingon) and I see Star Trek ships (Klingon and Federation) which could very well result in the maker of the coffee being sued as well. The Coffee says the AP and the Axanar team has no respect for licenses. I just have to point you to Dave Galantar who was asked to write an Axanar book, said no because he’s a licensed writer and then was told. “Just write it under a nom-de-plume.” This lack of regard for licencees and what’s is owned by CBS/Paramount is exactly why Peters, specifically, and Axanar in general are being sued.

        3b) Tommy Kraft worked on Star Trek Horizon by himself, on his spare time while working a full time job. He didn’t have 1.5 million dollars, he didn’t have tonnes of people working for him and most importantly he didn’t try spending Donor money on his own business enterprise. Very similiar statements can be applied to basically every other fan film out there.

        Axanar had all the advantages, it’s based in LA, if it needed a studio IT COULD JUST RENT ONE. It had all the money that anyone could ever dream of and yet still in the almost but not quite 2 years that it had. It had only made the “Vulcan Scene” a very short teaser of something that should have already been out by now.

        3c)

        “This first Kickstarter will be for the sound stage and set construction.” Strange I don’t see that saying “The first Kickstarter will be for building a sound stage”. The statement, if that is what originally intended, is at best unclear and at worst purposefully deceptive. There are costs for sound stage no matter if you are building and outfitting one, or merely renting one. As a result no one would bat an eyelid at it. Yet, they took the money and then started to build a for profit studio without even informing, let alone asking the donors if that was right.

        If you knew what you were getting in for, congratulations. There are many who didn’t.

        3d) “Co-mingling of funds is irrelevalent.” Tell that to an accountant dude. With no clear delineation between Propwerx and Axanar then all money that Propwerx has access to Axanar has access to. All things owned, bought or maintained by Propwerx was done so with Axanar money (and vice versa) this basically merges the two businesses (which should have had their own seperate accounts and managed seperately) into one. This is another aspect of what got Peter’s into trouble. He spent co-mingled funds on his personal expenditure, ie. he profited from Axanar.

        3e) That’s a rather interesting and dubious claim. The lack of a W-2 doesn’t prove anything. It could just be that Alec Peter’s was avoiding taxes. I’d have to wait to see if the IRS Audits Axanar/Peters and see what conclusion they come to before really commenting any further on this.

        4) Okay, here’s the kicker… Did he know he was violating Copyright. I’d have to say yes. Alec Peter’s had said, I’m paraphrasing (this claim was denied by CBS/Paramount but that’s neither here nor there I’m just basing on what he said) “That I was in discussion with people at CBS to make sure that I didn’t over step the mark”

        So firstly, this proves he was aware of the possibility, secondly by focussing on talking to CBS higher ups and not… say an IP lawyer… then clearly he couldn’t have been asking for a professional opinion on whether or not he was infringeing. What he was asking for (and he’s said this many times – once again paraphrased) was what would they allow me to do. So he’s asking what will get me sued, rather than what can I legally do without infringing.

        And I think the knowledge that he could get sued proves wilfulness in this case.

        5) I was asking questions. I don’t know the answer. I’ll find out when when the motions are heard. Not that it really is worthy of any further discussion.

        6) Honestly, I wasn’t really guessing, but I agree that both people I mentioned shouldn’t be talking to anyone not involved in the litigation about the litigation. I just find it strange that your legal advisors are so unflappably pro-axanar. Unless you are asking your advisors “how can this be framed to be pro-axanar”. But I’m just a random aussie trekkie.

        1. Eventually, my friend, I hope our posts get somewhat shorter. But in the meantime…

          1) The Loeb & Loeb team is very competent, Andrew, as is the Winston & Strawn team. Now, it does so happen that Erin Ranahan and her team have argued in front of Judge Klausner before while David Grossman hasn’t. And W&S does specialize in intellectual property law while Loeb & Loeb does entertainment law. The two are similar, but like firemen and policemen, there are important differences in specific expertise. As such, I’d give a slight advantage to W&S for having “home field,” but I don’t expect L&L to make many mistakes either (other than lying to the court!). 🙂

          2) SKIPPED.

          3a) I’m not sure how I can explain to you that the coffee designs aren’t infringement, but trust me, they’re not. (You’re free not to believe me, of course.) The closest infringible element is the command star in Axanar, but it is too generic of a shape to trademark (which is different from a copyright anyway). Same with the D-6, which is similar in look to the D-7 but not identical. The design of the Ares is completely original. Just because it has the same basic two-nacelle concept design as the starship Enterprise and the saucer-shaped hull, infringement doesn’t work that way. Again, you’re free not to believe me, but don’t be surprised if coffee isn’t brought up during trial. (It’s not even in the complaint–and the studios cited 57 different alleged violations, mate!)

          3b) For the record, Tommy Kraft did have a Kickstarter and raised $22K. As for renting a studio, that would have cost $34,000 per DAY! Ares Studios costs $15,000 per MONTH to maintain (rent plus utilities) and allows for sets to be constructed and stored within the studio rather than a separate facility which could cost thousands per month anyway. Renting a studio would require shooting everything in less than a week and then paying for set transportation and storage…for the same price as having their own dedicated studio for 2-3 years! This one’s a no-brainer, Andrew. The suggestion of renting a studio/sound-stage is impractical and a poor business decision. As a donor, I am MUCH happier to know the funds were used to secure a permanent location that could be used for extended shooting, storage, and even filming of sequels and providing an affordable location for other fan films to shoot without themselves having to spend $34,000 per day. (Alec’s prices are a fraction of that.)

          3c) When you donate to a Kickstarter, you don’t get a say in how the money is spent. That’s a risk we all take. I donated to Star Trek: Renegades and would never, if asked, have supported de-Trekifying it. But I didn’t get a say. My money became their money. Period. And I refer you to my last answer about the business logic of building a studio rather than renting one. Oh, and one last thing: exactly how much “profit” did you imagine Ares Studios was intending to bring in? I saw the projections: they’d pretty much be breaking even unless they managed to rent the studio out over 50% of the time (which is entirely unrealistic–most sound stages in Hollywood remain empty and unused for long periods…and Valencia is a schlepp from L.A.!). So when you think “profit,” think ramen noodles and not filet mignon. 🙂

          3d) It’s still hard to prove Alec profited from Axanar when he spends more and more of his own money each day keeping the place going. But as I said, he could profit from Axanar by millions of dollars and still win this case. It’s not about how much he took in; it’s about how much Axanar took away from CBS and Paramount. If they can’t reasonably prove damages, Alec Peters could be Warren Buffet and the judge won’t care. And there’s precedent law–look up “Da Wind Done Gone.”

          3e) Alec didn’t “avoid” paying taxes specifically because he never received a salary. He was reimbursed. You don’t have to pay taxes on expense reimbursement. Had he issued himself a 1099 or W2 and not paid taxes on the income, then yes, totally audit time. But the way you’re framing the argument is faulty, Andrew. I know how much you want your version to be true, and I’m sorry to have to break the news that it’s just fantasy. (Well, not that sorry, it you want honesty.) 🙂

          4) So on willful versus non-willful infringement, I’ve done my best to explain it to you, Andrew, but my job and goal here isn’t to convince you of anything. I just want people to understand that, if the final judgement is a small slap-on-the-wrist of something like $5,000 or even $25,000…this will be the reason why. You don’t have to believe me or agree with me at this point. We’ll regroup after the verdict and compare notes. 🙂

          5) SKIPPED.

          6) So I’ve got three legal advisers/kibitzers. One of them is admittedly a die-hard Axanerd like myself. One of them enjoyed watching Axanar but sits on the fence in terms of allegiance. S/He has studio connections and a lot of insights, most of which I’m not allowed to share for fear of “outing” her/him. The last lawyer just kinda finds this an interesting diversion from the real world. This lawyer’s cases aren’t nearly as fun or interesting. In fact, if you could choose a specialty of practice that is the “Tattooine of law,” this would be it. I don’t go to this lawyer for juicy tidbits on intellectual property matters but rather to ask the stupid questions like, “Is there such a thing as a motion for summary dismissal?” (Answer, at least in Federal court: no. You would make a motion for summary judgment that would/might result in dismissal. Gotta cross the i’s and dot the t’s, y’know!) 😉

          But no, I’m not asking them “How to I make this sound good for Axanar and bad for the studios?” In fact, I like them to be as objective as possible because, truth to tell, I don’t want to get my hopes up and then have those hopes blasted to bits with an unwelcome verdict against the defense. Granted, few lawyers will ever commit to ANYTHING when predicting the outcome of a case, so they all (well, two of them, at least) often tell me, “Well, remember that anything could happen, Jon.” But in general so far, they’ve been more impressed with Axanar’s chances than the studios’. That doesn’t mean Alec wins, but a loss might not be as bad as some people think/fear/hope it will be.

          But we’ll see!

  11. BS #6 Addednum – The 2nd question is “Was there another meet and confer that CBS/Paramount’s legal team was trying arrange that was blocked by Axanar’s?”

  12. As a 50 year fan of Trek and as someone with no legal experience, I have found all of the case explanations fascinating. Thank you! I’m not so certain about the characterization of the “salary”. Stating that it’s not, just because Alec never received a 1099 or W-2 isn’t conclusive. It could just mean that who ever was doing the bookkeeping/taxes didn’t do their job properly. In fact, didn’t you mention something about him doing some of that work himself? As I read I sort of shivered thinking, Alec might wind up being in more trouble with IRS over this than he’s ever been from the studio lawsuit. I truly hope not! I hope there was a competant tax preparer involved who filed the proper paperwork. I was an Axanar Kickstarter supporter (more in spirit, than with more than a pittance of funds, due to limited means) and would love to see the rest of the project completed. So, I guess I’m biased. Thanks again for all the “plain English” legal explanations. (BTW, do I remember correctly that the project was a formal non-profit? If so, the accounting rules can be quite different there.)

    1. Look, straight up, Alec screwed up twice…and in this case, two goofs give him a do-over on the whole salary thing. This first goof was in not giving himself a 1099 for the $38,000 he was paid. The second was in calling it a “salary” in the annual report. No one ever said Alec Peters was infallible…not even Alec Peters! 🙂

      So the two goofs give him a do-over. Until such time as he gives himself a 1099, the payment remains nothing more than a transfer of money, not a salary or commission or dividend or any kind of “income.” But the reason Alec gets to make it retroactively a “reimbursement” is because he has the receipts to prove that he loaned the project about $50,000 of his own money. So the payment can (and does) qualify as a repayment of expenses incurred. A lot of people WANT to still call it a salary as a “gotcha,” but if wishes were horses… The fact is that all Alec needs to do (if he hasn’t already) is get a decent CPA to look at Ares Studios’ expenses and submit the forms to the IRS. No salary, no trouble, non-issue.

      Also, at the time of the lawsuit, neither Axanar nor Ares Studios was a non-profit. If I recall correctly, they still aren’t, but I think the application may have been filed.

      1. You really should stop. The Salary is a far better story than just saying Alec transferred 38k of Axanar Productions money into his own personal account for a time, which could be misconstrued into embezzlement….

          1. You can’t preemburse yourself…. And since we have no loans from peters into the production before the salary (thanks to the annual report)which is what your suggesting. Further you, I and Peters knows he intended that dispersement as compensation, which for the better part of the Past year he has defended as being just.

            What is most delicious about this “suggestion” is that your encouraging a change in the narrative, which makes you as duplicitous as peters, -‘d demonstrates your own bias towards Axanar.

          2. Well, you seem to have this all figured out in your pocket reality, so it’s not really worth the effort to explain this plane of reality to you.

            Preemburse…love it! 🙂

      2. Thanks for the reply, Jonathan! Also, I appreciate how well you continue to explain things, with a limited amount of drama. Your posts are just about all we’ve got while we wait for that certain fan film we want. (Though these various discussions have meant I’ve “discovered” fan films out there I hadn’t realized existed. lol)

      3. That would be plausible except for one thing. Alec continually claims that he deserved that salary because he was working on Axanar full time and that it only amounts to minimum wage anyway.

        I would suggest you consult your legal experts though. I don’t think reimbursement exonerates you if you break the law. If I stole your car I’m pretty sure I’d still be arrested even if I gave it back.

        1. Two things, Sandy:
          1) You’re confusing criminal law with civil law, and
          2) It actually is irrelevant to this particular case whether Alec made $0, $100, $1,000, or $1,000,000 personally. It’s all about how much money he has cost the studios.
          And you’re free to check with your own legal experts if you’d like. I’m just a lawnmower. You can tell me by the way I walk. 🙂

          1. No, I’m not confusing criminal law and civil law. I am aware this is a civil case, but that doesn’t mean criminal wrongdoing didn’t take place. I’m not accusing him of anything of course, but his accounting looks a bit “creative” at best.

            If the case has nothing to do with his salary then why did you spend several paragraphs talking about it? If you expound on a subject and when someone questions what you wrote you then can’t say it doesn’t matter. While his salary has nothing to do with copyright infringement, from their filings the plaintiffs are certainly concerned about it.

          2. I don’t recall spending “several paragraphs” talking about Alec’s “salary” in the blog. Maybe one paragraph (at most two), but that’s only because my primary goal for this blog is to dispel as much misunderstanding and misinformation as I can. You’re obviously misunderstanding a lot, Sandy. I know you THINK you’re not misunderstanding anything and will probably say, “No, Slow Lane, it’s YOU who are misunderstanding stuff!” And hey, that’s why there’s a judge deciding the Axanar case, right? Each side thinks they’re right.

            I just want to go on record now, before there’s a verdict, so that if it goes the way I suspect it will, people–especially the angry ones arguing that the outcome of the case is a miscarriage of justice (and you know that’s going to happen if Alec doesn’t lose and lose big-time)–people will understand what happened and why.

  13. This like our politics,”go digging for dirt, ignore the facts”. I am sure Alec may have screwed up many things, in working a lot of jobs you might hire a professional for in “big business”, they opened themselves up to a lot of risk. CBS/Paramount, being the huge mess they are, have oodles of people floating around doing little, if anything. They can afford to have 3 people look at expenses and money for a project, and they still mess it up. Without the open access like Axanar has tried to provide, we will never know all the dirt on the other side, which they seem to not want to produce as requested. So the Axahaters will continue to use every little item as “major criminal intent” and continue to ignore their corporate monster not responding or being honest, maybe because they feel so dedicated to their master? Even Rod Roddenberry appears to have been bought out..no honor left…

    1. I’m working on Alec to see if I can get an interview discussing the Axanar finances…ALL Of them. Rather than ME just talking ABOUT this salary-versus-reimbursement question, I’d like to get ALEC on the record. Since the finances don’t really have to do with the lawsuit, I think I can get him to open up about it. As I said; I’m working on it. If so, I’m going to invite the anti-Axanar folks to submit questions to me for Alec to answer. Not nasty, leading questions like, “What made you think you could get away with fraud?” But reasonable questions that address the more controversial points. I don’t want the questions coming only from me or else folks will think it’s just a fluff piece.

      First though, I’ve gotta get Alec to agree. Wish me luck!

  14. Are plaintiffs risking contempt of court by repeatedly lying to the court? Have the plaintiffs lied in any sworn statements? If so they committed perjury. Will the plaintiffs commit perjury by lying while under oath during court proceedings?

    1. Funny, funny story! Earlier tonight (Saturday), my wife and I were at a social gathering of parents of Jayden’s kindergarten class. I was chatting with one of the moms, and it turned out that she’ll actually be arguing a discovery motion in front of Magistrate Judge Eick this Monday! Small world, huh?

      e chatted about the Axanar case (she was familiar with it but thought it was dropped back in May based on JJ Abrams comment), and I asked about Judge Eick…specifically whether the lying would be problematic for the plaintiffs. She said that Eick is very no-nonsense and has been known to chastise lawyers. But he’s not vindictive. He will, however, read every document that was submitted carefully and thoroughly. So those 70-plus pages of motions and exhibits will NOT be glossed over.

      And for the peanut gallery, no, I’m not planning to start claiming that I now hate four lawyers as sources. This woman was a one-time bit of serendipity, and it was more amusing than anything when she told my wife (they were talking law) that she’d be downtown in Eick’s courtroom on Monday. I almost didn’t realize that it was the same guy because she pronounced it “ick” and not “ike”…so I asked, “Is that CHARLES Eick?” She said, “Yes…” and I added to the two ladies, “Are you impressed that I knew that?” My wife just rolled her eyes. She’s pretty sick of this lawsuit and refuses to discuss it with me in any way, shape, or form. The other woman thought that maybe I’d been sued at some point and was in front of that judge. “Not me, a friend of mine…” and we started discussing Axanar. Wendy headed off to get a glass of wine. 🙂

  15. 1) Okay, good to know but says nothing about what we were actually. Glad to know you agree that this is an argument for trial and not discovery.

    3a) As I’ve said many times, I’m not a lawyer but it does look like IP infringement to me. When I see it I see a Federation ship, a Klingon Ship and a Klingon (which I note that you must agree with me on that as you didn’t even mention them). The colour, shape, overall design of both of these ships scream Star Trek , and true they are not designs already made or owned by CBS/Paramount but they are damn close.

    Even so, you are somewhat correct. The question as to whether the coffee is infringing is irrelevant. As CBS/Paramount are not suing the Coffee Producers. However as Axanar was involved in that coffee coming to life there is a definitely a valid question as to what right Axanar had to create a sub license of ships that are recognisable and are easily mistakable by the common person(such as me) as a Star Trek ship?

    3b) I never said that he didn’t have a kickstarter. I just said that you made far more money than him and he’s done something in 3 years, working part time, by himself than all of the Axanar team has done in 1.5 – 2 years. Anyway back to the point.

    Interesting…. Let me show you something.

    http://www.duffylaw.org/tce.pdf

    These are the financials as provided to the IRS for Star Trek Continues. Notice something? There was no 34,000 dollars a day rental fee for a studio. There was no expenses for outfitting their own studio and yet somehow they managed to create something with a purposeful artistic visual interpretation. (Sarcasm Warning) Strange…. I have no idea how they did that, produce as much as they did without an obviously needed 34,000 dollar a day studio.

    3c) True, it is a risk you have. However, it wasn’t like they had much choice. Renegades had Trek actors and it was the Trek Actors that couldn’t participate in a Star Trek fan film. So, the decision was sorta forced on them. It was either that or cancel the project and keep the money. So at least they provided the closest thing they could.

    However, 1.5 million and still no film when all others have done so for less than half? That’s at best bad financial management and at worst fraud. Axanar pitched a movie…. And there’s still no movie. Thanks for taking 1.5 million of people’s money for nothing Axanar.

    3d) Technically, that 150K should be Propwerx money as it was that company that sold off its assets. However, let’s say it was Alex’s personal money. Where is this money going to? What is it for? Oh,. It’s funnelled through Axanar to the legal team to pay for court expenses. Also, yes from $0 to $150K is an increase. Though, how’s Alec going to get more 151K for tomorrow’s donation?

    3e) This is an argument of semantics. Which is not going to get anywhere. Just so you, I and everyone else knows. Not technically paying yourself a ‘salary’ is a way to avoid taxes.

    4) If… Anyway it’s pretty impossible to predict what the damages will be. I’m conviced that there is no fair use and it’s willful but I also understand that you are convinced the other way. Nothing I say will convince you and nothing you say will convince me. So, yeah. Let’s agree to wait until after the verdict.

    6) I can only shrug and say “If you say so.” From the case both have mentioned earlier all I can say is that it seems the Axanar legal team are trying to shift the onus of “fair use” onto the plaintiff. Which based on my admittedly limited understanding is not how affirmative defences (aka “Yes, technically we did it but it’s alright because of X”) such as fair use works.

    1. So I think we’re down to only one or two points new left to address. The first is when you said the following:

      “These are the financials as provided to the IRS for Star Trek Continues. Notice something? There was no 34,000 dollars a day rental fee for a studio. There was no expenses for outfitting their own studio and yet somehow they managed to create something with a purposeful artistic visual interpretation.”

      I direct your attention to page 34 (second to last line):
      Rent (for three years) – $137,000

      Like STC, Axanar decided to build out their own studio and pay monthly rent rather than rent out an existing professional studio facility for $30K/day. Granted, there are cheaper sound stages out there to rent, but Axanar required certain things: sound-proofing, large green screen, overhead track lighting, multiple make-up facilities/dressing rooms, air conditioning (Klingon make-up and costumes get HOT under the lights), enough square footage to hold the bridge set and multiple other sets (STC has an 18,000 sq. ft. facility in Georgia), and proximity to L.A. within a range of 35 miles. (Outside of 35 miles, and SAG actors must get paid additional travel and lodging expenses.) So this is why renting an existing sound stage facility would cost the Axanar production so much.

      Renting a warehouse long-term and converting it into a working studio and sound stage is much more cost-effective…which is why Starship Farragut/Star Trek Continues did it and why James Cawley did it for New Voyages. The only difference, of course, is that the cost of renting space in Port Henry, New York or Kingsland, GA is SIGNIFICANTLY less than doing the same thing in southern California…which is why Alec’s rent is two and a half times that of Vic’s rent in Georgia. I’m also pretty confident Alec has more total square footage, but there’s also zoning questions and facilities perks offered from being in the corporate park in Valencia that I’m sure increase Alec’s rent even more…plus things like earthquake insurance, which isn’t an issue in upstate New York or southeastern Georgia. (Vic might have hurricane or flood insurance, though. They pay about $2,500/year for their insurance, which is likely mostly fire and injury liability for the production…but I can’t be sure.)

      But anyway, as you can see, Alec decided to do the same thing Vic did–set up a permanent studio of his own rather than renting someone else’s. Alec pays more for location, Vic pays more for travel and lodging for the cast and crew (about $130,000 over a three-year period). Added to the rent, Vic and STC are paying a total of about $90,000/year to have their studio be in Georgia. Alec Peters is paying $180,000/year to be within 35 miles of L.A. Double the price might seem outrageous just to be in L.A. and have a larger permanent facility, but that’s a business choice Alec decided to make to be where he could access a larger pool of Hollywood talent (actors and production crew) rather than locating himself in southeastern Georgia, a half hour drive after a five hour flight from L.A. to Jacksonville, Florida.

      Personally, as a donor, I don’t hold it against Alec that he chose to be in L.A., and that was never really a secret anyway. And having been to Ares Studios (Industry Studios now) many times. I think the facility is both practical, cost-effective, and quite nice. If you come to America at some point and can spare a few days in L.A., Andrew, I’d be happy to take you up there. I mean that sincerely. Alec is usually happy to show people the place…even Axanar detractors have been known to get a tour (right, Gabe?). 🙂

      Oh, and I mentioned elsewhere to another commentator that I’m trying to set up an interview with Alec to discuss the Axanar finances…specially because folks like you seem to be so concerned about it. If so, think of a few questions you’d like to ask him, and I’ll add them to the list. I’m serious. I don’t just want the questions to come only me since the peanut gallery thinks I’m just a mouthpiece for Axanar. So let’s let the angry mob ask the questions. The only requirement is that the questions be respectful and not accusatory or phrased in ways that draw foregone conclusions. For example: “What made you think you could get away with stealing money from your donors?” Nope, that ain’t getting in. But if you wanted to ask, “Shouldn’t the Propworx money have been kept separate from the Axanar funds?” yeah, that’d be fine.

      Alec hasn’t agreed to an actual interview yet, but I’m nagging him about it. Stay tuned, and if/when we get something set up, have your questions ready.

      1. I’d just like to point out a number of things regarding why I’m focusing on the finances at the moment.

        1. The 1.5 Million that Axanar raised. That’s a lot of money and is itself notable and the increased risk of underhanded dealings that result from such a large amount.

        2. The seeming lack of product in the 1.5 to 2 years leading up to the lawsuit being filed.

        3. The building of a studio which was publicly stated to be then rented out to productions which raises additional questions.

        4. The limited and unaudited/unverified financials released. There is simply no way to verify the accounts were accurate and there was more than double the amount not included that still remains unaccounted for. Especially being provided after only some siginificant pressure to do so.

        5. Absolutely ridiculous delays to shipping the promised kickstarter perks where the same perks were available directly for sale in the Axanar store.

        6. Odd and potentially infringing business practices, aka Axanar Coffee, that may additionally hurt CBS/Paramount financially directly through the devaluing of licensors.

        It all comes down to trust. Did people trust Alec and the people Behind Axanar with their money. Yes a lot of people obviously did, do they still do? I know a whole lot of people who don’t. Not being able to look at Axanar’s finances directly, not knowing the film production business or knowing the LA area and costs of doing business and spaces to operate there. I have, like many people, simply no way to look at all the costs that Axanar has and make a judgement based on that.

        Do people trust the information coming from you and any other Axanar cheer leader? All I can is I do not. Do I think you’re lying? Not technically, but I do think you are being judicious with the truth. Using definitions, framing things in certain ways that benefit your viewpoint. I try to be direct and respectful, maybe sometimes going a bit too passive-aggressive some times.

        Why am I saying this? Well, simply from everything I’ve observed it seems there’s major financial problems at Axanar. Peters selling props from his prop business. The selling of things like patches from the Store when Axanar has a responsibility to provide them to it’s backers. The additional fund streams Axanar coffee. Not to forget a story I heard that Peter’s had fans pay for him to attend a convention so they could meet up with him (This is just a story I heard, I don’t know the particulars of it and I may very well be wrong but it does play into my calculation as it came from people that I do trust). Not to forget the only reason that the Vulcan scene was actually created was as a showpeice for an additional fundraiser.

        All of this screams desperation from Axanar. In that Axanar, as an organisation, is desperate for money. So if Axanar is desperate for money, and it doesn’t look like there’s any kind of film coming out soon when there was at least 1.5 years to make something. Then serious questions need to be asked about what the money was spent on. How much of the money was spent on the studio, how much was spent on Alec’s personal expenses, how much was spent on graphic design and marketing material, how much was spent on Actor’s fees, how much was spent on technology, how much was spent on administration, how much was spent on film and sound equipment and finally how much money went into Alec’s personal bank account?

        These are all questions that I have that honestly I don’t even think I’d believe Alec if he answered them. I simply do not trust him. For the most part, I don’t judge people on what they say, I mostly judge people by what I see them do and how I see them treat others apart from people like you who are in the “in crowd”.

        I see nothing but hatred and vitriol for people who even dare to raise a question of him. How he so easily says one thing and then months later says something completely different when he thinks it’ll benefit him. His, and this I’ll expand to his supporters, constant attempts to shift the focus and attention off of Axanar and trying the lay the blame anywhere else. How he tries to make himself the focus of attention, how he tried to insert himself into the prime position as the one to being everyone together on a communal front for the fan film guides in a blatantly obvious attempt to give himself some power during the trial.

        It’s all the things that I’ve seen him do that makes me not trust him, all the things that a toddler should realise a bad idea. IE…. Axanar Coffee. Seriously whoever thought that was a good idea should not run a business.

        Anyway, I think I’ve now officially exhausted everything I have to say about the BS Bombshells that were originally raised in these blogs and all of the discussions that came after as a result. Be glad Jonathon, you probably won’t see me on your blog again.

        Final Comments: While I was not a backer I was one of the few people at STLV in 2014 to go to the midnight screening of Prelude at the AMC Town Square theater. I loved Prelude and I thought the idea of Axanar was a really good one. The only reason that I didn’t back Axanar was that I wasn’t in a financial position to do so at the time. I even have the Ares patch that I got from the booth there. I find it sad more than anything that the story and potential Axanar had was ruined by everything that came after.

        Thank you

        1. Well, I’ll miss our little back-and-forths, Andrew, but I appreciate you being open to discussions and hearing me out. I think we both do a bit of selectively editing the information we bring to the conversation in order to support our statements. That said, it matters little unless either of us sits on the jury (which won’t happen because you’re in Australia and I’d be dismissed from the jury pool as having a conflict of interest).

          Just know that there is MUCH more support out there for Alec Peters and Axanarthan opposition–based on membership numbers for the Axanar Facebook groups (74.4K likes on the main FB page and 8.4K members in the Axanar FB Fan Group) versus groups like CBS/Paramount v. Axanar on FB (which only has 932 members). So just from those numbers, it looks like 9 out of 10 people still trust and support Alec Peters and Axanar. I’m obviously one of the nine, and you’re obviously the tenth. And that’s fine. As I said, in the end, nothing you or I say is going to change the outcome of anything.

          I wish you and your 10% all the best, Andrew.

        2. Adrew,
          Again, the backers had access to some financials via a link provided exclusively (Axanar had no reason to release info to peoples not involved but did not hide anything either).
          Concerning the delay for sending perks, there were several communications on both the donors backchannels AND the public blog to state that the crowdfunding platforms systems were not practical at handling thousands of backers addresses. They had a guy to develop a dedicated application but it did not complete and was then developped by an other volunteer. This system is now operational and patches and other available physical perks have been sent (I received mine). The problem is that many peoples still have not provided their address in spite they have been asked so many times. And of course, all perks depending on the completion of the film can not be delivered. Hadn’t CBS put the project to a halt, they could be now…
          Well, you can trust Alec Peters or not, but please accept the fact that he is still there, assuming his responsibility to try to cope with the situation and did not run away with the money. Axanar is not the most opaque business in fan-films; others do not share any information.
          Regards,
          Nicolas.

          1. I’m still floating around though, not ‘active’ as in actively engaged in arguing. I’m getting notifications because I’m still technically subscribed.

            Hmm… looking over this thread I didn’t particularly spend much time on that but I still feel that I overall covered it. Point 4, of the list about why I am concerned about Axanar’s finances, is a great summary. However seeing as you raise the issue I’ll expand on what I said.

            It’s limited, because it only covered the first Crowdfunding event which raised 600-700K. Less than half of all the funds raised for Axanar (including the 2nd kickstarter and Axanar Coffee/Store)

            Unverified and Unaudited because these are numbers just put together and published by Axanar for Axanar. They aren’t the result of a third party accountant going through the books, performing and audit and either verifying that’s it correct or demonstrating that it isnt’. As there was no audit to begin with, there’s no third party that can provide coroboration to the financial statement that Axanar did provide.

            I can’t say that he just made up those numbers because frankly I do not know. However, I can say that I don’t trust him and those numbers are certainly by no means enough for me to say “yep, those are Axanar’s finances.” Only Peter’s, probably a limited number of high up Axanar people, Ms. Ranahan (I want to apologise for calling her Ms. Hanrahan throughout) and whom ever from CBS/Paramount and their legal team that saw an audit/report on Axanar’s finances know the truth.

            And I’ll once again point you to the rest of that comment for everything else related to trust.

            ———-

            And on a tangent that has nothing to do with Axanar, but has to do with why I got Ms. Ranahan’s name wrong. There’s a well known Australian folk poem. It was written by John O’Brien and is called “Said Hanrahan”. The names are just very similiar when spoken and my mind just sorta automatically wrote Hanrahan instead of Ranahan. Look it up. You might find it interesting.

          2. I’ll keep my reply extremely short, Andrew, but I just wanted to point out that no other Star Trek fan production has ever shared any details of its finances directly with fans or donors…not even Renegades (which is now up to about $800,000 raised). Star Trek Continues released its financials to the IRS, but never to the fans (in other words, there was never an announcement–none that I saw anyway–to donors saying, “Here’s everything we spent on rent, sets, insurance, salaries, travel, lodging, etc. over the past three years). So for Alec Peters to be transparent enough to be the only fan producer to ever share his financials openly and then have detractors fault him for not paying for a professional audit (an extra expense) is, well, kinda harsh…dontcha think? Why not fault James Cawley or Sky Conway for never sharing their financials with donors at all?

          3. Seems like somewhat circular logic to me, Brenda, but it’s becoming pretty clear that your mind is made up on this, which is fine. But it makes me feel that I’m wasting time and energy trying to respond to your posts.

          4. Wasting your time in responding to me? So you only respond to those who agree with you? Come now Jonathan what’s the point of debating someone who agrees with you?

          5. As you can see from my many, many responses to both you and others who disagree with me, Brenda I certainly have no issue with debating those with differing opinions. But at a certain point, it becomes the law of diminishing returns. I simply don’t feel that my points are being listened to or seriously considered by certain people. Perhaps you and they feel the same way about me. It’s fine, but with so much else to do, I reach a point when I say, “Okay, I’ve given this person as much time as I can, but we don’t seem to be getting anywhere.”

            A good example of this is the very comment from you that I’m responding to right now. I’ve obviously spent hours writing polite and thoughtful responses to many people who don’t agree with me. I remain respectful, don’t call people names or say they’re stupid, and I allow multi-part back-and-forth dialogs even we continue to disagree. And yet, here you are asking, “So you only respond to those who agree with you?” So if you’re going to ignore reality to such an extent just to make some kind of snarky dig, Brenda, then don’t be surprised if I respectfully leave the boxing ring.

          6. Andrew,
            You are perfectly right that there is no accountant expertise to validate the shown figures. But it is not enough to believe in a conspiracy. In fact, presenting false figures would be an enormous risk of being considered as deception offending laws. Alec Peters had absolutely no reason to do that while trying to show transparency, don’t you think ?
            Maybe Alec was just trying to make the figures looking readable for the general public not familiar with accounting. If Jonathan is right on the salary/reinbursment for Alec Peters and the real accountancy reflects it, proving the contrary would be difficult. I do not know if Axanar accountancy is part of the documents requested in discovery, but if so, it could give some answers. No need to argue at length until there are some official revelations if any.
            Regards,
            Nicolas.

          7. For whatever it’s worth, while most folks think, sure we need an audit of finances to “prove them”, I want to speak of my own experience. I do “lay” bookkeeping for several small non-profits in a rural area with total county population of only 12,000! I also help them write grants that have been successful in all cases except once where the organization offering grants insisted on an audit. The groups are all-volunteer and good at getting community buy-in and participation. Since we’d already had lawyers, engineers, electricians, and many other professionals donating their time and expertise to the projects, we thought, “No big deal, we’ll just ask one of the local accountants to do the audit”. The 3 we asked all *literally* laughed at us. Turns out an audit costs *at least* $4,000! This would have been for organizations with an annual budget of less than $5,000 and some less than $1,000 and with a few simple transactions. The grant would have been for $1,000. Go figure! Anyway, I have no idea what an audit would cost out in California for a larger organization with much more complicated transactions. It seems logical that it might cost a great deal more. To be honest, it would take a lot for me, as an Axanar Kickstarter donor (in a small way), to consider an expensive audit a worthwhile use of my money when what I want is Star Trek. So far what I’ve heard about Axanar’s financials doesn’t bother me, except to hope that the proper paper work was filed for taxes so no one gets in trouble with IRS.

          8. I think Alec is having a CPA review his finances right now in preparation for the trial. As a donor, understanding that Axanar is being sued, I don’t begrudge him the expense if it means Axanar is more likely to get made eventually.

          9. Sure, having to have it done for the trial is a necessity. I was talking about prior to the lawsuit, just doing it as a “make disgruntled folks happy” practice. 🙂

            BTW, Thanks again for all the “explaining” you’ve been doing. The volume and length in the early morning hours have been amazing. I hope you’ve been able to have a life beyond (sorry) this.

          10. Well, I am pretty tired right now, Tony. But here’s my secret: I’ve got a six-year-old, and if I don’t take him to the bathroom to pee between 1am and 2am, he’ll wet the bed before 7am when he wakes up. Jayden is a VERY deep sleeper (he slept through a smoke alarm a few nights ago…Mommy was broiling a steak). Anyway, rather than going to bed early and setting a middle-of-the-night alarm that would also wake up Mommy (who really needs her sleep), I just keep myself awake until the, er, wee-wee hours by blogging and other tasks at my computer. I’d glad someone’s actually reading what I write! 🙂

          11. ROFLOL My sympathies! Still, (TMI warning) as a season citizen with poor bladder control, consider a bed pad and the best fitting equivalent of diapers. (grin) It’s lowering, but a full night’s sleep has healing properties.

            On the other hand, we’d miss your late night missives.

          12. It’s not I who will wet the bed, Tory, it’s my six-year-old. I need to stay awake to take him to the potty, nearly comatose, and get him to pee, then walk him back to bed. Every…frickin…night! 🙂

          13. Sorry for the confusion. Yes I realized it was your son. I was suggesting you protect him and the bed and let everyone sleep. Just do cleanup in the morning. lol Not feasible?

          14. There’s a generally-accepted parenting philosophy that says children should advance forward and not fall back to previous stages of development…at least when parents have some control over that decision. Jayden grew up out of diapers, so to put him back into them at the age of six when he’s been out of them for a couple of years is, I would guess, a little humiliating for the boy. Also, it doesn’t teach him to recognize that he should wake himself up and go pee. If his bed is always dry in the morning and all he has to do is chuck the wet diaper in the trash, then he’ll just learn that it’s okay to pee in the middle of the night without getting out of bed. Parenting is tough, but it’s incredibly rewarding. Just watch the video in the “Cadets” section of this website. 🙂

          15. “I think Andrew has left the building…er, blog site, Nicolas.”

            I know, but the answer was important for other and future readers.

          16. Let me be absolutely clear, I’m not arguing that fan films should put out complete and audited reports. I’m not saying that Axanar is unique in how it’s done it’s financials. I’m not even saying that these financials are even necessarily wrong, despite having severe doubts.

            What I am saying, is that for people like me who don’t trust Alec Peters and the Axanar leadership then what was provided does nothing to assuage our concerns and fears about how Alec could have used Axanar’s money. The simple fact is that you have to trust Alec to trust the numbers that Alec has put out there and so if we don’t trust Alec we therefore cannot trust the numbers that he has put out.

            Though, if it was audited and verified then we could at least have trust in a third party’s professionalism. However, even at that point if it still only dealt with the first lot of 600+K crowdsourced funds then that trust would only extend to that point and questions would still linger from all the remaining unaudited funds.

            In otherwords, the reliability of those financials are only as reliable as Alec. I will leave you to make your own conclusions on Alec’s reliability in this manner.

          17. So it kinda sounds like the problem is NOT Alec’s lack of trustworthiness but rather your own lack of ability to trust him. You’re demanding a high standard of an independent auditor (something that I actually believe he may be doing, as it happens, in preparation for the trial), but even then, you’d still have your doubts. So really, it sounds like there’s nothing Alec could do to change your mind even if it turned out he was actually completely trustworthy.

            And hey, look, you’ve got no reason to believe me either, but I actually place honesty and integrity higher than almost any other quality on my friendship requirements list. The quickest way to lose me as a friend is to lie to me. Likewise, I don’t lie to others–mostly because I stink at it. (True story: while I was in Vegas for the Creation Con this past August, a prostitute came up to me in the Bellagio casino and tried to hit me up to a trick. If you’ve even seen “The Big Bang Theory,” well, just imagine Leonard or Wallowitz in that same situation…it was just as awkward, geeky, and probably pathetic. Naturally, once I realized that this woman wasn’t just looking to have me teach her how to play video poker, I politely declined her offer. I then went upstairs, called Wendy (who was back in Los Angeles), and said, “Well, honey, guess what just happened to me!”)

            Anyway, the point is that I place honesty and integrity in very high regard when it comes to being friends with people. I’m friends with Alec Peters. You can draw your own conclusions from that, as well, Andrew. 🙂

          18. You are a good husband Jonathan.
            Do you have the girl’s number ? Bernie had another fight with mom and went to Penny’s place.
            Many thanks in advance,
            Howard.
            :-))

          19. I’m not sure girls like that give you their number…unless the number us $500 or something. (And you see, I have no idea if that’s even the going rate for a Vegas hooker! I am totally clueless!) 🙂

          20. Sorry, forgot to respond to Nicolas’ other questions…

            As far as the Perk delay, not being a backer I can’t comment on any kind of communication between backers and Axanar. I never did ask the backers I know about it either as I felt it might have been a sore point for them.

            I’m glad that perks are finally being shipped but the cynic in me is asking questions. Why, why now and not before? Could it be just a PR stunt trying to get people on Axanar’s side?, or did it just take that long for Axanar to get itself organised? Either way it doesn’t look good. From what I understand of Ares Digital 2.0 is that it created accounts for each backer using information from the kickstart/indiegogo campaigns and then required each backer to log in to confirm name, address and contact information before approving the appropriate perks to be sent.

            As a programmer myself, I appreciate what’s needed, especially for an internet-based platform. However, I do believe it would have been overall much easier and quicker if Axanar took responsibility for confirming this information on themselves. It’s much easier to write a program that takes information, allows the user to update the information, and then directly print out address labels. Yes, it would be more administrative work but it would have resulted in the first perks going out far sooner and as a result perk fulfillment would not be anywhere near as big of an issue as it has been for Axanar. Sometimes simpler is better.

            As far as perks that are based on the finished film, yes, that’s something that can’t be done now and I think everyone understands that. As an additional thing, sometimes you get people who change emails, addresses or simply who have for some reason or another just aren’t bothered to respond. It is my opinion that all of these categories could have been mitigated should have Axanar gone with a simpler, though higher admin requirement, system. However, this is all of course being in hindsight and so there is little point in this pondering about what could have been as this is where we are.

            To return back to what is, and has happened. Yes, as far as I am aware. The perks that can have been (or are being) sent out. None of this really negates anything in regard to the lawsuit, or (maybe a part from a few minor things that I’m not aware of but not going back to double check) what I’ve said but I do recognise that Axanar has (or is in the process of finalising) it’s obligations in this area finally.

          21. So this is one where it’s pretty easy to prove that Alec is telling the truth. First, I have an actual photo from the summer of 2015 of my son Jayden helping to stuff patches into envelopes at Ares Studios. Notice the date-stamp of July 18, 2015 on Facebook. So if nothing else, the patches were ready to ship out over a year ago.

            Now, why would anyone in their right mind NOT ship out thousands of perk packages that were assembled and ready to go? After all, every day that they were delayed just made Alec and company look more and more incompetent. Even if every envelope had to be addressed by hand, Diana Kingsbury would have done it because she already writes a personal note with every perk pack that goes out. Why in heck would they wait OVER A YEAR, with thousands and thousands of packets ready to go, before finally sending them out?

            The reason is that they couldn’t send them out. Terry McIntosh started the Ares Digital project and simply never finished it. After 11 months, the Axanar team had all the donor information trapped inside the database but didn’t have the ability to get it out. There were, like, a dozen or more different perk levels, each with its own combination of items. And then some donors added extra stuff that they bought directly from the Ares Digital store. They didn’t have the ability to match up the names/addresses with the combinations of items these people signed up for. And not being technical people, Alec, Diana, and the team had no idea how to even view all the names as a comma-delineated list or a spreadsheet, with or without the items sorted by individual. They needed a tech guy, and Terry was the only one they had until he walked away from the unfinished project.

            Fortunately, a new techie did eventually step in. Bill Watters took over shortly after Terry left, rebuilding a completely new Ares Digital 2.0 from scratch in only 2 months and getting the previous data out of Terry’s useless system so that it could now be sorted and address labels and shipping invoices could be printed. As soon as that happened (which was about six weeks ago), the thousands of perk packs that my son and I helped assemble over a year ago could finally be shipped out…and they were. Amusingly, I received my envelope in the mail about three weeks ago (even though I already had each of the patches since Jayden’s and my “payment” for helping to stuff thousands of envelopes full of patches was–you guessed it–free patches!).

            Now, if you want to believe that there was some more nefarious reason for Alec to let thousands of assembled perk packs sit around, unsent, cluttering up the storage room for fourteen months, then I think you really need to ask yourself if you’re just trying to think of reasons not to believe Alec, even if those reasons don’t make any sense. Sometimes the guy you think is always lying might actually be telling the truth. It’s hard to argue with a photo posted to Facebook where all the comments start on July 20, 2015. 🙂

          22. Jonathon:
            At the moment, I don’t know about impossible, but it would certainly take a lot for me to start trusting Alec.

            I would have to see that I was wrong about Alec. That I was wrong about my interpretations of him or that he had changed enough that my interpretations of him were no longer valid.

            It would take some time, as Trust has to be slowly earned back, but it could be doable. This, of course, is assuming that you are correct when you say “Alec is completely trustworthy”. If you are, however, are mistaken then yes, as any further actions would prove my original interpretations.

            Nicolas:

            Do I necessarily think that there’s a Conspiracy™ (PS. Conspiracy involves groups of people colluding to achieve something secretly)? No. I don’t necessarily think that they are ‘incorrect’ either just there’s a strong enough risk that they are that I can’t ignore but that’s only part of it as well.

            Taking everything that I’ve said and what I’ve seen of Alec, they don’t even necessarily have to be ‘incorrect’ to be misleading. Alec is the king of Technicalities and semantics. Jonathon has even used that in his defense previously “He technically didn’t get paid a salary.” not to forget choosing the IRS definition of profit so he’s not getting a ‘profit’, aka cash, but is instead getting a direct financial gain in the terms of assets and facilities (aka the studio).

            So, maybe, just maybe, he is douchey and brave enough to try stretch the truth in this way. In any point, as you rightly say we might find out, or we might not. Either way there is very little point to continuing this. Either we’ll find out the financials in the trial or we won’t. In the first case we’ll have our answer, the 2nd case we will probably never have a definitive answer one way or another.

            And we’ve pretty much approached it from every angle possible. I have to admit I’m pretty tired of talking about this. I’ll still keep up on the thread if necessary but don’t expect much more unless I have it.

          23. Well, if it’ll take a lot for you to start trusting Alec, Andrew, than I’m pretty sure it’s not going to happen. As much as Alec doesn’t enjoy the amount of negativity he encounters from a small minority of very vocal people out there, the fact is that there just aren’t enough of them (less than 1 in 10) to justify the work it work take to change their minds…especially since their minds are so made up that even if he put in all that work, they still wouldn’t believe or trust him.

            If you were Alec, Andrew, would you bother trying to change the minds of only a minor few people, or would you just move past it and concentrate on more important things in your life? I know what my answer would be.

          24. I would definately agree an Audit just to appease people like me would not be worth it. It would take money from actual production of the film and I believe wouldn’t have all that drastic effect on people’s opinions of Alec. However, on the flip side, just because someone says it is true doesn’t make it so either. *shrug* I don’t think there’s really anymore to be said on that.

            Though, I do have something to add in regards to Terry McIntosh. I’m aware of the very bad blood between Axanar people and Terry (going both ways) and honestly as I have no unbiased information as to what actually went down I’ve been basically trying to stay out of it.

            However, even if absolutely everything was Terry McIntosh’s fault. I think some of the blame for the delay still does rest on Alec’s shoulders. As you said, it took 11 months between when Ares Digital (the first one) started and Terry left. Once again, assuming Terry was in the wrong, Alec should have been aware of the progress, or lack there of, over this long 11 month delay. Alec should have started trying to resolve the delay, even up to the point of finding someone to replace Terry, long before it reached this stage. Despite this already 11 month delay it was Terry that left, not removed, or told ‘your services are no longer required’. So even in the best case (for Alec) he still can’t get away without at least some of the responsibility for the delay. He’s the producer, should have made sure things were produced.

            So, yeah, I don’t think there was any kind of underhanded scheme. However, all over Axanar I see a general failure of Alec to do what a producer, in my opinion, should be doing and instead focusing on creating new revenue streams for himself. Which is not what someone who is using an IP not there own should be doing.

          25. Alec was in a bit of a bind. Terry was working for free. It’s hard to find a replacement at that price capable of creating a $20,000 (or probably more) custom database driven customer administration system. The fact is that Alec was indeed looking while Terry was still reportedly working on the project. That’s why Bill Watters was able to step up and take over (also for free!) almost as soon as Terry abandoned the project.

            Also, keep in mind that Terry was spending most of those 11 months saying that he would be finishing it soon. We all believed him. Shame of us, huh? Alec trusted him mostly because Alec had no choice–because of the free labor–until he began to realize that Terry wasn’t really going to deliver this after all. And that’s when a desperate search for a replacement with strong coding abilities began, preferably with the same price-tag. Oh, and this new, skilled, free person also had to be reliable and not just promise things and fail to deliver them. Axanar already had one of those.

            I’m not sure how long it would take you to find such a replacement, Andrew, but I think a few months is actually a pretty quick turn-around, all things considered. In the end, Alec ended up making the best of an unfortunate situation without having to shell out valuable funds to hire a non-volunteer professional programmer. And ultimately, he got a better, stronger system for the same price in only two months time. But it took eleven months of a misfire to get there. I don’t think Alec can be blamed for Terry not delivering what he’d promised. But I do think Alec should be lauded for finding a fix for the problem without breaking the bank. That, my friend, IS what a producer does.

          26. When it comes down to it as the manager and the guy responsible for fulfilling perks and ultimately for Ares Digital as well. At least some of the responsibility for the delay has to rest on Alec’s shoulders.

            Maybe he wasn’t keeping up on progress as well as he should, maybe he should have tried to find someone to assist (not replace, but assist), maybe he could have someone how made it easier such as providing food and other benefits (maybe even pay – since Axanar was supposedly an independent professional film and professionals deserve compensation) so that Terry could work longer hours. Maybe he made the original project to be too ambitious, maybe he was a bit slow to provide what was needed for Terry to complete the work.

            The fact is that I don’t know what it was Alec could have done to have reduced or dealt with the issues surrounding the delay but I am certain that a project isn’t delayed as long as this one is without some managerial issues even if Terry wasn’t doing what he should have been.

  16. Hello,

    Thank you Jonathan for all your explanations and your time to answer the comments.
    I am french and not familiar with copyright since local laws are somewhat different. Your explanations on the procedure are very useful to me to understand what happens.

    What I do not understand is why CBS went against the saying “a good agreement is better than a bad trial” and did never consider fanproductions a potential licensees. Why not take adantage of the good work provided by amateurs to value it and make win-win mutual profits ? Everyone has to gain in such agreement: owners, amateurs, viewers, even actors and technicians for their experience.
    Had CBS took time to consider it, they wouldn’t have to spend money on attorneys. The majority of loss they will be able to prove is the attorneys fees…
    I do not know what percentage of royalties a licence agreement would consider, but here is a basic calculation: for a 1,5$ a download on an average 300.000 views (based on STC or NV episodes), a 50% fee would give CBS 225.000$ and the same amount for the producers when an episode cost (still STC or NV) is around 60.000$. Compare to the 2.5+millions of views of Prelude to Axanar and you get a major failure from CBS to take the opportunity.
    Then, I do not understand why CBS reports the blame over Axanar when THEY failed. The same applies to all others fan-films or webseries that could be fruitful partners if CBS had paid someone to deal with this aspect instead of unthinking legal action. It is up to the owners to arrange any adapted agreement to make profit, and they just lost years of it. In spite of John Van Citters says, CBS is not ahead of anything on that matter and got it the wrong way. Sure the others studios will learn from this…

    I also want to add this precision:
    Andrew Gilmour is certainly not a backer of Axanar or he would knew that Alec sent numerous updates on both Kickstarter and Indiegogo campaigns and very clearly stated what the studios were intended for. For instance, Alec wrote that it could be used for rental, but also as filming school, and that is why the sets were all built on wheels to allow that. In no way I feel deceived by Alec for I always known what it was all about: not wasting the donations by scraping the studio after shooting and allow it to serve useful purpose afterwards.

    Thanks again Jonathan, please keep posting.
    Best regards,
    Nicolas.

    1. You ask a lot of very good questions that I don’t really know the answer to, Nicolas. The best conjecture I can make is that fan films, by their very nature, are NOT controlled by the studios and do not go through a standards and practices review. As such, Star Trek fan films could, conceivably, contain content the studios do not want associated with their property. But when fan films are backyard productions with sets made of masking tape and construction paper, there’s clearly no confusion that the production is amateur not produced by the studio. But when a production lifts itself to a professional level where it looks like “Prelude” and then raises $1.2 million (with another million likely coming in), then the opportunity for confusion with studio-produced–and approved!–content increases significantly.

      In other words, my guess is that Axanar looked too good and therefore scared the studio(s). Not being able to control the Axanar production–and certainly not wanting to license it because that opens up a Pandora’s box (although I personally think it’s a box that should be explored)–the studios opted to sue in order to have this runaway production shut down forever. Unfortunately for the studios, they chose the worst fan film to sue first. Any other production would have folded immediately like a lawn chair. But Alec Peters went out and found free legal representation from one of the top intellectual property law firms in the country. Now the studio has sunk hundreds of thousands of dollars into pursuing this case, and giving up now (settling or dropping it) would mean explaining to Leslie Moonves and the shareholders at CBS why all those hundreds of thousands of dollars were just wasted on a fool’s errand. In other words, the studios are now in way too deep to give up without finishing the fight…

      …at least that’s what I think. 🙂

      1. Thanks for your response.
        I also think CBS should lead the way of majors working with independants. At some point, projects are hitting pro levels and could be discussed with as if the were pros.
        For lower capacity projects, a small team could handle relations with amateur producers to check for conformity and why not provide guidance. Such new structure to look at what amateurs do would definitely cost far less than top notch attorney services and provide a new source of profit. Of course, it requires a serious analysis to avoid problems with other parties of the industry, but why to chose conflict when some solution is at hand ?
        Had CBS not been so afraid to explore this strange new world, they could spare a lot of money and use it more profitably.
        I just hope the idea will find its path and someone consider it somehow.

        Yes, CBS has gone too far to just withdraw now. On the other hand, going further will just do more harm, including to the franchise. They should be celebrating 50 years but chose to give a wrecking image, what a pity ! This behavior is known in air crash investigation specialists of human performance as poor crew management when pilots insist in continuing a badly engaged procedure when it is vital to abort it and try again. Genarally it’s a near miss, sometimes it’s a crash with all hands. So this is not a casual situation and CBS should consider damage control quickly because, after all, fighting infringement is prevention in first place. And it is still time to set up a way to have everybody satisfied.
        To protect it’s property has never only been a matter of law. Common sens is essential but here obviously forgotten. I personally consider that it is the job of IP owners to foster usage of that said property because it is the best way to value it. Even if it means develeloping a new task if it is rewarded properly at the end. To be clear, CBS IP managers did not do all they could to avoid the current situation, Axanar was the wrong case to aim at, and the guidelines are not wise since they interfere with the proposal of intermediate licencing. CBS kept the possibility to alter or withdraw these guidelines anytime, maybe we can hope so…

        Sorry, I am long too 🙂
        Regards,
        Nicolas.

        1. No worries. I’m used to being long-winded, mon ami! 🙂

          As for the studios, they have a Kobayasi Maru situation right now. If they drop the case, they need to explain the expenditure (with no positive result) to the shareholders. If they continue, they could be damaged in court even if they win the case–and God forbid they lose! Now, were I to have access to the thought processes of certain people on the inside–and I’m not saying that I do or I don’t–I would conjecture that they are imagining a different, third outcome: they win outright and do not suffer any damages to their licensing opportunities based on the outcome of the trial (or even pre-trial summary judgments). In fact, I’d wager that they can’t possibly conceive that any other outcome is even possible.

          But of course–without knowing someone who knows someone at CBS who is involved in this, anything I say on the subject is only a matter of me having an opinion. 🙂

          1. A well known option to the Kobayashi Maru situation is the Kirk way (change the parameters):to make the shareholders know that there is a way to solve all this with profit so they urge the company to step back and set a win-win agreement yhat is in their interest.
            There is always a way to explain “we made a mistake but we can repair it”. With proper communication, CBS could even take advantage of the situation and be presented as showing exceptional goodwill.
            I do not have contacts in the US, nor have any idea of how many peoples will read these comments and the possible solution I suggested, but if the word was to spread out…

          2. CBS and Paramount can’t back down, and to be honest why should they? Fan films are a butch fandom in over all Trek fandom. From what I understand an offer for settlement was made to Axanar in March that included the guidelines and Axanar turned it down.

          3. I’m not allowed to discuss what I know of the settlement, but imagine the studio getting everything it wanted and Axanar getting nothing and essentially losing everything on top of getting nothing. Settlements are meant to be at least a little compromise-y. The studios’ offer wasn’t even close. They made an offer Alec couldn’t accept. I don’t blame him. In fact, I get angry just remembering it.

        2. Nicholas has a very good point, that seems hard to prove one way or another, but the good of the franchise, and it’s fans, would seem to be beneficial to both parties. I think that is one of the big frustrations fans have, and seek someone to blame. That seems to go many ways, towards Axanar, Alec, the studios, the IP holders. Then the break of the JJ verse added more to the angst, when something has stood for 50 years, a lot of people find trying to reframe their universe hard. While a specific company may hold the IP, I think one of the issues here may also be, what are the customers rights? Without any material produced for 10 years, while that may be a companies choise, then if someone makes material, using that framework but not the specific material, does that constitute an IP violation? I think that seems to one of the issues here, what are the fans rights, if any?

          1. The fans have no “rights” other than the right of free speech. But free speech isn’t a “get out of jail free” card for infringement. You can’t be jailed for violating someone else’ copyright, but you can be sued for it.

            But copyright is also not absolute. Parody is allowed as fair use. Educational is allowed as fair use. A significantly transformed version going where the original work hadn’t gone before CAN MAYBE POSSIBLY PERHAPS be considered fair use. It’s that last one that AXANAR will be aiming for.

            The next question, though, is: did the infringing work damage the original owner in any way? For example, let’s say that I remake the episode “The Trouble With Tribbles” and do it at a level like STAR TREK CONTINUES did theirs. And then I show it at one small convention and never show it again. Am I guilty of infringement? Probably, yes. It’s not a parody and it wasn’t transformative. But can the studios prove they lost any revenue? If so, how much? It was shown at just one convention. Now, you can argue that AXANAR has had 2.5 million views, so maybe that will impact the studio revenue stream. But CBS and Paramount will need to show exactly how, how much, and how they arrived at that conclusion. It’s by no means a slam dunk for either side.

            But no, fans don’t have any rights to own or even rent Star Trek. We could pay $150,000 for a license, but CBS still has to sell us that license. So fans have no rights…sorry, Brian.

          2. To Brenda:
            Why should CBS back off ? Well, because they have a lot more potential gain in dealing properly with amateur producers than to prevent them from creating new contents.
            A Ferengi would say “a good business is a profitable business”. But there is no long terme profit in what CBS is doing. If they win the trial and get Axanar to pay, they will still lose the royalties that fan-films could provide. Please check for the number of views of each episodes of each webseries and try to estimate the audience it represents and the money it could get if it were pay per view.
            Basically, what CBS is doing is ignoring a market segment, and this is a very bad practice. How can shareholders allow this ? For instance, CBS is losing more money from this error than from alleged fan-films competition. Maybe CBS should not only prove that Axanar make them lose money, but also prove they did not screw it up themselves. 😉

          3. Probably, but Star Trek is such a small part of their business model. They’d probably be much more interested if Disney sued a fan producing a film about a Marvel superhero.

          4. Well, my idea of dealing with fan-films and the potential licence market it represents is not limited to the Trek franchise. In fact, it really applies to any works CBS handles copyright on.
            The great trouble is that CBS, as John Van Citters said, does not want to spend time on amateurs projects. They are not asked to “micro-manage” such projects, just to do their part of the job of insuring it is OK with what they want (characters’ respect, family compatiblity, and so on), and of course discussing the level of royalties according to audience, duration, extent of copyright usage or anything else.
            Imagine there are guidelines for autonomous projects and direct negociations for more ambitious ones, but at reasonably accessible cost. This is where the new market is. In fact, the current business model of all copyright holders is incomplete and they are missing income !!!
            Yes, it is a new concept, it is a consequence of the accessible technologies, and it is needed to live in the real world. Fans will have more and more possibilities to develop projects and infringements would become more and more frequent. The result will be for owners to spend time on it though, so why spend it on expensive trials when profitable cooperation is possible ? Currently, only attorneys are winning !
            All the possibilities of new jobs and business are not explored yet, and we have an interesting one here. If any company owning important copyrights finds it intersting to harvest gains from this new market, sure the others will follow. So, I guess yes, the industry is looking closely at the case and I hope it will understand what potential is underlying. In the meantime, John Van Citters is wrong about not willing to cooperate with fan producers. I sincerely hope he finds out that this needs to be considered as part of the conversation on what works or not and needs adjustment, not limited to Star Trek. Just have accountants work a bit on the potential earnings expansion it represents vs the staff cost it requires and see what remains. Then ask shareholder what they think of expansion…
            Regards,
            Nicolas.

          5. There’s an old saying in Hollywood: “No studio wants to be the first into the pool, but every studio wants to be second.”

            Writers know this, as oh-so-often, nobody wants to buy your script until someone makes you an offer…and then they all want it. Viewers know this when they see a show like “The Walking Dead” take off and then suddenly, the next season on television, there’s a whole crop of new shows about zombies.

            Hollywood is not innovative (generally); it’s renovative. It takes old, “tried and true” formulas and sticks by them as long as it can. Hollywood fears change because change (when it doesn’t work) gets people fired, and people don’t like to risk getting fired. My son’s godmother used to be a top executive VP at NBC. Her job was to take shows with low ratings and try to improve them (and NBC sure had a lot lately!!!). It was usually safer to suggest established re-tooling ideas that had worked before on other shows instead of trying something completely new. That way, when the shows continued to tank and eventually got canceled, she could say, “Well, it was probably the show itself, as this technique worked multiple times on [insert names of other network shows here].”

            You can even see such decisions in the history of Star Trek. After three seasons, Voyager was struggling to keep viewers…so bring in a hot chick and dress her in a catsuit because sex sells. Hence, 2 of D…err, 7 of 9. In Enterprise, with the advent of new shows that had a single, season-long story arc, they decided to try it with Archer and crew. And with the 9-11 attacks still fresh in everyone’s mind, they decided to have a terrorist attack lead to a darker series with more fighting and peril. This was just following the lead of shows like “24”–turning Jonathan Archer into Jack Bauer.

            So keep all this in mind when you wonder why the studios aren’t doing more to embrace the possibilities of fan productions–either at CBS or Disney or Wanrer or Sony or Fox or wherever. Such an approach would be innovative, and Hollywood doesn’t do innovative anymore…until someone does it first and doesn’t get fired for it. 🙂

          6. Maybe I mingled Holywood and the nearby Silicon Valley. The myth of the ever anticipating America is breached !
            Well, the film industry is not innovative, it’s a real pity, but OK. But it is definitely bad practice to ignore a whole sector of its own business. As I said, the opposite is also possible: that independants start to produce previously refused scripts and meet success.
            Please someone dare to make it good so we can go forward !

            Also, the short term audience is a bad criteria to judge of the value of a show. There is a lot of examples of series that have been cancelled although they found their public later or somewhere else. Star Trek TOS hardly had three seasons out of five, but finally the greatest franchise ever. What is to think of those who decided to cancel it back then ?
            The saddest is that this midjudging still goes on.
            Two words come to me about the relation of the industry to it’s own business: unacceptable waste ! It is fortunate not everybody works so.

            Regards,
            Nicolas.

          7. A good example of the difference between Silicon Valley innovation and Hollywood renovation is Netflix. A few years ago when Netflix began spending millions to produce its own content (the first of which, I believe, was the excellent “House of Cards”), the movie studios laughed at the folly. Netflix was a delivery service, not a content creator! Leave movie-making to the studios; we know what we’re doing. You’re a novice tech start-up that almost went bankrupt.

            Well, who’s laughing now?

            And of course, now that Netflix and Hulu and Amazon Prime and others are all developing their own content and building large subscriber bases, what are the studios trying to do? That’s right: copy the idea! CBS All Access is just the studio trying to repeat the business model of Netflix…only with less compelling content. It’s kinda pathetic to watch the folly, to be honest.

            And it’s not just the studios. The music industry was caught napping (napster-napping, actually) when digital music delivery began to replace the lucrative CD market. When was the last time you bought a CD? The music industry had to figure out this new world where the concept of an “album” was no longer what the masses wanted…when the delivery mechanism was no longer the music store but the iTunes store.

            The times they are constantly a’changin’. The studios (movie and music) aren’t used to that.

          8. The Studios should get used to that quickly because the current result is only prejudice for everybody. There have been enough examples of what inovation brings to a well run business. I can understand for a managerial team to be cautious about unknown territory, but it is actually their job to explore it and evaluate the potential. I think it is not a real difficulty to estimate costs and possible income of licensing fan-films, neither to gat a rather precise idea of the legal frame around that.
            For the shareholders not to jump on that and request for better, I can only think there are as conservative as the CBS managerial team, then they are bound to fail at the end, no matter the time it will take.
            You perfectly illustrated that competition is strong and in advance, I warned against the phenomenon to continue with the reservoir of potential competitors that are the fan-filmmakers, and the CBS attitude is clearly the worst possible one. Vulcans must be horrified by this total lack of logic !!!
            John Van Citters’ statement as the guidelines being just an conversation subject to evolution is a bad joke. Had it been true, CBS would not be acting as it does. JVC’s courageous intervention is just a poor attempt to defuse the situation but it brings no real hope. There is no such thing as separate issues between the Axanar prosecution and the guidelines. This is the same story and the guidelines are just a tool CBS is setting to avoid future defense as Axanar used stating “there were no guidelines to make us know we were infringing” (and I believe it is an element to prove the unintentional infringement for Alec).
            If the shareholders agree with the executive directors position, there is no hope at all. From my (french) point of view, and considering business’ sake, some CBS heads should fall…

          9. To be fair to the studios, there are a lot of reasons NOT to get into bed with fan films. One is the cost. Someone has to oversee all of these projects simultaneously as a studio liaison. And depending on how many fan films operate simultaneously, that could be a VERY busy job, possibly needing multiple people. People need to be paid salaries. Typically, people like JVC and his staff are paid with funds generated from selling licenses. If you buy a $50K or $150K license from CBS to make and sell a Star Trek product, you are buying the time of the person assigned to help develop and oversee your project. Fan films would likely not be charged an upfront licensing fee. Although that could be made a prerequisite, the smaller, low-budget fan films would complain about the barrier to entry.

            The next problem is standards and practices. Every CBS TV series goes through an intensive review for content acceptability. Industry professionals are used to this hassle and have ways of dealing with it. Amateurs might not be quite as patient or understanding (or professional) when they get notes on what needs to be changed. Most likely, fans will be pissed off, and the folks at CBS will spend unnecessary time having to talk these irate producers off the ceiling. Fan don’t necessarily understand how things work in Hollywood and why, and CBS isn’t in business to be a teacher or therapist. Will some fans behave? Sure. Will others act like spoiled, entitled brats? What do you think? Of course they will!

            And then there’s the unknown about how to make these fan films available and what revenue they might bring in. Right now, fan films are free to watch. Would you pay $3.99 to watch PRELUDE or STAR TREK CONTINUES? Possibly. But would you pay that much for an episode of TALES OF THE SEVENTH FLEET (a very low-budget early fan series)? Probably few people would. So would the low-budget fan series make any kind of financial sense for the studios to even supply for download?

            Lost of reasons NOT to do this…as much as we fans (including me!) might want them to.

          10. Of course there is a cost for keeping control on what is being done by fan-filmmakers. But I can’t believe it could not be largely compensated by the licensing profits. That is a marketing case, and clearly it hasn’t been checked out with the licensing perspective. Of course, if you only consider the way it has always been, there is no income and working one way only would be a loss (and it actually is now). My whole point is that it is a potential business that needs to be estimated and tried prior to reject it.
            I do not have a ready-to-use answer, and I understand that it needs some developpement to get something working properly, but profit is only the reward of some work. I sincerely think that licensing capable fan-productions would be far more profitable than penalties from them.
            Maybe the industry had reasons not to explore this way, but things change (consumers and their needs and practice), so new markets can be reached with some adaptation.
            That is why I would separate the fan productions in two categories: the little ones for which the guidelines are OK, and the larger ones that could generate substantial value and desserve licensing process. But even for the small projects, the owners could imagine to charge a reasonable fee for the project study and follow-up. That is not licensing but a form of insurance for both parties that fair use is OK.
            For the need to have a look on the contents to insure it is appropriated, license or not, it is needed to keep an eye on what is released by fans to ckeck compliance with guidelines. Then, as some review is needed, doing so in a business context seems more logic to me that counting on a trial to get repair on prejudice (to me it sounds like setting-up someone and let him commit the crime to seek compensation).
            The reasons the major companies do not want to spend time on this is rather they handle enough money. The view is very different when you are a new or/and small business in permanent need of new opportunities. There are a lot of examples of small start-ups that took it all because they were capable to think out of the box and acted where the dinosaurs were keeping doing as usual, ignoring the signs of evolution.
            And you know what becomes of dinosaurs…

            Well, I think I gave enough details about a more suitable solution I believe to be really better for everyone, I won’t bother you any longer with this, just hope it will walk its path in minds. I just wanted to publicly propose something constructive, and it happened on your blog. 😉

            Best regards,
            Nicolas.

          11. Just to be clear, Nicolas, I agree with you. As a fan, I totally think this could be made to work. However, I come from a background of being both a business analyst and a usability specialist. That means I used to get paid to figure out all the ways a “great” idea could go wrong and become a disaster. But my purpose wasn’t simply to destroy ideas but rather to strengthen them. Anyone can suggest a “great” idea if everything goes perfectly (what we call in development “the happy path”). But what happens if things don’t go perfectly? There need to be contingencies, or perhaps an aspect of the idea can be adjusted to avoid stepping on a potential land mine. I lead discussions in front of white boards to figure all this stuff out.

            So when I give you all the reasons (well, only some of the reasons) why the studio chooses not to do what you’re suggesting, I’m simply pointing out the ways in which your “happy path” could go wrong. This isn’t meant to put you down…only to show you what the studio is thinking. That said, part of my job is figuring out ways to make ideas workable rather than just scrapping them. The studios don’t seem wiling tackle that next step. They’re fine stopping at, “It can’t be done.” So if the studios ever change their minds and wanna hire me, I’d be happy to provide the service to them, as well. My hourly consulting fee is quite reasonable! 🙂

          12. You are absolutely right. I used to be a quality manager and the process you describe sounds perfectly logic to me. If you read again what I wrote previously, you will find I specified some studies would be necessary to avoid problems, and I meant precisely the same as you.
            What is not logic is that strange behavior of rejecting ideas without trying. Maybe it is the difference between average peoples and winners. If we look at the great success stories, both past and present, there is always the same component involved: the dare of calculated risk.
            I often compare this to a bank case: a project requires 10 bucks and can bring 100 back. The winner will risk 10 to win 100 after checking the project. The looser will not even check if it is achieavable or not, and fearing to lose 10, will miss 100. In this story, there is no guarantee that it will be a win each time for the first one, but it is definitely never win for the second. But if their job is not to lose, it is first to win, so who’s right ? If the winner is not a Kerviel nor a Madoff, he will probably meet more success, even if there are failures sometimes.
            In our case, CBS attacked Axanar because there is the possibility to get more money than with the others in case they win. That is not the winning move either since it is one-shot. That is not a business, nor even a deterrence, it is just counter productive.

            What I hope now, is that the word spreads out of this blog and that the question is repeatedly asked why the fan-films soft licensing is discarded without case study. If this question was asked by insistant journalists to different major companies, maybe one of them would look at it seriously and the others would follow.

            Regards,
            Nicolas.

          13. Honestly, I’m not really a fan of the idea. Though I definitely get the reasons why it might be.

            From the fan’s point of view, it could really stifle creativity. Being “cbs approved” could definitely create legal issues for CBS/Paramount should someone take offence and sue them over a fan production (written fiction, audio drama or filmed/machinima). As a result any CBS approved production would have to be within further restrictive guidelines.

            It could also create divisions and contentions in the fandom where some people are CBS approved and others aren’t. Part of the best part for Fan productions is that we’re all fans and we’re just trying to create what we can for the fun of it. To borrow from lyrics from High School Musical. “We’re all in this together.”

            Then people would also start complaining to CBS about why X was included and Y wasn’t…. and it just gets a messy headache that honestly all of us could do without.

            Just a quick note; honestly. I don’t believe that fair use would be a valid argument for any recent fan production. If they wanted to go after Star Trek Continues they could, if they wanted to go after Horizons they could, if they wanted to go after *insert favourite fan production here* they could. I’m not aware of any fan production that is “transformative” ie, adds and changes the content to parody, critique or simply to create something new out of already existing parts.

            In other words, any policy on fan films by CBS/Paramount wouldn’t mean that the definition of fair use has changed just that CBS/Paramount have policies set that these actions are fine and won’t cause the attention that Axanar received.

          14. All are very valid points, Andrew. Some have easy solutions. For example, one of the protections for not getting sued by angry fan producers if CBS refused to approve their fan film would be a binding arbitration clause for settling any issues…or simply an agreement in the contract that states that CBS has ultimate authority in the decision on whether or not to release a fan film. As for the “they got approved and we didn’t” fans, well, fans have always seemed to have something to complain to the studios about when it comes to Star Trek: “You killed Spock!,” TNG isn’t “real” Star Trek because it doesn’t have Kirk, DS9 is lame because it’s dark and on a space station, Enterprise sucks–why did you have to go make a prequel? Brannon Braga destroyed Star Trek! Rick Berman wrote an awful series finale!! J.J. Abrams turned Star Trek into Star Wars with lens flares!!!

            With all of that, fans complaining that “Last Tango on Risa” didn’t get fan film approval doesn’t seem like much of a headache. 🙂

          15. Andrew,
            Thank you for discussing the idea. Having someone to review it from the other side is how it could be improved.
            You guess I am not a specialist in copyright but I do not think the object in licensing is only approbation. It is firstly a question of using the trek universe and its components. That does not mean granting this use is sharing the responsibility of contents of independant productions.
            In fact, any license contract should define precisely the terms of use as well as limitations. The owner could simply insert a disposition in the contract saying that the fan-filmmakers must respect some moral rules under penalty of the film being banned from release. It is up to the owners to set-up the safeguards they think appropriated, provided they do not kill the efforts of complying projects. For instance, I do not think ST Continues is a subversive project that couldn’t fit the complete usual business requirements of CBS. But the current guidelines are killing them.
            So, yes, guidelines could be more specific in terms of storytelling in order to preserve the family friendly level of the franchise and other terms, but they should remain open to any size of project.
            If the owners are involved early enough in a project, they may point out delicate points at the very beginning of the production process and then avoid the problems when the harm is done. In doing so, the owners prove they have done the necessary to avoid complaints.
            Precise storytelling guidelines would avoid fans submitting inappropriated contents and ease the evaluation process. If a project is rejected and a valid and honest reason given, the applicant could not argue why the others and not me, it would be because the project does not fit. Since most projects are aimed at a maximum respect of the franchise and differ mostly by their technical quality level, the risk of inappropriate contents seems rather unlikely.
            There is as much difference between precise and restrictive guidelines as between prevention and repression. The first is a useful tool, the other is a hindrance. It probably explains the strong reaction against the guidelines a lot consider unfit for duty.

            Regards,
            Nicolas.

          16. Hey, sorry for the delay. I was bust with work and stuff yesterday so I couldn’t really post anyway. Here’s what I’ve come to in regards to some kind of process.

            Before we start with anything we need to look at our goals and aims so we have stuff to measure the final system against at the end to see how well we’ve met it.

            What we want to achieve:
            – As much creative freedom for Fan films as possible.
            – Firm backing for projects to move ahead knowing they won’t get sued.
            – A System that involves no direct legal connection with CBS to protect from being sued by third parties.
            – A system that deals with all fan films on the same, common and easily understood basis.

            I think that’s it. If you do have more suggestions then feel free to add them and I may change the conclusion I’ve reached.

            So what I’ve come up with is probably not all that interesting and while I indeed prefer our previous system it doesn’t meet many of our goals and is simple impossible post Axanar-suit.

            So be ready for something completely and utterly boring. The answer I believe are Guidelines. Yes, what we have now. P.S. I would personally like something a bit more supportive of something like Star Trek Continues. Where there are basically episodic new stories.So that people can make the most out of sets and stuff but that’s neither here nor there.

            Alright, let’s start measuring up Guidelines to our aims.

            – Guidelines, generally like the ones we have now, are more technical guidelines. They involve things like finances, numbers and lengths of episodes, who can be involved (no Trek Alum either actor or crew). And while there are definitely creative effects of these technical limitations overall, in my opinion, these limitations can be turned into a strength. The episode can still have the same rough story (Depending on how it was originally conceived), same tone, same subject matter, same thoughts and ideas behind it. The only thing that might change are the forms that these stories take which might in fact actually enhance the creative experession.

            – I’m not 100% sure in a legal sense but guidelines essentially amount to explicit permission by CBS/Paramount for a fan film. You’ll have no problem with us if you follow these guidelines. That’s what the guidelines say inherently but also what CBS/Paramount say explicitly as well. While it may not be full 100% legal protection (depending on whether this counts as ‘Explicit Permission’ which I would personally think it does otherwise what’s the point) there are at least assurances by CBS/Paramount that you won’t get sued. Which is the whole aim of this point.

            – Basically speaks for itself. There is only indirect connections through the use of the Star Trek IP. There is no direct sanctioning, direct ownership or direct involvement of CBS/Paramount in the fan film what so ever. As a result third parties don’t have any reason to go after any fan film as there is not any reasonable kind of money. Especially with a fundraising limit in place.

            – This one also basically speaks for itself. Without any direct connection with CBS/Paramount all fans are at least on a similar footing. But with publicly available guidelines everyone has the exact same information available in order to do their fan film. As a result everyone’s on the same page. Everyone knows what’s expected of them and other fan films as well.

            I think generally the system that we have now been given is the best that we could have under the circumstances. Even though, personally, I would like the guidelines to be more favourable to longer running episodic or serial content (such as Star Trek Continues – ie more chunks of story). I do think that by and large the guidelines we’ve received while limiting aren’t overly so.

            However, even if you disagree with me and think the guidelines are too restrictive then I don’t think your issue is with guidelines as a system. It’s with these specific guidelines. And seeing as these guides resulted from the lawsuit and that CBS/Paramount owns the copyright that it’s appropriate that they dictate the guideline’s terms.

          17. Andrew,
            Of course guidelines are needed. Alec Peters asked for that for 4 years (seems he is having his own 4 year war). For instance, everyone was already on the same page when there was not any known rules.
            But there is some difference betwenn constructive guidelines and something written hastily without consideration for the global interest of the franchise.
            There is no problem with common sense rules as those dealing with third parties rights. But on what depends on CBS, they went too far too quick with only killing Axanar in mind.
            You are right, there is some progress for the guidelines are a form of approval of using CBS IP for fan-films under certain conditions, a move forward from the previous situation. Sadly it required for Axanar lawyers to point out that the absence of such guidelines are precisely the reason Alec Peters and other fan-producers had no reason to think they were doing badly.
            That said, there is no reason to set so restrictive rules that kill other shows and prevent a lot of fans to have fun because they happen to have participated professionnally before. There is a solution to everything when peoples take time to look for it. Parts of the guidelines are just a direct copy of the LucasFilms/disney rules, maybe Disney should sue CBS for that 🙂
            The goal is to have this situation settled with the less damages possible, but certainly not to simply accept the excessive guidelines without trying to have them changed and explain why. I think I have explored my proposal clearly enough for anyone to understand where the only win-win exit is in this scenario.
            Take each line of the guidelines and ask what it does bring the studio from the business point of view. I tell you: nothing ! Now compare with what could an agreement bring and tell me it is not better. My problem with the guidelines is that they are the sequel of a complaint for alleged damage to the CBS profit while these same guidelines are actually preventing profit !
            I obviously do not say I have all the answers, but I sincerely believe a smart agreement is the best way to solve this honorably…

            About Trek alumni, I will just consider that they are the most supportive life-long fans of the franchise and everybody should be grateful for their presence while they still are alive. Their presence in fan-films is part of the Star Trek legacy and we should bless them for that !
            For technicians, what’s the matter ? Has an electrician or a grip that power to do harm in just volunteering ? If so, it has nothing to do with IP rights because they are just unpaid workers unlike the guy that builds props in the John Van Citters’ example and which is no problem… Oops, isn’t that an other inconsistency in CBS motives ?

            Update to a previous subject: Axanar publicly stated a few hours ago that their accountant had and will provide all necessary figures to the discovery file and subsequent procedure.

            Regards,
            Nicolas.

          18. We gotta be practical here.

            If CBS Licensed fan films then they’d be licensing their own competition. Book authors don’t sell licenses to other book writers to write their books. No, they write their own stories. Film studios don’t sell licenses to other film studio, tv studios don’t do it either.

            Fan Films by there very nature are 1. Infringing on copyright and 2. competition. I agree that Axanar was the cause of the guidelines, not because of Axanar’s lawyers but because CBS/Paramount went Axanar has gone too far and now apparently we have to spell things out. “DO. NOT. MAKE. FINANCIAL. GAIN. OFF. OF. OUR. IP.”

            How does CBS/Paramount benefit from these guidelines? 1. Not diluting the Star Trek brand. 2. Not allowing confusion between CBS/Paramount produced Star Trek and fan-produced Star Trek. 3. by protecting their and their licensees investments into Star Trek 4. by not having a competitor earning money from their IP.

            What you are asking for is just not possible and is not, in any sense, reasonable.

            I truly think the guideline system that we have no, as established by CBS/Paramount is the best option for us and CBS/Paramount.

            Going back to the Star Wars guidelines for a moment. They are part of a contest and at the end it’s Lucasfilm that owns all films that were entered. They don’t get to upload it elsewhere. They don’t get any control post contest over their own fan film. They don’t even have any say whether it’s uploaded to the internet at all, or even if it is let alone how long it remains accessible for.

            CBS/Paramount owning or licensing fan films is just no bueno.

          19. “If CBS Licensed fan films then they’d be licensing their own competition. Book authors don’t sell licenses to other book writers to write their books. No, they write their own stories.”

            What about all the authors who invite others to “play in their backyard” (write stories in an already created universe with lots of predetermined rules and story lines)? There are lots of those. Have no idea if there is any financial sharing similar to licensing or not, but it does happen.

          20. An author Marion Zimmerman Bradley who wrote the Darkover novels used to do that she let others play in the world she created, had fan fix contests. Then one of the contestants threat to sue Bradley when she learned the plot of Bradley’s new book was similar to hers. The book didn’t get published and Bradley ended the fan fic and her publisher refused to publish the book.

            That’s why authors who want to protect their IP don’t let others play with their work.

          21. Eric Flint -Ring of Fire and Grantville series – lots of fan writing and also multiple authors invited to “play”, lots of published books and, presumably, commercial success.

          22. Oh yea, another long time example …Mercedes Lackey’s Valdemar series. Lots of other authors invited, for short story anthologies, if nothing else.

          23. Well, CBS is perfectly capable of keeping an eye on what fans are doing. As a matter of fact, they actually happened to ask New Voyages not to use an old discarded Phase 2 script, meaning they has the intent to use it later. If they can do that, they can handle fan works.
            The problem of fans suing someone for using similar concepts is not possible here and the guidelines issued by CBS are clear on that point: fans can not claim copyright on Star Trek based concepts nor sue CBS for using their stories. As far as fans do work for free, they are not entitled to claim for loss.
            The case of Bradley is specific as the books of both authors were not published yet. Surely this was coincidental and none of the two involved did copy the other but impossible to sort that out. So the wise publisher was right to refuse to release a potentially disputed title.
            Maybe the possibility to open a domain to fans should be limited to definitely ended works. Bradley should have published her book prior to allow the fanfic contest (and then wait the contest to end prior to start to write again and avoid plagiarism on a fan). This problem is well known in the domain of patents and the only rule is “first to apply, first served”. Cruel then requiring thorough research prior to move.
            In relation to our main subject, there seems to be no problem with TOS as the series is ended for decades and will not be restarted. Axanar was yet to be explored, but if CBS had the intent to do so, Alec Peters has told them long enough for they stop him at early step of the project. I guess that CBS has to spend some time to check for not infringing anyone’s rights before to start a project. Checking compliance of fan-films is the same thing and it could be easier if the guidelines asked for a prior opinion, counter to John Van Citters’ view.
            Regards,
            Nicolas.

          24. “If CBS Licensed fan films then they’d be licensing their own competition. Book authors don’t sell licenses to other book writers to write their books. No, they write their own stories. Film studios don’t sell licenses to other film studio, tv studios don’t do it either.”
            WHY NOT ???
            In fact it is common practice !
            You consider as a basis that fan-films are competition. Nothing allows to say that. It all depends on the way you handle it. Licensing is the way to get additional profits. My point is that, as an independant publisher, I actually work under license for english books I translate into french. I negociate a license and pay royalties in advance. In doing so, the IP rights manager is getting a little more profits for his authors which could not reach my market otherwise, and value his authors at best is his job. Then, licensing is not competition but partnership…
            Then I do not see what is not possible nor reasonable in doing the same with films as is done without problem with books, photographs or songs. On the contrary, the more an artwork is reused, the more it generates revenue for its author/owner.
            Related to Star Trek, there is no competition since viewer will not watch webseries instead of official stuff, they will watch webseries AND official stuff. By the way it is the reason Axanar lawyers insisted to get CBS documents to see if there was real loss or not.

            For the LucasFilms/Disney habit to seek property of submittend material, it is clearly an abuse allowed by copyright laws. Several online hosting services do the same and it absolutely not wise for authors to accept it. The french and partially european laws prevent such abuse as the authors’ moral property always remain theirs. Had a license been granted, the authors always keeps his right to personally use his own work. In the copyright world, if some works fall in bad hands, they are just wasted !

            My position is that even if it is lesser revenue that official stuff, mini and micro-licensing is “better than nothing”, while the current situation is “loss for all”.

            Regards,
            Nicolas.

          25. Just popping in for a moment to mention that I’m kinda popping out from this discussion. You guys are welcome to continue going back and forth–it’s fascinating to read both sides. But I’m concentrating on writing my next few blog posts now, so I’m staying out of this thread unless I’m needed. Carry on, men. 🙂

          26. Boy, If I didn’t know better I would say this was written by a CBS Employee trying to justify the unjustifiable. No money was made and yet they keep saying the same thing over and over. No impact was ever on CBS/Paramount. The only thing is a possible gain in new customers who see Axanar and then go to look into more, decide they like it, buy DVDs and series, and go to movies. Axanar made not 1 penny off CBS/Paramount, especially since IT HAS NEVER BEEN MADE! The lawsuit was preemptive, meaning CBS Paramount fear of Axanar is based on projection. What is the basis of the projection? That people who see Axanar would not go see the JJ films? Never, ever has anyone shown (with anything but fantasy) a direct, concrete connection between the IDEA of Axanar, and damage to either plaintiff. This is why discussions get so angry and loud, is people keep coming back saying the sky is green, because CBS said so, and anyone who shows a picture of a blue sky is immediately labeled as nasty names and some kind of space weevil acting terrorist. Stop it, and leave it to the politicians to spin fantasy from nothing. I am so tired of people ranting about how much damage Axanar has done, and all their precious IP that has been stolen, when the only thing they did was:
            a. use Sovall.
            b. use the name Garth and the background story sketchilly laid out in an episode of TOS.
            c. The framework of the ST Universe.
            That is it, in my view. CBS did NOT withe the story, they did not make the characters (beyond Sovall), they did not make the Ares, they did NOT make anything. There for, if anything Axanar is transformative in creating a whole new chapter of Trek history. The question is: Do they own the very idea of the Trek Universe, the ideas of the ship, races, etc, and if so, do they have the right to apply that ownership to one little piece of it? Jonathan has said yes, they may have the right, and we have no rights, as fans. In that case, if founded, I would suggest the Trek fans all gather together, and build an alternate universe of their choosing, copyright it under a not for profit corporation, and never buy one more ST item, video, show book, or toy. Puth them out of business for their lack of respect of the fans and customers.

          27. For the record, Prelude also showed the starship Enterprise NCC-1701 being built, the Klingon D-7 battlecruiser, Chang’s costume from Trek VI, and those triangle medals…and and the pointed ears. (Yeah, those last two were sarcastic.)

          28. Yes, I did miss those. I do not bedgrudge the studios any claims to their stuff, and, unfortunately, those are their stuff, as well as the others. It does go back to the question of how so many people have used the basics of Trek (ship basic designs) to make all kinds of mashups and designs, create web sites dedicated to that, get income from ads on those websites, and yet not a peep from the “ip owners”. If anything, it still goes back to making a seperate universe with it’s own ship designs, copyrighting the idea, and then abandoning Trek. Transfer the same social framework, and a similar history and call it quits. Build a whole new franchise from just the fans, like Open Source software.

          29. The fans want to play in the Star Trek sandbox, not the sandbox next door. Sure, other fans are making their own universes…like Ryan Husk doing “Blade of Honor.” But so many Trek fan films just like soaking in the warm, soothing waters of the franchise they’ve loved to so long. I quietly wept when “Renegades” announced they would be surgically removing all obvious references to Star Trek from their fan series.

          30. So… sometimes I think you guys just argueing. I had laid out problems with legal connections for CBS with fan productions and no one has argued that. I set out my reasoning, and my conclusion… and neither is anyone argue that. Which is in fact what we are talking about but now we’ve gone on a tangent argueing about a point that relates to none of that. Sigh. *cracks knuckles and gets ready to lay it down*

            The thing is there’s a big difference between, a single author who creates a world and a multi-billion dollar corporation. Any money that does come in through licensed fan film productions would be completely and utterly dwarfed by the potential risk that anything official that isn’t completely controlled CBS/Paramount could do to the Star Trek brand. It’s just simply not worth the risk to the corporation. How many of us bought or played the horendous Star Trek: The Video Game. It’s a Kirk/Spock co-op First Person shooter set on New Vulcan in the Kelvin timeline featuring the Gorn. That had drastically damaged the brand of Star Trek video games. Fortunately, that was only a subset but a lot of video games have recently come out. A lot of mobile such timelines, Trexels and so on. That kind of thing, but for the core of Star Trek; TV & Movies, is exactly what the CBS/Paramount are trying to avoid. Remember, if CBS/Paramount stuff it’s their fault but if they let us play and we stuff it up. Then they’d have let third parties come in and mess their stuff up.

            Not to mention that licenses are there for others to add value onto the IP. What do I mean by that? I mean things that are beyond the capabilities of the owner. Let’s look at Five Nights at Freddy’s, a indie horror game that spawned its own genre of games. The owner of that IP, Scott Cawthon, is a games developer he’s made 6 games in that franchise. However, he’s also licensed a book The Silver Eyes, that’s available now and a movie that’s coming out next year I believe. Both of these things are outside of Scott’s ability to make and they simply wouldn’t exist if there wasn’t a license. However why would he license other people and allow them to make FNAF games when he could make one himself and get the full financial benefit and the full control of the core of his IP, the games? It doesn’t make any sense to give up that control or the benefit for something that may or may not be good.

            This is the exact same reason why we haven’t got a new Hulk solo movie. Marvel have all the rights to their character but they’ve got an agreement with Paramount??(I think it’s Paramount but not quite sure) that grants them the exclusive license and right to distribute solo Hulk movies. Even though the core of marvel’s IP comes from comic books they still have the capability to not only make their own movies, but now that they’re owned by Disney to distribute them as well.

            There’s simply too much risk for the minimal financial benefit they’re going to get out of any third party production of Star Trek branded films/tv. Which is once again why the Guidelines, as supplied, are the best system that I could come up with for dealing with Fan film productions.

          31. Just wanted to chime in that CBS already endorses and publishes written fan fiction from non-professional fans and profits off of it. The “Strange New Worlds” series of books from Simon and Schuster’s Pocket Books division features Trek stories written by fans, not professional authors. CBS licenses Star Trek for use by these amateur writers for this one, specific purpose. And if the stories are chosen, they are printed. Of course, the cost of printing limits the number of stories which can be published in each new volume, but the Internet and streaming has no such limitations. The studis literally has unlimited space to post Star Trek fan films for exclusive video streaming at, say, $2.99 per download.

            Just sayin’…

          32. See, there are options. Lots and lots of options. The dividing point comes in with what are the fans rights in these cases. I know you say they have none, so, if true, then the nuclear option is the only thing available. Arm the Corbomite device and strangle Trek financially. If Axanar is not made, I believe a whole bunch of fans will do just that. I am sorry if I sound raucous here, but we have turned into a giant litiginous society who’s only claim to “right” and “honest” are lawyers and judges who do not rule on law, but instead make it according to whatever pressures are applied. This is just a tiny case of the huge angst I see amonst people today who have a basic idea of fairness, and never see it, when courts rule in crazy and obscure ways that “yes, you can take this property” or “No you have no right to water” or whatever, and then see some big corporation do whatever the judge said no to, and never be held to account. It is a David and Goliath world. CBS knew thousands of people were contributing to Axanar, waited till the last minute, then dropped the hammer “so we can show them who is boss”. I don’t think the last word has been heard yet. CBS may not come out on top of this, if just because their franchise value will go down tremendously.

          33. Andrew,
            Why, WHY, would licenses production risk to damage the franchise ?
            As far as I know, the New Voyages, Continues, Renegades and all the other webseries and fan-films did no harm and certainly not intended to.
            There is a confusion between loving fans and peoples only seeking audience.

            From the CBS point of view, the John Van Citters’s statement that they do not want to “micro-manage” fan-productions is a nonsense since the guidelines allow fans to produce films and potentially do harm. Then, CBS HAS to keep looking at them in spite they do not want to. As to do otherwise, look at it a little closer and earlier in the process (under license), it is not a lot more of a work, it gives all the necessary control and finally it brings money back.

            You know, prohibition only brings trespassing, while cooperation brings mutual benefit. So, keeping stuck on the negative side is pointless, I won’t follow you on that terrain.

            Regards,
            Nicolas.

          34. And to add comments about people saying that somehow I’m apart or connected to CBS/Paramount. No. as I said I’m an Aussie, in Australia. I have no connections to CBS/Paramount beyond paying to watching their products in some way or another.

            I am though someone that tries to take a step back and think about things from as many point of views as I can. (And I have to admit thinking about my guidelines post earlier I finally understood the legal approach Axanar’s are going for with permission. I don’t think it’ll work and I definately don’t think Alec Peter’s thought he had permission but that’s just my view on that.)

            Also, I am an IP holder myself. I’ve written my own book (that if you want to look up just search for my name at reputable online book seller, and if not that’s fine too) and I’ve thought about how would I react if someone tried to take what I’d made and created a story changing things from what I wanted for it. I would be extremely pissed.

            My point is take effort to look at things from an objective different from your own. Put yourselves in the situation of others and maybe, just maybe, you’ll have a clearly more complete picture of the world around you.

          35. Well stepping back to get a general view applies for everyone., if you see what I mean.
            Fans are not just stealing others’ properties. There are examples of existing scripts that could not have been put on screen because the technology did not allow it at the time. Other episodes are just stories that were not accepted for reasons that are no more valid, or are remakes of stories that were altered to fit production limitations.
            When such episodes are dedicated to honor the authors or when the author himself is given the direction of the episode with freedom to make it as it imagined it at first in his mind, I do not know where is the lack of respect towards authors.

            Regards,
            Nicolas.

          36. Andrew, then take your own words and apply them. Take your book, make it a widely read, and loved book, makes several more books, sell the copyright several times, then make a few TV series under different owners, and a bunch of movies, , oh yea, let it all sit for years at a time, then resurrect it with the help of all those fans who have sat waiting for it to return and did so by writing fan fiction, sending letters to each other and mimeographing booklets. Now, add in the fan magazines (that were NOT “Officially sanctioned” (but uses your precious “IP”), but kept the TOS alive until someone woke up and realized people wanted the stuff. Do all that, then come back and lecture 50 year fans who watched this series on it’s first run, wrote those letters, bought those magazines (and did financial harm to those poor IP holders) bought every series, went to every movie, and are now told “You will be assimilated into the CBS universe and only the CBS universe”, and see something as innovative and original as Axanar get sued. I think the whole subject is a bit beyond and more complicated than whether they own the name “Kirk” or not. And if they do, they did a piss poor job of “protecting their precious IP” as well, since that has been “abused” and they have suffered “financial harm” for at least 20 years or so. Nope, not buying the BS. Honor, rightness and the right thing to do, they overwhelm this whole “IP” crap. It is a convenient excuse to implement their psychotic need for control we have in our society today. Which is why I will not watch their new series until it is either free on YT, or on Torrent for download. SCBS.

          37. Fan produced works whether they are fan-fiction, fanzines, whatever they are are definitely important. There is also definitely an overall benefit for having fans feel involved in the IP that’s developed by fan-fiction. The issue at hand is how to balance the needs for IP management and control by the IP holder and promoting the involvement of fans in the IP.

            I don’t think any of us disagree with that basic idea. The question is at what point should we balance? From my perspective as an IP holder I would definitely welcome people delving into my world creating stories of their own characters in that world. Although I personally don’t know how I’d feel should someone try creating stories based on the protagonist. Why? because I have a kind of intimacy with that character a personal connection even though I know that he’s just a work of fiction and made up even though I know that it means that people have gravitated to him and they’ve made a connection to him too.

            However, if I saw someone was using my IP and building a business off it then I’d be livid. I worked hard writing that book and this I put all this blood sweat and tears into and I’m not going to let someone steal it out from me. I think it’s exactly the same for CBS. Say what you want about the quality of the new movies. Whether you love the Kelvin timeline, hate it or fall somewhere in the middle there was still a lot of work, a lot of energy by a lot of people put in to make them real.

            Let’s say someone comes to me and wants to write their own book not only based in my world but featuring my protagonist. I wrote the first book, I created the characters I have a clear picture in my mind where I want the main characters to go. The thing is, if I give a license to someone else I’m going to be wanting to have control over that so that it 1. doesn’t mess up any of my plans and 2. receive a large chunk of the finances for all the work that I did getting this set up that this other person is using to push forward. That’s even if I give the license in the first place. This is my baby, my creation. I’ve got a vision, what I want to see for the characters and I’m going to move forward with that. I don’t know this person, I simply have no reason (unless for some reason I’m desperate for money) to risk putting my baby into other people’s hands. Hey, if I stuff it up. I can only blame myself but if I put it in other people’s hands officially and they stuff it up then I’ve put myself in a really horrible position. This is compounded by the fact that CBS is a large corporation. CBS isn’t just a corporation, though, it’s everyone working there from J Van Citters (Which I’ve never actually met or had any real discussion with.) right down to all the people involved in all the aspects of creating and producing a TV show. I’d be basically outsourcing my own job to third person and that’s not a reasonable way to make money all the while generating an end product that is likely be worse at least from a technical standpoint.

            And final big point there’s a HUGE difference between fan fiction, even audio dramas and fan films. Fan Films a drastically higher entry barrier. Fan fiction requires… something to write with. Audio dramas need something to record and mix audio and fan film requires cameras, actors, sets, costumes, make up, lights,microphones, video editing capability and special effects. All this is rather expensive. Star Trek Horizon was one of the cheapest fan films… 22,000 thousand dollars and that was mainly by one guy over three years in his spare time.

            By licensing fan films they’d basically be setting up independent film studios, studios that are by there very nature competitive. Fan fiction isn’t as risky for CBS because it doesn’t take money from fans, audio dramas have enough costs that most people can wear the necessary costs without trying to pass them on. CBS had allow fan films but when one tried to take these implicit risks and made them explicit saying that they intended to start their own and receive a financial gain (in terms of assets) from Star Trek fans. Then and only then did the lawsuit come out.

            As I have said many times. I think the Guidelines and the system we now have is the best available system post Axanar lawsuit.

            At this point, I’m sick and tired of this. Believe what you will, I’ve explained everything as well as I can. Licensing of fan films in my opinion is just plain idiotic. It was and will never be a practical answer. Not to forget the legal issues that may arise from third parties, fan segregation (X is licensed but Y isn’t elitism), that I’ve previously raised that none of you have even tried to address and have just flat out ignored. So I’m out for real this time. I’m unsubscribing and thank you for being bull headedly stubborn. If this hasn’t gotten anything through to you then all I can say you have skulls that makes bulls look like sheets of paper. That is all.

    2. Yes, you are right. I am not a Backer and I have specifically said so previously. Though I do understand that me and Lane have said a lot so this might get buried under the tonnes of back and forth we have done.

      1. You don’t need to be a backer of Axanar in order to have an opinion about it, Andrew…at least here on Fan Film Factor. I just appreciate at least a little bit of an open mind, which you seem to have. That doesn’t mean I need to change your mind, but if you’ve read some of the other comments (not many, but a few), there are some closed minds that I don’t bother bantering with because it’s not worth my time. Their minds are made up, and their arguments made up mostly of insults. No need to bother if their minds are simply set on “send” and not “receive.” You, Andrew, I respect. I hope I’ve earned the same in return…even if we still disagree.

        1. On the internet it’s just so easy to spurt out an opinion and not actually engage someone in a debate. Whether or not you agree with someone or not I think is kind of irrelevant. Someone elses opinions doesn’t somehow magically negate your own nor where they align prove yours are true.

          A fair chunk of the internet forgets that the internet is a communication tool, and communication is two ways. “This is what I believe and everyone else who doesn’t share my opinion is wrong.” is completely different from “This is what I believe and I want to understand why you share a different opinion than me.”

          Even if neither people change their opinions and they still disagree (like us) then at least they’ve heard each other out. That IMO truly is what communication is about trying to understand someone else. It’s not about forcing everyone to share the same opinion (though that it seem most communication and media stuff now is).

          So, now it comes to the big question. Do I respect you? Hmmm…. and if so in what way.

          Yes, I respect you. First and fore-mostly, I respect you as a human being. A form of respect that should be extended to everyone, even the people stuck on “send” no matter what side of argument. I also respect you as an opponent, having discussed many a subject I don’t think it is possible for not such a respect to form. Finally, I also respect that you trust Alec. Even though I believe that Alec shouldn’t be trusted to hold a bake sale and that you’ll probably be burnt by it. I understand that you do trust him and that is the position you come from when doing this blog.

          Now, how do I end this? I have no idea…. perhaps this way.

  17. Am I looking at this too simplistically or, perhaps being a bit naive in thinking that all of this could have been avoided if the producers of Axanar had gone to CBS/Paramount, showed them Prelude to Axanar and said, “Look, we’ve got this great project here. We’re doing it on a shoestring budget. If you give us your blessing, we’ll make a full length movie. It will make us money and it will make you money and it will make the fans happy. What do you say?”

    If I had seen Prelude as a coming attraction short in a theater, there is no doubt that I would readily shell out good money to see Axanar on the big screen!

    Note: I readily admit my near total ignorance of all thing pertaining the way mainstream movies get made and distributed. I also willingly concede that this may be a bit of hindsight is always 20/20.

    1. Alec Peters met on four separate occasions with high-level licensing and legal executives at CBS both before and after PRELUDE TO AXANAR was released. At least one of those meetings (possibly more–I can’t recall at the moment and I’m too lazy to look it up) actually took place on the Paramount lot in Hollywood. Both of the studios (CBS and Paramount) stipulated to the existence of these four meetings during the initial filings of the complaints and the responses in the lawsuit. So there’s no question that these four meetings took place during 2014 and 2015.

      At these meetings, Alec told the executives what he was planning to do with AXANAR, and he asked what steps needed to be taken in order not to earn the ire the studios. Since Alec has had a long relationship dealing professionally with both studios (via his Propworx auction company), Alec knew the people he needed to talk to and was respectful in setting up meetings and seeking their guidance. He didn’t come in like a wrecking ball; the meetings were all very civil and professional.

      Unfortunately (and the submitted legal documents confirm this as the plaintiffs never challenged or contradicted what Alec stated were the points discussed at these four meetings), the studios refused to give Alec any guidance of what to do or not to do. Essentially, they said, “If you go too far, we’ll let you know.” Of course, Alec kinda expected the “We’ll let you know” to be some sort of phone call or e-mail or even a longer in-person meeting at the studios to work things out. Instead “we’ll let you know” turned out to be a subpoena.

      1. Thanks for clearing that up! Like Glinda, the Good Witch of the North, I was a little muddled!

        I get the feeling that CBS/Paramount likes making money from the Star Trek franchise, but is not overly enamored of Star Trek fans…

        1. I wouldn’t say that. It’s actually a pretty complex relationship. Most studios would give anything to have a loyal fan base like Trekkies, but it can also be a bit of a pain in the ass. We’re kinda “high maintenance.” 😉

      2. Jonathan, that is the thing that irks the fans I know the most. Alec seemed overwhelmingly concerned with this very thing, and yet, they dropped a nuke on him with no warning or notice.I would also think there are legal requirements for notice, where you need to notify the person they are in violation, and why, and then escalate. Even if there isn’t, honorable business would seem to indicate this is the way honorable people do business.

        1. Nope, Brian, there’s no legal requirement to play nice before you go and sue somebody. But in Alec’s case, the decision forego a cease and desist letter or even an e-mail or phone call might work against the studios in a courtroom. It all comes down to the willful versus non-willful infringement question. What was Alec Peters’ reasonable expectation: lawsuit or the studios continuing to look the other way and then, possibly, to tell him when he went too far (as they said they would)? If the judge agrees that the studio gave Alec no reason to believe (up until the moment he was served) that he was doing anything wrong–even after talking to them four times!–the even if Alec loses and has to pay out a judgment for the plaintiff, that judgment will be surprisingly small in some detractors’ eyes. They’ll be left with jaws hanging open wondering WTF happened to let Peters off with such a ridiculously small slap on the wrist instead of millions of dollars in damages to pay. I’m just here to explain why to them–assuming what I think will happen actually happens.

      3. I hope you realize that under copyright law, there is no legal requirement that a copyright holder must first let you know that you have to stop doing what you are doing. If they do, it’s a courtesy. They have the right to use a lawsuit as their first course of action, as nothing in copyright law forbids this.

        Besides, I think they DID let them know. They didn’t send a subpoena first, but rather another document called a “cease and desist order”. Unfortunately, instead of complying, Axanar simply ignored it, and continued his original plan to produce this movie, which was now clearer than ever to be against the will of the official owners of Star Trek IP. I think he was under the idea from the beginning that the project would go forward no matter what, and that if the studios permitted it, it was only “icing on the cake” (to use an old expression). Like software pirates, he knew that what he was doing could violate the law, and he didn’t care.

        1. Just to make sure we don’t spread misinformation on this website, for the record, there was never any cease and desist letter issued by the studios to either Alec or anyone at Axanar Productions…as can be seen in the legal filings. Moreover, the studios stipulated to the fact that Alec had met with their executives IN PERSON (at Paramount Studios) to discuss his project and ask for guidance, and none was given. At no time did the studios ever tell him NOT to make either “Prelude to Axanar” or “Axanar” itself…until a lawsuit was filed.

          Please, if possible, verify your facts before posting comments. This goes for everyone posting, not just this Animedude fellow.

          1. There in lies one of the biggest issues a lot of the fans I talk to have, that there was no discussion, no revelation, as to Axanar doing anything out of the sorts. I remember Alec posting that a couple times, as people asked if this was going to be alright, and he forthrightly told us what was up, that he had talked to them, and they had not made any negative moves, and used the cryptic, “we’ll let you know” . Letting you know by dropping a lawsuit on your head is not something to endear the people who have supported the project, or believed in it, leading to the negative attitude against CBS/Paramount as “not in touch with the fans” and “lacking in customer concern”.

          2. It’s also one of the main arguments that will be made in court for non-willful infringement. Even if Alec infringed, the studios led him to believe (by not telling him otherwise) that he would be treated just like every other fan film for the past ten years…i.e. he would be permitted to post his fan film for free to YouTube. The lawsuit has nothing to do with the fact that the studios are allowed to sue or not sue anyone they want. Instead, it has everything to do with how their lack of action in all previous instances led to a reasonable assumption that no action would happen this time.

            This is a thoroughly critical point that a lot of people–even the plaintiffs’ attorneys–seem to be missing. But it will very likely filter into the outcome of the case. So if people choose not to understand it now, they’ll very likely need to understand it later.

  18. Could I say that it is Netflix who have made the investment in ‘DiscoTrek’ – two seasons worth.
    They don’t own the property and so won’t have a seat before the bar. I think it is likely that they will be interested in the outcome of this.

    (I’ll take my “No ****, Sherlock!” catcalls now…)

  19. Jonathan, your dedication to peaceful debate/discussion on this topic is providing a great service. It informs us, as well as giving us some entertainment (grin) while we wait for the “main act” – the case’s day in court. Thank you.

    1. It seems like there’s precious little peaceful debate/discussion these days…so I just figured I’d give it the ol’ college try here on my blog site. Thanks for the comment, Tony.

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