Dave Heagney, Jr. is a fellow blogger and Facebook friend of mine.
For those who haven’t heard yet, CBS and Paramount have have settled their case against Axanar Productions. My good friend Jonathan Lane has an article over at Fan Film Factor with some of the details of the settlement.
Basically, Mr. Peters will be allowed to make Axanar in a manner which mostly conforms to the new guidelines, with some sizeable exceptions. That means that Axanar will be limited to two 15 minute segments, for a total viewing time of 30 minutes. However, the plaintiffs are allowing Richard Hatch, Gary Graham, JG Hertzler, and Kate Vernon to reprise their roles from Prelude To Axanar (one of those sizeable exceptions I mentioned…). Axanar Productions will also be allowed to make future Star Trek fan productions, provided they comply fully with the guidelines issued last June.
On the not-so-great side, Mr. Peters cannot engage in any further fundraising through crowdfunding sites for Axanar. However, there is no limit imposed on him from fundraising through other, more private efforts.
So, that all being said, why such a downer of a title?
The title is a paraphrase from the Enterprise episode Cease Fire. It’s what Shran says after Captain Archer points out that a compromise is defined as a solution that neither side is happy with. And that’s what this settlement is: a compromise. I know there are a lot of people who are not entirely pleased with this outcome, and I get it. Axanar is supposed to be a feature-length film. What we’re going to get is something quite a ways south of that. However, a little reality needs to be shed upon that expectation: The minute that CBS and Paramount decided to sue, the likelihood of Axanar being made unmolested became slim at best.
Even if Judge Klausner hadn’t shot down the Fair Use argument, and Winston & Strawn argued it successfully at trial, that defense was most likely that Prelude’s mock-documentary format made it transformative and that the Axanar script was in a fungible enough state to be rewritten to that format (though I have not seen any of the scripts, I’m willing to bet all my quatloos that at least one of the revised scripts written since the lawsuit hit adopts that format). So you can throw whatever script was written prior to 12/29/2015 out the window.
Now, let’s put Klausner’s ruling back in to the equation. Here are the likely paths this case took once the Summary Judgement rulings came down (my estimation of likelihood in parenthesis):
- Case goes to trial, and Axanar wins on the basis of there not being a subjective substantial similarity to Star Trek. (Um, yeah…probably not happening)
- Case goes to trial, and Axanar loses, but is found to be infringing non-willfully (fairly good chance, depending on how Mr. Peters’ meetings with CBS played with the jury, and how much evidence of the existence of fan films would have been allowed)
- Case goes to trial, Axanar loses, and is found to be willfully infringing (Also a fairly good chance, though a little less so, dependent on the same reasons listed above)
- Both sides agree to a settlement
Now, regardless of which of the two likely outcomes occur, it’s guaranteed that the defendants would file for appeal, based upon Klausner’s shooting down of the Fair Use defense. But even if the appeals court grants that, it’d be a year at the earliest before the 9th Circuit would hear the appeal, and what they would do is remand the case back to Klausner’s court for a new trial. Based on that scenario, it would be 12-18 months minimum before Alec could begin to even think again about making Axanar (assuming he wins a new trial). And even if that all occurred, it would still not be the Axanar that was planned prior to the lawsuit.
So, the choices come down really, to two. Settle now, and know that Axanar can be made (though under restrictions), or roll the dice and hope that they fell the way the way we want them to (the way we’d need them to!). Well, a bird in the hand is still worth two in the bush! So, for Mr. Peters, and for all of us who want to see this story (at least in some form!), this settlement really is for the best, even if it leaves us with some dissatisfaction.
CBS/Paramount is surely dissatisfied with this as well. Sure, (if their joint press release is completely accurate), they got an admission that Mr. Peters “crossed a line”. Such is a small price to pay for being able to move forward with Axanar. Was it really worth it to them to spend seven figures on legal fees to impose restriction on the production that probably could have been had for the cost of a phone call and a few meetings? I know there have been others who are saying that a million dollars in legal fees is minor to a corporation as large as CBS and Paramount are, but wasteful spending is still wasteful spending!
Furthermore, those seven figures did nothing to earn them new fans. Yes, the number of fans completely honked off at CBS and Paramount may be miniscule, but the number who actually cheer their efforts and weren’t already Star Trek fans is probably miniscule in comparison to the honked-off crowd!
But the most dissatisfied has to be those on the Anti- side of the Axanar fence. For a multitude of that crowd wanted nothing less than Alec Peters’ head on a pike. They wanted blood. They wanted Alec to be made an example of. And now they are either throwing tantrums over not getting it, holding out hope for such fantasies as a “donor class-action lawsuit” or an “IRS investigation” (Hi, Carlos!), pretending this settlement is a full victory for the plaintiffs, or non-chalantly saying, “Oh, yeah. This is what I expected all along.” (I’m looking at you, Hinman!). Remember though, there are pages and pages of material on the internets (much of it on the Facebook site where you congregate) of what they wanted and expected to happen, and this certainly wasn’t it!
So, please, join me in a drink to celebrate our mutual dissatisfaction, for we have less to be dissatisfied about!