It’s “High Noon” in the Axanar lawsuit…and we haven’t even gotten to trial yet! But that ominous background music is playing, and the two gunfighters are facing off for a showdown in the middle of a dusty street in a western town. More specifically, the CBS and Paramount lawyers at Loeb & Loeb are facing down the Axanar lawyers at Winston & Strawn (and vice-versa!), and the entire case could be won or lost right now by either side–months before trial even begins–and both teams of lawyers know it!
Back during the beginning of this year, attorneys filed complaints and responses and amended complaints and amended responses and counterclaims in the Axanar copyright infringement lawsuit. And each time one side or the other would submit a new document, followers of the lawsuit would spring into action declaring how either the studios or Axanar had just delivered the killing blow.
Ultimately, neither side “won” during the pre-trial ramp up…and that’s not at all surprising. At best, Axanar could have declared victory by having the judge grant their motion for immediate dismissal of the case (which the defense side usually makes in lawsuits), but that’s always a long shot at best.
And so the case entered the next phase: the (coincidentally named) “discovery” phase. During this time, both the plaintiff and the defendant must provide the other side with any piece of evidence they ask for that is relevant to the case. Witnesses are questioned (deposed), documents are collected and shared, and queries are submitted in writing requiring honest and open answers. I’ve previously discussed the Axanar discovery phase in somewhat controversial detail in this editorial blog. (It’s very interesting reading!)
What I didn’t mention in that editorial is what happens when one side or the other says, “No, sorry…you can’t have that piece of evidence/document/information/etc. that you just asked us for.” How can they get away with refusing? Well, note above that I said, “…that is relevant to the case.” If one side or the other feels something is irrelevant or protected as privileged information or simply too burdensome for them to produce without an unreasonable amount of effort, they can refuse to provide it during discovery.
This appears to be happening right now in the Axanar lawsuit.
Apparently (according to page 3 of this court document) Alec Peters and the Axanar team have turned over more than 31,000 pages of documentation and e-mails! It’s not unheard in lawsuits for one side or the other to have as part of their strategy to force their adversary to collect and produce so many documents and e-mail records that they decide to just settle rather than deal with all the hassle to track down, compile, and deliver all this stuff.
And indeed, it wasn’t just the studios playing that game. Winston & Strawn were equally ambitious in their list of discovery documentation for CBS and Paramount to turn over. And let’s face it, these two studios have THOUSANDS of people who work and have worked on Star Trek over its 50-year history. In comparison, Axanar has only been around for about 3 years. I can only imagine how many pages of records needed to be searched for, collected, compiled, and delivered by the studios to the defense team!
The studios, however, had a different plan. They simply wouldn’t hand over everything they were asked to.
Now, this doesn’t mean that they handed over nothing. Indeed, I heard through the grapevine that Alec Peters and his lawyers received about 10,000 pages of documentation to read though. But it wasn’t everything that was requested by the defense–far from it–and time was running out! The discovery phase is set to close on November 2, leaving about three months for both sides to go through all the collected evidence and prepare for the trial beginning on January 31 of next year.
With only about a month left before the window or opportunity closed forever on receiving discovery documentation in this case, and assuming that nothing more was forthcoming (both sides had agreed on a date to deliver everything to the other side), Axanar lead attorney Erin Ranahan last week filed a Motion To Compel Discovery with the Central District in the 9th Federal Circuit Court. The procedure in the Central District is that the two parties (plaintiff and defendant) must cooperate in submitting all discovery disputes in one document. So Erin Ranahan first submitted her arguments to Loeb & Loeb, and then they added their responses, and the two sides filed a single Joint Stipulation document with the court last Thursday.
Although the actual infringement case is assigned to the Honorable Judge R. Gary Klausner, all discovery motions in the Central District are given to Magistrate Judge Charles F. Eick. And now that the initial joint document is submitted, each side is now free to provide a supplement up to 5 pages by next Friday, October 7. Then Jude Eick gets to rule on what documents the studios still have to deliver, and once that happens, well, resistance is futile.
All of this can be a familiar game played in lawsuits. It’s not common, but it’s not unheard of either. Litigants make ridiculous demands during discovery to inconvenience the other side and fish for some hidden “smoking gun”somewhere; one side or the other (or both!) fail to deliver everything that was asked for; a motionto compel discovery is filed; arguments are made as to why this is that is an unreasonable request; and so on until the judge rules.
The Joint Stipulation document includes Axanar‘s arguments along with the studios’ explanation of their refusal to deliver many requested items. Your eyes will likely glaze over after reading just a few pages (mine did!), but it really is quite fascinating because if provides an eye-opening insight into the legal strategies that will likely be employed by both sides as the case progresses.
Wanna know what the lawyers are planning for the trial? Read on!
The document conveniently groups the Axanar requests into three categories of documentation:
- Anything dealing with how much of a negative financial impact Axanar might have had on the revenue generated for Star Trek.
- Anything detailing how the studios previously dealt with other fan films and related fan fiction.
- The Chain of Title tracing and proving the studios’ ownership of the Star Trek copyright.
Whew…that’s quite a list!!! Let’s tackle these one at a time. But keep in mind the most important aspect of this lawsuit for both sides: damages. When you strip away everything else about this case, at the core are 57 alleged violations of copyright, each with a potential damage award of up to $150,000 for a possible worst case scenario of an $8.55 million award for the plaintiff. But even if Alec Peters loses, that judgement could end up being significantly less if a) not all of those 57 alleged violations turn out to be an actual violation, and b) the violations turn out to be NON-willful…in which case they could be reduced to as little as $200 each.
So while the “prime directive” for the defense is, of course, to win and get Prelude to Axanar declared “fair use” (I’ll discuss the definition of that shortly), the secondary directive–and just as important as the prime directive!–is to target those alleged violations one-by-one like tribbles in a Klingon shooting gallery.
And with that in mind, let’s look at the defense requests first (we’ll hit the studio plaintiffs responses in Part 2)…
- FINANCIAL DAMAGES TO STAR TREK
Winston & Strawn pretty much asked for the kitchen sink, stove, oven, refrigerator, microwave, and any other appliances in the house. They want to know how much Star Trek has cost to make over the years, market and publicize, profitability of the franchise, and of course, how they’ve measured how Axanar will impact those revenues negatively. In other words, “If you’re claiming that Axanar will damage your brand, then tell us exactly how much you expect to lose because of us.” Pretty much any e-mail or document relating to any or all of the above–including contracts with the actors, directors, writers, production crew to determine how much Star Trek cost to make so it can be subtracted from all gross revenue–is fair game.
As I said, we’ll discuss the studios reasons for NOT providing this information in Part 2, but suffice it to say, there’s a LOT of confidential information being requested along with just a truckload of documentation. (Note: there is a privacy agreement in effect between the parties, meaning that “it’s confidential information” is not necessarily sufficient reason not to share a document.)
Winston & Strawn is pursuing this line of finanical inquiry for two very specific reasons. The first reason has to do with the “fair use” defense. This is from the Joint Stipulation document:
In determining whether a secondary work constitutes fair use, the four statutory factors to be considered are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. The effect of the allegedly infringing work on the market for, or value of, the underlying copyrighted work is “the single most important element of fair use,” and thus highly relevant to Defendants’ fair use defense.
Said more simply, it’s imperative when trying to prove fair use that you address how much the allegedly infringing work has or will hurt the original property financially. If Axanar isn’t really costing the studios anything because few people even know about fan films and those that do and contribute to funding campaigns remain loyal to the studios offerings, as well, then no harm, no foul. Fair use could be proven.
If, on the other hand, the studios can show that millions of fans are watching Prelude to Axanar online and then deciding not to buy tickets to Star Trek Beyond or are funding Kickstarters with money that is no longer available to pay for a subscription to CBS All Access or buy a toy phaser, well, that’s a smackdown for one of the four elements of a fair use defense.
(Now, considering that a fair number of members of the SMALL ACCESS protest campaign are NOT Axanar supporters and yet are still planning to protest the new Star Trek TV series, it would seem difficult for CBS to blame Axanar exclusively for any future failure to get Trekkie subscribers to All Access.)
The real problem is that the defense simply doesn’t know what the studios’ calculations are! How much is Axanar costing CBS and Paramount in lost revenue? Or is it? Maybe Prelude to Axanar and/or other fan films are acting as “free commercials” for the franchise (as I’ve postulated here on FAN FILM FACTOR in other op-eds). If the studio has done any research or even had discussions of such a positive effect from fan films, that could be the “smoking gun” that supports a fair use claim! But if CBS and Paramount refuse to turn over such potentially damaging evidence (possibly for self-serving reasons), then that damages the defense’s chances. Hence, the motion to compel the plaintiff.
The second goal of trying to determine actual damages is to mitigate the potential judgement against Alec Peters if he loses. Remember that a worst-case scenario is an $8.55 million verdict that leaves Alec Peters bankrupt. But if the actual damages are only in the four or five-figure range, then a seven-figure penalty is unreasonable, as rulings in previous lawsuits have established. So how much financial damage is Axanar really doing to Star Trek? That could, quite literally, be the $8 million question!
2. DEALING WITH OTHER FAN FILMS
When this document first hit the internet, memes like this one started showing up:
The reason some anti-Alec Peters folks were giving for making this claim is the following request from the document:
All Documents that refer or relate to Your decision whether to pursue legal action, including but not limited to sending DMCA takedown notices, sending cease and desist letters, and/or filing lawsuits, with respect to fan films inspired by Star Trek, including but not limited to Star Trek: Hidden Frontier, Starship Exeter, Bring Back Kirk, Star Trek: New Voyages / Star Trek: Phase II, Star Wreck: In the Pirkinning, Star Trek in Lego, Star Trek: Aurora, Star Trek: Of Gods and Men, Starship Farragut, Star Trek: The Next Animation, Dan Hauser’s Animated Star Trek, Star Trek: Phoenix, Star Trek Continues, Star Trek: Specter, Star Trek II: Retribution, Star Trek III: Redemption, Star Trek: Reunion, Star Trek: Secret Voyage, Star Trek: Dark Horizon, Star Trek: Absolution, Star Trek: Renegades, and Star Trek: Horizon.
That’s quite a list! (And it shows that Winston & Strawn is doing their research and not just coming here to FAN FILM FACTOR…since I haven’t even covered nearly half of those fan films yet.)
So, is Alec Peters really throwing other fan films under the bus? Hardly. First of all, nothing is being said to disparage any of the fan films listed, nor is Peters suggesting that because he’s being sued, other fan producers should also be sued. In fact, he’s actually arguing something entirely different, and it’s something that the studios don’t seem to be understanding.
I’ll go into the studios’ side of the argument in Part 2, but in short, they’ve stated repeatedly in the document:
[T]he failure to pursue other infringers has been consistently rejected as a defense to copyright infringement or as an indication of abandonment.
A party’s lack of legal action against other alleged infringers has no bearing on whether the work at issue will damage a potential market.
In other words, the studios are saying that they can choose to sue anyone they want to…even if it’s just one fan production. But they seemingly aren’t grasping what the defense is really trying to prove.
Remember when I said that the $150,000 per copyright violation was a worst-case scenario? Well, it’s also a penalty for WILLFUL infringement. There’s a much lower penalty (as low as $200 per violation) for NON-willful (on innocent) infringement. Again from the document:
In contrast to willful infringement, innocent infringement occurs where the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright.”
Did Alec Peters have reason to believe that his acts constituted an infringement of copyright? Some would say, “Of course! It’s frickin’ Star Trek, and Star Trek is copyrighted!” But that’s where these requests for documentation and e-mails dealing with other fan productions becomes essential because it opens up the discussion during trial to whether Alec Peters should have expected to get sued. If all these other productions were never told to cease and desist, and especially if the studios knew of their existence (and the producers of several fan series have repeatedly claimed over the years to have been in contact with Paramount and, later, CBS about their projects), then Alec Peters would have been reasonable to assume that he was no more willfully violating the studios’ copyright than any other fan production.
This one is HUGE, folks! The difference between a ruling of willful and non-willful infringement could literally be more than $8 million! So this is not a case of Alec Peters throwing anyone under a bus…since there really isn’t a bus to be thrown under. The guidelines are essentially insulating all new fan productions at this point anyway (assuming they follow the guidelines). So the studios aren’t about to shut down all fan films just to win a case. But even if they did shut every fan production down right now, the studios can’t travel back in time. Forty-five years of not challenging the existence of fan films is what led Alec Peters to believe that his acts did not constitute an infringement of copyright that the studios had a problem with.
So no, not a bus-throwing situation…simply lawyers doing their job to try to save their client from an $8.55 million judgement!
Since this blog is getting pretty long, let’s stop here for today. In Part 2, I’ll cover the last category of the defense’s discovery requests: Chain of Title proving that CBS does, in fact, own Star Trek. (Man, can you imagine what would happen if the judge ruled they DIDN’T own Star Trek????)
And then we’ll look at the other side of the courtroom. How are the plaintiffs justifying not complying with Axanar‘s discovery requests? And will it work???
I think you’re missing one of the most important things in that court filing. W&S are still trying to claim Axanar would be a fan film, while the Plaintiffs (using Alec’s own words and posts) are insisting it is instead an “independent Star Trek production”. This is vitally important to their attempt at a fair use defence.
On another note, speaking of fair use, I’m glad you liked my meme enough to post it! While I really don’t believe that the references in the filing is Alec throwing other fan films under the bus, I certainly liked the reactions it got. The villagers are getting restless and they are turning against Alec more and more.
Actually, the point about Axanar not being a “fan film” will be covered tomorrow when I go over the plaintiff’s responses. Today’s blog focused on Winston & Strawn’s initial arguments.
As far as public opinion turning against Alec, that’s kinda hard to track objectively. The only thing approaching “hard numbers” that I have noticed is that visits to Axamoitor.com (generally seen as critical of Alec and Axanar) have dropped significantly in the last few months (
http://www.alexa.com/siteinfo/axamonitor.com
) while Fan Film Factor (often accused of having a pro-Axanar slant) is increasing in readership (
http://www.alexa.com/siteinfo/fanfilmfactor.com
). Just note the number in green or red next to the rankings. I’m not doing this to brag; only to point out a measurable trend over the past 3 months. And this trend, for what it’s worth, suggests that the world at large is either turning less anti-Alec/Axanar or, more likely, just doesn’t give a pooh anymore. Probably somewhere in between.
Hardly the number 1 site Alec claims
Oh, I wish! But I will admit to feeling like I’d “made it” when I passed Axamonitor.com. That was a pretty cool moment. It’s also awesome that this article has been looked at 2,800 times today (with three hours left to go). On a good day, I get 500-1,000 visitors. Today I’m well past 4,200 unique visitors. It’s not that I’m bragging; I know there’s sites out there with hundreds of thousands of daily visits…or even millions! But hey, just to be the thousands feels really good.
Page views aren’t public opinion. I’ve noticed in the groups where discussions about Axanar are allowed (unlike their FB pages and your Small Access page) that more people are commenting that they agree with the plaintiffs and feel that what Alec has done (and continues to do is wrong). That’s not scientific I know but it is quite noticeable.
I also have seen their latest email update. Calling you unbiased is hilarious. Your blog was originally on their site and their PR director is an admin on your page. You get the inside scoop from Alec according to him. You are their mouthpiece and your continued denials just make you look bad.
Alec is welcome to call me unbiased. Personally, I think it’s an irrelevant adjective. I think that everyone has at least a little bias…especially when it comes to Axanar. I proudly stand with Axanar and against the studios. (Hello! Small Access, anybody?)
But what I think Alec should have said (and so I will since he didn’t) is that I’m kinda here to bring balance to the Force. Right now, there are two leading Tran fan “news” websites that skew their reporting anti-Axanar: 1701news.com and Axamontor.com. There’s also a few distinctly anti-A (Axanar, Alec, Ares Studios) podcasts like the G&T Show. So there’s a lot weighing things down on the “Screw Alec and Axanar!” side of the scale. Now let me ask you: how many significant Trek fan news sources can you name that DON’T try to skewer Axanar and Alec Peters?
So yeah, I’m sitting here pretty lonely on the other side of the scale, doing my best to report the news as best I can and occasionally comment on it. And my comments do tend to be more sympathetic to Axanar than Carlos Pedraza’s or Michael Hinman’s. But I always try to base what I say on facts. I don’t think anything I said in today’s blog (or tomorrow’s) is factually incorrect. Some is opinion, of course, but I strive to state my opinions as such whenever I can with phrases like “I think” or “it seems to me” and back them up when possible. Your mileage may vary.
But that doesn’t make me a mouthpiece for Axanar any more than Carlos Pedraza or Michael Hinman are mouthpieces for CBS and Paramount. We’re just fans with a hobby of writing blogs in our spare time about Star Trek or fan films or Axanar. We’re not paid journalists, and neither are we publicity agents, and we’re certainly not lacking in our personal opinions!
I’m sure that, to Alec at least, I look pretty unbiased compared to those obviously biased against him and his project. But I personally never claimed to be completely unbiased. However, I do strive to call things as I see them, and if Axanar screws up, I’ll call them on it. I think it was a bad idea to ban people from the Axanar Facebook groups, and I told Alec that and have said it publicly. When Alec first showed certain people a copy of the annual report to review and most were praising it, I said, “Dude, do you really want to tell people you paid yourself a $38,000 salary??? This will NOT go well!” (Turns out he didn’t pay himself a salary–it was actually a partial reimbursement for $50,000 of his own money that he put into the project–but that’s another story.) I’m not afraid to speak truth to power…and a few times, it’s put me temporarily on Alec’s shat list. But that’s just who I am. And he gets over it. 🙂
I think you’ll see in Part 2 that I can report on the studios’ arguments and base those observations and opinions on facts, as well. Maybe you’ll agree…maybe you won’t. And the world will keep right on spinning.
Your blog is also on a domain registered to Mike Bawden. You can’t keep claiming impartiality but I really don’t know how you do it with a straight face.
You say that like you’ve found some sort of smoking gun, Sandy. It makes you sound kinda ridiculous. I’m just reporting the facts of the case and giving my opinion about those facts. Whether or not I’m impartial is irrelevant if I’ve stating facts as facts and opinions as opinions. And I never claimed to be impartial…or am I forgetting something that I said? I try to be fair when I can, but I’m a professed Axanar supporter. That doesn’t change the facts that I report on, though. Those are still facts no matter whose side I’m on.
And I thank Mike Bawden profusely for helping me set this blog site up! I was a WordPress virgin until Mike created the back-end for me. I can’t thank him enough–especially since he’s such a busy guy. (You do realize, Sandy, that Mike Bawden has MANY more clients than just Alec Peters, right? I mean, you can’t be that ignorant…can you? Maybe you can.)
Jonathan, I am really sorry there are people out there who keep thinking they are Sherlock Holmes or something, and want to assume anything Axa related is some evil conspiracy or something. Your point about Mike Bawden is perfectly valid, and there is no such thing as “guilt by association” which is what all the ant axa’s keep trying to put on. Good grief, if that was truth, then Hillary would be wearing stripes…. My personal opinion is you seem to be presenting a fact based interpretation of the case, and it’s complexities, and it seems the snowflakes of society want to just pee in the pond just because it is not what they want in reality. I wish they would go figure out who killed JFK so I can die knowing it really was a conspiracy….Keep it up, you are doing a great service for Star Trek fans, as a whole, despite the singular detectives in the crowd.
Thanks, Brian. The Axa-haters don’t really bother me personally, as I’ve made such amazing friends through my entire Axanar experience–real friends and virtual friends alike. Alec Peters, Rob Burnett, Mike Bawden, Diana Kingsbury, Crysstal Hubbard, Dave Heagney Jr., Justin Beauvais, Colin Krapp, and many others. I enjoy their company, and they enjoy mine. Even if Axanar never happens and Ares studios shuts down, I’ll still keep in touch with all these people. And even if I don’t, these past almost-three years have been incredible! I finally felt passion for something in Star Trek again–and JJ Trek certainly didn’t do it for me. I’ve had dinner with Richard Hatch, chatted at length with JG Hertzler and Gary Graham, and through this blog site, I’ve gotten to know some wonderful fan film makers from other productions (way too many to name!). Some of them have even become friends, and one of them even made a parody fan film with me!
Compared to all of that, a few sourpusses in an echo-chamber are, well, that’s really all they are. I’m sure they hurl all sorts of insults at me left-right-and-center over on this or that FB group, and every so often, I even have a peek. Most times I don’t, though. Waste of time and energy, and who needs the buzz-kill? I’m a VERY happy fan who’s shared an amazing amount of love these past few years–thanks in no small part to Axanar. And that happiness is in the bank. I often wonder if the haters are nearly as happy in sharing their venom with each other. If so, it’s a different and darker kind of happiness and nothing I’d want to brag about if I were they.
No, the problem is that Alec is claiming you’re impartial. On the other hand you say you’re an Axanar supporter and have never claimed impartiality.
Since you like slinging veiled insults, here are a few of mine. So, if we take what you say at face value that would make Alec a lying self serving shit making you look like a twat. On the other hand, Alec could be telling the truth that you’re completely unbiased and you’re just doing a really crap job of it.
I’ll let you choose which one is the “truth”.
Y’know, Sandy, one of my old professors back at Cornell (three decades ago!) told me once, “Jon, when you’re having an argument or debate and someone resorts to name-calling, what they’re really saying is, ‘You win because I can’t think of any decent point to make anymore.'” So in that vein, I graciously accept your concession. 🙂
Sandy, all you do with inane comments like that is illustrate one of the fundamental issues in our society, and with the whole Axanar situation. People who “claim” to love Trek, in it’s total form, and it’s concepts, then turn on those who do not subscribe to their particular view, and have to come up with some snarky response, usually laid out in the form of a convoluted logic trap, wrapped up with some salty language. I might have even agreed with your convoluted logic, in that the basic question does show a flaw in what Jonathan and Alec say, but you ran to ) credibility with your wording. This is what almost every Anti Axanar, Paramount/CBS worshiper (see I can do it too!) seems to rely on. It also falls right into mainstream media keeping video records in reserve (to use at the right moment) and resorting to labels and name calling (using hot button terms) that seem to pass for political discussion. You owe Jonathan and Alec both apologies for being rude and obnoxious, and then you might try to reword your statement into a reasonable question, and ask for clarification, rather than try to take it to conclusion.
Did you just ask Sandy Greenberg to APOLOGIZE??? Wouldn’t it be better to use your magic wish to end global warming instead? 🙂
Maybe wishful thinking, but the right thing to do. The behavior of certain people, and my personal observation is that is vastly on the “anti Axanar” folks, has been so vocal, acid, negative, rude and downright obnoxious, that I had to say something. Polite discourse and discussion is open and fair, but when people resort to the labeling and name calling, and then are rude on top of it (i.e. being a “twat” has no connection even to the accusation made, so was thrown in for the shock alone), as you correctly pointed out, their argument has failed of it’s own choice. I do not keep too close a mind on who is who on pro/con sides, I would rather focus on the points made, and not on points scored. As I have seen it, the use of Alec’s term of “impartial” is not to indicate some legal referee position you are filling, rather the fact that, even as an Axanar supporter/person not “Anti”, you are trying to provide a dispassionate, factual, unfiltered look at the situation, vice a skewed, nit picking, angry diatribe. I think you have done a good job of presenting both sides, and you have also phrased it all to where you almost had me thinking they might have a case. You did not, and I don’t know if they actually made a specific case, mention the few things that MIGHT actually be valid: They used Soval (a character in other work of theirs), as well as the issue of Garth (being he was a character in a TOS episode). Those are the two points, unless the ship basic forms and designs could be construed as copyright, but then that would be even more of a bigger subject. That was what really sold me on this being a vendetta against a quality production, and threatened them, because if “fans” can make stuff as good as theirs, they become useless and irrelevant. That means no one needs them, and loss of revenue down the road.
In another hour or so, I’ll be posting part 1 of a new blog about the latest filings in the case. I include in the piece the following comment: “If Alec Peters loses the case, this will be the reason why, folks…” I also talk about ways Axanar could win or lose but not lose badly. In this way, I feel I’m being fair and reasonable. I don’t usually find the Axanar detractors discussing how Axanar could win…only why they should lose. To me, that’s not being impartial at all…so why complain that I’m not impartial?
Thank you, sir, I look forward to it. Your logic seems sound, it is a case of “impartial” means “both sides”, not “the side I’m on”. That is why I find your efforts to have been the most impartial so far, because you have tried to be excruciatingly accurate in prognosticating something that is fluid and depends on individual perception. What I think is copyright violation, will probably be different from the next guy all the way to the Judge, who is the only one that counts in this game.
It’s not just the judge, Nickursis. It’s also the legal teams. Both firms have top lawyers in their fields. I suspect that CBS and Paramount weren’t expecting such competent competition. More likely, they weren’t expecting ANY competition, as the studios are used to coming in like a wrecking ball and having their opponents cower in fear and collapse in a puddle of intimidation. But this time, they’re going to have to work for the win, and work hard. Even if Axanar loses, I’ll still feel a bit of satisfaction knowing the hundreds of thousands of dollars the studios had to spend to litigate this mess. And yes, I realize that statement is part from impartial because, as I’ve said countless times, I stand with Axanar. 🙂
Isn’t *any* fan-produced Star Trek film an “independent Star Trek production”??? Unless you want to get into semantic gymnastics, mind-reading of a person’s intent, and the synthesis of all that, “an independent Star Trek production” would be, on its face, a definition of the phrase “Star Trek fan film”.
I remember reading it when it first came out, and I always read it as Mr. Peters speaking to the quality of the production. There was never any doubt in my mind that he was indeed a fan, and in that sense Axanar was indeed a “fan film”. A fan film that used professionals, bur still a fan film.
You’ll see in Part 2 that even if Alec Peters called it a professional independent Star Trek production and not a “fan film,” and even if he paid people and had Star Trek acting veterans, that might not even be relevant in the case. And in fact, something that Loeb & Loeb said in their part of the filing might be the very argument that Alec needs to prove that it’s irrelevant. Confused? Intrigued? Tune in again for Part 2!
I read it the same way when I first saw his statement, id est, that he was speaking of quality.
Somewhat unrelatedly:
I was watching the Blu-Ray extras for *Wrath of Khan*, and I was quite amused watching the extra hosted by Alec Peters (“Collecting Star Trek’s Movie Relics”). Alec makes for a fairly decent host & narrator.
It is also somewhat amusing seeing where he will pop-up next… I have seen him in the audience of a number of videos at con panels (a recent video spotting of him that I had was a con panel of [I think it was] the Firefly actors; either way, he was the last person to ask a question of the panel in that video). Him and Jesse Heiman (an oft-used background actor) are kind of like real-life versions of the game Where’s Waldo.
Look for Alec Peters and me and a bunch of other fan film notables on a panel at Stan Lee’s Comikaze convention in Los Angeles on October 30! 🙂
Two titles come to mind of another franchise. Never say Never Again & Casino Royale (1967) two “Unofficial” “independent” James Bond films. I’d hope the Judge tosses that argument siting that “independent” of the franchise is normal business in Hollywood so why not here?
Sandy Greenberg what color are the skies on the planet you come from?
Another day. . . .
Another Pro Axanar article from the Axanar mouth piece. . .
Another load of horse pooh. .
Next. . . .
I’ll be curious to hear what you think about tomorrow’s blog, James. It goes more into the plaintiffs’ arguments. You’ll probably cheer for a few things. 🙂
another troll…
Erm no.
What is it with you axanar “fans” and branding people trolls for having an opinion that is not way hey axanar.
James, you posted a comment that was deliberately inflammatory and designed to provoke a reaction rather than discuss the substance of the post. By definition, that is trolling. Therefore, calling you a “troll” is not “name calling” in this instance, but an accurate description of your function and actions in this comment thread.
Hard to argue with that, James. No substance name-calling = trolling.
Mr. Cawley, aren’t you a little busy running your CBS affiliated store up in New York?
Store??
You mean Licenced Set Tour!
Care to elaborate about what, exactly, is the “horse pooh” ?
You may be right, in which case I’ll update my opinions.
Or you could be wrong, or mistaken or just biased ?
So, please do elaborate on which aspects are “horse pooh” – maybe Johnathan could even substantiate some of those points for you.
Maybe this will teach people not to steal other’s ideas.
Jonathan, an excellent discussion of a passion-loaded subject. You did an excellent job of removing the bias we continually hear from the armchair lawyers (on both sides). This is a critical case, and not about Alec trying to “beat the big boys”. I never saw anything in either fundraising that said they were going to be an “independent Star Trek Production” as “a professional effort to gain profit”. It was always an “Independent production” specifically to separate them from CBS/Paramount, and was usually associated with “done to the best level we can achieve, trying to make a near professional level of quality”. It still was going to be fan funded, fan made, but done to the best of their ability. I think that needs to be defined and hopefully W&S will be able to prove that position. Please keep on making these excellent rundowns on the case, it is wonderful to see someone just explaining the system and the moves, and not trying to make it into an argument for or against. Let the court do that.
I never saw anything in either fundraising that said they were going to be an “independent Star Trek Production
Then tbh you’ve not looked hard enough its in various FB groups, pages and online on sites.
You won’t find it now as that info has been scrubbed by Axanars PR GUY.
That’s a convenient excuse James
Well not really go take a look at a x a m o n i t o r its there on that site should you wish to go and look or lots of other places to, one just has to go and look.
I attempted to click the few links in the article and they failed . page not allowed to be seen. Was what FB responded with. Other than that .. it is a fair and balanced article.
Try again now, Tanya. Apparently, whoever posted the document initially to FB took it down, but I already had a copy on my hard drive. The link should work now.
At the end of the day CBS may win a minor legal victory and lose the market war. Personally, I’m not doing anything Star Trek right now because of the studio’s incredible short sightedness. Without the fans there can be no Star Trek. Gene Roddenberry would have been gung ho in favor of Axanar. Personally, if CBS shuts down Axanar and/or manages to stick Alec Peters with a big judgement, I’ll boycott Star Trek for the rest of my life. The history of Star Trek–from the original writing campaign to save TOS, to the early fan driven conventions–shows that CBS would have no franchise without the loyalty of the fans. For me–and it is only my opinion–I would rather spend my limited entertainment dollars somewhere else if CBS has so little regard for the fan base. Many of my friends feel the same, and in any event the “reboot” films are really not Trek at all. Just big budget summer films that lack depth and character development with lousy scripts.
I was just wondering about this kind of reaction – if fans choose to boycott CBS and Paramount because of their lawsuit against Axanar, does that count as revenue that Axanar has taken away from CBS and Paramount for the purposes of determining the financial damages to Star Trek? Or is it just the logical consequence of the studios attacking a fan project that was well made?
Full disclosure: At the end of the day, I don’t think anybody should ever get sued for telling a good story. I’m on the Axanar side of this as a fan.
It’s an intriguing question! Alec, are you reading this??? 🙂
Good point, although, I’d imagine – in technical Legalese anyway – that losses resulting from this Lawsuit would be on CBS’ own head because they’re the ones who brought the case ?
i.e. If CBS had not started litigation then there never would’ve reached a point where people felt they had to choose between the two ?
Roddenberry would have been gung ho in favor of it?? Roddenberry hated any Star Trek that he wasn’t personally involved in, and was about making profit over everything he could. You have that one completely and absolutely backwards.
CBS/Paramount had no problem with fanfilms until Peters started marketing everything under the sun, trying to copywrite things like the Ares design, and started paying himself a salary…. he crossed every unspoken fan film rule, and brought this down upon all of us.
In his foreword to “Star Trek: The New Voyages” in 1976, Gene Roddenberry said the following: “We were particularly amazed when thousands, then tens of thousands of people began creating their own personal Star Trek adventures. Stories, and paintings, and sculptures, and cookbooks. And songs, and poems, and fashions. And more. The list is still growing. It took some time for us to fully understand and appreciate what these people were saying. Eventually we realized that there is no more profound way in which people could express what Star Trek has meant to them than by creating their own very personal Star Trek things. Because I am a writer, it was their Star Trek stories that especially gratified me. I have seen these writings in dog-eared notebooks of fans who didn’t look old enough to spell ‘cat.’ I have seen them in meticulously produced fanzines, complete with excellent artwork. Some of it has even been done by professional writers, and much of it has come from those clearly on their way to becoming professional writers. Best of all, all of it was plainly done with love…”
“That is the highest compliment and the greatest repayment that they could give us.”
I assume you’ve read Jonathans reply ?
I hope you’ve learned that we ALL make assumptions – and without ACTUALLY knowing Roddenberry’s feelings on the matter you spoke FOR him, and incorrectly.
How many other “facts” in your head could be incorrect ?
Something for us all to think about : Validation before Accusation.
First, you have no idea if Roddenberry would have been “gung ho” about this Axanar project. That is nothing but opinionated speculation on your part.
Second, if CBS shuts down Axanar and sticks it to Peters, he will be getting what he deserved. Why do you and others think it’s okay to steal property and ideas? And as for boycotting ST, that’s your decision to make but it will amount to nothing in the long run. CBS doesn’t actually care about what the fans think, anyway. You are very welcome to spend your limited entertainment dollars elsewhere, ST isn’t the only thing out there.
And as for “many of your friends” thinking the same way…I’m not sure if you think that carries any importance or not.
The reboot isn’t true to Star Trek. Neither is this Axanar thing. Remember, Roddenberry was a pacifist and having an all-out war like that would not be something he approves of. His vision was exploration and peace.
So, in the end, no matter how this lawsuit goes, the Axanar people are in the wrong. Maybe CBS will relent, and it is completely up to them to do so or not. Star Trek does belong to them, not the fans, after all.
Greg, I am with you 98% here, my only disagreement might be about Gene. I am not so sure he would go gung ho for Axanar, only because it focuses ion war and such. Maybe, since we have not seen the story, there is a lot more depth, and character to come, (The first scene was a good study in Vulcan moral dilemma), but I cannot say Gene would have gone either way. Not knowing the man, I am just working off what I have read on his outlook. THat does not mean he would stop it, nor that he might not have appreciated it’s technical excellence…
Imagining the fallout from the Judge ruling that CBS DOES NOT have the chain of title. Wouldn’t it be funny if it reverted back to NBC? Wanna bet the execs at NBC would not be stupid again?
Actually, I suspect the Chain of Title would revert back to Gene Roddenberry (or Rod Roddenberry) if the studios can’t produce the original work-for-hire contract with him. But as you’ll see in part 2, I address that and call if a bit of wistful (and perhaps wishful!) thinking.
It may even be attached to Desilu Studios not Roddenberry himself ?
So I’ve just seen what Alec Peters and Axanar are saying about you, this blog and previous ones.
Stating your consulting legal experts is fine but why no mention of them as your sources for your analysis?
Shouldn’t you mention them if Alec etc are saying this about you?
I’ve spoken to three legal consultants (two of whom are attorneys), and each does business in Hollywood with major studios and/or other media properties. As such, they have each asked me to please not identify them by name nor to attribute any quotes or information to them lest it affect them professionally. I respect that request and appreciate any legal input I can get for the price of zero dollars! So I’m not about to “out” my sources and lose their good will.
As for Alec’s “publicity” of my blog, while I certainly appreciate it, I don’t dictate the marketing copy to him. He’s welcome to say whatever he wants, but I can’t let what he says about FAN FILM FACTOR influence what I do with the blog.
Then sorry but I call BS if your going to cite you talk to these experts and then say you can’t name them is as bad as saying you have no connections to axanar.
Which we both know is a porky.
I never said I have no connection to Axanar. I was a supporter of Axanar from January of 2014. I donated to all three crowd-funding campaigns. I was an Axanar groupie and volunteered to help stuff donor packs back when Axanar was still struggling with BackerKit. I assembled Alec Peters’ IKEA desk that’s still in his office. I helped man Axanar booths at three different local L.A. conventions (or was it four?). I brought my son when he was five to Ares Studios, and Alec let him play on the bridge set and sit in the captain’s chair. (To this day, Jayden believes Alec is building the ACTUAL starship Enterprise!) Jayden even helped sort patches when it was time to volunteer to stuff envelopes for donors to the second Kickstarter. I carried ridiculously heavy carpet rolls up to the second floor of Ares Studios so that carpeting could be laid. I’ve created two different custom Axanar T-shirts and a 2016 Axanar wall calendar. I write the semi-regular “Fan Film Friday” blog for the Axanar website. For a time, I had access to post on the Axanar Facebook page (unfortunately, my posts always showed up as “Axanar” and not “Jonathan Lane”–so we stopped that). I’ve got Alec Peters on my iPhone contact list, and when he calls me, I answer, “Yes, Lord Garth?”
So of course I have connections to Axanar…and I never said I didn’t. What I did say is that I am not Alec Peters’ surrogate. My posts here on FAN FILM FACTOR (and even on AxanarProductions.com) are my own…with no editorial review or control given to Alec. I sometimes consult him as a source, but he never tells me what to write or how to write it (except after he read today’s blog, called me, and said, “Man, Jon, you have to make these things shorter!!!”). Do I support Axanar? Hell, yeah. I’ve never made a secret of that. But I also support all fan films. It’s kind of a no-brainer for me.
As for not listing the names of my legal sources, you’re welcome to believe what you wish, I still ain’t namin’ names! If you think that makes what I’ve written BS, then heck, you don’t have to believe it. I won’t be offended, James. I’m not doing this to win a Pulitzer. Of course, I’m not seeing too many comments from people with named legal experts of their own posting that I’ve gotten stuff wrong. 🙂
Am I the only one who sees the irony in the fact that CBS originally passed on Star Trek in favor of Lost it Space?
Oh, the pain! Oh, the pain!
Yeah, you’re the only one at this time.
Really informative article. I have been just back tracking it and am now more knowledgeable about this whole Axanar odyssey. I had figured that after the announcement of the CBS/Paramount suit that Axana was dead (I too am a kickstarter pledge). Why I say is that Paramount (don’t know about CBS) has always sent there army of lawyers when anyone threatens Star trek. (Amarillo Design Bureau and Fasa) to name a few had to deal with their litigation if I remember correctly. So I hope the CBS and Mr. Peters can resolve this and finish making the Axanar fan film.
Actually, Joe, Paramount generally looked the other way most of the time until 1998 when they partnered up with Microsoft (just like Time-Warner partnered with AOL) to form Paramount Digital Entertainment (PDE). Microsoft wanted to create startrek.msn.com and charge a subscription for “exclusive” Star Trek Internet content. The problem was that there was all this other FREE Star Trek content online and at cons and in fan clubs, etc. So the Microsoft lawyers (having flown from Washington state to Hollywood and invaded offices on the first floor of the Marathon Building at 5555 Melrose Avenue in Paramount Studios) proceeded to start sending cease and desist letters and threatening lawsuits to just about every Trek fan doing anything beyond just sitting back and watching DS9 and Voyager each week. Even the STARFLEET International Fan Club, which had existed since 1974, was told to stop using the Star Trek movie caligraphic typeface in their logo! (I’ve been a STARFLEET member since 1983, and I remember the shock and panic we all had when that happened.)
The strategy backfired, though. PDE quickly failed to get any traction with the Microsoft Network generating subscription revenue for exclusive online Star Trek content, and the public relations backlash of Paramount “suing” Star Trek fans (even though most actions were simply cease and desist letters) proved to be a real headache for the studio. As for CBS, they’ve only “owned” Star Trek since 2005, and Axanar is their first all-out assault on any alleged infringer.
I’m confused about this bit here…
“If the studio has done any research or even had discussions of such a positive effect from fan films, that could be the “smoking gun” that supports a fair use claim! But if CBS and Paramount refuse to turn over such potentially damaging evidence (possibly for self-serving reasons), then that damages the defense’s chances. ”
I understand there is usually a huge difference between real world and court room logic, but is this some kind of “pleading the 5th” logic? My real world thinking tells me that if the studio will not/can not submit anything that shows Axanar IS a financial burden to CBS/Paramount, then there claim of copyright infringement is nothing but hot air.
What’s the court room logic here?
It depends on what standard the judge uses to determine potential damages to the property. Lacking anything specific showing how much Axanar could hurt the franchise, will the judge assume that Axanar didn’t hurt it at all? Or will he think that Axanar must have had at least some effect? Without any supportive documentation to say, “Axanar cost us this much in unrealized revenue and here’s how,” it’s up to the judge to determine what he thinks the impact was. He doesn’t necessarily have to start out with the assumption of zero.
So a judge COULD decide that if CBS/Paramount can’t prove any financial loss then there isn’t any.
It’s one of two possibilities. The other possibility is that if team Axanar can’t prove there isn’t a financial loss, then the judge might assume that there is. There’s no “innocent until proven guilty” standard to live up to.