AXANAR LAWSUIT discovery phase heats up! (Part 2)

Axaanr splash image2I’m going to save some time and instead of summarizing Part 1, I recommend you read it, if you haven’t already.  You can also link to the 60-page Joint Stipulation document that contains both  Axanar‘s Motion to Compel the studios to deliver the remainder of the documentation they initially asked for, and also the studios’ responses to those requests.

When last we left off, we were up to the third category of documentation requested by the defense (and not fully provided by the plaintiff)…

3. CHAIN OF TITLE OF OWNERSHIP OF THE STAR TREK COPYRIGHT

Here’s what the Axanar legal team asked for:

All Documents that refer, relate to, or constitute Your [the studios’] ownership, rights, title, and/or interest in and to all of the Star Trek Copyrighted Works that You [the studios] contend Defendants have infringed, including but not limited to all Documents that refer, relate to, or constitute the chain of title in such works, including but not limited to any transfers of title between or among Plaintiffs, Viacom, Inc., Desilu Productions, and Gene Roddenberry.

What they got instead were only copyright registrations and not anything relating to the copyright’s Chain of Title.  I liken this somewhat to Donald Trump releasing his financial records but not his tax returns.  There’s certainly some important information in what has been shared already, but the potentially devastating documents are still hidden from view.

Although the defense lays out what seems to be an endless parade of existing case law supporting their request for Chain of Title and not simply copyright registrations (see pages 52-55 of the Joint Stipulation document), it all boils down to one potentially explosive question: was Gene Roddenberry ever the copyright owner of Star Trek?

Indeed, in the plaintiffs’ response, their lawyers even point out the obvious counter argument:

Ms. Ranahan does not explain what basis she has for assuming that Gene Rodenberry [sic] ever owned the rights to Star Trek.

created-by-gene-roddenberryIndeed, many assume that Gene’s creation of Star Trek was done as a “work-for-hire” for Desilu Studips and, therefore, was always owned by them and not him.  But what Axanar attorney Erin Ranahan is asking is: are we sure of that or do we just assume it?  A copy of Gene Roddenberry’s original contract with Desilu (from 1965!) would answer the question pretty solidly.  Or perhaps he signed over the ownership of the copyright to them…in which case, there’s probably a document showing that, as well.  Or is there?

if the studios don’t own Star Trek and never did, then they have no standing to sue Alec Peters for copyright infringement.  Now, I realize this is a long shot, at best, and perhaps it’s a bit of wistful thinking on my part to imagine the great-and-powerful Hollywood studios of CBS and Paramount no longer in total control of everything Star Trek.

Also, I’m told that, after the defense served their part of the Joint Stipulation document to the plaintiffs (and the defense was no longer allowed to alter the document before it got filed with the magistrate), the studios provided the defense with additional Chain of Title documents.  So everything I’ve just written could very well be partially of completely moot by this point.  But I have no confirmation, so we’ll have to wait and see if this is a big issue or a dud.


Okay, enough about the defense…let’s look at what the plaintiffs had to say!

In short, the studios’ lawyers at Loeb & Loeb had a response that can best be summed up as: “ARE YOU FRICKIN’ KIDDING US?!?!?”

More precisely, they said the following (over and over–25 times, in fact!–just read through the Joint Stipulation document).

In response to the Request, Plaintiffs object on the grounds that it is overly broad, unduly burdensome, and seeks documents that are not relevant to any party’s claim or defense, nor proportional to the needs of the case. Plaintiffs further object to the extent that the Request requires the disclosure of documents containing information that is protected by the rights of privacy, confidential data, trade secrets, proprietary or sensitive business information, or nonpublic financial information pertaining to Plaintiffs, their past or present personnel, and other persons or entities.

They’re not entirely wrong.  The list of documentation that the defense was asking for included things like:

  • “…salaries paid to the directors, producers, actors, and all other persons involved in the promotion or production of such works.”
  • “…profitability, revenue, ticket sales, and product sales related to [studios’] Works from 2009 to present.”
  • “…the damages that [the studios] seek for each cause of action asserted in the FAC, including by identifying and describing the method(s) used to compute these damages.”
  • “Revenues from the allegedly infringed works, including without limitation how such revenues are tracked or accounted for.” (In other words, please account for every penny Star Trek has ever generated.  SHEESH!)
  • Everything anyone at the studios has ever said publicly or in e-mails/internal documents about any Star Trek-inspired fan film.
  • “All Documents that refer or relate to Star Wars fan films, including but not limited to (a) all Documents that refer, relate to, or constitute Lucasfilm’s guidelines and/or attitudes regarding fan films, and (b) all Documents relating to any meetings or other Correspondence between [the studios] and any other person or entity, including at Lucasfilm, regarding this subject.”  Yes, you read that right: Star WARS.  And yes, they’re serious.
  • “All Documents that refer, relate to, or constitute any actual or potential guidelines for fan films that [the studios] have Created, implemented, or considered creating or implementing, including but not limited to any research, analysis, or Communications regarding this subject.”  In other words, exactly how did the studios decide on their list of fan film guidelines?
  • Any internal communication dealing with J.J. Abrams and Justin Lin’s comments supporting Axanar and fan films and announcing that the lawsuit would be “going away.”  Also any communications with Abrams and Lin regarding Axanar, fan films, and the lawsuit.
  • [Studios’] policies, efforts, procedures, and practices to protect and police [their] allegedly infringed works from copyright infringement.  (Because the defense doesn’t specify Star Trek in this request, it would include the entire CBS and Paramount film and TV library!!!)

Okay, you get the idea (I don’t want this blog to go on forever!!!).

The studios make some solid points in responding to all of these requests.  There’s not enough room to list every argument they made (again, feel free to read the 60-page Joint Stipulation document), but here’s a few of the highlights…

1. WASTING THE COURT’S TIME

In an effort to make certain that 9th Circuit Central District Magistrate Judge Charles Eick knows which litigant is the trouble-maker, the lawyers at Loeb & Loeb made sure to mention in this 60-page document that it is the defense that is wasting the court’s time.  And to make sure the judge sees it, they mention that particular fact no less than FOUR times…pages 5, 22, 28, and 40.  (Isn’t repeating the same thing four times also a waste of the court’s time?)

Anyway, here’s why, according to Loeb & Loeb, the defendants are wasting time.  First, the defendants are, in many instances, trying to compel delivery of documents which do not exist.  For other items, the plaintiffs have already agreed to provide what was requested.  Add to that the fact that the defense team at Winston & Strawn didn’t actually meet first with their counterparts at Loeb & Loeb to discuss their issues before filing this motion.  Had they bothered to reach out, the defense team might have been able to straighten things out without having to bother the judge.

Apparently, we will learn in a 5-page supplemental brief still to be filed by the defense that the two sides actually did meet and conferred about the substance of the discovery requests at issue on multiple occasions.  But I can’t comment further until after that brief is filed.

2. A RIDICULOUS AMOUNT OF DOCUMENTATION

As I mentioned in my list above, the defense is asking for a LOT of stuff!  The plaintiffs consider many items to have no rational basis in law when trying to prove a fair use case.  (However, if you read Part 1 of this blog, you’ll see that an argument of a fair use defense isn’t the only thing the defense attorneys are trying to prove.  They are also looking to mitigate the damages from a series of 57 counts of WILLFUL copyright infringement by arguing that, in fact, if was NON-willful, or innocent, infringement.  The difference in judgement awards, assuming Axanar loses, could be millions and millions of dollars!)

However, it is a good point to make that Star Trek dates back 50 years, and requesting, for example, ALL financial documents for EVERY Star Trek series and movie (including how much each actor, director, and producer was paid) is onerous…to say the least!  And is so much minutiae really necessary to support a defense?  The only legal basis the defense could possibly have is to show how profitable Star Trek has been over the years in helping to determine the actual extent of financial damages to the plaintiffs so that, if Axanar loses, the judgement against the defendant won’t be unreasonable.  But does the defense really need 50 YEARS of financial records for such a determination?

3. AXANAR IS NOT A FAN FILM

Several times in the document, the plaintiffs argue the following:

Documents relating to fan films are irrelevant to this case given that Axanar is not a fan film. Further, even if Axanar were a fan film, which it is not, documents and information relating to other Star Trek fan films and Plaintiffs’ decision as to whether to pursue legal action against those fan films is irrelevant, contrary to Defendants’ argument.

Also, the plaintiffs hit hard on the following point:

Defendants also repeatedly pronounced that they were creating a “professional” and “independent” Star Trek film, starring actors (that were paid for their services) that have portrayed roles on Star Trek television series, and produced with professional crew members. Indeed, in spite of defense counsel’s recent statements to the contrary, prior to the filing of this suit, Defendant Peters and his colleagues expressly stated that they were not creating a “fan film.” This case is about a commercial enterprise designed to take money from Star Trek fans, which funds were used to pay Defendant Peters along with his friends and colleagues, to create, as Defendants’ describe it, “an independent Star Trek film.”

In other words, Axanar can’t be considered a “fan film” because, among other reasons, it was a professional endeavor that paid participants and featured (paid) actors who had previously appeared in roles on various Star Trek television series.  So, by this argument, Axanar has to be treated in a class all its own, separate from other “fan films” and, by assumption, deserving of this lawsuit while the others (which are considered actual “fan films”) weren’t.

In one of the few potentially major missteps (at least in my opinion) that the plaintiffs made in their responses in this document, I noticed the following not-quite-fatal-but-still-pretty-bad flaw on page 31:

[Plaintiff] further objects to this Request on the grounds that the term “fan films” is vague and ambiguous.

Oops!  The plaintiffs have now gone on record as saying that we can’t accurately define the term “fan films,” after all!  So who’s to say that a fan film can’t be professional, pay participants, and include actors who have previously appeared in Star Trek television series?

In fact, I wouldn’t be surprised if Winston & Strawn submitted into evidence this interview with Marc Zicree detailing how Star Trek: New Voyages paid actors and other professionals as early as 2006 or this 501(c)3 filing by Star Trek Continues showing how much they have been paying professionals to take part in their fan series over the past three years.  And of course, these aren’t the only two fan productions to use Star Trek veteran actors in them.  Star Trek: Of Gods and Men did it in 2007 with nine Trek veterans and a professional crew and director.  Starship Farragut featured the voices of two Trek alums (Tim Russ and Chase Masterson) in one of their animated episodes in 2009.  And of course, Star Trek: Renegades, which had a red carpet premiere at a major Los Angeles theater back in 2015 (months before the lawsuit was filed) was an entirely professional production costing $350,000 in crowd-sourced donations and featuring multiple veteran Star Trek and sci-fi genre actors.  And let’s not forget that both Star Trek: New Voyages in New York State and Star Trek Continues in Georgia (as well as Starbase Studios in Oklahoma) have permanent studios built containing standing Star Trek sets that have been used and/or rented out for use by multiple fan projects.

So who is to say that those productions and others like them are or aren’t “fan films”–or that Axanar is in a class of its own–if 1) the term “fan films” is itself vague and ambiguous, and 2) many other productions did the same things that Axanar did (including providing perks in exchange for donations) long before Axanar ever existed?  And at least a few of those other fan productions publicly claimed, on multiple occasions, to have been in contact with CBS Licensing (and before that, Viacom)…suggesting that the studios were, indeed, aware of these other fan productions before suing Axanar.

Anyway, the studios are trying to argue that Axanar is not a “fan film” and, therefore, any documentation dealing with other fan films is irrelevant to the case.  In fact, the word “irrelevant” appears 19 times in the document when the plaintiffs are discussing other fan productions!  But as I said in Part 1, other fan films could be very relevant if it turned out that the lack of legal action against any of them (indeed, the lack of any public commentary or guidance from the studios regarding fan films) led Alec Peters to assume that his production was no more likely to earn the studios’ wrath than any of the other hundred or so fan films that had been produced and released over the last five decades.

And that determination by the court could make an $8 million difference in the amount of the judgement if Alec Peters loses.  The the reason is that it could establish that any copyright violation in Axanar–despite Alec saying publicly that he was aware that he was using CBS’s intellectual property without permission (like so many others had done previously)–was NON-willful and, therefore, not deserving of the harsh $150,000 penalty per violation.


So, who will convince Magistrate Judge Eick?  It’s hard to tell at this point, although both sides have very strong arguments.  And as I mentioned previously in Part 1, each side’s attorney has until this Friday to submit a 5-page supplemental brief .  Then a final ruling from the judge should come shortly thereafter…since the discovery period ends on November 2.

But understand that this is a critically important ruling in the case.  Everything produced during discovery can be submitted into evidence during the actual trial.  Including or excluding items at this point could very well determine which side goes into the courtroom with how much ammunition to throw at the other side.

So stay tuned!  If Winston & Strawn and/or Loeb and Loeb file their 5-page supplements by this Friday, we’ll have a pretty good idea by next week how strong each of their arguments stacks up.  And then it’s all in the hands of da judge…

102 thoughts on “AXANAR LAWSUIT discovery phase heats up! (Part 2)”

  1. I noted that same discrepancy of them saying that the term “fan film” is too vague, while at the same time definitely declaring that Axanar isn’t one….

      1. Nah. Defining Axanar as a “fan film” or not is irrelevant for legal purposes. Federal copyright law provides for selective enforcement, meaning that allowing one infringing project does not set a legal precedent that others can use as a defense for further infringement. Let’s say that you and I both produce identical films with identical budgets, cast and script. If CBS/Paramount chooses to sue me but not you, I can’t use that as a defense. “Hey, you can’t sue me because you didn’t sue the other guy who made THE EXACT SAME FILM!” Sorry. Not a defense.

        1. Apparently, someone didn’t read the editorial carefully enough. Pay closer attention to the difference between willful and non-willful (innocent) infringement and then tell me what you think. 🙂

          1. Ha ha .. Is that the same “willful” and “not-willful” which is somewhat a weak defense and often used by attorneys in criminal cases …. In most cases this doesn’t justify the crime, back to your legal books again !

          2. You’re confusing criminal and civil law, Tony. In copyright cases (which are a civil action) the judge must–by law–consider the question of willful versus non-willful infringement when determining the amount of the judgement. The following is from this article:

            In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

            So depending on whether or not Alec Peters had a reasonable expectation that CBS and Paramount would look the other way with “Prelude to Axanar” (as they did a hundred times before with other fan films, some of which featured permanent studios, paid professionals, and veteran Star Trek actors), if Alec loses, the judgement could be as much as $8.55 million or as little as a few thousand dollars. So yeah, the question of willful versus non-willful infringement is, quite literally, the $8 million question!

            And thus has Jonathan gone back to the legal books (or rather legal website). So if you’ve got a rebuttal, Tony, the floor is yours…

          3. For reasons I don’t entirely understand, I can’t reply to your comment below, Jonathan, but consider this a reply to the one beginning with…

            “You’re confusing criminal and civil law, Tony.”

            I agree with you that stare decisis is important, but it seems to me that this is an area where the courts have gone in both directions. Also, in the absence of summary judgment, doesn’t the court need to rule on the merit of each claim of copyright infringement? I agree with your math on the range of damages should Axanar lose, but pretending this won’t wind up in appeals courts for a decade if Axanar wins, won’t the court have to entertain each claim of infringement? I know there’s been a lot about the copyrightability of the Klingon language, for example. Also “pointed ears” and “Vulcan” if memory serves, and while Spock was never much of an elf (except when hanging from a tree on Omicron Ceti III, perhaps) I’d expect _some_ of the claims of infringement not to stand.

            Finally, assuming Paramount/CBS wins, but non-willful infringement is found, the court can only go down to $200/infringement, I believe, but it could rule differently on each infringement it finds, correct?

            #ThisIsWhyImNotALawyer

          4. Yeah, I’m not a lawyer either. My wife is, but she refuses to discuss this case with me. (Probably very smart of her!)

            So to answer your questions to the best of my non-legal abilities…

            1) Yes, the court will need to rule on each of the 57 alleged violations. And I think that a good portion of them will, indeed, get thrown out. For example, you can’t copyright clothing designs…only accessories. This could, if the studios aren’t careful, cost them hundreds of thousands of dollars in licensing revenues from Anovos and various Halloween costume companies if it suddenly becomes a legal ruling that the studios don’t own Star Trek uniform designs. (I wouldn’t want to be CBS General Counsel Jonathan Anschel if that happens!)

            So if, say, half of the 57 violations are discarded, then Alec’s potential worst-case scenario drops from $8.55 million to $4.275 million…still not a judgement I’d want to see!

            2) Can the court rule differently on each infringement that it finds, you ask? I assume you mean can some be determined as willful and other non-willful? Possibly, but highly unlikely. Why? Well, look at it logically like a Vulcan. Let’s assume that the judge determines that after 50 years and 100 fan films where the studios did nothing against any fan production, that Alec Peters had every reason to assume the same (lack of) reaction would apply to him. So that means that any infringement he engaged in was innocent (non-willful). So how would the judge then defend the conclusion that Alec should have expected a lawsuit for A, B, and C but NOT for X, Y, and Z? It’s hard to say that Alec was reasonable to assume he wasn’t doing anything that other fan films (who weren’t challenged by the studios) weren’t doing–especially when there’s nothing unique to Axanar–but that for these other few specific violations, he should have known better. What violations would that include? Other fan productions have permanent studios that they sometimes charge other productions to use (if even just to cover electrical use). Other fan films have used veteran Trek actors and paid them. One New Voyages editor was paid $60,000 for eight months of work! Star Trek Continues has paid out $175,000 in salaries over the past three years. Compared to that, Alec’s $38,000 seems tiny. And of course, other fan productions issued perks that contained CBS’s intellectual property (just look at the Star Trek Continues’ T-shirt design).

            So while yes, Judge Klausner could rule that half the violations were willful and the other innocent, but that seems very illogical and would likely not be upheld on appeal. But like you, I’m not a lawyer OR a judge! And what makes you think an appeal would take a decade?

            So

          5. Given the way appeals take time to run through our legal system, I wouldn’t be surprised in the least if it took years to a decade for all appeal options to be exhausted. My guess is that ultimately they’ll settle, but one never knows.

            However, my point wasn’t about splitting willful versus non-willful violations, although I suppose that’s a possibility. More that the judge must rule non-willful violations at a minimum of $200/violation, so the judge could rule that, say, a non-willful violation for the costumes (to use your example) cost them nothing and only awarded $200, but the use of the starship design was worth $1,000 in damages, even if it wasn’t willful. In other words, it’s not just violations x $200 or $175,000, but it could be somewhere in between.

          6. Also a possibility. In that case, the maximum award is $30,000 per violation…or $1.7 million. Better than $8.55 million, but still pretty high.

            But there’s one other thing to consider…this:

            “The amount will depend on the seriousness of the infringing act and the financial worth of the infringer.”

            If Alec isn’t worth $1.7 million dollars, the judge must take that into account. So the chance that CBS and Paramount make even enough from this to cover their legal fees is slim at best.

          7. Right, but the lawsuit is also against Axanar Productions, which, I’m assuming, would be the holder of all of the funds raised via the crowdsourcing campaigns, right? That’s my assumption, anyway. I think Paramount/CBS is trying to take all the money out of that pool because they’re greedy b@$t@rd$, but I also suspect that’s one of the reasons they sued Axanar Productions in addition to Alec. Out of everything, actually, the decision to sue Alec makes the least amount of sense to me, considering all of the actions he’s accused of doing were during his time as the head of the Axanar project. I may have missed something as my eyes glazed over while reading the original complaint, however.

          8. Considering that Axanar Productions took in about $900,000 (after fees) and has been paying, I think, about $15,000/month in rent for the last year and a half, paid to build sets, install the lighting and electrical system, create the elephant doors for the sound stage, plus a number of other things, I’m assuming at least half to two-thirds of that money has been spent. So the most that Axanar Productions has is, maybe (by my estimates) a few hundred thousand dollars…and that’ll be $60,000 less by next February just from paying the rent! So again, CBS/P shouldn’t be expecting a seven-figure windfall judgement.

          9. No, I read it. It just didn’t make any sense. Your argument attempts to use prior actions as a defense. “Because the cop let all the other speeding cars pass, I had a reasonable assumption for thinking that I could speed and not get a ticket.” No! You and all other speeders accepted the same risk, i.e. that speeding is against the law and you could get a ticket. The fact that only you were pulled over is not a defense for speeding. I mean, you were not unintentionally speeding. That would require something like a broken speedometer.

            As best as I can determine, Peter appears to have understood that he was infringing on the copyright. All fan films infringe to some degree. Don’t these films go to great lengths to copy every production detail of the series/films? That’s not accidental infringement. Quite the contrary. That’s about as deliberate as it gets. So the accidental infringement claim ain’t gonna fly.

            I think their best chance is to argue standing– as they’re doing– and try to negotiate a settlement in the meantime. Nobody wants to see Peters lose his home over this.

          10. Like many others out there, James, you’re confusing criminal with civil law. In the case of getting a speeding ticket, no , you cannot say that since 10,000 cars were speeding and didn’t get caught that you shouldn’t have been ticketed either. In the case of speeding, the law is absolute and defines the infraction specifically.

            In the case of copyright infringement, the law leaves a lot up to the interpretation of the judge/jury, including and especially willful versus innocent (non-willful) infringement. In fact, the distinction is written into the law itself! So indeed, the fact that every other fan film dating back 50 years wasn’t sued becomes extremely relevant in showing a pattern of treatment that Alec Peters had a reasonable expectation would apply to him, as well. If the judge agrees, it could be the difference between an $8.55 million judgement and only a few thousand dollars if Alec loses!

            Does that make more sense, James?

        2. We can debate it all we want here, and Star Trek is great at engendering debate, but what you or I think, James, is ultimately irrelevant. Our legal system is predicated on who can sway the judge’s opinion (which is why courts issue opinions). You might not think it a defense, but a judge might, or he might but then the appellate court doesn’t. I think it’s fair to say that about 90% of the United States felt that serving half of a 3-month sentence for sexual assault for that Stanford swimmer wasn’t enough punishment for the crime committed. However, our opinions don’t matter, only the judge’s does. Whether or not he’d find such a thing a defense remains to be seen. Jonathan can attest, I suspect, that often the outcome of a case is dependent upon which judge you get. It shouldn’t be this way, but humans possess human nature.

          1. Different judges can rule in different ways base on the same facts. That’s why we have appeals courts. But legal precedents (rulings by past judges in previous cases) are also very important when making arguments before the bench.

          2. I don’t disagree with you but I would point out that this is an intellectual property case that’s being heard in the entertainment capital of the world. No judge in southern California is going to rule against the studios without clear and compelling reasons. So far, I haven’t heard any in this case.

            If this were in a court in Texas… ?!?

          3. You might want to look up the Games Workship v. Chapterhouse case. That was also a case where the big corporation was suing the little guy, and while the big corporation kinda won, they didn’t win much. The muilt-million dollar lawsuit resulted in only a $26,000 judgment for the plaintiff. The same could happen here.

  2. You had to go and stick your politics into it. What is it with Star Trek trying to alienate half their fanbase? You wanna talk about this issue, fine. But there’s no need to take a swipe at a political candidate. You just went way down in my estimation of anyone who might have anything to interesting to say.

      1. No, it wasn’t an appropriate metaphor, just as it would have been an inappropriate one for you to take a swipe at Hillary too. All it does is make you look silly and ill-informed. Not everyone one in your audience agrees with you on politics and your column isn’t about politics. You want people to keep reading your stuff ant to take yourself seriously, leave your personal political beliefs out of it.

        1. I usually do, Cobalt. But I did feel this was the best metaphor that a good portion of my readers would understand. The studios released “some” information and claimed it should be enough while refusing to release all of the information requested. If you’d like, just imagine that I’d said “Hillary Clinton’s e-mails,” too. 🙂

          1. You DIDN’T say Hillary’s emails, you went after a political point of view and brought in a subject matter that has no business in the topic you’re discussing. If that’s the best metaphor you can make, then you’ve shown a severe lack of imagination. Leave politics out of it, left or right. Otherwise, you alienate half your audience. And to be honest, a lot of us are getting sick of putting up with this kind of thing.

          2. I’m not sure what you mean “….a lot of us are getting sick of putting up with this kind of thing.” This is the first time I’ve ever mentioned anything related to U.S. (or international) politics on this blog site. There doesn’t seem to have been enough time for people to be getting sick of something that’s only happened here once.

          3. Once is one time too many. And I’m referring to people who have nothing to do with politics using their “entertainment” platform to make political statements. I was specifically referring to the fact that NFL lost 40% of it’s viewership over the last two weeks because of its players “making political statements”. I’m talking about the fact that several people involved in Star Trek just signed a letter that was anti-Trump including Rick Berman, and Christopher Doohan. Just write about Star Trek, and leave out the politics. I come here to find out about Star Trek, not to hear what you think about Trump’s tax returns or Hillary’s emails.

          4. Cobalt-Blue, you are the one demonstrating a massive misjudgment here. By suggestion he was jeopardizing half his audience, you demonstrate a rather parochial attitude. Here’s news to you: Star Trek has fans all across the globe, and the only one actually pushing politics here is you. You are engaging in nationalistic extremism that is the absolute antithesis of the very core of Star Trek, and if you have a problem with such issues, then maybe consider if you really are a fan of Star Trek or if your regular space opera will do.

          5. @Cobalt-blue

            We get it, you’re a Trump supporter. We also get that you don’t like it when someone says something you consider negative about your candidate, no matter how appropriate the metaphor. And that if Jonathan had said “Hillary Clinton’s emails” you wouldn’t have said a thing. We also get how your ranting is against everything Star Trek stands for. Also, that this IS Jonathan’s blog and so he has every right to use whatever metaphors he wants. That being said, you do have every right to express your opinions. But you do not have the right to demand that someone change what they write on their own blog or self-censor themselves to satisfy your opinions. If you don’t like what someone writes on their blog, don’t read it.

          6. To demonstrate Oliver’s point… hi, I’m from New Zealand, and I understood and saw nothing wrong with the analogy. It wasn’t antagonistic of Trump, it was merely making a factual case about how you can “disclose” some related information that doesn’t actually disclose what was really asked for. Which is objectively what Trump did in that case, and presumably what CBS and Paramount were doing in this case.

            I’m sorry if it pinged you as anti-Trump, (not that this would be a bad thing if the blog was partly political) but you really need to thicken your skin about that sort of fact being mentioned in a non-critical way.

        2. …i didn’t even notice a swipe at Hair Hitler, but i stand w/ Jonathan nonetheless! (don’t let this guy editorialize you!)

          …also, unfortunately, the opponent is just as scary! =(

          1. Okay–time out! Cobalt is entitled to an opinion, and it’s a valid enough criticism. This is, after all, a fan film site. And aside from the Hillary Clinton-esque character in the most recent Star Trek Continues episode, fan films generally don’t get involved with actual candidates. Political issues…yes, sometimes. But seldom do we see a depiction of reference to a specific politician…especially during a campaign race.

          2. While they evidently don’t reference specific politicians, there’s certainly something to be said about what policies align with IDIC and what policies don’t, and when teams such as the one behind Star Trek: Hidden Frontiers get massively heckled on their own YouTube channel by homophobic rabble, some people have to ask themselves if they ever understood what Star Trek was about.

        3. Star trek is political. (the TV series and not the JJ remake)
          They are full of commends about political, moral and social issues… that is one of the things that make it interesting TV.

          And the ideals of the federation is very very clearly against what a bigot like Trump stands for.

          So it was a perfectly good metaphor.

  3. …VERY interesting Jonathon – thank you! =)

    I think “fan film” being vague is a good defense: this case will hinge on that definition, like another infamous case attempted to use: What is the definition of “is”… =P

    IMO, Axanar IS indeed a “fan film” regardless of previous semantics used in promotion – Axanar IS NOT a for-profit, corporate-like release, therefore it IS a “fan film”.

    1. Federal copyright law does not have any carve-outs for fan films, however you choose to define them. Judging from their new fan film guidelines, it seems that CBS/Paramount defines a fan film rather narrowly, i.e. no paid professionals.

      1. Unfortunately for the plaintiffs, they issued the guidelines six months AFTER filing the lawsuit, so those guidelines were not in place at the time Prelude to Axanar was made and therefore have no bearing on Alec Peters’ state of mind when he produced Prelude.

  4. …yes, there is A LOT on the line here for Alec / Axanar (!)

    so, i think they are justified in everything they are asking for… if it’s too much for the plaintiffs, they should drop their case: it’s a two-way street, after all… they are just miffed that their attempt to bully Axanar is not being acquiesced to! =P

    Also: I LOVE that JJ’s “proclamation” is being investigated!!! =D

    #IStandWithAxanar! =D

    1. The fans will still not own Star Trek.

      If it’s discovered that Gene Roddenberry is somehow the sole legal copyright holder and has been since 1965 (which, btw, is unbelievably unlikely), then that means that his son owns it, now, lock, stock, and piglet.

      But there is really no chance that Star Trek was not a work for hire. It’s worth requiring proof for the sake of a legal case, but there is no reason to actually hope it’s true, because it’s not.

      1. Uncle Mikey!!! He’s your Uncle Mikey, he’s my Uncle Mikey, he’s everyone’s Uncle Mikey!

        I agree that this one’s a bit of a pipe dream. And even if it turns out Rod Roddenberry owns Star Trek, I’m sure he’d happily turn over the copyright back to CBS (likely with certain deal points included, like profit-sharing and licensing)…since there’s not much Roddenberry Entertainment could do with the property in terms of developing new content and getting it into theaters or onto TV. But yes, because there’s a lawsuit, the defense team has every right to say, “Oh, yeah? Prove it.” It’ll be an interesting few weeks waiting for the answer from the judge magistrate (although the point may already be moot, as Eric Ranahan seems to have received additional documentation from the studios regarding their ownership after the motion was submitted).

        1. Isn’t it also reasonable to assume (outside of the courtroom) that if Roddenberry hadn’t handed over the IP rights to Star Trek in some form, his protestations over every Star Trek movie made after TMP wouldn’t have been ignored? I agree that it’s valid to prove in a court case, but Roddenberry never missed a chance to earn a dime off of Star Trek (c.f. Lincoln Enterprises, the IDIC symbol, book deals) so if he had legal recourse to “take back” Star Trek, wouldn’t he have done so decades ago?

          1. That alone isn’t enough to prove that CBS owns Star Trek outright. But yes, it’s a good argument to make if they can’t dig up Gene’s old contract with Desilu.

        2. Not necessarily, if he did own the copyright it would likely have been stated in the will who it transferred to. If other state was of the copyright was unknown by the parties, it would fall under intestate succession. Depending on the state, since the spouse has passed, some or all ownership could be disputed by any blood relative of Mr. Roddenberry.

        1. Here’s the problem with this whole thing:

          Looked at as purely a matter of copyright law, fan films have no right to exist, period, end of story, any more than any other form of fan-fiction. They’re not “fair use” except by stretching the definition of fair use all out of compass.

          We, the fans, like to believe that the law has simply failed to catch up to reality, but what it really is is that we, the fans, don’t really care much about the law. We want good stories set in the universes we love and we don’t care whether they come from the actual, legal, copyright holder. In particular, if the actual, legal, copyright holder is failing to produce anything at all (cf. Star Trek through most of the 70s), or is producing stuff many of us think is terrible (cf. _Star Trek Into Dorkness_), then we’ll happily take better-written stuff from less-than-entirely-legitimate sources.

          That works as long as the actual, legal copyright holder doesn’t care or pretends not to care or somehow just doesn’t notice. It stops working as soon as they wake up and decide, for any reason at all, that they need to start noticing.

          I want to see _Axanar_ produced. I think they had a good story to tell, and I put my money where that opinion is. But I don’t fool myself for a moment that there is any legal, moral, or ethical right to be produced, or that CBS/Paramount “owes” us a damned thing. _Star Trek_ belongs to them, and only to them, and anything else is just a false sense of fan entitlement.

          1. You might need to re-read the part about willful versus non-willful infringement of copyright, Mikey. Yes, Alec could still be found to have violated CBS/Paramount’s ownership of the Star Trek copyright, but the final judgment could (Not saying will, only could) end up being only a fraction of what the studios wind up spending to litigate this case. But the time we’re done, Loeb & Loeb’s bill could be well into the hundreds of thousands of dollars. If the studios win but the judgement is only, say, $25,000…is that really a win? Add to that the public relations nightmare this has become and the chance that it could also be ruled that CBS doesn’t own a copyright on Star Trek uniforms, for example, and will the studios really feel like they came out of this ahead?

            No, fans don’t own Star Trek. But when they produce fan films that “pump up” the crowd, they act as a great warm-up act and wonderful publicity for the franchise. Shutting them all down is an option, of course…but is it a wise option? Disney sure doesn’t think so. What does the House of Mouse know that CBS doesn’t?

      2. My understanding is that he was offered the rights by Paramount in the laste ’60s for $150,000, but turned it down.

        1. I also don’t think he had that much money in the late 60’s, if I remember the rumor. Plus, he didn’t think Star Trek would ever come back.

  5. The plaintiffs biggest reason for claiming Axanar is not a fan film has nothing to do with professional actors or paid experts. It’s simply down to Alec’s own words, podcasts, interviews, and fundraising pages. Time and time again he and RMB say they are a fully independent and professional Star Trek production. I know of no other fan production that does this. Using the defendants words against him is likely all they’ll need.

          1. Nope, you’re a bit like Hinman because you use 30 words when 10 will do.

            And I see Hubcap had to be a dick as usual.

  6. These two parts are a very interesting read. I am definitely on the side of Alec/Axanar and think it was pretty low of CBS/Paramount to release the guidelines like they did. I think it is great that the plaintiffs said ‘Fan Films’ were vague and not easy to define. Yet, they seem to be pretty sure that Axanar is not a fan film which must mean they have some type of definition, but are unwilling to share it. In the end, I want good fan films with great production values, great acting and engaging stories. Don’t we all?

    1. What’s important to remember is that the definition of “fan films” is ultimately meaningless to this case. What IS important (critical, in fact!) is what were Alec Peters’ reasonable expectations when he made “Prelude to Axanar”? Did CBS and Paramount give him any reason to believe he would be singled out and sued, or was their previous “don’t ask/don’t tell” policy indicative of a hands-off studio philosophy regarding fan films? It doesn’t matter that they CAN sue any fan film any time they want to. It’s whether or not Alec THOUGHT he would get sued. If the judge thinks that any normal Trekkie (if there is such a thing!) would just assume “business as usual” from the studios, then even if Alec loses the case, the judgement against him would be a tiny fraction of what it could have been.

    2. Playing devil’s advocate here, ‘all of us” don’t want fan films. First of all, the owners of the IP don’t want fan films or derivative works. Gene Roddenberry famously hated the (licensed) Star Trek novels released by Pocket Books. The script writers of the various series have given interviews over the years that they specifically put things in scripts to “void” things written in the novels. The novels are what really spurred “what is/isn’t ‘canon’ in Star Trek” to begin with, since the novels were licensed and produced accordingly. Anyone who’s read Diane Duane’s excellent “Rihannsu” series will likely agree it’s much more interesting than the “Romulan” stories done on TNG and subsequent series/films. But then there’s the issue of quality. For every amazing fan film, there are probably a dozen of far-lesser quality. At some point, your brand starts to suffer, and the definition of “good fan films,” as well as “great production values,” or “great acting” and especially “engaging stories” is entirely subjective. I’m all in favor of fan films, but there are a lot of groups and interests who are not. Just a counterpoint for thought.

      1. It’s fair enough that some people are not into fan films.

        I would be highly surprised, if, however, there’s actually any real truth to the “bad fan fiction and fan films dilute the brand” argument. Firstly because I think that most people are already sold on a property before they even go looking for fan productions of any sort, so it’s largely the “core” audience that consumes these types of work, and that core audience is actually *more* likely to stay excited about Star Trek if it has a lot of fan work being produced, not less.

        Secondly, I think most people can tell a fan production from a professional one. It will be interesting to see the arguments around that in court, as Axanar converges a lot of existing complaints about Things People Shouldn’t Do In Fan Films, so it’s arguably the closest we’ve ever got to this point not being true. In general, however, I think it’s very easy to tell that something’s not related to the original product. You could tell with Prelude because of minor differences in how things were presented, however it was one of the first times that I couldn’t tell it was a fan film based purely on production values, so it’s far more arguable that brand dilution could occur with regards to Axanar than it is for other fan films simply due to the fact that they have ridiculous (ie. good) production values.

        Thirdly, I think you’ll find that overall, the benefits from fans staying engaged with a brand are far in excess of any harm done by the copyright violation. (In fact for a large property like Star Trek, I’m highly skeptical of the argument that derivative works violating copyright actually demonstrably does any harm- the only “evidence” I’ve ever seen to back this up are projections that amount to little more than reasonable guesses based on the assumption of harm) I think there’s a really good legal argument that Axanar could win the case on the basis that CBS and Paramount have no real evidence that either they or similar productions actually cause harm to Star Trek sales, because it all seems to be based on assumptions that copyright violation necessarily hurts the original work. I’m not so sure that’s automatically true. (Now, it might be true if Axanar is an objectively bad film but still looks enough like Star Trek that it causes brand dilution, but if it’s like Prelude, I don’t think that’s likely to be a problem. I’m not sure I buy the argument that it will hurt ST:DSC or the Star Trek films because it will show people they don’t like the direction that Star Trek is going- I think all the people who think that way are already going to be reserved about purchasing or watching any new Trek products- in other words, I would be very surprised if anyone can show any evidence that past fan films have hurt Star Trek in any way, or even fan fiction and fan productions for any property in general)

      2. If only there was a fan film using some of the same actors as the original, then at least it couldn’t be argued the acting was below the standards of the original – hey, wait a minute! 😉

        1. I doubt that the quality of C.G.A.-recruited actors is at issue. Then again, Persis Khambatta in TMP should shows that even professionally-recruited actors can be awful. However, there is a difference between using an entirely-veteran cast and mixing them with non-veterans. And, then there’s directing. Sometimes William Shatner plays Kirk brilliantly, especially under the direction of Nicholas Meyer. Then there’s when he directs himself, and we still try to forget about that. But the difference is that if the acting is below standards in a CBS/Paramount production, they reap the financial rewards of that failure (Star Trek V still made them money) whereas they only suffer damage if a fan film harms the brand. I do see your point, however.

          1. Frankly, the whole “harming the brand” thing has become very fishy for me. The brand expectation for Star Trek used to be a positive vision for mankind, the acceptance of differences and the solving of our problems preferentially with nonviolent means. That was tossed at the latest during the second half of DS9. So what is “the brand”? Just using a certain universe? But Paramount tossed that as well by now. So honestly, the brand now seems to be reduced to something like “inspired by the tales of Gene Roddenberry on the Star Fleet universe”. How on earth can you harm that?!

  7. A traditional “professional” film uses the studios and other third party large investment companies to fund their projects with the intent to make a return on their investment. “Fan films” are pretty-much self-funded.

    Complicating matters nowadays is crowdfunding.

    I have no idea how the judge would rule, but I’d argue that because Alec Peters was actively engaged in the funding effort, both on Kickstarter and IndieGoGo, the funding he received was NOT from third party investment companies or studios looking to make a return on their investment, rather, it was from fans who wanted to see the project made. Alec was NOT on the sidelines having some third party running the crowdfunding campaign, he was active in running it personally and getting donations from people who understood that, according to IndieGoGo and Kickstarter rules, the film may not even be made. So in my mind, Axanar’s funding was self derived and, therefore, did not fall into the “professional” funding category and fits more in with the “fan film” category.

    CBS/Paramount may beg to differ, and I’ll leave it up to the judge to decide.

  8. The only criticism I can leverage is you missed a typo (“Studips” instead of “Studios”) but it’s worth pointing out that offense can never be given, only taken. Given that we are discussing Star Trek, after all, it’s perfectly reasonable to discuss free speech, freedom of speech, demagoguery, and playing to an audience. Star Trek itself covered these things in such episodes as “The Omega Glory,” “Breads and Circuses,” and “The Doomsday Machine,” to name but a few. Also, unless I’ve missed something, Jonathon, you’re donating your time to provide an analysis of a complex legal issue. You’re not professing to be nor need you be an “impartial journalist.”

    It’s a little bit ironic (to me) that our nation is again polarized, as it was when Star Trek originally aired. For people like Cobalt-Blue, who are offended by something, there’s a really simple option: stop reading and leave. Don’t ever come back if you feel that strongly about something. Like everyone else, neither I nor Cobalt-Blue are paying for this content. We have no right to demand editorial changes from people who are providing content for free.

    So, thank you for the excellent two-parts so far, and I look forward to reading more. I generally avoid the comments section because of this very reason – people use them to discuss all the ills of the world and go off topic. You’ve done the Axanar fans a service with your article, Jonathan, and anyone at all who tells you to write differently could be told to “go to hell,” to quote everyone’s favorite Vulcan from Star Trek VI.

    LLAP.

    1. Okay, I can leave. That’s fine. Keep alienating half your fan base and see how long you have one.

      1. Dude, I write a frickin’ blog in my spare time. I’m not looking to develop a “base.” Most days, I have less than 500 page views. If that suddenly turns into 250, well, that’s still pretty decent. Normally nobody listens to me…just ask my wife! 🙂

      2. If you honestly, truly believe that people who support any type of “fear of the other” represent half of Star Trek’s fan base, you don’t understand what the basis of Star Trek is about. Tolerance and inclusion are the hallmarks of Star Trek.

        1. Woah! Back the truck up!

          You’re painting with a very broad brush there, my friend! Just because someone doesn’t share you’re political views doesn’t mean they suffer from “fear of the others”! Or does “diversity” cease to be a good thing when it comes to diversity of political thought?

          “Wrong thinking is punishable. Right thinking will be as quickly rewarded. You will find it an effective combination.”

      3. You still don’t grasp that no, it’s not even remotely half the fan base that shares your opinion. It’s a tiny, insignificant part.

  9. crazy theory: the studios have been vague / wishy-washy about enforcing IP ownership, because they don’t actually have the legal right to do so – I.E. maybe they know they don’t actually own Star Trek… =P

    …maybe all they really have is intimidation / assumption / bluffing?

    1. If so, they’ll drop the lawsuit suddenly before it goes to court. In fact, since they haven’t done so already, my suspicion is that your theory might not be accurate, Not Herbert. No offense, just calling the pitch.

      1. …i don’t know …Star Trek is a BIG enchilada

        in my crazy theory, they pullout all the stops (JJ lying, “legal wrangling”) and hold their bluff until the bitter end…

    1. Which comment, James? I’ve been approving these as fast as I can today, but I’ve also got other things to do…like pick up Jayden from school soon and get in an hour or so of exercise. 🙂

      1. Have you got words that will not be posted as every time I try to post what i wrote it will not show as awaiting moderation

  10. I saw an article some months ago that claimed J.J.Abrams had convinced CBS to drop the suit. Was that totally made up? Or a distortion of what happened?

    1. Check what the Public statement from CBS and Paramount was After this event, That may give you a hint.

  11. You’ll be happy to see in the supplement to the filing that the Plaintiffs have now submitted chain of title to the Star Trek copyrights to thd satisfaction of Ranahan and the defence. We can finally lay to rest the ridiculous notion that CBS and Paramount don’t own Trek. That also means “the fans” don’t own it either.

  12. Here is the relevant text:

    “Due To Plaintiffs’ Belated Production, Defendants Withdraw Their Motion With Respect To Documents Related To Copyright Ownership
    After Defendants provided Plaintiffs with their portion of the Joint Stipulation on September 21, 2016, Plaintiffs produced the missing chain of title documents on September 27, 2016 (long after they agreed to do so). Ranahan Decl. ¶ 8-9. Thus, Defendants withdraw their Motion with respect to RFP Nos. 6 and 7.”

  13. Thank you for the unbiased look at this lawsuit, Johnathan! It is nice to see both sides of the argument presented in a non partisan fashion. It bugs me to no end when other sites just write such biased, unsubstantiated fluff. This is a complicated case, and I don’t envy the judge or magistrate who has to make a ruling on it. I feel that CBS/Paramount are being a bit unreasonable with this whole thing. On the other hand, they are right to say it is unreasonable and burdensome to produce a lot of what the defendants want. I guess I always assumed that when Gen Roddenberry created Star Trek, it became property of Desilu or NBC. When contracts are signed on with the studios, do they stipulate they take copyright ownership of the said material? If that is the case, then would the defendants request for proof of copyright ownership by CBS/Paramount be irrelevant then? Or is there indeed a chance, that during the years of all these studio mergers, the paperwork is out of order??? Dang, so now maybe it is not unreasonable of the defendant to request proof of ownership! This is why I am not a lawyer!

      1. Yeah, what a disaster that would be for Paramount/CBS if they didn’t have Chain of Title. I can’t even imagine what Star Trek would look then.

  14. Wow, what a crowd. You do stir up some, er, muck Jonathan. I will echo some others in saying you continued to do an awesome job at this task. One thing no one has mentioned was the often repeated rumor of some legal binding between CBS and Paramount that CBS could not make any new series for 10 years, while the new movies were set afoot. It would seem to still be a weak argument to say they are protecting the copyright of something they chose not to use, and that the fans just started growing their own material. Even if you can pick and choose your targets, which seems so grossly unfair and not right, to allow the blatant use of all their characters, names, ships etc for years and years, then to come down on ONE production that is skirting the edge of anything they ever published, seems to be totally unsupportable. If they are not required to explain why they allowed that to go on for 10 years, as well as why many of their claims easily apply to all the other “fan films”, even if they win, they will be regarded as pariah by a lot of fans.This worse than a Kobyashi Maru for CBS Paramount, not only do they have no good resolution to be had, they already must know they have lost fans, revenue and their series is in deep doo. If Alec can prove they had had previous consultations with them, and they said nothing, even if they win, that gets out and they become known as “The Liars” and their product will be tainted forever. Speaking of politics, watch CBS come out with a video of Alec doing bad things with boomer in ladies undies, and the Judge is a cat person… that will surely seal his fate…then become rich on You Tube… Great work, and an awesome summary, go work for Court TV..if they are still around..

    1. Thanks for the compliments, Brian. As for Paramount telling CBS they couldn’t produce a new series for ten years, I did not hear that rumor. However, it’s been mentioned in numerous places that, when Paramount was planning for Star Trek Beyond to debut in July of 2016, they had CBS agree not to launch their new television series for six months so as not to complete both during the theatrical release as well as during the holiday season when the blu-ray and DVD sets would be available.

  15. @JohnathanLane: Great and insightful article. SUGGESTION: you might want to redact the list of officer home addresses from the 501c3 filing for Star Trek Continues … posting other people’s home addresses online, without their permission, is more than a little inconsiderate. Cheers.

    1. I wasn’t the one who posted it. I just linked to the document that was already online. The poster was Thomas Duffy, the lawyer who prepared the document for Star Trek Continues…so you might want to contact him (his address is on the document, too). Multiple people on the web were already linking to the document, and the application for 501c(3) status is a public filing, after all. So linking to it seems perfectly reasonable. Your mileage may vary. 🙂

Comments are closed.