Did you hear the fireworks last Friday afternoon? If you were in the Central District Federal Courthouse of the 9th Circuit, you might have!
As expected, both the Axanar defense team at Winston & Strawn and the CBS/Paramount legal team at Loeb & Loeb filed their brief supplements to their recent 60-page Joint Stipulation document to compel discovery that was filed on September 29th. The deadline for adding anything to the original filing was the end of business last Friday, and things came right down to the wire!
Y’see, both sides wanted to get the last word in, so each waited as long as possible to file their supplemental memorandum. But in the end, Winston & Strawn waited just a teensy bit longer and managed to adjust their filing slightly to address a couple of the points that the plaintiffs included in their supplement.
I’ll tackle the filings in the order they were submitted to the court, with the plaintiffs up first. Here’s a link if you want to read the full plaintiffs’ supplemental memorandum. It wasn’t all that long. Granted, the court limits the length of these supplemental filings to no more than five pages, but Loeb & Loeb only needed a mere one and a half pages, and they pretty much just restated what they’d said in the previous filing:
- Many of the documents the defendants are asking for do not exist.
- The plaintiffs already agreed to deliver the requested information and documents.
- The defendants refused to meet and confer (remember this one for later, folks!).
- The defendants requests are overly broad and burdensome (going back 50 years!) and in many cases not even particularly relevant.
- Whether or not the studios chose to sue any other fan films is irrelevant to a copyright infringement violation lawsuit.
It’s understandable that the plaintiffs’ attorneys didn’t add much to what they’d already said, since the defense hadn’t really said anything new since the motion was filed. But had the defense filed their supplemental memorandum earlier in the day on Friday, the plaintiffs might have had a LOT to respond to! (In this case, the early bird lost the worm.)
The plaintiffs did add one new item, however. In the week since the joint stipulation motion to compel discovery was filed, depositions were taken from witnesses for the plaintiffs (CBS/Paramount employees). The plaintiff lawyers pointed out that their witnesses had been very cooperative, answering every question except one (was the revenue from the recent Star Trek Beyond film what the studio was expecting?). Among the questions the witnesses answered were items dealing with the information that team Axanar is seeking to compel in discovery.
In other words, “We’ve been good and told them everything they want to know…why do we also need to show them stuff?”
Why, indeed!
Okay, now for the bombshells as we cover the defense’s supplemental memorandum. It’s a somewhat longer read, as Axanar lead attorney Erin R. Ranahan used all five pages fully (and even had to sneak her signature onto a sixth page…which I am told is usually allowed).
And here’s where the bombshells started going “boom.”
The first “bombshell” was more of an anti-bombshell, and it came at the end of the document when the Axanar defense team withdrew their motion with respect to documents related to copyright ownership. Apparently, the plaintiffs delivered some additional documentation after the deadline agreed to by both parties…and also after the defense had submitted their request for that information in their motion to compel. In other words, the plaintiffs sneaked it in late and, in so doing, forced the defense to wind up with some egg on their faces. I’m told that tricks like these aren’t unheard of in litigation, and indeed, Winston & Strawn had a little trickery of their own by waiting until the very last minute to file their supplement so they could respond to the plaintiffs’ supplement and not vice-versa.
Anyway, the important thing is that it now appears that CBS and Paramount do, indeed, own the rights to Star Trek…dashing the somewhat devilish dreams of folks like me who were hoping for a startling revelation that the studios DON’T own Star Trek after all.
Now, I should point out that the Axanar legal team didn’t actually say they were stipulating that the studios own Star Trek outright, so it’s not necessarily a dead topic. But for those of you still holding out hope for a shocker in the courtroom, don’t bet the farm on it. Had there been some kind of smoking gun to exploit, the defense would likely have filed an immediate motion for summary judgement and dismissal of the case based on the plaintiffs having no standing to sue. This didn’t happen, so let’s assume that the studios own Star Trek.
Then what were the bombshells, you ask? Let’s take a look…
BOMBSHELL #1: PARAMOUNT HAS PRODUCED ZERO E-MAILS!!!
Please forgive the three exclamation points(!!!), but I personally find this inconceivable…and yes, that word does mean what I think it means. The plaintiffs (specifically Paramount) had already agreed to produce e-mails, even those e-mails sent to and from J.J. Abrams and to and from Justin Lin regarding Axanar and other fans films. Whether or not the plaintiffs feel these e-mails are relevant to the case, they previously agreed to produce the e-mails and never did.
This led the defense team to include within the supplemental memorandum the words “stonewalled” and “run the clock.” Although the plaintiffs argue that they’ve agreed to deliver certain requested documents, the agreed-upon delivery date passed many weeks ago, and the documents weren’t delivered. And this did Axanar lead attorney Erin Ranahan write in the second sentence of the filing:
But Plaintiffs’ productions do not actually include many of the documents they have agreed to produce, and with discovery about to close, there is no time to delay in hopes that Plaintiffs will finally comply with their agreements and discovery obligations.
This also led into the first attempt by the defense to use the plaintiffs’ attorneys’ own words (or lack thereof) against them. In both the original Joint Stipulation document and the plaintiffs’ supplemental memorandum, the plaintiffs never disputed that a calculation of actual financial damages would be relevant before the court could determine what statutory damages could be awarded. In other words, if Alec Peters caused the studios to lose millions, then the judgment could be millions. If he only cost them thousands or tens of thousands, then a million dollar award would be inappropriate.
And indeed, the studios even stated in their first filing (the Joint Stipulation document on page 49) that they may actually base what they demand on their own damages:
If Defendants are held liable for copyright infringement, Plaintiffs may seek the profits obtained by Defendants, Plaintiffs’ damages, or statutory damages.
Do the studios expect the court to just take their word for it that they lost millions without producing documentation to back it up? Guess again. And if the defense is to challenge that claim of millions in lost revenue, then by gum, they need to see the paper trail that led to that calculation! (Did I just say “by gum”?)
Next up, the defense hit back on the claim that the defense requests for documentation is overly broad and burdensome. Says who? Or rather, put in more legal terms:
Plaintiffs have not articulated any specific burden in producing any of the information at issue, making the evaluation of any proportionality claim under the Federal Rules impossible.
I like “Says who?” better. Anyway, as happened back in January when CBS and Paramount claimed that Axanar violated “thousands of copyrights,” the defense came back to challenge them for painting with such a broad brush. The defense typically says, “No shortcuts in this case, Loeb & Loeb! If you want to make a claim that’s too general, you’d better be prepared to back it up.” Let’s see if they can or do.
BOMBSHELL #2: PLAINTIFFS’ WITNESSES WERE UNPREPARED FOR QUESTIONS
This was one of those places were the late bird absolutely got the worm. Having waited for the plaintiffs to file last Friday, the defense saw the new “Hey, we played nice and answered all their questions (but one) like good little witnesses” that the Loeb lawyers included in their filing. This allowed the defense to response to the plaintiffs’ claim by including the following:
Plaintiffs’ corporate representatives, particularly that for Paramount, were unprepared and unable to answer questions on many of the topics that the parties had specifically agreed upon in advance of the depositions.
So the two sides had talked first, agreed on what was going to be asked, and when the time came for depositions, the witnesses couldn’t answer the questions. This makes turning over documents and e-mails even more necessary for the defense…if the witnesses aren’t providing the requested information verbally. And it’s an important point to argue in front of the magistrate judge, as both parties will be trying to make themselves look as sympathetic as possible while vilifying the other side. This scrimmage might go to the defense.
And then there was this little gem:
In any event, Plaintiffs provide no explanation or authority supporting their apparent position that putting up a corporate representative for deposition somehow excuses a party from producing unquestionably relevant documents.
That one might seem minor, but it’s pretty huge, folks. Both sets of attorneys want to appear as learned and competent as they can in front of the judge. The plaintiffs included their point about their witnesses answering questions at deposition apparently as a way to justify not producing any more documentation for discovery. But the above sentence from the defense is no less than a smack-down. It’s true; there is no place in law that states that producing a witness excuses the production of documents during discovery. Were the plaintiffs’ lawyers trying to put one over on the judge? The defense’s response kinda implies that without actually saying it openly.
BOMBSHELL #3: PRESIDENT GERALD FORD HAS NOTHING TO DO WITH DISCOVERY
Okay, maybe that’s not a bombshell, but it does shoot a big torpedo in one of the plaintiff’s major arguments–both during discovery and also during the case itself if/when it goes to trial. But what the heck does former president Gerald R. Ford have to do with Axanar?
As usual, glad you asked!
Both the defense and the plaintiff reference the same Supreme Court case: Harper & Row Publishers v. Nation Enterprises. This 1985 case was a significant one regarding copyright infringement and fair use, and it resulted ultimately in a verdict for the plaintiff. It dealt with a memoir entitled A Time to Heal that former President Gerald R. Ford had written and sold the rights to Harper and Row publishers. Now, for those of you who don’t remember much about Gerald Ford, that’s not surprising, as he didn’t do much that the public cared about…except for one thing: he issued a presidential pardon for Richard Nixon. The man behind the Watergate scandal who had been forced to resign the presidency would never go to trial thanks to Gerald Ford pardoning the disgraced president. And many Americans wanted to know why Ford did it.
The answer came in Ford’s memoir… about 300-400 words out of a 500-page book. Harper had made a lucrative deal with Time magazine to publish several excerpts from the book, but before Time could publish it, a competitive magazine known as The Nation published verbatim just that 300-400 word excerpt (the only really good part!) without Ford’s permission. Time pulled their offer, costing Harper $12,500 (about $28,000 in today’s dollars)…Time had already paid a deposit of another $12,500 upfront.
Harper sued The Nation for that $12,500 on the grounds of copyright infringement. The Nation argued for fair use on account of Nixon being a public figure and his reasons for pardoning Nixon being a vital piece of historical information.
The verdicts bounced back and forth. At first, the Federal judge awarded damages to the plaintiff. Then an appeals court overturned the verdict, citing fair use. And finally, the Supreme Court reversed that, determining that The Nation’s infringement led directly to Time cancelling their publishing contract, which was tangible financial harm.
There’s actually quite a bit of ammunition in this case for both the studios AND team Axanar. The defense used this case in their previous motion to compel discovery to argue that the fourth element of fair use was the most important for a court to consider: whether or not (and/or by how much) Axanar might have financially damaged Star Trek. And this explains the defense’s repeated requests for financial documents dealing with Star Trek, how much it hass cost to make over the years, how much it’s earned, and how the studios have determined Axanar‘s harm to their property.
The plaintiffs, meanwhile, used the following argument three times in their previous filing:
As the Supreme Court held in Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 568 (1985), for the plaintiff to negate the element of market harm, it “need[s to] only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work…This inquiry must take account not only of harm to the original but also of harm to the market for derivative works.” Moreover, “[i]f the defendant’s work adversely affects the value of any of the rights in the copyrighted work (in this case the adaptation [and serialization] right) the use is not fair.”
This means that if Axanar has any potential to harm the market for Star Trek or its derivative works, then the production shouldn’t count as fair use. If Alec Peters loses the case, this will likely be the reason why, folks…which is why I’ve spent so much time talking about Gerald Ford.
But wait, it’s not over yet! There might still be a way out of this trap for team Axanar. Wanna know how? Tune in tomorrow for Part 2…
For more analysis of the Axanar motion to compel discovery, please feel free to read my previous 2-part blog (if you haven’t already, that is).
…that was a long read, but worth it 😉
yes, some bombshells there! …but mostly, the studios legal efforts CONTINUING to look pathetically half-assed! LOL! =D
…if they keep going like this, they will “trump” themselves!
(YUUGE LOSE-AH!) =D
Axanar does NOT damage the franchise – the EXACT opposite IMO
CBS / Paramount have damaged it IRREPARABLY with sh*tty nu-trek =(
IMO, the fans should counter-sue the studios for screwing up Star Trek!
#IStandWithAxanar! =D
COMPLETLEY AGREE….GET BJO and LETS GET REAL TREK BACK….
Bjo isn’t returning my e-mails. 🙂
That’s the bombshell!?! More like… Unimpressed critiques from a blogger who doesn’t truly appreciate journalistic intregrity. I think I’ll read into the actual depositions for actual news. You went on and on about the plaintiffs inability to answer questions. My question to you is which questions could they not answer and where’s the side of the defendants answering the questions. I truly despised when any “news site” doesn’t all the information needed to make the case strong. Bombshell 3, Ha! Its more like a deadlock then a victory. Do yourself a favor and go find an actual journalist to do your job. I want to see both sides of the issue. I don’t see it here unless I need to really read the fine print.
I’m not a journalist, Tom, I’m a blogger in my free time. You’re welcome not to read my blog…it doesn’t really affect me one way or the other. One day I might put some ads on the blog site, in which case losing you might cost me a tenth of a penny or something like that. But I’m happy to take the loss if it means your life will be a little happier, Tom. That’s all I really care about. 🙂
It will make me more happier if you present both sides of the story. For the record, I am going keep reading your blog because its amusing how your reporting on this case seems to be a bit one-sided to me. I am just an outsider looking in and seeing how much of mess one little fan film created. Well, you’re not going to lose me anytime soon. My life is a little happier now that you can I read some Trek fan blogs and know that some bloggers are not for the fans when it comes to reporting the news. Honestly, who starts cheering when the case hasn’t even ended? The more I read on about this, the more I am fascinated about this case. And please don’t mock my journalistic integrity again.
I’m not sure how or when I mocked your journalistic integrity, Tom, but if you can supply a specific, I’ll be happy to apologize.
As for presenting both sides of the story, I’m just curious: what would that have looked like…in your opinion? Again, can you provide an example? I’m not saying that facetiously either. I’m truly curious about your feedback. I reported on both sides’ arguments, and to be fair, the plaintiffs filed only one and a half pages with nothing new except one minor point. The defense filed five very dense pages with a lot of new points being made…many of them quite salient. How exactly could I have reported on this better…or at least in a less one-sided way? If you’d like to provide a few paragraphs as an example, I’d be happy to look at what you think would be a more two-sided approach. But keep in mind, I’m still going to call a spade a spade. You’ll notice that, at the end of today’s blog, I pointed out how Alec Peters was most likely to lose (assuming he does lose) based on the plaintiffs’ arguments. Likewise, when the studio lawyers screwed up (and they did in multiple places), I pointed that out, as well.
Will any of what I say matter in the end? No. I’m not in the courtroom. But I do have this blog, and I’m simply trying to help fans who might be interested to make some sense of things that might otherwise make their eyes glaze over. I don’t claim to be the only source of news on the case. Axamonitor is out there, too. That blog tends to skew very much against Axanar. Perhaps you’d be more satisfied reading what Carlos Pedraza has to say. Or maybe you’ll read us both and decide for yourself.
Whatever your decision, when I do finally incorporate ads onto this blog, I thank you in advance for sticking around. The tenth of a penny is greatly appreciated. 🙂
You said nothing towards his journalistic integrity whatsoever. This makes me curious as to who Tom is, and where he writes…..
The only “journalist” I criticized lately was Carlos Pedraza. But no journalist with integrity would hide his true identity, right? Well, I suppose Clark Kent would… 😉
I am sorry Tom, BUT WTF appointed you the Czar of journalism and quality control? You sound like an antagonistic person who stumbled across a site and just decided to start babbling about anything for attention. Stop it. Go find a Community College with a “basic civil skills 101” class. You do not come into someones place and start ranting at them. If you have a point, make it in a nice, calm logical way, and quit the insults and demeaning. Even if you ARE a journalist, you probably worked for SWSNBN. If you are not a journalist, shut up.
Sorry Jonathan, I cannot deal with idiots who show up at your door, and seem to feel impressed when they start babbling and making insults. Free speech and discussion is great, insults and bad manners are not excused. No wonder Heinlein had such a grudge against rude and uncivilized people…
Tellarites do not argue for reason. They simply argue. 🙂
Indeed, I should have looked for the hair… sorry, but I just couldn’t help myself, my Heinlein got the better of me, although he would have said it much more gracefully.
Wow, what an arrogant ass. You add nothing to the conversation and insult someone who put serious effort into the post.
If you even bothered to read the underlying documents, you would see Jonathan was dead on.
That is called analysis.
Remember, Joe: when they go low, we go high. 🙂
I do not see how the Ford thing compares to Axanar at all. This was a case (as I understand it), where a book was written, specific to a specific event, that was history. The publisher makes a deal with Time to publish excerpts, and another company published an excerpt before Time did, without an agreement to authorize it. They argue that it is fair use because it was history. The issue was something was created based on history, and documented by someone. That work was not in open circulation, and was unique. Some took it, copied it verbatim, and published it, for profit.
Axanar has done none of that. They took an original story that the copyright holder DID NOT create, and crafted it into their own created material. They did not take anything the CH created (except the previously mentioned Soval, the name and vague story of Garth, and maybe overall ship design), and created their own story, unique to the Axanar project. There was no copying a CBS “Garth the Legend” show, or “Axanar the movie” by Paramount (who, with the creation of JJ verse appear to have abandoned the TOS universe, making their connection to Axanar a wisp if anything). You are correct in some of the items being “bombshell” quality, but as with the chain of title (and I am not sure that is a dead issue yet), it will all depend on how the judge sees it.The fact they have not produced any documents (emails etc), seems to be the biggest issue for them, as that is the only way to put all the claims and counter claims into so form of context, and show a timeline of events. For people who were adamant that Axanar did indeed steal Linbergh’s baby, that seems to be the most troubling issue so far.
Another great analysis, once again done IMPARTIALLY, as you presented a “best guess” summaryof both sides and what and maybe why, as well as possible impacts.
Can’t wait to see the negativity meter rise on this information…….
Man, you might want to confer with Tom Bradenton (see previous comment) and get your stories straight! (Just kidding.) 🙂
As for the Harper (Gerald Ford) case not being all that similar to the Axanar case…well, me thinks you might have had a peak at tomorrow’s Part 2!
No, sir, I would not. If I could figure out the emoji ting, I would paste one here…. And no, I also was unable to crack your super turbo encryption so Part 2 was a no go..had to use a little “ask a question” and play “5 whys” (which we use to get to root cause of process problems). I am going toguess Part 2 will be even more entertainment and another collection of witty comments. Thanks.
Like I thought it would read.
Well, I have no complaints. I enjoy the series of posts, and find them informative. I don’t know if I’ve ever known anyone as nice, or non-plused, or unflappable as you are Jonathan. Trolls must go absolutely insane when you engage them. ( – ; Anyways, I can’t wait for the next installment!
I was trained as a troll=tamer early in life. 🙂
Thanks for the kind words, David.
It is no small feat to take dry legal filings and court proceedings and craft an article that is both informative and interesting.
I follow the lead of HBO’s John Oliver. He often presents lengthy, complex, and otherwise boring or confusing news stories that would otherwise leave viewers snoring. But by inserting comedic commentary at regular interviews, Oliver gives the viewers’ brains a chance to take a breath and process the information. I strive for the same goal–a little laughter can go a long way toward making the long and boring seem a little less of both.
“Y’see, both sides wanted to get the last word in, so each waited as long as possible to file their supplemental memorandum. But in the end, Winston & Strawn waited just a teensy bit longer and managed to adjust their filing slightly to address a couple of the points that the plaintiffs included in their supplement.”
So, um… Congratulations to the Axanar legal team, congratulations for gaming the system.
Bombshell #1: Considering you don’t really tell us exactly what was agreed to in terms of providing email it’s hard to really judge this one. However most of this “bombshell” relates to market damage by Axanar on the Star Trek brand. I simply don’t understand how this can be used to prove or disprove whether copy infringement occured. I totally get that you’d need to show what damage Axanar had to get that particular and if CBS/Paramount want to go down that route they’re allowed to. The Judge is more than capable of giving them $0 of that kind of damage. Doesn’t mean that Axanar didn’t infringe or impact on other potential damages.
The one other thing I will mention is… the one example you gave about not getting any emails are emails to and form Abrams/Lin regarding Axanar. Who even said there are any such emails. Alec Peters himself was surprised when he heard the statement made by Abrams (also Lin was just on the stage at the same time and said nothing so there’s nothing to say that he was in any way shape or form involved) said it would be dealt with “in a few weeks”. As such, Axanar’s lawyers and Peters would have had to been aware that they were getting close to a negotiated settlement at that stage. My conclusion can only be that Abrams was just talking out of his ass and as such there would be no emails between CBS/Paramount and Abrams or Lin about Axanar. Why would there be?
“Bombshell #2”
Let’s assume that the Axanar legal are completely in the right. What is going to happen? The judge is going to compel that CBS and Paramount produce the requested documents. Okay, so that’s a win but really an empty win. It’s more like the kind of technicality kind of win. You have information we told you but don’t have documents…. oh you’re going to provide the documents as well that provide the exact same information. Congrats, congrats on achieving something that really is nothing at all.
“Bombshell #3”
Not being an American or even a lawyer honestly, I don’tcare. If you count this as a bombshell then I seriously doubt your definition of a bombshell. At best, this is background information that may or may not benefit Axanar or CBS/Paramount. This is a legal argument and the voracity of such a legal conclusion is to be determined during trial. Considering the original case was subject to a number of appeals as you mentioned it is obviously more complicated than that small snippet might suggest. Especially considering that the information you have provided us has clearly been pre-digested before it even got to you.
TLDR: A lot of smoke being blown.
Lots to respond to! Thanks for organizing it so well, Andrew. Here we go…
– – – –
So here’s a bombshell for anyone reading these comments: Alec Peters is NOT trying to say that Axanar somehow wasn’t Star Trek. He based both Prelude and the Axanar script off of many elements from the Star Trek universe. So did Alec Peters use CBS/Paramount’s intellectual property without permission? Totally. BUT!!!!
There are two additional questions to answer:
Was it fair use? “Saturday Night Live” did a spoof of Star Trek (many, in fact) that clearly infringed on the copyright. John Belushi played Kirk. Chevy Chase was Spock. Dan Akroyd was Bones. The uniforms were the same, the starship was the USS Enterprise, and it was even called “Star Trek.” But as a parody, the skit qualified as “fair use” and therefore did not infringe in any legal sense. “Fair use’ is a vague term, to be certain, and one of the most significant determinants of whether something infringes (although not the only one) is how much does it damage the original property financially.
But let’s assume that Axanar does, in fact, represent true copyright infringement not protected by fair use, and part of the reason is because Axanar poses realistic financial harm to the studios. Then the question becomes: how much? As you said, the judge could rule $0. Actually, technically the minimum he could rule would be $200 per violation (not $0). And the maximum would be $150,000 per violation. That’s a HUGE range of potential damages! And it needs to be commensurate with how much damage was actually done. If the studio losses were only in the tens of thousands of dollars, then a judgement of $5 million would be totally out of proportion with the damages done.
So as you can see, the simple verdict of “It was copyright infringement” isn’t so simple! This isn’t a criminal case where you either shoplifted or you didn’t. If it were so black and white, there wouldn’t be so many copyright infringement cases out there…some of which made it all the way to the supreme court.
As for who said there were any such e-mails from Paramount…well, Paramount did. Their lawyers even agreed to deliver them as part of discovery and said that the e-mails between the studio and JJ/Justin weren’t privileged because neither director is an official spokesman for Paramount (or CBS). So by saying, “Yes, we’ll provide you with the e-mails,” it kinda assumes that, yes, there are in fact e-mails to provide. Otherwise, the studios’ lawyers would have said, “E-mails? What e-mails?”
– – – –
For your next point, it sounds like you’re saying that, because the studio witnesses had no useful information to share, that any documents provided would be equally not useful to the defense. That sounds like a huge leap. Just look at Hillary Clinton’s leaked e-mails. There’s a lot more there than she or anyone in her campaign ever admitted to the press. (See kids? I don’t just bash Donald Trump!) Now, maybe there isn’t anything incriminating or useful on those Paramount e-mails, but doesn’t the defense at least have the right to find our for themselves rather than taking a Paramount employee’s word for it? Don’t just assuming there’s nothing there to find, Andrew.
– – – –
Even I admitted that the Harper (Gerald Ford) case wasn’t a true bombshell. But I needed to work within the theme I’d set up for structuring the blog. As you’ll discover in Part 2, however, I expand upon the Harper case and cite several of the differences between that lawsuit and this one. They are, in fact, very different. But the Supreme Court justices’ conclusions still provide important legal precedent that is intended to guide future rulings. Therefore, both parties in the Axanar case are trying to cherry-pick the elements of that 1985 decision that best suit their arguments.
Please keep in mind that I’m not trying to convince anyone of anything with my blog. I’m just calling balls and strikes as I see them (if you follow American baseball, Andrew). I’m certainly not attempting to blow smoke anywhere (I abhor cigarettes!). I’m simply trying to break down these otherwise boring legal documents into digestible pieces for those fans curious to learn more and have at least some of this intriguing case demystified. But I’m not the only source available, and I don’t claim to be perfect. I’m not a lawyer, and my lawyer wife refuses to discuss this case with me (for professional reasons). But I know other lawyers and legal consultants who enjoy chatting with me about the Axanar lawsuit goings-on, and they clear up a lot of stuff for me. And I just try to pass that along. Whether or not folks like you believe me is, ultimately, up to each of you. And if you decide I’m just full of crap, hey, no worries. No harm, no foul. I won’t take it personally. This isn’t my profession; it’s just a hobby.
And ultimately, hey, I may indeed be full of crap! Stranger things have happened. We’ll know more in another week and a half and even more in February of next year. At some point, either I get to say “I toldja so” or you get to say it to me. Or maybe we both say it. In the meantime, it’s all just words typed into a keyboard.
I think you misunderstand the importance of the Harper decision. The issue of widespread infringement isn’t limited only to Axanar. If it were, you might be correct, i.e. that it would cause little if any financial harm to the Trek IP. In Harper, however, SCOTUS clearly intends the term ‘widespread’ to me others in addition to the specific infringer. The plaintiffs here argue that if the court holds Axanar to be legal infringment, what’s to stop others from doing the same? Perhaps one independent Trek film would be of no financial threat but what if there were a dozen? Two dozen? What about a series? Three series, all non-profit and independently produced? Would any Trek fan pay for the new CBS series if there were two or three free independent series available for free on the web? This is the problem that that Harper decision anticipates.
Excellent point, James! And as you’ll see in today’s Part 2 of the blog, the release of the guidelines factors in strongly to this very argument! By giving their blessing to fan films, have the studios inadvertently torpedoed their own case? It’s an interesting question to ponder. I’ll be posting Part 2 shortly!
I’v
As for the importance of the Harper Decision… I think you’re overestimating it.
As you stated in this article “The Nation argued for fair use on account of Nixon being a public figure and his reasons for pardoning Nixon being a vital piece of historical information.” To summarize it’s a fact and you can’t copyright a fact. It was this argument that won the first appeal to declare the usage to be fair use. As you point out. Any market damage occured OVERRIDES any fair use.
The problem is Prelude to Axanar, and the scripts and whatever has been produced of Axanar itself(inc. ‘Vulcan Scene’) are not fact. Neither, are they a ‘vital piece of historical information’. Star Trek could be argued to be vital historical importance but not because of the stories but because of the cultural impact that Star Trek has had over the past 50 years. A Star Trek story, character, ship or race is not historically relevant.
Axanar has to PROVE that it’s usage of Star Trek was fair use. The Harper case as far as has been explained to me in this document does nothing to accomplish this.
I do not know, or honestly really care, how much CBS and Paramount are going to get from this case should Axanar be found to be infringing. They’re asking for 150K per infringement and I get why. They want to shut down something that they see as profiting off from their IP. On the other hand I also see Axanar’s legal team point of view in that they want to limit the damage or potentially get it declared as fair use.
The only problem is that from what I can see is that nothing that the Axanar Legal team is doing is actually helping to prove this.
They’ll prove it during trial, Andrew, not during discovery. But to address your points about the Harper case…
1) Yes, it’s a very different case from Axanar.
2) It’s relevant because the Supreme Court stated that the most important element of fair use to consider is: does the infringing product cause financial damage to the copyright owner(s)?
Both parties have something to prove. Team Axanar needs to prove it IS fair use, but at the same time, the studios need to prove that it is NOT fair use based on (according to legal precedent) the direct causal link between Axanar and monetary damages to the franchise. That is why the Harper case is relevant.
If Team Axanar can argue that a documentary style film is transformative, then they can establish a possible foundation for fair use (not a slam dunk, though). But if the studios can prove they’ve been financially damaged by Axanar’s existence, according to Harper, their proof of damages trumps anything the defense can come up with.
Does any of that make sense?
Jonathan, can you define “transformative” in this sense? Does it mean when you use someones work, significantly modify it, enhance and improve it, or create something new with no connectionto the original except maybe some bits and pieces? Or something else…
Pretty much transforming the original in ways it’s never been done before. For example, no Star Trek episode or movie was ever done in a documentary format. Is that enough to transform the original property? That’s up to a judge. Here’s a good, relatively short article on the subject.
Completely agree. And I brought this point up another forum a few months ago. The crux of this is FAIR USE. Axanar can argue that because this is unfinished, and as of yet was only released in trailer form, this was always intended to be a faux documentary…which then allows it to be both parody….and educational. Both clear and irrefutable elements of defensive FAIR USE.
Parody…no. That involves a direct commentary on some element of the original property in order to make a pointed statement. Prelude doesn’t do that, and Alec knows it. Educational? Maybe. I suspect that’ll at least be floated, but I don’t have any confirmation.
I love how Alec calls this an independent and unbiased source.
In a pig’s eye.
I take it you’re not unbiased either, Howard. Well, welcome to the club. 🙂
Says a hater. Pot, meet Kettle.
Howard Decker, lets see: Jonathan is not connected to Axanar, and “unbiased” can mean (for those who actually have a sense of right and wrong) a person who is dispassionately provideing an interpretation of a large amount of facts , without making legal judgements, and providing their own opinion (and clearly stating it is that). Since CBS Paramount has only sent their mouthpiece out on one podcast, where he promptly told stories meant to sooth savage fans (with no sincerity whatsoever) and that is all, there is a complete lack of clear information, except what we get here. If it does not fit into you universe, go hang out on some of the Axahater FB pages, some have actually gotten 100 people in them. You can curse and rant all day long there, maybe even get some likes, too. But as seems the Axahater model, you dive in, make a completely useless statement with no support or logic to it, and dive out.
I’ve been noticing lately a few digs at John Van Citters of CBS Licensing, Brian. I’d respectfully ask that you please cut JVC some slack. I use to work with him for a few years, and he’s a good person. He’s a true fan and one of the few reasons that Star Trek licensed products are as good as they’ve been over the last 15 years. John had a tough job to do in recording that podcast, and yes, he was trying to put lipstick on a pig. But as much as I abhor certain of the new guidelines, I still like and respect my former supervisor greatly. I didn’t envy him having to be the first (and really only) CBS executive to face the wrath of fans. I finished listening to that podcast and wanted to shake John’s hand…maybe even give him a supportive hug. Granted, that didn’t stop me from starting up Small Access to try to change the guidelines, but John still has my deep respect, and I’d rather not see him skewered on my blog site.
Jonathan, thank you for the notice, and I do apologize to Mr. Van Citters if I was offensive in an unjustified manner. The frustration though, of seeing people who are supposedly supporters of the franchise, seemingly try to make an obviously unfair and unworkable policy seem fair, as well as make a seemingly fundamental error in thinking that “free advertisement” is a bad thing, says his masters must be totally out of touch with the market and fans. As I said other places here, it seems a no brainer how they could have rode this pony all the way to the bank, now they are trying to shot the pony seemingly out of spite so they can walk 200 miles to the bank and “show that damn pony who is boss”. That is also one of my root issues with the haters, who “love Trek” but hate Axanar, because it might endear people to the franchise? Might bring in new viewers who then go get more ST material? If he would come forward and have a calm discussion of the logic, it would help a lot, but no sign of him yet. However, you are correct in admonishment, and I will not do that again. Thank you, sir.
No harm, no foul, no worries, Brian. 🙂
Jonathan you have an amazing gift for the written word. The mindful flashes of intricate color radiating from your typing fingers permeate through the mystical ramblings of my mind. You are like a welcoming friend who jumps out of an airplane, and on a downwardly floating spiral hands me a parachute of truth, that I absentmindedly forgotten on my own. The article was uplifting, stupendous, magnificent, imposing, impressive, awe-inspiring, oreganoed (just checking if you’re still reading), grand, splendid, majestic, thoughtful, and overwhelming…..Thank you for enlightening my life and my spirit!
Too much? Well, I know…. I did it for a couple of reasons, first in order for you to have a well digested meal tonight. I wanted my over-the-top reply to offset and compliment any negative posts that may make you believe even your vegetables are mad at you. Second, to give you an opportunity to eat your meal, rather than have to reply to endless questions, for which you have clearly answered. Besides, that mash potatoes should be eaten…..it looks specially angry at you…..
But seriously, thank you for taking the drudgery of reading through these filings and giving us a concise, unbiased, and definitely John Oliver inspired source of news.
You can go eat now…..
Heh, I actually AM about to go have dinner, Charles! How did you know??? It’s gonna be left-over chicken soup, though. Wendy was sick the last few days, and I made her waaaaaay too much Jewish penicillin. So I’ve gotta do my part in clearing the concoction out of the fridge! (Secret ingredient, folks: add some Ortega taco sauce to the broth. Don’t judge; just trust me.) 🙂
And thank you from the bottom of my heart (and stomach) for such an uplifting comment, Charles. You da man!
The Shadow knows….besides, being half Jewish I know how chicken soup can judge you. Ortega sauce? I’ll remember that…. Hope Wendy feels better, and you’re welcome. I’m looking forward to your next piece…
I know John Oliver and he’s no John Oliver not even close. Oliver delivers actual & factual news on HBO and is much funnier than the wannabe. Sorry, but never compare him to Oliver!
I take inspiration from John Oliver, but I would never seek to compare myself to the master. He and his writers do an amazing job of making the complex and boring into the understandable and, every so often, even entertaining. And the way he does it is to pause every few minutes (or less) for a joke. It gives the viewer a chance to breathe, relax their mind for a second, and recharge for the next hit of mind-numbing reality. Also, using humorous metaphors, Oliver can distill something complicated down into an analogy with a commonly shared cultural reference. He and his writing staff are brilliant! And while I follow his lead, I am not even a lowly Padawan next to this Jedi master.
Paramount will continue to paper storm Axanar because they can afford to…infinitum. I say someone needs to make a really good documentary and/or parody…i.e. ‘AXANAR and GOLIATH’…and let the masses know how PAR/CBS is ruining the real fanbase. The way this should play out is PAR/CBS should be offering free licenses to qualified productions and putting their stamp of approval on them. Clearly the logical option. Boycott NU TREK.
Alec…god bless you my friend…keep the good fight going for the rest of us…and godspeed.
Have you watched my parody yet, Da Han?
https://www.youtube.com/watch?v=_cnHe0oIJIs
That was outstanding.