It was the best of crimes; it was the worst of crimes…or was it even a crime at all? (Actually, this is a civil trial, not criminal…but I needed a word that rhymes with “times.”)
Looking at the two motions for summary judgment filed late Wednesday night by the two parties in the AXANAR copyright infringement lawsuit, one might wonder if he or she had just read a tale of two completely different fan films. The defense, unsurprisingly, had that “What…little old us?” look as they discussed a mostly original piece of creative fiction that used just the smallest sliver of Star Trek–and only the “minimum” that was necessary to tell its story that was actually a “critical commentary and analysis” of “the present-day military industrial complex.”
Meanwhile, the plaintiffs painted a picture of a nefarious fan who maliciously tried to line his own pockets with ill-gotten gains taken from the good and just studios who have made Star Trek lo these 50 years. His fan film contains nothing original and was simply a “…copy from the plots, themes, settings, mood, dialogue, characters, and pace of the Star Trek works.” The very existence of Axanar in any way will “…cause irreparable harm to the market for the Star Trek Copyrighted Works…” and must be ended immediately “in the public interest.”
They can’t both be right, can they?
Geez, where do I begin?!? Well, how about at the end and working my way back. My prediction is that neither side gets what they’re asking for. Judges seldom grant summary judgments that simply end a case without a trial (and that’s what both sides are asking for). And especially when both sides are so far apart in making their arguments, judges usually like to let a jury decide. Only when the facts are so obviously undisputed (like “The sky is blue”…totally an indisputable fact) will the judge step in and say so. When things are not so cut and dried, then many judges don’t feel that only a single person (the judge) should decide them before a full trial can bring a more consensus ruling from a full jury.
There’s also a tendency at this point for “fans” rooting for one side or the other to assume that this or that filing is the “knockout blow.” I am going to try NOT to do that. My goal today is to look solely at the motions themselves. Yes, there were many, MANY supplemental documents filed alongside the motions, with hundreds of pages of supporting evidence–including my 128-page “History of Star Trek Fan Films,” screen captures of websites and social media postings, deposition transcripts full of juicy “gotcha” comments, and even the shooting script for Prelude to Axanar.
It’s tempting to dive into all those other supporting documents or to try to hack into the redacted portions that apparently were not property redacted (but that’s a controversy for another day), but I’m choosing instead to focus ONLY on the motions themselves. And the reason is primarily one of time. I want to get as much of this analysis posted as possible before I travel for the holiday week. And also, this blog article is gonna be long enough as it is just focusing exclusively on the motions themselves.
So let’s get to it!
(Note: there’s just no way I can make this a short analysis, folks. I realize I’m not known for being pithy in the first place, but there’s a LOT to cover, and I feel it’s important for people to accurately and thoroughly understand what’s going on…if they’re so inclined to want to find out.)
THE DEFENSE MOTION
Motions for summary judgment are basically asking the judge to rule on something BEFORE there is a trial. It could be as simple as wanting the judge to state for the record that the sky is blue (an undisputed fact) or they could ask for a ruling on the entire lawsuit–obviously a ruling in their favor–that could end the lawsuit before a trial even begins.
In the case of the defense, they’re essentially saying there’s no need for a trial because of the following two “obvious” reasons:
- The full-length Axanar movie hasn’t even been made yet, so how could it be violating a copyright? Alec Peters could still change it around completely–and no one knows whether it’ll look anything like Star Trek when he’s done. So how can the studios claim it’ll cause them irreparable harm? Plaintiffs’ claims are premature. (On this one, I think they might have a point, as I’ve always sorta agreed with this rationale…at least in theory. But then again, I’m not a Federal judge.)
- Prelude to Axanar isn’t really that close to being “real” Star Trek and anyway, even if it were, it’s protected by “fair use.” (If I were a betting man, I’d say the defense has, at best, a 20% chance of convincing a jury of this. Not impossible, but not a slam dunk. During summary judgment, though, I think the chances of convincing Judge Klausner to toss the entire case on account of fair use would be much closer to the “snowball in hell” level. We’ll see, though, but I predict this case is going to trial.)
Now, I don’t have time and space (and no TARDIS) available to go through every point in their 20-page DEFENSE Motion for Summary Judgment filing. But I do invite you to read it over if you have the chance to get an idea of how the defense will most likely be proceeding when they get to trial. I also invite you to read the PLAINTIFFS Motion for Partial Summary Judgment to get an idea of what their perspective is.
Instead of diving deep and trying to cover everything, I’m going to do a more cursory examination of the defense’s arguments. And forgive me if I go slightly out of order, but their second point was MUCH more important and interesting than their first point…so I’m going to start with that second blockbuster (you’re either gonna love this or hate it, folks):
Plaintiffs own a limited number of Star Trek episodes and films, but they do not own a copyright to the idea of Star Trek, or the Star Trek universe as a whole.
WAIT A COTTON-PICKIN’ MINUTE, THERE! I might be an Axanar supporter and all, but this one was too audacious even for me to just accept at face value.
If the judge upholds this argument, doesn’t it clear the way for ALL fan films to do whatever they want??? After all, if CBS doesn’t own the Star Trek universe, then go play in the sandbox all you want, kids!
This statement wasn’t passing my smell test, so I sent up the bat-signal to my legal eagles (the bird-signal?), and had the following fascinating conversation. (And before anyone asks, no, this conversation was NOT with Alec Peters, Erin Ranahan, or any attorney at Winston & Strawn.)
Enjoying an unusually slow day, the eagle had already looked through the defense motion before we began chatting and immediately pointed me to something on page 2:
Plaintiffs allege that Defendants’ Works infringe 40 specific Star Trek episodes and 11 movies. Plaintiffs do not purport to own in this lawsuit a copyright to the Star Trek universe. Rather, Plaintiffs own a limited number of copyrights to certain episodes and films.
“I don’t get it,” I told my friend.
“In their complaint,” s/he told me (I’m not at liberty to reveal this person’s identity, but I am permitted to quote our recorded conversation), “the studios listed specific instances of copyright infringement, right?”
“Yep, 57 of them, by my count.” I replied.
“Okay, then that’s ALL this case is about.”
“I still don’t get it.” Honestly, I was totally lost at this point.
“At no point in their amended complaint…” (which my friend has read thoroughly) “…did the plaintiffs ever say, ‘We own the entire Star Trek universe.’ Instead, they planted their flag with these 57 items based on 40 of their episodes and 11 of their movies. Those define what must be argued in court. They can’t talk about Star Trek as an “idea” because you can’t copyright an idea. They only own certain expressions of that idea…for example: Klingons, Garth of Izar, the USS Enterprise. Are any of these used EXACTLY as they were in the original Star Trek?”
“Well, Garth appeared in the episode ‘Whom Gods Destroy,” I said, “And they’re using him…”
“In the same way?” s/he interrupted, “Wasn’t Garth bat-sh*t crazy for most of that episode?”
“Totally,” I said.
“But he ISN’T crazy in Axanar, is he?” S/he knew the lights were finally coming on in my brain…
“Oh, I see where you’re going with this!” Garth himself has been altered from what he was in that episode to what he is in Axanar. He isn’t the same character, despite having the same name (and you can’t copyright a name). He’s not a psycho but rather an experienced starship captain leading an attack force in a major battle.
“Now look at the next thing in their motion…” s/he continued:
Plaintiffs do not allege that Defendants’ Works use any clips or otherwise copy the plot, dialogue, timeline, or central characters of any of Plaintiffs’ Works, but instead allege infringement of such elements such as clothing, shapes, words, colors, short phrases, the Klingon language, and works derived from nature, third parties, and the public domain.
“Most of those things,” s/he continued, “aren’t subject to copyright protection–which is actually stated later in the motion somewhere…I don’t have time to look it up right now.” [Page 11 if you want to check it out. -Jonathan] “You can’t copyright a shape or a word or a short phrase. So really, they’ll probably be limited to going after Alec on using things like Klingons, Vulcans, maybe the Enterprise–although it only appears briefly–maybe a few other things. But this isn’t gonna be a case with 57 different violations. It’ll be a LOT less.”
“Could this line of, excuse the term, logic, open the door to other fan films making the same claim?” I asked.
“Possibly. It all depends on what elements they use.”
Hmmmmm….
We ended that call with my mind a little less dubious. I’m still not completely convinced on this one, but I’m actually now rather intrigued wondering how and where this particular point will go. Might this end up being the “get out of jail free” card for most Star Trek fan films? The cynic in me can’t believe it’ll be quite that easy, but the optimist in me…well, we’ll see.
Okay, back to the motion. The defense’s next point, which was actually their first point, was that the plaintiffs’ claims about the still-not-produced Axanar feature film are premature. It would be like suing me for libel for a blog I wrote but didn’t publish yet. If only I have seen it, then it isn’t libel yet. In fact, it might never be libel! I might decide simply to not publish it ever. I might decide to rewrite it and delete the parts that are libelous.
In either case, until I hit the “publish” button, I haven’t committed an actual act of libel and should not be sued for it…or even enjoined from eventually publishing a version of that blog just because it might be libelous. (Keep in mind, I’m talking only about the proposed Axanar feature film, NOT about Prelude to Axanar. That’s a whole other kettle of sushi!)
Oh, and speaking of making changes, I can finally share a “secret” that I wasn’t allowed to discuss before today. Take a look at this quote:
In fact, through the many scripts, Defendants have attempted to create drafts to alleviate Plaintiffs’ concerns regarding alleged infringement, and are now leaning towards more mockumentary style works.
Yep. If Alec Peters wins this case with a fair use defense, it will likely be at least partly because Prelude to Axanar was transformative, and the mockumentary style of Prelude might actually be considered legally permissible as a fan film format!
(As I said, 20% chance of that happening…in my non-expert, totally armchair lawyering opinion…so take from that what you will.)
And if mockumentaries like Prelude are suddenly kosher, then the Axanar “movie” might end up being made just like Prelude was…with talking heads in front of green screens, maybe some short scenes on the bridge, and lots of VFX! I think that’d be cool–as I loved Prelude–and I would guess that many other fan films might try to skirt the guidelines by using a similar mockumentary format.
Of course, that makes a BIG assumption that mockumentaries qualify as “fair use.” Do they? Well, that leads us to the meat of the defense’s motion…
“FAIR USE” – WHAT THE HECK IS IT?
Next time, we finish up looking at the Axanar motion for summary judgment. How can they possibly defend their allegedly infringing fan film(s) as “fair use”? And do their arguments hold water, or are they smoking something that has just been made legal in my home state of California? And then, in Part 3, we’ll finally begin to take a look at the plaintiffs’ motion for partial summary judgment and try to determine if they’ve got a winning argument or if they’re smoking something, too.
PLEASE NOTE: I will be traveling starting today (Saturday) to the East Coast to see family. And my family (and wife!) might not understand or appreciate Jonathan sneaking away for hours at a time to research a blog about Star Trek fan films. So please be patient if it takes a little extra time to finish this particular series of editorials.
Intriguing and interesting, as usual, Jonathan! Thanks for keep us fans/donors in the know. I believe Axanar/Alec would love to do just that, but for obvious reasons, they can’t. So, your blog and you are “the next best thing to being there!” [It’s FAIR USE, AT & T!!]. Can’t wait to see Parts 2 and 3. Happy Thanksgiving to You and Yours!
Well, when it comes time for Thanksgiving, I’m not in the 8th dimension. But I am…who out there can guess where I am from that clue I just gave? 🙂
I don’t know Buckaroo!!
It’s not my goddamned planet, Mickey-boy. 🙂
You didn’t mention all the supporting doc to the Defence motion, specifically document 75-4, Exhibit 2 to Oki Declaration, entitled “Paramount Pictures Corporation’s Responses to Interrogatories Set 1, Nos. 4, 5, 8 and 9,”. In that doc the Defence publicly and un redacted spell out all the money raised and spent by Alec. This is the same info you vilified the Plaintiffs over their poor redaction in their docs.
You can find the doc here: https://drive.google.com/open?id=0BzmetJxi-p0VYmgwd3NsY05VNU0
To my knowledge, there is nothing preventing Alec from releasing disown confidential information publicly. Loeb & Loeb, however, was under a court order not to. They put it into their filing not knowing what the defense would do, so Loeb & Loeb is still culpably negligent in releasing confidential evidence…and also distorting what they knew were invalid financial records in order to impugn Alec Peters. We’ll see if this turns into anything or not, but it was no accident that Carlos Pedraza was contacted by Jonathan Zavin of Loeb & Loeb and asked to remove the undeducted documentation. The fact that he refused to is only going to work even more strongly in Alec’s favor. L&L seriously screwed up, and they know it.
See, you’re wrong there. Zavin was just performing due diligence by asking Carlos to remove the information. He chose to not remove it because the same info was made public by the defence. The court hasn’t marked anything confidential, the defence has. If they choose to make it public then anyone else can. The court order was simply not to release anything that either party deemed confidential. By making it public the defence removed any confidentiality so therefore no court order was breached.
The plaintiffs filed first…kind of like Han Solo firing first. At the very least, L&L is not going to convince the judge to lift the confidentiality order now. The jury will not see this.
Sounds like the usual arm chair lawyering by Sandy Greenberg, if it fits his twisted view of law based on his preferred agenda, it must be true.
Biggest example being Greenberg’s claim of, “due diligence”. If you claim Zavin created no breach, why would he send a request to Carlos? Due diligence means you are covering your ass for a possible mistake. Seems a REAL lawyer at least knows what he had to do. If your assessment was in any way correct, no communication with Carlos would have been needed.
Still Zavin just made the mistake of posting files that could be redacted. Carlos actually posted them unredacted publicly. It will be interesting to see after the case is over, if either side will then sue Carlos because of the outcome. 😉
Interesting to see that Carlos doesn’t let his support of CBS/P stand in the way of his hatred of Alec. The plaintiffs filed first so it was already out there breaking confidentiality before the defense filed.
It’s a fast-moving world. Me? I stop and fly across the country every so often. Today, I watched a half dozen crazed boys (oldest was 7) run around the house for six hours non-stop celebrating my nephew’s fourth birthday. But now I gotta get blogging again! 🙂
Sandy, you don’t know shit about the American legal system. Stick to shuffling papers at Thomas Reuters.
Please, no cussing. You don’t know SHAT is acceptable. 🙂
Alec,
It looks like you are the one that does not know “shit” about a lot of things (business, film producing, transparency, the law, personal integrity, etc…). Stick to volleyball coaching.
Personal foul. 15-yard penalty and first and only warning, Daniel. That was pure insult with no reasoned debate about any idea or difference of opinion. That’s a no-no on FAN FILM FACTOR. Another post like this one, Daniel, and it goes directly into the trash.
…so it’s okay for us to say:
“Axanar is REAL Star Trek!”
…because we are talking about the “IDEA of Star Trek”
…and also because it is a small slice of the un-owned / un-explored UNIVERSE of Star Trek!? NICE!! =D
I read over the plaintiffs’ motion on the plane and noticed that they, too, said it is not possible to copyright on idea. So that’s confirmed. Now, as for everything else my legal friend said, well, I’m still on the fence. I want to see what the judge says. I also want to look up exactly what elements of Star Trek that Paramount and CBS have actually copyrighted. I know that Marvel has copyrighted literally thousands of characters. Has CBS and Paramount done the same for Star Trek? I’m gonna check this after the holiday.
I started following the Prelude fan film then eagerly anticipated the Axanar feature length
oops, meant say… but now I’m really following the court battle as “translated” by your blog. It’s a play by play commentary for those of us that have happily never seen the inside of a real court room. Ultimately if we never get to see AXANAR at least we get to see “why” we can’t. The huge amount time you’ve sunk into this portion of the blog is greatly appreciated.
Enjoy your turkey,
Thanks, Richard. May I call you Richard? My brother-in-law is Richard, but he prefers either Rich or Uncle Richie. We’ll see him in about 10 hours. 🙂
Jonathan, thank you for your continuing updates and have a great time with your family. All of this stuff will still be here when you get back.
Thanks, Al. I’m making progress on Part 2. Not sure yet about Part 3, but I have a few ideas of how to organize it. Might even need a Part 4. (Man, I hope I finish these before the judge actually rules!!!) 🙂
And let me tellya, when your plane lands and you check into our hotel room and finally turn on your computer to discover THIRTY comments that need moderating, approval, and responses…well, blogging goes REALLY slowly!
“‘…and must be ended immediately “in the public interest.'”
In the words of Daffy Duck, “Ho, ho! Very funny! Har, har, it is to laugh!
(This post may contain copyrighted (© ) material the use of which has not always been specifically authorized by the copyright owner. Such material is made available to advance understanding of ecological, POLITICAL, HUMAN RIGHTS, economic, DEMOCRACY, scientific, MORAL, ETHICAL, and SOCIAL JUSTICE ISSUES, etc. It is believed that this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior general interest in receiving similar information for research and educational purposes.)
Thanks, George. After some of tonight’s comments, I need that! 🙂
Wasn’t there an active lawsuit pending concerning the use of the Klingon language evolving into a common use language?
Not a lawsuit, an amicus brief filed on behalf of Axanar back in April. Amicus briefs (friend-of-the-court filings) are submitted by third parties unaffiliated with the parties in a lawsuit trying to help or shed light on a question in dispute. You can read more about it here: http://www.hollywoodreporter.com/thr-esq/star-trek-lawsuit-debate-klingon-888419
Thanks for that – enjoy your holiday!
One question though: is the chance of a settlement now realistically over, especially over the ‘redacted’ information debacle?
I couldn’t say. I do know that Alec is pissed (I’d be, too), and angry/resentful people are less likely to be motivated toward compromise with those who made that angry and resentful in the first place.
First of all, there is no need for your “legal eagle” to be anonymous. Seriously. There’s no fucking reason in this world.
If you want, there are many services out there that are free to journalists (you can pretend to be one) where you can request experts, and they will provide them – including intellectual property attorneys versed in copyright law.
Try using someone like that, whom you can identify by name (and so we can see that this person is not your wife), and who actually might KNOW something about copyright law.
Like what a fucking substantial similarity analysis is. If your “legal eagle” had a brain in her head, she would realize that those elements aren’t there claiming copyright ownership of them, but instead they are pieces to the puzzle that help show that the EXPRESSION of those non-copyrighted elements are indeed being infringed upon.
To say that this case is closed because they are trying to claim copyright on “pointed ears” (they aren’t, by the way — only an idiot would surmise that) is saying that your “legal eagle” is totally clueless.
A song is a collection of non-copyrightable elements called notes. You can’t copyright an individual note. But you absolutely can copyright an EXPRESSION of those notes.
So you’re right, if Bruce Springsteen sued me for using a single note, he wouldn’t have a chance in hell. But if he sued me for arranging those notes in a way that it expresses “Born in the U.S.A.,” he might have a point. Even if I called the song, “Born in East Bombay.”
You should research substantial similarity analysis. And go back and review the judge’s prior rulings, including those that dismissed your buddy’s motion to dismiss. It made it clear that those elements are there ONLY for substantial similarity analysis.
So now it’s Michael Hinman’s turn to get a warning. Michael has traditionally been very concerned with being perceived as and referred to as a “journalist.” In fact, anyone even hinting that Michael might be just a blogger and not an actual journalist is usually met with an angry and belittling response that includes Michael’s resume, writing history, the number of interviews he’s done, and usually a few final insults to make certain the implication won’t happen again.
However, a true journalist can usually convey his thoughts and opinions without resorting to vulgar language. A true journalist doesn’t accuse someone’s wife of something without having any hard evidence. Wendy does not discuss this case with me in ANY way because she can’t. Her firm does work in the entertainment industry with a number of the major studios. Wendy is simply not allowed to comment on this case with me or anyone. It could cost her her job. Just a few days ago, I said, “Hey, honey, you want to hear about the major trouble Loeb & Loeb just got into?” Her response was, “No, I don’t. I’ve told you this. Stop poking the bear.” (“Poking is bear” is essentially “yellow alert.” If I keep doing it, I should expect to be fired upon. So no, she can’t discuss it with me or even let me discuss it with her.)
So any unfounded accusation that Michael makes about my wife is not simply irresponsible “journalism,” (and let’s face it, it’s not journalism–it’s petty childishness), but it is also potentially damaging to the career of someone whom he has not only never met but never even interacted with. His blasé comment puts the livelihood of my family at risk…and for what? To score some “gotcha” point in some made up game of “I can be a better blogger than you”? It’s beyond immature, and it is certainly not being a journalist.
Look, if Michael Hinman wants to play games, drop f-bombs, and make irresponsible and unfounded accusations, then he shouldn’t call himself a journalist. But if he wants people to call him a journalist, then he needs to grow up and act like a responsible, respectful journalist. He can’t have it both ways–which is why Trevor and Rod showed him the door a few months ago. They’re smart enough to know when they’re dealing with someone nasty and immature who will only make them look bad.
As for Michael’s other comments telling me that there’s no reason for my legal sources to remain anonymous, well, yes there is. Just like Wendy, this town is full of lawyers and legal consultants who work with the studios, with directors and producers, actors, managers, etc. They know people, are friends with people, know people who know people. And if any of those people found out they were feeding me opinions and commentary, it could cost my sources THEIR livelihoods. I had to promise up, down, and sideways not to identify ANY of them in any way…and I don’t break my promises just because some blogger sitting on a tropical beach with his laptop on his knees types a comment telling me to. So how about Michael does things his way on his blog and I do things my way on my blog? Sound fair?
And finally, substantial similarity is usually trumped by fair use. In Part 2, I will be looking at the defense’s fair use points and weighing their merit. Why not wait at least long enough to read Part 2 before trashing Part 1? Or better yet, wait for Part 3 and possibly 4.
Anyway, warning given. The next time Michael drops F-bombs and cavalierly accuses my wife of something, his post goes directly into the trash bin.
(for fun lets do this in Rod Serling’s voice) Here we have….for your entertainment… Michael Hinman….wannabe journalist who claims a history of stories he can never prove…failed blogger of a failed blog, whose numbers have fallen lower than his shirt size…..attacking Jonathan’s with the professional style of a angry 12-year-old boy working the bearded lady tent.
(now lets switch to a first grade home room) See Dick run….See Michael attack Jonathan for keeping his sources confidential, when Michael has cornered the market on claiming, ” unnamed confidential insiders”, and “well known sources”.
See Michael agitated on Jonathan’s site because he never attained the quality of Jonathan’s writing and investigative abilities. Thus, see Michael run, as his own blogger career ends as the Axanar case soon comes to a close and with it his only notoriety.
I appreciate you standing up for me, Charles, and pointing out Michael’s hypocrisy, but don’t get too snarky. And don’t kick him when he’s down in readership. Yes, his numbers have tanked lately, but fortunes can change on a dime…and he’s still getting more views than I am (just not as many more as a few months ago). Feel free to criticize, but please try to avoid the snark. Remember, as long as we hold the moral high ground, Michael Hinman always loses. Always. But as soon as we sink to his level, it’s anybody’s game.
Jonathan how could you?!? Don’t you know Hinman is “right”? Just ask him, he’ll tell you! 🙂
And I highly doubt he’d have a problem with what you do with comments, as he handles his comments section as he sees fit on his site (or at least did, nothing’s been posted there since August).
Really? I Haven’t checked 1701News since about then, so I wouldn’t know.
Wow Hinman, you still have no clue what “journalism” is do you? Answering comments with a belligerent, arrogant attitude is part of no journalist’s repertoire I know of.
You aren’t a lawyer and have no clue about the law, and because you have a vendetta against me, ALL of your reporting is absolute bullshit. There is barely a grain of truth in any of it. And certainly little journalistic objectivity.
There is a reason you got Roddenberry to end his relationship with you and 1701 News failed. Lucky you have a friend who will take your sad excuse for writing on.
Jonathan at least doesn’t pretend to be a journalist like you and your boy Carlos. He admits he is just a blogger.
Alec
Well, yeah, I do. But it just somehow sounds less harsh when I say it. 🙂
“or to try to hack into the redacted portions that apparently were not property redacted”
Did you mean “properly redacted”? Clearly the redaction properties weren’t properly done… but you could have also referred to this as information regarding property that was ordered to be redacted. Grammar Nazi confusion ensues. 😛
Yeah, typo. They do sneak in late at night…lik now!
Just one little point Jon. You say about Garth that he isn’t the same character, despite having the same name (and you can’t copyright a name).
The problem is, he is. Here’s what Alec says on AxanarProductions.com
“Axanar is the story of Garth of Izar, the legendary Starfleet captain who is Captain Kirk’s hero. We met Garth in the third season TOS episode Whom Gods Destroy. Kirk called Garth the role model for all future Starfleet Officers. Garth charted more planets than any other Captain and was the hero of the Battle of Axanar, the story of which is required reading at the academy. This is that story.”
You can’t claim in one breath that it’s the same character and then say it’s not for your defence.
There was a fair use case about a book entitled “The Wind Done Gone.” It was the story of “Gone with the Wind”–same characters, same events–told from the point of view of one of the black slaves. Go look it up and see what happened.
Doesn’t matter. Alec has said all along (before the lawsuit) that it’s the same character. Examples of this claim have been entered as evidence. For the defence to then claim it’s not the same character goes against all of his previous public statements and just makes them look bad. I’ll be very surprised if the judge doesn’t see through this.
Same character but transformed, Sandy. You’ll see in the coming weeks what I’m talking about. Or maybe I’ll see what you’re talking about. 🙂
I looked up the case, it’s called SunTrust Bank v. Houghton Mifflin.
There are two key pieces of information in that case. First, it was settled. Now before it was settled, Houghton Mifflin won a key ground in its first appeal. Do you know what the grounds were?
“The Wind Done Gone” was a parody.
Good luck proving Axanar is a parody.
Jonathan, you are either incredibly “estupido” or you are Axanar’s greatest Propagandist, I believe the former. The story of Garth, Alec is telling is the SAME F&^KING Garth mentioned in the TOS episode “For Whom the Gods Destroy”. The only difference is Alec’s Garth won’t have PTSD and and an aliens gift of shape-changing that descended him in to madness, other wise it IS the same Garth from TOS.
I am sure you will delete this as well.
No need to “bait” me with the “I am sure you will delete this” challenge. As is widely known around these here parts, I don’t delete comments unless they are highly insulting and/or loaded with vulgarities. I appreciate you masking the f-bomb and insulting me en español. But pleaee don’t translate that last sentence into the way to get around the rules. This is my blog, and I don’t have to stand (or sit) here and simply get insulted or let the same thing happen to my friends. But I do feel it’s important and helpful to have a civil and respectful dialog, a place where those on the opposite sides of this case can meet, discuss, and debate. But insults for insults sake–that’s just a waste of perfectly good electrons, in my opinion.
Rand, no need to insult Jonathan. And you have prove by your statement that it is not the same Garth. Same person at two different times in their life with two totally different sets of skills and challenges.
Has it not occurred to you that those differences you mention might make the character transformative? Considering your recent actions, it wouldn’t surprise me if it hasn’t. You don’t strike me as a man who actually thinks things through…..
She won’t. In her world she already has all the answers.
I love the idea that CBS doesn’t own everything. I would be interested to see what all CBS had the foresight to copyright. also on the Klingon front, I know it has been taught as a course in quite a few colleges as a legitimate language, I don’t know if that actually has any bearing on its status as common use vs copyright-able material but I’m sure it will come up at some point.
I’m curious, as well, to research this more deeply…once I’m back in L.A.
The specific defining of fair use, Jonathan, is the whole point of getting this to trial. If it can be legally defined as far as fan film goes, there should be no more grey area, and fan film producers will know exactly where the lines are!!!
Possibly. Hopefully. The frustrating thing about fair use is that it is, by law, a case-by-case determination. Just because Axanar is (hopefully) determined to be fair use does not mean that, for example, Star Trek Continues would win on fair use if they got sued.
It’s these case by cases that can rive you nuts. At least,the precedent will give you a better idea where the line, even if it doesn’t draw it distinctly.
I would think the two main definitions of ‘fair use’, ie critique and parody, are going to be difficult to prove here. Does that leave room for another type of ‘transformative’ use still being regarded as fair use? Are there such cases or do all cases have to fit within those two definitions?
It’s really a case by case basis. Pornography is actually protected. Had Axanar been a porno with full-on sex scenes (ewwwwww!), it would have been protected as transformative. Yeah, I know. But it’s true. That’s why you’ll see pornos of just about every show, from “Three’s Company” to “CSI” and “The Good Wife.” And yes, there was even a STAR TREK: TNG porno that I can never UN-see. Now, is pornography a “parody?” It’s hard to say (ouch, sorry). But it is absolutely transformative…unless you’re stealing from another porno! 🙂
Looking at the Requests for Judgment, and contrasting them against CBS’s “STD” launch difficulties. I’d say it’s pretty obvious, they REALLY need someone who’s first priority is being “RIDICULOUSLY ACCURATE” to the ideas, ideals, and concepts that make Star Trek what it is. And special, and beloved to millions of fans across this ball of mud.
A lot of fan excitement was generated with Prelude, so if one were to consider, Prelude to Axanar an Audition, then considering how little it cost to make. And the huge amount of positive fan reaction, It got before this If I were CBS, I’d be figuring out how that happened and embracing those that did it. Not trying to stifle their creativity.
At this point The only ones Damaging Star Trek, are those who insist on continuing this lawsuit, those people at CBS who don’t understand What Star Treks all about.
Here’s a gem in the Plaintiff’s filing:
“the Axanar Works are true to Star Trek canon”
Granted, it’s in the middle of an argument that therefore this is infringement. Still, I would have never expected the studios to make a public statement about the accuracy of a fan film with respect to canon.
They kinda had to. The defense is saying, “Hey, we weren’t even that close to Star Trek. We were fresh and original.” So the studios had to say, “No, they pretty much copied us so closely that no one will be able to tell the difference” because saying that Axanar isn’t true to canon is just begging for a fair use judgment.
On the point of ‘Canon’: This statement may or may not be apocryphal but CBS/Paramount have said that only material that has been shown onscreen is regarded as ‘Canon’.
Many (Most? All?) novels, though licensed, are not held as ‘Canon’ (including, unfortunately, the Diane Duane ‘Romulan’ fiction). Hmm. I wonder if that extends to RPG such as FASA’s “The Four Years War” and “Return to Axanar”..?
I do hope that Erin Ranahan is reading this, Paul, ’cause that’s an interesting point. I wish someone could find the quote from either CBS or Paramount about the canon.
Oh! I can answer that and almost posted this before.
From https://en.wikipedia.org/wiki/Star_Trek_canon we have this overview:
“The official Star Trek website formerly defined canon as comprising the television series Star Trek: The Original Series, Star Trek: The Animated Series, Star Trek: The Next Generation, Star Trek: Deep Space Nine, Star Trek: Voyager, Star Trek: Enterprise, Star Trek: Discovery, and the motion pictures in the franchise. Later changes to the Star Trek website acknowledges that this definition is not set in stone, but that the notion of what constitutes canon in Star Trek is fluid, open to interpretation and debate. The most recent iteration of the website has removed all references to a canon policy.”
What was removed? From http://www.ex-astris-scientia.org/inconsistencies/canon.htm notes that Paramount’s canon explanation at the official Star Trek website up until 2006 was:
“As a rule of thumb, the events that take place within the real action series and movies are canon, or official Star Trek facts. Story lines, characters, events, stardates, etc. that take place within the fictional novels, the Animated Series and the various comic lines are not canon.
There are only a couple of exceptions of this rule: the Jeri Taylor penned novels ‘Mosaic’ and ‘Pathways’. Many of the events in these two novels feature background details of the main Star Trek: Voyager characters. (Note: There are a few details from an episode of the Animated Adventures that have entered into the Star Trek canon. The episode ‘Yesteryear’, written by D.C. Fontana, features some biographical background of Spock.)”
From 2006 to 2010 the following more elaborate explanation could be found at startrek.com:
“As a rule of thumb, the events that take place within the live-action episodes and movies are canon, or official Star Trek facts. Story lines, characters, events, stardates, etc. that take place within the fictional novels, video games, the Animated Series, and the various comic lines have traditionally not been considered part of the canon. But canon is not something set in stone; even events in some of the movies have been called into question as to whether they should be considered canon! Ultimately, the fans, the writers and the producers may all differ on what is considered canon and the very idea of what is canon has become more fluid, especially as there isn’t a single voice or arbiter to decide. Star Trek creator Gene Roddenberry was accustomed to making statements about canon, but even he was known to change his mind.
In the publishing world, there used to be two exceptions to the novel rule: the Jeri Taylor-penned books ‘Mosaic’ and ‘Pathways.’ Many of the events in these two novels feature background details of the main Star Trek: Voyager characters and were to be considered as references by writers on the show. Now that the show is over, some of those events may never be incorporated into a live action format, so the question of whether details from these novels remain canon is open to interpretation.
With regard to the Animated Series, there are a few details from the episode ‘Yesteryear,’ written by D.C. Fontana, that reveal biographical background on Spock and planet Vulcan. Details from this episode have been successfully incorporated into the canon of Star Trek (such as in ‘The Forge’) and now that the Animated Series is out on DVD, we hope that even more can make its way in!”
Before fanfilms, the nastiest Star Trek fights I have ever witnessed involved what is and is not canon.
Thanks, James, I forwarded that along to Erin. I’m sure one of the detractors will do the same with Loeb & Loeb. 🙂
And of particular note about what Paramount really thought of FASA and it’s relation to being canon from https://en.wikipedia.org/wiki/Star_Trek:_The_Role_Playing_Game shows that CBS/P is in a very big contradiction for claiming Axanar is canon based on FASA when they made it clear that FASA isn’t canon:
“Paramount revoked FASA’s license to publish the official role-playing game in 1989. The decision was sudden, and according to FASA staff, motivated by two factors.
First, Star Trek: The Next Generation was growing increasingly popular and Paramount wished to exert greater control over its property and derivative works. FASA had, by 1989, published two works set in the TNG era, The Next Generation Officer’s Manual in 1988 and The Next Generation First Year Sourcebook in 1989. These works contained many extrapolations based on material in the new series and were already beginning to conflict with what was depicted on screen.
Second, Paramount was concerned by the amount of violence depicted in FASA’s game. They mistakenly thought that most players took on the roles of characters from the TV series, not their own new characters, and believed that violence-based solutions to problems should not be offered even as a sub-optimal way to solve problems in the game. At this time, FASA was scheduled to publish two products which conflicted with this view: a supplement detailing the “Star Fleet Marines” and other ground combat forces in the Star Trek universe, and a strategic-level board game, Operation: Armaggedon, which included a scenario wherein the Federation preemptively attacked the Klingon and Romulan empires. When Paramount learned of these prospective products their view that FASA’s notion of what Star Trek should be differed too greatly from their own became more established.
Many players blamed the studio for its abrupt dissolution of FASA’s licence as well as Star Trek creator Gene Roddenberry for retconning of what had been seen as established Star Trek lore. They sent letters of protest to the studio, and to contemporary science-fiction magazines such as Starlog and GDW’s Challenge magazine.
Notwithstanding the avalanche of canon material which has come since the mid-1980s – the television series Star Trek: The Next Generation, Star Trek: Deep Space Nine, Star Trek: Voyager and Enterprise, several subsequent theatrical films and a library of novelisations – FASA’s interpretation of Star Trek has not been forgotten by a significant number of die-hard fans.
The rise of the Internet, in particular, has given voice again to fans of the FASA version of the Klingons and Klingonaase, enthusiasm for the komerex zha and Klingon nomenclature (epetai, sutai) — a Klingon worldview and Klingon honorifics respectively, both created by John M. Ford — and references to “human-fusion” and “Imperial” Klingons.”
Okay, I sent this along, too. (And yes, folks, I’ve said in the past that I talk to Erin Ranahan. She just never tells me anything on the record–no matter how many times I bug her!) 🙂
In the forums of Star Trek canon debate, Paramount made it clear that FASA and Starfleet Battles were NOT canon and most FASA works are even cited as examples of “false canon” which are things still bandied about in some circles even though they are in direct conflict with established canon.
For my 2 cents, it is incredibly disingenuous to claim Axanar is canon while claiming it as being substantially based on a FASA work that they have never considered canon… let alone FASA being so derided for generating such significant amounts of false canon! Now, to be fair to FASA, they made best guesses with the info they had at a given time and the writers for the shows just went in very different directions. It eventually cost FASA their license.
Anyway, glad to help shed light on something. My apologies for the walls of text. Looks like the making of a new blog entry. 😛
Hang in there and very best wishes for a happy holiday!
Thanks, James, and thanks for all the info!
This seems to be a very well researched website on Star Trek canon; you may wish to send this link to Erin too: http://www.canonwars.com/STCanon.html
It concludes: “Thus, we find that the Star Trek canon is made up entirely of the materials from each of the live-action television series (TOS, TNG, DS9, VOY, and ENT) and the ten films, along with the two Voyager background novels of Jeri Taylor. The new high-definition TOS (the Enhanced Original Series, or EOS)”
Interesting, but it’s written by a third party. The defense needs to hoist CBS and Paramount by their own Picard, er, petard…and quotes from the studios about canon are the magic bullet.
“This seems to be a very well researched website on Star Trek canon; you may wish to send this link to Erin too: http://www.canonwars.com/STCanon.html”
Oh, wow. I think I helped contribute to some of that back in the day. It is a very solid overview for any newbie wandering into the war zone of the “canon discussions”, but the downside is that I don’t think this page has been updated since 2006.
Well, that could be problematic. However, what’s most important is getting an on-the-record quote from either CBS or Paramount…although we’re also past the deadline for discovery and, therefore, it might not be permissible to enter something like that into evidence at this late date.
That thought flitted into my head but it then flitted out – glad you put ‘pen to paper’ as that sounds like a crucial argument. If outside of the TV series/movies, all Trek is considered non-canon then then the novels, comics, etc could all be considered the equivalent of officially sanctioned ‘fan fiction’. Would copyright elements therefore apply as strongly to characters etc found in these non-canon elements?
Another link on ‘canon’ that also covers the reboots: http://www.ex-astris-scientia.org/inconsistencies/canon.htm
Possibly not, but it’s an interesting point to contemplate. The more I wrap my head around this case, the happier I am that I did NOT become a lawyer!
Do you have any more information on the Netflix/Amazon Prime deal (not sure if you can discuss)? There is a lot of criticism as people are jumping to the assumption that they tried to sell Axanar but the alternative could be that they wished to have additional distribution channels without actually deriving money for it?
I’ll invite Alec to respond to this one, Eman. Alec has never discussed with me whether or not he ever contacted Netflix or Amazon trying to sell Axanar. It seems like a strange thing to do, in my opinion. But, well, Alec…?
Real simple, we had a friend who had a friend who talked to Netflix, and we asked him to find out what their plans for Star Trek were. If they did have plans, then we would have offered them Axanar for free. Just like Star Trek Continues tried to get Emirates Air to be able to show STC episodes on their airplanes.
Of course the lawyers at Loeb & Loeb have turned that into we tried to get jobs as producers for Star Trek at Netflix. Total rubbish.
Let’s be clear, telling the truth is NOT what Loeb & Loeb is about. They are twisting everything to serve their purposes. They ignore facts and put out half truths to make me look bad. I don’t give a damn, as Winston & Strawn is kicking their ass, and will continue to do so. Loeb & Loeb’s tactics are just hardening my resolve.
Hold onto your hats, because the trial is going to be fun.
“telling the truth is NOT what Loeb & Loeb is about.”
Methinnks them’s fightin’ words! Of course, Alec is being sued, so…well, d’uh. 🙂
Thanks for posting, Alec.
“telling the truth is NOT what Loeb & Loeb is about.”
Indeed, they are there to win the case for their clients regardless of inconvenient truths.
Yeah, but doesn’t it almost feel like they’re cheating just a little?
…they seem pretty damn HACK-ish to me! =D
…looking forward to Team Axanar Legal handing them their asses!
Appreciate the direct response Alec. Obviously each side is highly biased towards their own respective arguments and will present the side of every ‘fact’ that favours them the most.
Talking of biased sides, I have recently been observing arguments from both sides of the fence and there is a lot of baiting and personal attacks going on. Just my humble opinion but I feel that Axanar should step away from responding to, and thereby inadvertently flaming, the direct baiting (as much as it must be very difficult) and take the higher path and just release frequent official statements to keep the donors informed. It can’t be easy in a stressful time like this (ideally you’d want a PR person) but a more detached third-party spokesperson to act as a filter would help shield everyone on the Axanar team from the personal attacks. Just my two cents offered in good faith.
There’s a great story about former President Harry S Truman. Truman was a “man of the earth,” a Midwestern farmer who spoke his mind…not always with the best of results. According to the story, First Lady Bess Truman was once approached by member of the White House staff and asked the following:
“Mrs. Truman, can you please try to do something about your husband’s language? Some of the words he uses are putting people off.”
“Like what?” the first lady asked.
“Well, for example, the president often uses the word ‘manure.” Maybe you could get him to say ‘fertilizer,’ instead?”
With this, Mrs. Truman looked upwards with an exasperated expression, sighed, and said to the staffer, “Do you realize it’s taken me this long to get him to say ‘manure’????”
Point of the story: Alec has a PR person (Mike Bawden) and has been working VERY hard to keep his cool and not rant and rave on social media the way he used to. Yeah, he doesn’t always do a perfect job, and when he steps in it, it can sometimes be bad. But, man, it used to be SOOOOOO much worse! Be happy with the manure! 🙂
“I forwarded that along to Erin”
I’m sure Erin will appreciate the irony… Paramount revoked FASA’s license and decried it as non-canon because they felt is was to violent and focused on war… and now claim Axanar (which is completely focused on war and the horrors thereof) is based in part on licensed FASA material… and is therefor canon.
It’s like rain on your wedding day…a free ride when you’ve already paid…the good advice that you just didn’t take. Hey, I actually don’t think ANY of those are ironic, Allanis!!!
Hehe… yeah, Alanis makes fun of that herself in the update of the song. 😉
https://www.youtube.com/watch?v=6GVJpOmaDyU
That was awesome! Who needs fan films? 🙂
A mokumentary is a form of parody according to the definition in the following link
https://en.m.wikipedia.org/wiki/Mockumentary
A parody is by definition protected as fair use.
The court might consider axanar a parody and therefore protected fair use.
If Wikipedia says it, it must be true! 😉