A closer look at the OPPOSITION BRIEFS in the AXANAR LAWSUIT (Part 1)

Axaanr splash imageYes, it’s that magical time again!  Jonathan is going to play tour guide to take anyone who is interested on a  journey through the latest two major filings in the AXANAR lawsuit, each submitted to the Ninth Circuit Federal Court this past Monday.

Plaintiffs Opposition

Defense Opposition

For a better idea of what is going on at the moment, check out my (not so brief!) four-part blog on the motions for summary judgment (start here).  In that analysis, I flipped a coin and began with the defense.  This time, to be polite, I’m going to begin with the plaintiffs.

Before we begin, just a quick word about the two potential strategies of the opposition briefs.  Initially, each side wants the judge to rule in their favor BEFORE the trial even begins.  In the best of all scenarios, the judge rules on the entire case, awarding it to either the plaintiffs or the defense, and then there’s never a trial at all (this is rare but not unheard of).

There are also pre-trial rulings the judge can make that can severely hurt the chances of one side or the other to ultimately win.  For example, if the judge rules that Alec Peters should be enjoined (forbidden) from making any more Star Trek fan films because of the potential financial harm to the studios, then that pretty much means the judge has already accepted that the studios will face real monetary damages from the Axanar works…and that’ll put the ball in the red zone for plaintiffs (sorry, football season here in America) and make it much easier for them to win a big judgment.

If the judge rules instead that it is too early to determine anything about the full Axanar feature film because it hasn’t been finished yet, then the plaintiffs are stuck having to argue ONLY about Prelude to Axanar and nothing else (removing Chang and Robert April as potential violations), giving a huge gift to the defense.  So these motions for summary judgment rulings can be real game-changers if successful!

But in order to get the judge to make such a ruling, each side has to convince him that the facts are indisputable.  The whole reason for a trial is for a jury to hear all the evidence and testimony and determine the facts.  But if the facts are so obvious that any jury would ultimately arrive at the exact same conclusion, then why waste everyone’s time?

And thus will each motion for summary judgement essentially say, “What we’re saying is just so completely obvious!”

Then it’s time for step two, when each side responds to the others’ statement of the “obvious” facts.  Now the strategy shifts from “We’re obviously right” to “They’re obviously wrong.”  But there’s also another strategy that you’ll see play out a little more when we get to the defense briefs in Part 2.  And that’s the, “Well, if we’re both so diametrically opposed, maybe the facts aren’t all that obvious after all.  Maybe we do need a trial after all.”  This is a way of covering your flank.  Obviously, each side wants to win a summary judgement, but if there’s a chance you could actually lose, better to take your chances on convincing a 6 or 12-person jury instead of just one judge.  So be on the lookout for elements of that strategy, too.

And now, let’s look at how the plaintiffs chose to oppose the defense’s arguments…

There’s a lot of déjà vu in the plaintiffs’ brief–for anyone who has read all of the other filings (Jonathan quietly raises hand).  So I won’t go over the stuff they’ve said many times before.  Instead, I’ll call attention to some notable quotes from their filing.

In trying to prove that Axanar is not “original” but instead is “substantially similar” to Star Trek, we have the following shot right out of the starting gate:

Defendants have faithfully recreated every possible element of the Star Trek universe, down to excruciating details.

I think I can just let the ridiculousness of that claim stand on its own as we consider a 22-minute short film with no sets and only six characters that takes place 20 years before TOS.  EVERY possible element of the entire Trek universe…really?

Further, while Defendants assert that they have included additional “original” characters in the Axanar Works, these additional characters are by no means “original” – they are Klingons, Vulcans, and Federation officers, and are, therefore, not “original” to Defendants.

Saying this is like saying that Worf is the same as Koloth or Spock is the same as Tuvok.  While, yes, the studios hold copyrights for Klingons and Vulcans in broad strokes, remember that the defense will be arguing for transformative use.  Is Kharn different from any other Klingon seen before?  Probably.  And what does he do that is really Klingony?  Mostly, he just sits and talks and occasionally bangs his staff on the floor.  Yes, he looks like a Klingon and dresses like a Klingon and is apparently talking from the surface of Qo’noS.  But really, is that all they got?  If so, then Kharn seems to be an original character who just happens to be a Klingon.  Is that enough to prove transformative?  We’ll see.

However, giving the plaintiffs credit where it’s due, Soval is unquestionably the same character that appeared on Enterprise.  But, as we’ll learn in Part 2, the studios never registered a copyright specifically for Soval, and so, by law, they can’t sue for infringing on that specific character.  Vulcans in general?  Yes.  But not Soval as a specific character.

And now, here’s the strongest point the plaintiffs make…

Defendants also argue that their work should be protected as a “criticism” or “commentary” on the “horrors of war.” This argument is specious and the Axanar Works themselves demonstrate the falsity of Defendants’ position. The Garth of Izar character that Defendants have taken from Plaintiffs’ Star Trek Copyrighted Works is not described as having “PTSD” or suffering from any other malady. Indeed, he is portrayed as a near-infallible hero and military strategist, who helps lead the Federation in The Four Years War against the Klingon Empire. This character and plot are taken directly from Plaintiffs’ works, and there is no commentary, satire, parody or criticism whatsoever in the Axanar Works. It is surprising that Defendants would even offer such an argument to the Court, as their pre-lawsuit statements and admissions unequivocally stated that no such purposes were intended: “This is the story of Garth and his crew during the Four Years War, the war with the Klingon Empire that almost tore the Federation apart…This is Star Trek.”

And here, just so nobody thinks I’m just shooting down everything the plaintiffs say, they make a solid point.  It’s hard to argue now, only when Alec Peters and Axanar Productions are now in front of a judge, that their purpose all along was social commentary or criticism.  And yes, there was nothing specifically in Prelude to Aanar that said Garth was PTSD…then again, there was nothing that DIDN’T say it either.  And maybe that was still to come in the full Axanar sequel and the framing sequence that was shot (and now may never be seen).

And now, it’s the plaintiffs’ turn to invoke that other “star” franchise with the droids and the X-wings…

The Supreme Court has clearly held that a use is not rendered “fair” simply because a plaintiff cannot precisely quantify the damages resulting from the creation of unauthorized derivative works. Indeed, if that were the law, no owner of a successful copyrighted work could ever be expected to enforce its rights, as the precise damages from virtually any infringing use would be exceedingly difficult to quantify if compared to the revenue generated by say, the Harry Potter franchise, the Star Wars franchise, or even a long running television series such as Seinfeld.

On this point, the studios know they will never prove actual damages (there probably aren’t any, to be honest, or they’re so minor as to be fractions of rounding errors in a billion dollar franchise).  So instead, they say it’s irrelevant in the eyes of the law, and that just because there’s no proof of damages doesn’t mean they get to claim fair use.

That’s not entirely true but not entirely false either.  Direct financial harm is only one aspect of fair use, and by itself does not necessarily kill the fair defense (although it usually does).  But implied harm?  Assumed harm?  I’m not sure that’s enough to kill the fair use defense either.  But I suppose it’s at least worth a try.

But does Axanar really have that much power to harm the studios?  They go on to say:

Instead, if the proliferation of the infringing use would harm the market for the licensing of derivative works, the Ninth Circuit and Supreme Court have held that the use “is not fair.” Here, if numerous producers were permitted to create “independent Star Trek film(s)” (so long as the main characters from Plaintiffs’ works were not used), the adverse effect on the licensing of derivative works would be clear, and the economic harm to Plaintiffs would be self- evident.

Did you see what they did there?  Notice they said “independent Star Trek film(s)” so as to try to protect themselves against my favorite counter argument: “Then why are you encouraging Star Trek fan films with your guidelines rather than stopping them completely?”  Of course, the plaintiffs then have to make absolutely sure that the court sees Axanar as something OTHER than a “fan film,” and the plaintiffs work VERY hard hammering that point…often using Alec Peters’ own words to do so.  Here’s one example of something Alec said:

But Axanar is not just an independent Star Trek film; it is the beginning of a whole new way that fans can get the content they want, by funding it themselves. Why dump hundreds or thousands of dollars a year on 400 cable channels, when what you really want is a few good sci-fi shows? Hollywood is changing. Netflix, Hulu, Amazon, and other providers are redefining content delivery, and Axanar Productions/Ares Studios hopes to be part of that movement.

This isn’t quite as damning as the plaintiffs hope, however.  Alec specifically says “a few good sci-fi shows” and not specifically “fan-produced Star Trek.”  In fact, here’s something else Alec said and the plaintiffs quoted:

We intend to turn this warehouse and office space into a fully functional sound stage. This will allow us to not only make ‘Axanar’ but other Star Trek projects after Axanar and other Sci-Fi projects.”

While it’s all conjecture what MIGHT happen in the future, it is obvious from the statements that Ares Studios would not be exclusive to Star Trek fan films.  That said, it’s still possible they would be creating at least a little fan Trek…however, remember that, at the time he wrote that statement, Alec thought the studios were okay with fan films.  Now that he knows they do have a problem, my guess is the plans for Ares (or Industry) studios will likely shift toward general sci-fi created by fans.  So again, I don’t think this statement is quite a damaging as the plaintiffs hope it is.

Next up, I have a very interesting technicality that is going to annoy the plaintiffs to no end.  They spend about five pages specifically describing all the similarities between content in Axanar and the original source material from Star Trek.  They even use photos:

photos-in-the-oppositionThe photos will certainly help, but here’s something that like;y won’t help:

Defendants argue that Garth of Izar is an “obscure” character, but they do so by disingenuously ignoring the fact that Plaintiffs published an entire Star Trek novel devoted to (and entitled) Garth of Izar. Further, the Motion does not address the undisputed fact that Defendants borrowed their plot and characters regarding Garth and the Four Years War from Plaintiffs’ Four Years War publication. Moreover, even if Garth of Izar was featured in only one television episode, that would not render that character unprotectable, and Defendants have not cited to any law to support that assertion.

So here’s the problem: the novel Garth of Izar and the publication The Four Years War were never mentioned in the original or amended complaint.  They might be “juicy” items on the plaintiffs’ GOTCHA! list, but as been explained to me by an intellectual property attorney, the plaintiffs can only use what was in the original complaint.  The judge won’t (or at least shouldn’t) allow these two works to be admitted and used to prove a specific violation.  A technicality?  Yes.  But it is the law.

Also, note that, they called Garth “protectable” and not “protected.”  There is no specific registration of copyright on the character of Garth.  More on that in Part 2.

We’re nearly done in our “rocket tour” of the 20-page filing.  And while this blog analysis is intended to “save” you from reading through both 20-page filings completely, I do recommend that you give them a look-over, as they’re worth diving into more thoroughly than I have time or space to.  But here’s a few final choice quotes:

Moreover, the mere fact that Prelude includes fictional “interviews” with Star Trek characters, in addition to scripted dialogue and action sequences, does not render that work “transformative.”

And my snarky response would be, “Moreover, the mere fact that the plaintiffs state an opinion like this does not make it true.”  And perhaps this is why I’m not a lawyer, since yes, it is pretty snarky.  But to be fair, the entire case pretty much hinges on this one throwaway sentence, and so I would hope the defense team calls the plaintiffs out for saying so matter-of-factly something that is really just their self-serving opinion.

Peters unquestionably engaged in a commercial endeavor, raising and spending almost a million and a half dollars (much of it on his own personal expenses). Peters also sought to produce Star Trek content for Netflix….

The “much of it on his own personal expenses” part is misleading and is resulting in a lot of negative press about Alec Peters lately.  I would expect some push-back about both this and the “sought to produce Star Trek content for Netflix” comment.  Both statements endeavor to twist the actual facts into something inaccurate, but I’ll let Alec and/or his legal and PR team tackle this.  I’m not at liberty to speak on the point further.  (Man, I so want to do an interview with Alec!!)

Defendants argue, without any basis in evidence, that the Axanar Works “offer free promotional value to Plaintiffs.”

Well, d’uh, but actually, the plaintiffs kinda have a point here.  The defense should try to find a way to back up their claim that fan films help the studios with free promotion.  In my mind, the best way to do so would be to point out the studios’ tolerance of (and in the case of Star Trek Continues‘ “The White Iris,” assistance to) Star Trek fan films and fan series to at least show there isn’t necessarily harm…or else the studios wouldn’t be so permissive of fan films…especially high-end ones.

Next time, we turn our attention to the defense’s opposition brief.  You’re gonna wanna be here for that one, folks, as Team Axanar has pulled out all the stops for this one!  Soval as James Bond?  Garth as Godzilla (Garthzilla)?   And is this really a first amendment case???  Possibly!



56 thoughts on “A closer look at the OPPOSITION BRIEFS in the AXANAR LAWSUIT (Part 1)”

  1. Johnathan Lane said:
    “On this point, the studios know they will never prove actual damages (there probably aren’t any, to be honest, or they’re so minor as to be fractions of rounding errors in a billion dollar franchise). So instead, they say it’s irrelevant in the eyes of the law, and that just because there’s no proof of damages doesn’t mean they get to claim fair use.”

    Um, Axanar raised (by their own admission) 1.2 million dollars (by using the Star Trek IP in their Crowdfunding campaign) <— So there is 1.2 million in 'damages' right there (and yes, that's how copyright law works.) Peters had no license to use Star Trek in any form so any money raised by the use of 'Star Trek' is 'damages'.
    And that's not including statutory damages should the court find Axanar/Alec Peters did infringe on C/P's 'Star Trek' copyrighted works.

    1. The plaintiffs can ask for statutory damages OR actual damages, not both, Armsman.

      But just because Alec MADE money does not mean the studios LOST money. That’s a tough one to prove. I personally donated about $300 to Axanar’s various campaigns (plus hundreds more to STC, Renegades, Farragut, and a few others). During that time, I also paid for four tickets to Star Trek Beyond, a $500 pass to the Creation 50th Las Vegas con, WAAAAAY more than I should have in the dealers room, plus the remastered collections of TNG and the first 6 films on Blu-ray…oh, and two “Ships of the Line” calendars, and my wife buys me the Hallmark Trek ornaments every Christmas. I’m not sure how much more the studios are expecting me to spend on Star Trek, but I don’t think my Axa-donations hurt their bottom line at all.

    2. Damages are a compensatory remedy. The extent of that award may well be impacted by the level of market impact Axanar has had, and could be potentially mitigate the level of damages if not substantial. Peters misuse of funds doesn’t immediately translate into a profit and therefore quantifiable, straightforward sums earned aren’t simple to set out. If Peters has indeed had to put his own money in to keep it going then it is not a profit making exercise. Therefore statutory damages would likely be the most appropriate award. Remember that if Peters loses this case, but virtual of straightforward contract law he’ll be liable to his donors for refunds for failing to deliver. So on that I don’t disagree with Lane. However, Lane does not give consideration to indirect loss. The fact is that donors were paying for a Star Trek project. That was indirectly taking revenue away from the IP holder as if the IP holder were ever to consider a Garth project, as is their right, then their market would have been diluted by the existing Axanar product.

      Where I do disagree with him is his obvious contention that fair use is dependant on actual damages. It isn’t. Axanar, as now adduced in evidence, was set up as a commercial exercise. Here in the UK, where I practice, we have a concept called passing off. The basic theory of it is that you are misusing the rights holder’s brand goodwill for your own commercial purposes. That is essentially what is happening here with Axanar being passed off as a Star Trek product, one that was intended to be used for eventual commercial activities. What I think Mr. Lane needs to consider is that it is entirely possible for Peters to lose the case overall but win an argument against statutory damages. Litigation is never an all or nothing exercise, and just because Peters may have an argument on realisable profit, it doesn’t mean he’ll also get away with IP misuse. One does not need to make an actual profit to have infringed a copyright and be liable for damages.

      1. My apologies, Neutral, for not approving this comment sooner. I was waiting most of the day to hear back from my main legal eagle to address some of your questions. Unfortunately, s/he is in deposition for the next few days and doesn’t have any time for me (and I try not to be pushy). So these responses are solely from me:

        “If Peters has indeed had to put his own money in to keep it going then it is not a profit making exercise. Therefore statutory damages would likely be the most appropriate award.”

        It’s pretty much assumed that the plaintiffs will be asking for statutory damages since 1) the studios don’t really have any proof (or accounting) of actual damages, and 2) they ask in their motion for declaratory relief saying that Alec Peters did WILLFULLY infringe their copyright. Willful infringement carries a $150,000 penalty per violation. They want the big money.

        “Remember that if Peters loses this case, but virtual of straightforward contract law he’ll be liable to his donors for refunds for failing to deliver.”

        Actually no. If you go to Wikipedia, you’ll find the following:

        Donations are given without return consideration. This lack of return consideration means that, in common law, an agreement to make a donation is an “imperfect contract void for want of consideration.”

        So no, Alec won’t be sued by a class action of angry donors.

        “However, Lane does not give consideration to indirect loss. The fact is that donors were paying for a Star Trek project. That was indirectly taking revenue away from the IP holder as if the IP holder were ever to consider a Garth project, as is their right, then their market would have been diluted by the existing Axanar product.”

        In their motion, the plaintiffs used Khan Noonian Singh as an example of a one-episode character brought back later for a derivative work. And it’s an excellent point…except for one very important consideration. Star Trek Continues used Apollo, the Mirror Universe Enterprise crew, Miramanee, Edith Keeler, Rayna Kapec, and destroyed the USS Lexington. All of these things could have been used for future derivative works. New Voyages used Commodore Decker, the Guardian of Forever, the Doomsday Machine, Kor, Klingons in general, Regulan blood worms, and Carol Marcus. Star Trek Renegades used Dr. Lewis Zimmerman and Admiral Paris. Starship Exeter destroyed the USS Kongo. Starship Farragut sought to define the critical moment when the Mirror Universe planet earth first diverged from our timeline. Star Trek Aurora and The Federation Files just used Harry Mudd. And the list goes on.

        All of these works have two things in common: 1) they utilize IP in a way that could dilute the potential market, and 2) none of them have ever been challenged or their videos taken down by the studios. Yes, the studios can pick and choose whom they sue and not affect their standing to protect their copyright. But when they decide over the course of more than a decade to take no legal action or even make a single phone call to protect their interests, then any claim the studios make in court about potential market harm becomes dubious at best and is likely to be considered that way by a judge.

        “Where I do disagree with him is his obvious contention that fair use is dependant on actual damages. It isn’t.”

        I never said that. There are four elements of fair use, and actual damages is only one of them. Granted, our U.S. Supreme Court said it is the most important of the four elements that must be considered, but it is not the only factor.

        “Here in the UK, where I practice, we have a concept called passing off. The basic theory of it is that you are misusing the rights holder’s brand goodwill for your own commercial purposes. That is essentially what is happening here with Axanar being passed off as a Star Trek product, one that was intended to be used for eventual commercial activities.”

        Here’s where I wish I’d had some legal input today, but alas, I don’t and can’t respond competently or confidently on this particular point. However, I will direct your attention to Friday’s Part 3 for a deeper dive into whether it even matters that the studio was built to generate revenue.

        “What I think Mr. Lane needs to consider is that it is entirely possible for Peters to lose the case overall but win an argument against statutory damages.”

        I doubt that. If he loses, he faces penalties for each violation, and those are very likely to be statutory. The question will only be whether those damages will be based on willful infringement ($150K each), non-willful/innocent infringement ($200 each), or an uncertain conclusion of neither willful nor innocent ($750-$30,000 per violation based on a number of factors including Alec Peters own net worth).

        “Litigation is never an all or nothing exercise, and just because Peters may have an argument on realisable profit, it doesn’t mean he’ll also get away with IP misuse.”

        I’d have to disagree with the first eight words of your statement. Litigation can very often be all or nothing. My wife once defended a client in Federal court against a class action. The class was never certified. She won. They lost. I’ll stipulate that litigation CAN SOMETIMES result in no clear winner or loser, however, and this could be one of those times. But the win-win or lose-lose in this particular case will most likely be a split decision of guilty on infringement but only receiving a slap-on-the-wrist judgement in the four- or five-figure range. Yes, Alec Peters would lose. But the studios would need to look the rest of Hollywood in the eye and say, “We just spent $200,000 to achieve a $12,000 verdict.” Maybe that “win” is important to them, though. But what if Alec’s moral victory results in other fan filmmakers doing the same thing and just collecting an extra $50,000 in crowd-funding to pay for the eventual legal fees and then the $12,000 “fine”? What if the “slap on the wrist” only serves to let the genie out of the bottle?

        “One does not need to make an actual profit to have infringed a copyright and be liable for damages.”

        True, but it IS a factor that must be weighed. Also, I don’t think Alec Peters will be found liable for damages since they will be very difficult for the plaintiffs to prove. Trust me: the plaintiffs are gonna choose statutory, not actual.

  2. “Mostly, he just sits and talks and occasionally bangs his staff on the floor.”

    It was a sword, not a staff. 😉

  3. It’s funny that they’re whining about Axanar using Soval with the original actor yet Star Trek Renegades was directed by Tim Russ and had several original Trek actors playing the same roles as they did in their series.

    You don’t see CBS coming after game mods that recreate models of Trek ships and use music, sounds, voices and artwork from Trek. Really if fan-made work is not making money for personal use i don’t see the issue with it.

    1. Just because they don’t doesn’t mean they can’t….nor are they required to for this case to succeed.

      1. True. Trademark law requires policing by the owner, but not copyright law. That said, the studios’ lack of action to challenge fan films and other fan fictional endeavors still impacts this case on the question of willful versus non-willful (innocent) infringement. And that delineation represents the difference between statutory damages of $150K per violation and only $200 per violation. The studios’ seemingly tacit approval of other fan projects like films, fanzines, artwork, models, etc. (especially fan films) could very well cost them millions of dollars in a potential judgment.

        1. The guy who writes the Warhammer 40K blog made this same point several months ago. This case is going to be decided by 12 American citizens (who never heard of Star Trek and couldn’t figure out how to get out of Jury duty!;-) ), not a judge, not the Internet. If the fair use defense does not avail, the lack of enforcement against other fan films will play to the jury’s sense of fairness, and thus any damages will likely be on the low end of the scale.

  4. Garthzilla? This recently coined term seems to be gaining ground! LOL.

    Again, a compelling analysis of the plaintiff’s Opposition filing. I’ve read the whole 20 pages and Jonathan seems to have keyed in on the very things I also wondered about.

    The plaintiff’s argument that allowing Axanar Productions to continue producing their independent film will then open the floodgates for every film producer who wants to make high quality, crowdfunded Star Trek related films that could seriously damage the plaintiff’s ability to profit from their IP seems to be their strongest one. And that damage cannot be calculated or predicted. I certainly see the point of this argument and on its surface seems to be a good one.

    But I don’t know if ‘what might happen or could happen in the future’ is a point of law from a legal standpoint.

    What seems pretty clear to me is that CBS/P is seeing changes occur in the way content is distributed to the public (often driven by what the public wants to see and how they want to see it) that they’re not sure how to go about controlling it. Of course, that assumes they can control it and to what degree they can control it.

    It may turn out that for an entertainment corporation, the internet, social media and crowdfunding may well be the most dangerous enemies they have ever faced.

  5. Honestly as a person who enjoys Sci-fi in general- the lawsuit is the thing that makes me not want to watch their new series. I am all for paying CBS for their content (they’re not in this just for fun after all), but when they pulled this lawsuit shenanigan it made me kind of annoyed that I might not get to see Axanar.
    But the reality is that I BOUGHT the Blu-ray/DVD/Digital copy of the newest movie and I had already payed into the Axanar IndieGogo as well- so in my case (and I suspect many other’s cases as well) they really cannot claim that me paying for Axanar did them any harm. In fact the only harm to them financially came when THEY chose to make a big deal out of this thing.

      1. I and many others felt (and still feel) the same way Brian O felt and for exactly the same reason. As I have often stated in posts on the Axanar fan group, I had no intention of seeing ‘Beyond’ or purchasing any more Trek stuff after hearing about the lawsuit. I eventually DID go to see ‘Beyond’ but only because Alec asked me (us) to and I could not disagree with his reasons. But my own personal boycott of ‘everything CBS/P’ continues and will continue until such time as the lawsuit is resolved to my satisfaction and Axanar gets made.

        I’m no genius but (in my case, anyway) it’s clear me any monetary loss CBS/P might experience will be of their own making… not Axanar’s.

  6. I would dare say that CBS’s concern about the uncontrolled proliferation of fan films should be one of producing a better product, rather than suing Axanar and others for beating them at their own game.

    This is why Disney hasn’t bothered suing well made Star Wars, or Marvel fan films. They know when they make the actual, “Enchilada”, fans have no doubt it’s an incredibly made company product that blows the fan films away.

  7. Jonathan,

    Just in case no one has told you lately, thank you for taking the time for doing all of this. It has been very insightful and informative.

    1. I dare you to go onto the CBS/Paramount v Axanar Facebook group and say that, Steve! 🙂

      Just kidding. I wouldn’t want anyone to go there–it’s like that dark side cave on Dagobah.

      Thanks for the kind words, Steve. Writing these blogs is a lot like playing dodge ball back in elementary school and I’m the only kid left on my side of the middle line. LOTS of balls coming my way, but it’s nice to know that my teammates are on the sidelines cheering me on. DUCK!!! Man, that was a close one! 🙂

      1. Oh, I keep my eye on what goes on there. They can’t hold a candle to the internet trolls that exist within my industry. All you have to do on a message board is declare which version of Dungeons & Dragons is superior and you’ve started a real barn fire. CBS/P vs. Axanar? Psssh. They’re amateurs. 🙂

  8. I’m glad to see you caught the same “but The Four Years War wasn’t listed in the infringing works” catch that I saw in the Defense’s opposition brief. That was a bit of an error on behalf of the Plaintiffs, and it makes it look to the judge like they’re not really paying attention. Not just a lost opportunity, but lost face, too.

    I look forward to seeing Part 2, as I’m a little dubious of this statement:
    “But, as we’ll learn in Part 2, the studios never registered a copyright specifically for Soval, and so, by law, they can’t sue for infringing on that specific character. Vulcans in general? Yes. But not Soval as a specific character.”

    You don’t need to register the copyright for Soval to have the copyright. What the Defense is arguing is that by registering copyright for certain other characters, CBS and Paramount have designated those as the defined major characters of each work, and that this indicates that the Plaintiffs didn’t regard Soval as copyrightable at the time they registered relevant copyrights, such as to Kirk or the Enterprise. It’s a reasonable point that in CBS’ judgement, Soval may not have been significant enough to copyright, but it’s not enough on its own to establish that he isn’t copyrightable. If no ST:ENT characters are specifically copyrighted, I don’t think this is a particularly relevant argument, especially as you can go directly to how well-dilineated Soval is as a character within ST:ENT and his status as a main foil to Archer within the arc of the show as a whole to make or refute his copyrightability, rather than simply relying on whether he’s registered. If, however, Archer is registered as a copyrighted character, this is maybe a reasonable supporting argument that Soval may not be copyrightable, but it would be surprised if the defense didn’t need to go to trial to establish that.

    As Soval is part of ST:ENT, and CBS are rightsholders for ST:ENT, my understanding is that they can absolutely sue for infringement of their copyright to Soval, even if Soval himself is not specifically registered as copyrighted. Another thing to keep in mind is that there are reasons other than copyrightability for not registering particular sub-elements of a registered work, (because honestly, it’s not practical to register every single copyrightable element of a work, and the law doesn’t require you to) and the defense needs to establish that Soval isn’t unique or delineated enough to count as a copyrighted character more thoroughly. I don’t think they’ve done that, which means at least one case of infringement is debatable and only a partial ruling on the Motion to Dismiss is likely. So the most the Defense can hope for out of their motion at this stage would seem to be that they get a ruling that judgement on the full Axanar film would be premature, and that the case is just going to be about Prelude and the Vulcan Scene.

    Soval actually seems like one of the strongest arguments for ingringement to me, especially with the re-casting of Gary Oldman. Soval has a distinct character arc in ST:ENT, where he goes from viewing humans as a juvenile race that’s not ready for space travel, to viewing them as insightful diplomats and responsible citizens of the galaxy by the end of the series. He has a look that is replicated pretty close to exactly in Prelude and the Vulcan scene. He essentially reprises the same arc (but smaller) in Prelude, so it may be reasonable to say that Soval is infringing, however that depends on whether the work taken as a whole is viewed as using Soval minimally and in a transformative context, which there is also a reasonable argument for given the unique mockumentary style of Prelude.

    You have a fair point later that Garth himself may not be copyrightable, and even if he is determined to be copyrightable, his use in Axanar may be ruled fair use as part of a transformative, original, and non-profit work if the judge looks on the Defense’s arguments favourably.

    1. I think you’ll enjoy Part 2, Matthew. It’ll address many (not all, but many) of your points.

      Oh, and Soval was played by Gary Graham, not Gary Oldman…although that would sure be cool, too! 🙂

  9. really enjoying this informative blog, for the life of me, I cannot understand why the studios let it go so far before putting a block on this, IF it was harmful to them. my take,(and I’m far from qualified) is that the are panicking with the consequences of wasting so much time putting a new series out there for fan’s, and now, with the advent of Amazon,Netflix et al, and having relied on fan film’s to keep the interest fresh, they have decided to flex their corporate muscle. sadly, too late I think, and too little to gain fan’s support. they have had many opportunities to show the show’s fans they care, yet Axanar was the first star trek film since TWOK that really got me excited and had me hooked from first sight. honestly, how many studio made films have had that effect on you?

    1. To be honest, I don’t really think CBS or Paramount understand how to manage and take advantage of their fan base. Not that they aren’t trying or haven’t tried, but their effort level is about a 4 or 5 out of 10, and their effectiveness (considering the 50th anniversary year is nearly over and there has been minimal mention of it in the media) is probably sitting at a 2 or 3 at the most.

    2. The impact radius of Axanar accounts for a mere fraction of fandom (both supporters and those who oppose it), and were it not for this litigation I think the majority of fans would still be ignorant of it. I find the idea that the Plaintiffs were worried about Axanar in terms of impact, or that Axanar was keeping fan interest alive, just doesn’t stand up to scrutiny…let alone the notion that fans have turned against the studios because of the Axanar suit. That simply isn’t true. The amount of people who will or have boycotted the official outpu in any way is a handful of people out of a fanbase of around 3 million.

      1. It’s like I have a twin! I agree with this Unimpressed Neutral fellow 100%. Is it possible that being a blogger about fan film has limited your ability to view anything other than from that perspective?

        I’ve seen it so many times. Organized fans who start getting a warped sense of their value to the very thing they claim to love. Fan films, and those who enjoy them, are a tiny little sub-niche in the grand scheme of the entertainment industry. It was inevitable that a deluded fan film producer would begin to think too much of himself and stand up to the corporations to try to wrest some legal control from them. Fandom gives some people a warped sense of ownership, and reaching that point is when a person stops being a fan.

        1. I think you might be watching a different lawsuit, James. Alec Peters never attempted to wrest legal control from the studios. Even his Kisckstarter and Indiegogo pages said ‘”Star Trek” is a licensed property of CBS and so they have the final say in any Star Trek venture.’

          1. Okay, no need to drag three different Kirks into this, James and James. Hey, I think we have a full house: K, K, K, J, J. Actually, since Kirk’s first name is James, we might even have five of a kind! Wait-a-sec…which one of you is the joker? (Man, I need to get more sleep!)

  10. I’m sorry, but this article is absolutely nothing more than opinionated nonsense. You clearly don’t have a clue about the statutory law or case law involved, or indeed the spirit of IP law, and are simply making personal, unqualified judgements based solely on the content of the pleadings. I mean, how the hell can you possible determine what is “ridiculous” or “a problem”? Spare me the excuse that you are consulting experts on this, as if you are they don’t have a clue either. This does not read like the blog of anyone who has consulted lawyers of any credibility. It reads like the blog of a member of the public rambling on as an expert on IP law.

    If you had a clue about IP law you’d know that the Plaintiffs have, at the very least, an argument with not unreasonable merit. It’s what any objective, legal trained, observer would conclude, irrespective of whether or not they thought the opposing argument also had merit or was stronger. This is not least because any such observer would have to accept that it is arguable that the Axanar film was a Star Trek derivative work. To say that the argument that Axanar was designed to fit into and alongside the copyrighted works, and draws directly from canon in every way necessary for it’s intended story, is “ridiculous” beggars belief. It is not ridiculous, not least because you are wilfully ignoring the fact that, by Peters own admission, the project was designed to be an in-canon Star Trek movie and that he intended to slavishly stick to canon as “keeper of the faith” among fans where it was required. That’s just one example, and such ignorant and unnecessarily derisory descriptions make my blood boil. You cannot simply focus on one sentence and then spin it however you want. You have to consider such comments and arguments in the wider context of the case, statutory law, case law and generally within the spirit of the area of law you are commentating on. A proper approach would be to set out the arguments and counter arguments and then if you really felt you had to start passing judgement on things you could do it as an separately editorial article. Instead you are grossly misleading your readers at every turn.

    I’m sorry Mr. Lane, but this blog reads like a massive middle finger to lawyers everywhere as it totally trivialises all of the years of study and experience we go through to become half decent at our jobs. It is a farcical and ignorance driven exercise designed to do nothing more than distort what is actually going on (not unlike what is said about blogs like Axamonitor) and blow smoke up the backside of Alec Peters.

    I am sorry to be so harsh, but with each visit to this blog the more disgraceful and annoying the articles become.

    1. I get the felling that you didn’t read beyond that first point, Neutral…just a gut feeling on my part.

      FYI, I don’t consult my legal folks on everything I write. If I did, these busy people would likely tell me to politely (or not so politely) get lost and leave them alone. (Well, one of them will talk about Axanar forever, but s/he’s the consultant, not one of the lawyers–and not nearly as busy). Usually when I convey something one of them has told me directly, I acknowledge it by saying something like “My legal eagles have told me that…” Most of this blog is, as you said, just my opinion. That said, I have spoken extensively with my legal folks about many aspects of the case and the filings, and I have researched and studied most of the points.

      That one claim buy the plaintiffs was, in fact, ridiculous and without legal merit. So much so that I felt it needed little or no explanation or rebuttal. If you read further in the blog, you would discover that I was not so cavalier in addressing the other points the plaintiffs made–some of which I actually found solid, others…not so much. But that first one was pure hyperbole and almost an insult in and of itself to anyone reading the brief or even passingly familiar with the case. I’m guessing you don’t agree, but of course, neither of us counts in this case…unless you’re one of the plaintiffs’ attorneys in disguise. 🙂

    2. What he said, but perhaps just a bit gentler.

      As an aside, I vehemently resent anyone who claims to speak for “Star Trek fans” as if we were one uniform body. This Peters fellow is either arrogant or ignorant when he claims to be the keeper of the torch, or whatever he said. What self-aggrandizing drivel. For every Trek fan who likes fan films, there are probably a hundred who either couldn’t care less about them or, like me, resents charlatans who co-opt it for their own cynical marketing purposes. Make you film or don’t. I don’t care. That’s between you, Paramount/CBS and the trial judge. But don’t pretend to speak for all “Trek fans” because in doing so insult all of us. The vast majority of us are quite happy to leave Trek in the hands of the creative professionals where it belongs.

      (climbs off soap box)

    3. Two points mr Neut; So if the articles make your blood boil, a simple solution would be to not read them. Yay problem solved! You don’t have to thank me, it’s free advice =)

      Since in your opinion the articles is all about you being flipped the bird, I think a good solution would be to create your own blog, and you can write your own summaries about everything involved in the axanar legal battle. I think that sounds like a great idea, you should totally spend your time doing that, it would make you so much happier, than having to come over here and boiling your blood =)

      1. I’m okay with criticism, Grifter. I simply like an opportunity to respond and then let people decide for themselves. As such, Neutral is welcome to both read my blog, have a cow, and then tell me what he thinks. When all is said and done, yes, I am just a blogger…not a lawyer. Most of what I’m doing in these analyses is just reading the filings carefully, parsing through them, and presenting summaries of the most interesting and salient parts–translated into non-legalese English when possible. Sometimes that includes a bit of editorializing (so sue me!), but I never said I didn’t have a horse in this race. On the other side, there are ample blogs and podcasts and forums predicting Axanar’s ultimate defeat in this case–many of which claim to be “impartial.” Since none of us are actual journalists (or in some cases, behave civilly like actual journalists), you folks can and should take EVERYTHING we say with a grain of salt…even me. And if you want to share that grain here, feel free. 🙂

  11. ya I don’t believe neutrals back story, if I was a busy lawyer type I sure as hell wouldn’t be slumming on your blog Jon. Also your blog need a like button because a few clever people on here actually make good comments and I’d like to make note of it. IDIC gets it, I’m pretty sure this whole case is about crowdfunding, not Alec or fan films or even star trek. Look at Napster and pirating, or hulu and pandora. On the one hand you have free distribution of media that the companies want shut down and to a certain degree have had great success at. On the other you have new media outlets that originally started out as free but have since been bought out and turned into something I’m just not comfortable with. Then take a look at Axanar the poster child for a new form of media production that threatens the paradigm yet again. I wouldn’t be surprised if CBS isn’t even the real force behind this lawsuit, not to get all paranoid on ya, but I’m sure making an example of Axanar to dampen the crowdfunding crowds mood towards media production would be a win for a much larger group then just CBS/P. I think that this is evidence of how corporate elites deal with paradigm shifting technology, they want the change to happen on their terms. so shut down napster only to bring it back later as a istore knockoff, buy out hulu and change the formatting so it’s just like the older media outlets, because that’s what they know. I think they see Alec’s crowd funding success as a real and present threat to the status quo. I’m not going to try not to get to in depth into my own personal philosophies on economy, but. the way I see it is the economy is just the collective will of the people, and abusing that will over a long enough period of time has some ill effects, the least of which are attempts at self correction and regulation. you can’t ask for 20$ for an item that’s produced for 5$ tops for over 20 years and not see a black market pop up. One of my favorite stories about the shift in corporate mentality was from a tech professor who worked for HP when the first calculator came out. They asked the engineers what they thought they should charge for the calculator and the engineers replied with the cost of manufacturing plus 50% which was a standard formula at the time. But a marketing rep replied we can charge 5 times that and the market will bear it. Now what the market will bear is common pricing practice instead of what the actual value of the item is, which is clearly evident when you think of how cheaply everything is manufactured today yet still so expensive. For the media industry crowd funding may threaten the very bedrock of their price fixing scheme by creating a parallel market operating independently and openly, trading value for value. Undoing all the previous victories over pirates and emerging media outlets.

    1. I’m not inclined to question Neutral’s backstory, Anchorage. I tend to give folks the benefit of the doubt until they prove otherwise.

      As for the conspiracy theory, I think you might want to adjust your tinfoil hat a bit. (Just kidding.) While the other studios in town are certainly watching this case with at least a small degree of interest, what CBS and Paramount do is their business. Disney and Warner and Universal and Sony and Fox and all the rest have enough to keep them occupied. If Disney wanted to come down hard on fan filmmakers, trust me, they have enough lawyers to make that happen in a heartbeat. (Have you ever seen a Disney contract??? I have! I actually signed a few back in the mid-1990s–they weigh a TON!) If anything, Hollywood isn’t looking to emulate Paramount all that closely at the moment, as they aren’t exactly raking in the big bucks and releasing and endless parade of box office hits. I expect that Paramount and CBS are flying solo on this one.

  12. They claim that Prelude to Axanar is not transformative in regard to the character of Garth of Izar, that the filmmakers merely took the character as he was and reused him, but that is so obviously untrue. Even the first time I saw Prelude I remeber my own surprise at the change in the character of Garth. Of course I expected a change to some degree, since I knew this was a different time period than TOS and that he was supposed to go mad much later than that, even the trailer hinted something new about this Alec’s take on Garth, and yet I was surprised how different he was. I don’t mean by appearance, even though that counts as well. A hero, inspirative figure, very modest, which was in striking contrast to the man portrayed in “Whom Gods Destroy”, etc. I didn’t associate it with PTSD back then, but even then, when I saw the short film for the first time, I remember how important it felt – that palpable emphasis Alec made when Garth mentioned the losses of the war. That was the main reason I later argued in discussions that Alec is quite fit for the role despite his lack of acting education or experience. He conveyed that one most important of Garth’s character (at least this Pre-TOS Garth’s character) well above my expectations, the toll the horrors of the war had on Garth. It fitted the little hint from TOS episode quite well and at the same time it was something new and original, someting contributive. If there is going to be somebody who is an independent expert on the film/TV medium and is knowledgeable in Star Trek testifying in court, he will no doubt confirm what I am saying. That obvious it is. In many aspects and this is one of them, Axanar IS transformative. No matter how many times somebody from CBS denies it.

  13. Well, Neutral is obviously not so neutral but I agree with him when he precises to be only half decent after years of studies. That applies to this whole lamentable affair.

    I Have the same feelings than USS Anchorage about the reasons of this lawsuit, and I had the opportunity to write it here in a previous comment. The Industry is probably fearing the incursion of outsiders in the business, introducing new forms of communication, funding, writing, and broadcasting. Big studios did not see the phenomenon to build-up and kept business as usual while a new kind of market was building up. It is now too late to stop Netflix to produce its own contents as a new competitor on the market, so it is tempting to try to stop others to follow the example. Axanar Productions has the potential to become part of the new market, and I can understand the rights owner does not appreciate it could happen with his possession involved.
    But what is central here is that CBS not only neglected his own franchise with poor development and promotion (even with the 50th celebrations !), but they also failed to take the opportunity of using the fans activities as new business basis.
    I guess we can see some sort of disguised manipulation behind this lawsuit and actors guild, producers corporation or similar structures would fit the profile as fan productions are totally out of reach for them. I would like to know what they think of fanmade productions. Their silence, as well as others studios’ is suspect as they must have an opinion.
    What is at stake apart from the Axanar production’s future, is the place of fanmade stuff among the copyright world. Will the latter be able to include fans for mutual benefit or continue to ignore the modern times ?
    We know the studios would have better interest in considering widening their licensing to serious fans, but it is probably not in the interest of their usual partners. Studios are stuck between two camps with opposing personal interest but on different levels, hence the total misunderstanding. Maybe the affair is not considering all the involved parties it should and the trial would not solve anything as a result.

    As a separate subject, could anyone explain how one that did not apply for copyright protection could seek for damage compensation on unprotected material ?


    1. CBS owns the registered copyrights for all of the Star Trek film library stretching back to 1966. That means I can’t just package up a TOS episode and sell it, turn it into a novel or comic book, etc. They also registered Kirk, Spock, McCoy, and many other central characters. But unlike Marvel–who have registered literally thousands of characters–CBS didn’t do the same with Star Trek. Dozens of characters are registered, but not hundreds and certainly not thousands. And that COULD be problematic for the studios, as Garth and Soval are not registered. But hey, we’ll just have to wait and see.

Comments are closed.