As you may recall, the next major event in the Axanar case was supposed to be oral arguments for the motions for summary judgment in front of Judge R. Gary Klausner on Monday morning. But the judge canceled the in-person hearing and will be making his pre-trial rulings based solely on the documents filed by both parties. (This is not unusual. I’m told that Judge Klausner usually cancels oral arguments and rules based on filings.) This means that the judge’s rulings could come at any time…and this lawsuit could possibly even be over before it begins!
But if this case does go to trial on January 31, then yesterday (Friday) was an important deadline. It was the last chance each side had to challenge evidence and/or witnesses that the other side wants to use in court and present to the jury. This can potentially be pretty big. Imagine going into the big game with a few of your best players disqualified and benched. That could happen if the judge excludes one or more pieces of potentially key or damaging evidence from being used at trial!
The plaintiffs are challenging TEN different items of evidence and potential witnesses (like little ol’ me!) while the defense team is challenging NINE. I’ve consolidated all those separate motions into two huge PDF documents:
You probably don’t want to read all 140 pages (although there’s some interesting stuff in there!), so I’m gonna help ya out and do a summary…later this week. Assuming the judge doesn’t end the case before then, I’m gonna need at least a few days to parse through all this!
Except for the motion about me (starting on page 25). That one I wanna tackle right now because, dammit, it’s my frickin’ blog and I should be allowed a bit of self-indulgent righteous indignation every once in a while!
So let’s take a look at why the plaintiffs don’t want me ruining their case…
Do you remember that 128-page The History of Star Trek Fan Films executive summary that I wrote up for the Axanar defense team? It spotlights 100 different fan films and series produced and released by fans around the world for the past five decades covering over 250 hours of unlicensed fan Trek.
Obviously, the defense team wants to submit it into evidence because it shows that the studios didn’t really have a problem with fan films prior to Axanar…at least, no problem that made them actually challenge any of them legally or even with a phone call or a cease and desist letter. And this means that, in Alec Peters’ mind, he wasn’t doing anything that the studios had a problem with. And if an alleged infringer reasonably believes that he is not infringing, then even if found guilty, the infringement could be ruled non-willful (instead of willful), and the penalty per violation drops from $150,000 for each to as little as just $200.
My document, if argued properly in front of the jury, could decrease the potential verdict, if Alec Peters is found guilty, from $8.55 million to maybe $10,000. Obviously, the plaintiffs don’t want the jury seeing that document or even knowing about other fan films…especially not a HUNDRED other fan films!
So, what’s their justification for trying to keep me and my magnum opus off the witness stand? Check this out:
This witness is not a qualified expert and he may not present opinion testimony, or testify regarding facts outside of his personal knowledge, under Federal Rule of Evidence 602. Additionally, his expected testimony will be irrelevant to this case and prohibitively time consuming.
So one of their reasons is that JONATHAN LANE TALKS TOO MUCH? Gee, thanks a lot! (Actually, I told my wife about this last night, and she said, “But how do they know you talk too much?” I answered, “They read my blog!”)
But, seriously, that is an actual legal reason. And it might actually be justified were it not for a couple of things that I’ll mention later. But there’s also a few other reasons they list which I’d like to take a crack at before Erin Ranahan does it on January 5 (when motion oppositions are due).
Here we go, kids…
Based on Lane’s declaration filed in support of Defendants’ motion for summary judgment, Lane will likely testify that he is a “Star Trek fan,” with “extensive knowledge…of, Star Trek fan fiction.”
Well, yeah…for starters!
Based solely on this qualification, Defendants will attempt to introduce a document of over one hundred pages authored by Lane purporting to give a comprehensive overview of every Star Trek fan film ever made.
Well, maybe not EVERY Star Trek fan film ever made! I’m sure I’ve missed a bunch. And there have been at least two or three dozen more released in the year since I first wrote it! But sorry, I keep interrupting. Please continue…
This document includes Lane’s own synopses of each film’s plot, quality, and impact on the industry. Apart from links to YouTube, where most films are available for viewing, the document is a complete work of opinion.
Okay, stop. Gotta interrupt again! Have you guys at Loeb & Loeb actually READ the frickin’ thing? Star Trek Continues features Kirk, Spock, McCoy and the rest of the TOS Enterprise crew…NOT an opinion. Star Trek: Renegades raising $375,000 in crowd-funding…NOT an opinion. I even used a calculator! The number of episodes and hours of Star Trek: New Voyages is NOT an opinion. Sheesh!
All right, go on…
Lane has never been presented by Defendants as an expert, but, as outlined above, he will likely offer extensive opinion testimony for consumption by the jury. As a lay witness, Lane risks usurping the function of the jury by presenting his personal opinions regarding Star Trek fan films and the public’s reaction thereto. Therefore, the Court should exclude the testimony of Lane except to the extent it relates to his own personal knowledge.
NOT an expert??? Well, if I’m not an expert on Star Trek and Star Trek fan films…then who is? (Well, Barbara Reader of Star Trek Reviewed, of course!)
I’ve worked on four different fan film projects (Voyages of the USS Angeles, Star Trek: Hidden Frontier, Prelude to Axanar, and I co-wrote and co-produced the parody Prelude to Ax’d-We-Are). I’ve conducted about two dozen interviews with various fan filmmakers, written features and histories of dozens more fan films and series, and even founded the SMALL ACCESS campaign to endeavor to convince the studios to revise the fan film guidelines. Sure, there’s no such thing as a Bachelor’s Degree in Star Trek Fan Films, but if there were, I’d be teaching at least a few of the classes.
(Man, I sound like Michael Hinman!)
As for being a fan expert on Star Trek itself, well, don’t take my word for it…just ask John Van Citters of CBS Consumer Products. I used to work for him! In fact, I worked as a freelance Star Trek expert fan consultant for Viacom Consumer Products for 8 years (1997-2004). I started out just providing feedback on submitted Star Trek CD-ROM game scripts to the licensing folks. Later on, I was “loaned out” to licensees to help them write copy for museum exhibits and digital trading cards, compose questions for Star Trek trivia games, and come up with “Trekkish” names and descriptions for the entire menu for Quark’s Bar and Restaurant at Star Trek: The Experience in Las Vegas. I also co-authored the Star Trek reference book “Starship Spotter” published by Pocket Books back in 2001 and developed the 2D “LCARS” computer graphics animations for the Borg Invasion 4D ride at Star Trek: The Experience. (That’s just a partial list of the projects I worked on for them. And yeah, I’m definitely sounding like Hinman.)
So if the Star Trek copyright holder considered me enough of an expert on their intellectual property to pay me twenty bucks an hour for 8 years of part-time consultant work, well, it’s kinda tough to dismiss me as a “lay witness” now, dontcha think?
Okay, back to the plaintiffs…
The potential testimony and documentary evidence of Lane will rely extensively, if not exclusively, on hearsay. Lane’s compendium of Star Trek fan films presents hundreds of anecdotes and data points about dozens of fan films. Other than YouTube links, this document is largely unsourced.
Seriously, guys, READ THE THING! Whenever possible, I linked to the websites of the actual fan filmmakers themselves, sourcing my information from the horses’ mouths. There’s even a few links to articles from newspapers like The New York Times. I even link to Kickstarter and Indiegogo campaign pages.
Lane does not claim personal knowledge of any specific fact presented, nor does he explain how he came to know the contents of this document. The only reasonable assumption is that someone told Lane these facts, or else he read them somewhere. In either case, these facts are hearsay and inadmissible under the Federal Rules of Evidence. Therefore, any testimony by Lane about Star Trek fan films, as well as his compendium of fan films, should be excluded.
So if you want to put an expert witness on, say, ancient Egypt onto the stand, then because he’s only read about the ancient Egyptians and was told about them in school–but he wasn’t actually there–that his testimony should be considered “hearsay”?
As I said, I’ve personally worked on four different fan films–one of which, admittedly, was made after the lawsuit was filed. But I did personally watch a HECK of a lot of them before Alec Peters was sued…enough to testify that Star Trek Continues and New Voyages use Kirk and Spock (I saw it with my own eyes!). And hey, I was there at the red carpet premiere of Star Trek: Renegades at the Crest Theater in Los Angeles. Here’s a photo:
Lane’s compendium of fan-produced Star Trek films is completely irrelevant to this matter. For the reasons set forth in Plaintiffs’ Motion in Limine No. 6, evidence regarding Star Trek fan films should be excluded. Also, presumably, Defendants will introduce Lane’s testimony to highlight the number and type of films that have been produced by Star Trek fans without legal action by Plaintiffs. However, Plaintiffs’ decision to proceed against infringers other than Defendants also has no bearing on liability. Plaintiffs are under no obligation to sue every entity using its intellectual property and may single out a particular wrongdoer for a variety of reasons.
True, the studios don’t have to sue anyone other than Alec Peters and Axanar Productions if they choose not to. But that’s not the point of putting Jonny on the stand. I’m there to help establish why Alec Peters may have thought that it was okay to make a Star Trek fan film. I can’t speak for what Alec Peters was thinking, but if and/or when Alec gets up to say what he was thinking, the fact that there were 100 different Star Trek fan films that preceded his, and none was ever taken down by the studios (in fact, one was even put back up!) will play into willful versus non-willful infringement. And that’s where my testimony becomes quite relevant. After all, it’s quite a different thing for the jury to imagine one or two other Star Trek fan films versus 100!
Admitting Lane’s compendium of fan films would be an extreme and unnecessary burden on the jury’s time and the resources of the Court. It would likely take days to introduce each of the dozens of films analyzed by Lane and establish what, if any, elements of Star Trek each film infringes, the quality of the films, the degree of professionalism with respect to each film, the production budget for each film, the profit made by the creators of each film, etc. There is simply no probative value, though significant cost, in conducting dozens of miniature trials regarding fan films that are fundamentally irrelevant to this case.
Objection, your honor! Completely misleading B.S. You see, I would not be testifying for any other reason than to say there were over 100 different Star Trek fan films released or in development before the lawsuit was filed (representing about 250 filmed hours) that I was able to find in about 5-6 weeks of online searching at the request of Alec Peters. Each of these fan films was readily available for free viewing on Youtube and/or Vimeo and had, therefore, not been taken down. And of course, being a Star Trek “expert” hired as such by a past Star Trek license holder, I would be quite competent to determine what would and would not be considered a Star Trek fan film to an average Trekkie like Alec Peters.
Additionally, I was only able to find one instance of ANY Star Trek copyright holder ever taking any action against a fan film, and that was when CBS blocked New Voyages from using Norman Spinrad’s “He Walked Among Us” script to make an episode out of it because CBS still owned the story. But the studio allowed New Voyages to continue making fan films for another four years unchallenged. (And yes, that article is cited on page 26 of my History of Star Trek Fan Films.
So no, there’s not going to be a mini-trial over each fan film. I’m simply going to say I know what a Star Trek fan film is, I did a significant amount of research, and I fairly easily found 100 of them out there and only one news article reporting any legal action whatsoever from the studios. And done. Then Alec gets on the stand and says he was aware of many of these fan films–along with the Norman Spinrad New Voyages story–and assumed that the studios were fine with fan films in general. He even contacted CBS four different times to make sure, and they never told him to stop what he was doing.
I figure 10, maybe 20 minutes tops for those two pieces of testimony. “Unnecessary burden on the jury’s time”? Fine, I’ll talk fast.
So please forgive me for going on so long and for getting so pissed. But at least for me, this just got personal. But it’s not just the personal that annoyed me, it’s the stupid. I realize that the plaintiffs attorneys need very much to keep me and my document off the witness stand. But seriously, their reasons for wanting the exclusions? I mean, c’mon, Loeb & Loeb! You’re a top entertainment law firm. I never even went to law school! I shouldn’t be able to shoot so many holes through your arguments so easily!
That said, in three weeks, it won’t be me doing the shooting; it’ll be Erin Ranahan. And I intend to send her a link to this blog post. With luck, I’ll be up on the witness stand, wearing a brand new FAN FILM FACTOR polo shirt. If not, I’ll be sitting in the gallery, watching and quietly rooting for the A-team.