NEW MOTIONS filed to LIMIT EVIDENCE in the AXANAR LAWSUIT!

Axaanr splash imageJust when you thought you were out, I pull you back in!  Yes, it’s AXANAR lawsuit time again…and I really didn’t expect this part to be quite so significant.  Man, was I wrong!

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:

Defense Motions to Exclude

Plaintiff Motions to Exclude

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:

renegades-1
Hearsay, my ass!

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.

100 thoughts on “NEW MOTIONS filed to LIMIT EVIDENCE in the AXANAR LAWSUIT!”

  1. If they want to bring up the fact that continues uses Kirk and Spock they need to enter “Star Trek Continues” into evidence, if they want to bring up another groups kickstarter they need to enter that kickstarter into evidence. Using your document as a middle man is hearsay.

    I understand that you feel you’re an expert in the material. But you have not been presented to the court as such. You’ve been presented as a witness, so you can testify to things you witnessed. The defense has not presented you as an expert witness who could give opinion.

    1. And yet, I personally donated to multiple Kickstarters, and I am well versed enough in Star Trek to be able to speak first-hand that, when I viewed the fan films in question, I saw the following things (and then mention Kirk, Spock, Tuvok, Chekov, the USS Enterprise, Vulcans, Klingons, etc.). My document was not hearsay as it included links to the location of each fan film, each of which I viewed personally. I am a witness to the existence of those fan films posted on YouTube.

      1. Hey, let us know if the shirts become available. If I’m not working on a show when the trial hits I’ll come to the trial and sit in the audience wearing an FFF polo shirt when you give your testimony.

  2. Well, them’s certainly fightin’ words, ’cause it’s got you in a fightin’ mood! Can’t wait to see what you have to say on the rest of what both sides want excluded!

    1. Actually, the reason I pulled this particular one to highlight is because it was so easy to rebut. The other challenges each have their own merits. I’ve started writing up a summary of the first few of them, but most are going to be just that (summaries), without me trying to write up the oppositions before the attorneys do. Once I see what both sides have written as rebuttals (on January 5), I’ll get a better handle on who might have the upper hand. Also, it’ll give me a chance to pow-wow with the greater legal minds. (What I wrote last night was just from me with no coaching…and could end up being completely wrong.)

      And of course, if Axanar’s motion for summary judgment is granted and the complaint is dismissed, then I don’t have to write up anything! 🙂

      1. If I remember the case correctly, she was not excluded from the jury because of her uniform and accouterments. She was, in fact, an alternate. But she was kicked for violating a judge’s order not to speak to the press (even though it was only about wearing her uniform to court), which WAS newsworthy! So if ‘IanH’ gets selected as a juror, by all means, wear that uniform!! LOL

    1. Im not sure that they would want people commenting regularly on Star Trek sites, never mind one wearing a uniform, making up part of the Jury as we would already know too much about the case and have opinions on parts of the evidence (rightly or wrongly) that we shouldn’t be even forming till we listened to it in court.

  3. Hello Jonathan,

    Two points. First, I’m sure you know when attorneys do not have a viable argument, they will resort to “stupid”. L&L is so desperate to eradicate your testimony, they are wiling to look like complete morons in front of the judge, as the judge does get to read your 126 page turner to make his decision. Take L&L distress as a compliment. 😉

    Second, Sir, I feel a personal insult that you would compare yourself to the Great, in his eyes, Michael Hinman! Yes, like you, he boasts of his wide ranging experience, and accomplishments….but while you can actually prove those accomplishments…..we are still waiting for any proof of his! So unless you wish to add to your accomplishments by do a Nimoy, “In Search Of….” episode on finding Hinman’s resume….I suggest you do not compare yourself to, the Great, in his eyes, Michael Hinman….Good day sir…..

    I said, good day, sir!

    1. Alec called me Saturday morning after reading the blog and said I shouldn’t do cheap shots in the blog itself. “Save ’em for the comments,” he said. “Hinman isn’t worth it. Ignoring him is always the best move.” In my defense, I was writing way after midnight in an insomniatic stream of consciousness momentum. If I had to do it again, I’d probably leave it out. But what’s done is done, and I don’t believe in changing blogs once I post them unless there’s typos or misinformation to correct.

  4. I really hate the modern day call for experts, most things in life really don’t require an expert, just enough knowledge on the subject to perform the task. As far as trial experts go heres the qualifications for an expert: “According to the Federal Rules of Evidence, a qualified expert witness is someone who has knowledge, skill, education, experience, or training in a specialized field.” That seems like a pretty broad field to me. According to Jacquelyn V. Clark in her article Is the Witness a Fact Witness or an Expert? “witnesses may testify as hybrid fact and expert witnesses… In order for a witness to testify as an expert, the court must determine whether there is an issue for which expert testimony is needed
    to assist the jury. If so, the court must determine whether the chosen witness is qualified to be an expert.” So it seems to me that L&L is just blowing alot of smoke in an attempt to preempt you, and as much as we would like to think of lawyers as professional who only ever make iron clad arguments I’ve found theirs alot of shotgunning in the law field. alot of throw it against the wall and see what sticks, they want these 10 things to go away but in reality they probably won’t get it all because theirs little basis in fact for them to make their claims. But that’s not going to stop them, hell maybe the judge will have an off day and or the opposition will and their counter argument will be weak, can’t win if you don’t play seems to be a valid game plan in the legal field. I wouldn’t be coming here is I didn’t consider you an expert and reliable source though.

  5. Just one question: in both documents, sentences were blocked out to be un-readable. Is this how the documents posted were received? One will assume that what was “hidden” is something to remain “silent until brought up in trial”. Though it does make reading the motions more difficult to form one’s own conclusions as to the merits of the Motions in Limene.

    1. Right now, certain items produced in discovery and just about all depositions taken concerning Alec Peters’ finances (along with a few other subjects) are designated as “confidential” and limited to the parties involved in the case and the judge’s eyes only. As such, any parts of the filings that contain references to these confidential items MUST be redacted in the public versions of the documents. Rest assured that the judge’s version is not redacted at all.

  6. Plaintiff state: “Events After the Filing of the Lawsuit are Irrelevant and Should be
    Excluded.” yet the Defendants note: “Plaintiffs Should Be Precluded from Relying on Evidence relating to Allegedly Infringed Works That They Failed to Claim in the Complaint.”

    Plaintiffs can’t have it both ways to tout use of the alleged infringement on the RPG and novel when it was not even mentioned in the original complaint yet kvetch that Axanar’s script was ‘infringing’ even though it hadn’t even been filmed. (Defendants note: “It would be a waste of the jury and the Court’s time to sift through a draft script when there is no risk that such script will be made”)

    Seems like a very poor (sloppy) argument to me.

    But I’m no lawyer.

    Pass the popcorn . . .

    1. No one’s that important, Mr. Universe! I do have a pretty big opinion of myself, y’know! (On the other hand, I’ve never used an alias as big as “Mr. Universe”!) 😉

  7. Go get ’em Jonathan!

    Here’s what I really don’t understand, “He even contacted CBS four different times to make sure, and they never told him to stop what he was doing.” I’ve heard or read Alec Peters make similar statements several times. How does this one fact not get the whole case thrown out? If Alec went to representatives of CBS, and they either said, “Yes, that’s fine,” or didn’t say, “No, you can’t do that,” doesn’t that blow their whole claim out of the water? He asked for permission, and was never told he couldn’t make his film. At the very least, that’s a very strong implication that CBS was all right with what he was doing. I don’t under how that doesn’t end the argument then and there.

      1. Yep, I remember reading that. It never made sense that Alec would ask them if any of his work would be problematic for the plaintiffs and they chose not to say one way or another and then claim copyright infringement afterward.

        To me, that seems the same as if I asked a cop if robbing a bank was illegal and he said nothing until I came out with a gun and a bag of money…

        Can they really defend that legally?

        1. In the case of willful versus non-willful infringement? Yes. In the case of bank robbery? No. The latter is against the law. The former (judging infringement by weighing whether or not it was willful or innocent) IS the law. A jury MUST determine that in order to assign proper statutory damages. In fact, they can’t NOT consider it!

      1. Perhaps with a little more effort, you can make their job impossible.

        Frankly, after reading your ‘History’ document, it seemed pretty comprehensive and had plenty of references. In any event, it appears to me that it comes down to their definition of an ‘expert’.

        In fact, allot of this case seems to come down to their definition of things vs everyone else’s. Definitions sure are getting in the way.

  8. I actually took the time to read the “Motions.” From What I see 90% of the Plaintiffs requests are for removal from the witness pool, persons who have ” no expertise.” Including you Lane. The redaction’s that the plaintiffs made are where they caught themselves being overly zealous in assuming and making remarks. Further wanting to remove “Fan Films” and their failure to react to them is very evident. This whole thing seems a vendetta against one person. And we all know who that is. Truth will out..

  9. Johnathan, the very fact that you admit you aren’t impartial and that this domain was originally registered to Mike Bawden, Axanar’s PR guy makes you…(cough) not an expert.

  10. I would say that working for cbs/Viacom on Star Trek, authoring a reference book on trek, and working on star trek projects for license holders, as well as quarks, would make you a star trek expert.
    What more do they need, actual movie credits?

      1. I read all the ‘exclude’ requests by both sides as I am totally enthralled by this case.

        Again, it seems CBS/P is using the ‘hammer’ approach to try and eliminate any evidence and/or witness testimony that goes to the heart of Alec’s fair use defense (and for no other reason). But Erin is again ‘surgical’ and defines well why some of plaintiffs evidence and/or witness testimony is (in the words of Perry Mason) Incompetent, irrelevant and immaterial!

        I award this round to Erin & Co. (again).

    1. Yes, edges are too fuzzy, and lighting is wrong, infact it’s as if there were big spotlights instead of the sun, and the rocks are all wrong in the picture, and also the flag moves! HOW DOES FLAG MOVE IN NO AIR!? Oh wait, this isn’t the correct conspiracy theory is it? My bad.

      1. In the case of the theater photo, there’s an easier explanation for the mismatched lighting. The sun was behind me, so I turned on the flash on my camera before giving it to my friend Susan to take my photo. Using a flash in daylight is fine if the subject will be in shadow and silhouetted otherwise. (I used to be a professional photographer for a short bit of time.)

  11. Loeb and Loeb HAVE to shoot down the most solid evidence that their clients’ are full of it. Apparently CBS is QUITE done acting like reckless assholes.

  12. OK we get it Mike,,, Err I mean Jon… (Breathe… (in and out…) ) Seriously I had no Idea you were that knowledgeable and experienced with Trek Fan Films. It’s to bad that CBS has chosen this route to resolve their Beef. Instead of taking advantage of the expertise and enthusiasm of fans such as yourself or Alec Peters. STD or DSC or whatever TLA they are calling it this week certainly would have benefited from that.

    And, I know you will get to get to it… And, I get that it’s their job. But CBS’s Ferengi Atty’s have managed in this one Filing.. have managed to marginalize, as unimportant and irrelevant, not just you but a whole host of people including JJ Abrams, Justin Lin.. As well as Star Trek Fans! Their Tone is Angry and defensive.

    It’s hard to imagine an Entertainment company more at odds with the Philosophy of their so called “Crown Jewel” (sorry Sheldon and Leonard)

    Honestly, I am going to watch this slug-fest reach it’s conclusion, (I have to much invested time and thought wise not to) Unless There’s some sort of amicable solution. I have tons of other Genre Shows to choose from. And lots of other things to occupy my time and empty my wallet.

    1. CBS and P should ask themselves WWDD (What Would Disney Do?). Have you seen any lawsuits against the multitude of Star Wars fan films…even the ones that are a half-hour long or more? No? And it looks like Rogue One (not even part of the main saga…that continues next year) will end up beating the opening weekend box office of Star Trek Beyond (celebrating the 50th anniversary of the Star Trek franchise) by a factor of THREE!

      So yes, CBS and P, WWDD? And do that!

      1. WWDD…if CBS/Paramount aren’t careful, Disney might just come in an purchase them outright, because, well, they are Disney, and they can do that. Disney likes to own as much of large fandoms as possible, and you got to admit, the idea of them owning both Trek and Star Wars and allowing for all kinds of nerd wars is a Ferengi wet dream come true.

  13. Jonathan, I’d say you have a right to be pissed. You’re more of an expert on this than either Pedraza or Hinman. If they didn’t think you’re an expert then why would they subpoena you in the first place? Although, if it was the defense’s idea, then different story entirely!!!

  14. Oh and Jonathan since you were a PAID consultant by the copy right holder for more than 2 years (8 year as you say) So you are qualifier as an expert wittiness but at best you would be seen to them as hostile to them as you worked projects that cove both fan film and studio work history and were paid by them.
    That’s the kind of stuff a jury looks at and Hey if the was paid by you for work done then you thought he was clearly an expert in that area. Something they don’t want..

    Ok on to some other fun I found..

    So I am reading along and i see this part on fan film .
    1.
    Star Trek Fan Films Are Legally Irrelevant.
    Star Trek fan films that are not at issue in this case are legally irrelevant for
    several reasons. First, no court has ever held that “fan fiction” (whether or not that
    label is accurate, which in this case it is not) has any special protection under the
    Copyright Act, or that calling something fan fiction impacts the copyright
    infringement analysis

    ER?? reading it all make me think they just gave words to losing here .. They are look at Axanar as not being a Fan film? Really ? Where the did the Funds come from? Er? We the Fans,

    Then they go on to say they didn’t sue due to the market? Not sure but it like is does not matter who chose to sue or not sure or that is violates copyright ?

    Second while Defendants have claimed that Plaintiffs have not sued other
    “fan film” creators, this too is legally irrelevant. This precise issue, with respect to
    the Star Trek copyrighted works and Plaintiff Paramount, was directly addressed in
    an earlier copyright infringement lawsuit.
    See
    Paramount Pictures Corp. v Carol
    Publ’g Grp.
    , 11 F. Supp. 2d 329, 336 (S.D.N.Y. 1998) (“Defendants also argue that
    Plaintiff’s lack of legal action against other allegedly infringing [sic] indicates that
    The Joy of Trek
    will not damage a potential market. This argument is without merit.
    It is possible that Paramount believed that the other books did not infringe on the
    Star Trek Properties. It is also possible that Paramount simply has had a change in
    corporate policy, determining that the market is now ripe for this type of derivative
    product. Regardless, the lack of earlier litigation against other similar works is
    simply irrelevant. A self-avowed substitute for other Paramount licensed products
    adversely impacts the market for derivative works.”).
    See also Capitol Records, Inc.
    v. Naxos of Am., Inc.
    , 372 F.3d 471, 484 (2d Cir. 2004) (“[F]ailure to pursue third-
    party infringers has regularly been rejected as a defense to copyright infringement or
    as an indication of abandonment.”) (citing
    Paramount Pictures Corp.
    , 11 F. Supp.2d
    at 337). Plaintiffs’ decisions as to which infringing parties to sue has no bearing on
    the determination of whether Defendants engaged in copyright infringement.

    Then they go one to say reviewing all the fan film or bring them up to the jury world ne irravan adn take too much time.. REALLY?

    Third, the analysis of Star Trek fan films would be an extreme and
    unnecessary burden on the jury’s time and the resources of the Court. It would
    likely to take days to introduce the Star Trek fan films and to 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, and
    the profit made by the creators of each film. The court in
    Paramount Pictures Corp.
    v. Carol Publishing Group
    explained:
    Allowing such a defense would compel courts to examine all the other
    allegedly infringing works on which defendant’s reliance was based in
    order to ascertain whether these works were in fact infringing, thereby
    creating a number of smaller infringement hearings within a single
    copyright action. Moreover, there is no legal duty to instigate legal
    proceedings. Perhaps it is the case, as Defendants intimated, that
    Paramount has chosen to eschew litigation with larger publishing
    houses, and instead bring suit against a relatively small firm. It matters
    not. Provided it does not violate any other provision of law, Paramount
    is free to instigate legal action against whomever it wishes.
    11 F. Supp. 2d at 337. 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.

    Then the last part saying That Axanar deference as fan film is unfairly prejudicial evidence

    2.
    Defendants’ Fan Film Defense is Prejudicial.
    References to fan films have no probative value because they are not relevant.
    Even if they did, any probative value is substantially outweighed by the danger of
    unfair prejudice to Plaintiffs and the risk of confusing the jury. Fed. R. Evid. 403;
    Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp
    ., 982 F.2d 363, 368 (9th Cir.
    1992) (noting broad discretion to exclude unfairly prejudicial evidence).
    Allowing Defendants to introduce references to other supposed “fan films”
    could lead the jury to be confused that whether a work is a “fan film” is relevant to
    whether it is infringing. Furthermore, without the aforesaid mini-trials that would
    examine each of these fan films, the jury could be confused into thinking that the
    Axanar works were the same as these amateur, low quality, low budget fan films.
    To the contrary, prior to the commencement of this litigation, Defendants proudly
    proclaimed that the Axanar films were not fan films, but rather the first professional
    independent Star Trek films, with a budget of more than $1 million. Additionally,
    references to fan films may lead the jury to believe that somehow Plaintiffs’ actions
    towards other fan films have a bearing on the case, when, as a matter of law, they do
    not.

    It does not matter that raised $1.1 million or $10 the fact is Fans and the people doing it fund it as a fan production. And let not forget How they got it to that amount.. George Takai bloged the Kick starter and fans rally to it. He blessed the fan film.
    They know they screwed on this case they now trying to say is does not matter they have never sued a fan film when copy right laws are very clear on it.. We as fan know there was never protection as we said for yea no rule or guideline but don’t make many off it .
    Now we a law suite and Guideline made to mock Alec Peter and to make fan hate the production and put out fears funds were misused by the group.

    I will say in what read in just this part .. They lost if the Jury gets it. The Judge i not sure if he gets the “Fan Film” concept but I am sure Axanar legal team will make it clear.

    1. CCorsair:
      The fact that CBS did not sue other fanfilms has nothing to do with preventing them to sue anyone they want now. But it surely has a meaning when dealing with the willful/non-willful infringement. The important point in the non-suing attitude of ownere until now is that it led Alec Peters to sincerely believe there was no problem each time he asked the IP guys.
      If I had bad thoughts, I would believe that CBS did never write anything that might be considerd as an authorisation and was just waiting for the good guy to prosecute, as they did for book publishing. So, they never said “no” to Alec, but maybe they were already planning to shoot at him…

      1. Perhaps, Nicolas, but my gut says “no.” I don’t think the studios were waiting for Alec to fall into some kind of “trap.” I think they really did see a trend line going straight up (crowd-funding campaigns going from 5-figure totals to 6-figures and then to 7-figures…plus the rising levels of quality) and just hit a point of saying, “Okay, it’s time to stop this by sending a loud and clear message. Call up Loeb & Loeb.” Must have seemed like a good idea at the time…

        1. That might be the cas, but the trend line was also showing something else: the quality level of fanmade productions, and the amount of them is now to be considered as “licensable”. Unfortunately, we have here a mirror,mirror situation where the Studios had the choice between two lines of conduct and chose the bad one.
          Time has come up to the need of fitting to the reality instead of bending the reality to fit obsolete behavior.

    1. Not desperate, David. But they are working very hard to pull out all the stops. It’s their job, and they get paid handsomely for it. In fact, one person did the math for me recently and calculated that Loeb & Loeb is probably up to about a HALF MILLION to possibly THREE-QUARTERS OF A MILLION DOLLARS in legal fees charged to the studios! Don’t believe me? Check this out…

      One lawyer at L&L probably bills out an an average of $500/hour. Associates range from $350/hour to $650/hour and partners range from $500/hour to $1,000/hour (YIKES!) Let’s average them out to about $500/hour. So how many hours has it been?

      Well, since early November, there’s been a LOT of paperwork filed, and that stuff doesn’t write itself! I’m thinking these last several weeks have been “all hands on deck” with multiple lawyers working simultaneously. And then there were weeks in the summer during which time there were depositions taken and prep for depositions and collection and preparation of documentation. Those were also probably “big” weeks that went way over 40 man-hours.

      Then there were the “slow” weeks when not a lot happened. I don’t think there was a week where NOTHING happened (no research or writing up at least a little of the next document) because let’s remember how many filings there have been! There was an original complaint (likely 20-30 hours to research, write, and file). There was an amended complaint that required a LOT more research and MUCH more writing time (call that 60-80 hours). Then there were response filings…and all this before we even hit the month of May! And of course, we’ve seen the number of passive/aggressive e-mails sent back and forth between the attorneys, the meetings to discuss possible settlements and discovery procedures, the appearances in court…that’s all billable.

      Let’s assume that at least one lawyer was working half-time (20 hours/week) each week for the past year. Sure, some weeks were 5 or 10 man-hours and some were marathons of 40-60 man-hours or more. We’ll just take a low average of 20 man-hours per week at $500 for some average lawyer at either a partner or associate level.

      So allow me to whip out the ol’ calculator…

      20 hours/week X 52 weeks = 1,040 man-hours total

      Multiply 1,040 man-hours X $500/man-hour = $520,000

      That’s on the low end! And if you take that average number of man-hours per week up to 30, the billables increase to $750,000! And if most of the time is being spent by a partner like Jonathan Zavin or David Grossman, they’re likely billing closer to an average of $750/hour…which could make the bill at present wind up close to a MILLION DOLLARS! (Insert Dr. Evil meme here.)

      And we haven’t even gone to trial yet!!!

      A 2 or 3-week trial will be at least two lawyers going for 8 hours a day in court for four days a week plus all the prep each night for the next day. Assume those two or three weeks are in-the-trenches 100-hour weeks utilizing Zavin and Grossman at about $750/hour. The trial alone could tack on another QUARTER OF A MILLION DOLLARS to the bill!!!

      And don’t get me started on the appeal! YEESH!!!

      So you can understand why Loeb & Loeb is trying so hard. They’re not desperate; it’s simply that the meter is running.

  15. I can sure see why the plaintiffs don’t want you to testify on the stand. If anyone can show the jury why Alec Peters believed what he was doing was ‘of little concern’ to the studio, YOU sure can. And yeah, they had better discredit you as best they can, if they can, which they can’t. LOL

    I have a feeling you’ll be on that stand! But we’ll see.

    And if I understand the plaintiff’s view on ‘experts’, you would actually have to have spent a significant amount of time as a tire before you could claim to be a tire tread expert?

  16. I can totally understand why you got riled up about being moved to be dismissed as hearsay evidence, (If the Defense want to submit your list of fan films, btw, they should be arguing that it’s a “learned treatise,” and therefore not a matter of opinion and not hearsay. The US has some interesting exceptions to hearsay laws! I think that may fail however given that they’ve called you as a witness instead of an expert, so the plaintiffs will probably correctly argue that you need to be an expert to submit expert evidence- looks like the first procedural mistake for the defense was not classifying you as an expert, lol) but you may also be missing some parts of the bigger picture in this post, not that you’re not entitled to.

    My notes were:

    * The Defense wants all discussion of the discovery dispute the Plaintiffs keep mentioning excluded because the plaintiffs made all their unaddressed requests too late and the defense has been co-operative. Honestly this sounds super reasonable and I wouldn’t be surprised to see that happen, and again, this is the same strategy of being more reasonable than the other side to effect the equilibrium of the compromise coming into play.

    Given the things the defense is focusing on, I’m not surprised that they don’t have more motions to exclude because they’ve basically agreed that copyrighted material is being used, and want to stick to the arguments that it’s fair use, or not technically infringement because those things shouldn’t be copyrighted, or at least not willful infringement.

    * The Plaintiffs want the revised financials excluded. This is a pretty good strategy for them as it cuts off all ability to prove that Axanar is not-for-profit. (It makes me wonder if this whole case isn’t around a mistaken impression that it was actually for-profit, or whether this is merely legal posturing to kill the Fair Use element of the case. Probably the latter but You Never Know unless you’re in the room when those decisions are made) It’s difficult to see what all their points are because these requests are severely redacted, but their main visible one is that the revised financials were prepared specifically for the court case and are thus apparently hearsay. (I can’t find any particular justification for this opinion, but that doesn’t mean it’s wrong- it’s probably just a more technical point than you can find in explanations of the law written for lay people) As the financials apparently weren’t sufficiently accurate before the trial, this puts the Defense in a bit of a catch-22 because they had to revise the financials after the charges were laid. You can bet that they’re now scrambling for some reason they had to revise the financials *anyway* to show the court to get this one thrown out, so this is actually pretty critical to them as if this motion gets granted, fair use is basically out of the window and all we’re talking about is whether the IP was copyrightable and willfully infringed. This is the Big Thing To Watch because it’s arguably a reasonable request but it would completely change the nature of the case if it’s granted. If they win on this motion there is likely no “winning big” for Axanar.

    * The plaintiffs want the revised scripts excluded because they’re “irrelevant.” I expect this to be thrown out based on the existing filings because they are highly relevant to determining whether the script the plaintiffs are suing based on was a “fixed work,” ie. eligible to be sued for copyright infringement. They try to argue that the defendants can continue to produce scripts after a suit is filed- that’s sorta the point. Continuing to produce scripts indicates that there was an intention to make a movie based on a *different* script than the one they’re suing based on. This is again the plaintiffs sticking to their “throw mud at EVERYTHING and see what sticks” strategy, but this is probably the flimsiest of all their exclusion requests. This is an attempt to get the “prior restraint to 1st amendment rights” aspect of the trial to go away so that they can go ahead and get the script ruled as copyright infringement. This has always been the weakest aspect of their case.

    * The plaintiffs want testimony by JJ and Justin Lin excluded, presumably again because it goes to establishing that Alec had reason to believe he wasn’t stepping on their toes. They actually have a somewhat reasonable point here that these two aren’t themselves rightsholders, but I would suspect that the judge will look at this and determine that the testimony *is* relevant because they were employed by and agents of the rightsholders, so it goes again to Alec’s frame of mind in terms of willful infringement.

    * The plaintiffs want to exclude all discussion of other fan films and whether they’ve been sued. I know they’re trying to cut off the unwillful infringement defense here, but this is so laughable I’d be incredibly surprised if it’s not thrown out. Of course whether they sued other fan films is relevant in determining whether Alec thought he was doing something that was reasonable and supported by the rightsholders. It doesn’t bear on whether it’s infringement, but it’s completely relevant to his frame of mind and whether that infringement was willful.

    * The plaintiffs want to exclude mention of Alec’s work with them. I can see this one going either way, as it does again go to Alec’s frame of mind, (“these people know me and have worked with me, they will give me a heads up if I’m doing something they don’t like”) but also might create other impressions that would be false, for example that he was in direct communication with anyone who could officially speak for the rightsholders outside of that one meeting.

    There are also various other motions to exclude testimony. Some of them are more reasonable than others, but they basically all seem to be hoping to exclude highly relevant defenses for what Axanar is doing, basically they’re hedging their bets that the judge will be sympathetic to excluding at least some of this sort of evidence if the judge doesn’t issue a summary ruling in their case. I’d be very surprised if all or none of these requests are granted, it seems most likely that it’d be a mixture, for instance I can see a judge being sympathetic to the argument that Axanar’s accountant can’t be an expert witness to whether fan films financially hurt official films.

    * The plaintiffs want to cut out literally any evidence or reactions after the commencement of the case. That’s incredibly far-reaching, and seems like they’re asking way too much, although there’s possibly some facet of the law I could be missing here that makes this more reasonable than I think. There is some argument that infringement is infringement at the time the case is lodged, but later evidence does, again, go to establishing frame of mind, so this seems to be another general crack at eliminating unwillful infringement as a defense. I imagine this is the plaintiffs trying to hit the ball out of the park for this phase of the trial, which makes sense with their generally aggressive pre-trial strategy.

    1. Ah, I missed your discussion above that you intended to summarise these yourself later, lol. Hope you find my notes relevant- I write up a set like this whenever you post filings so I can balance the Plaintiffs’ case against the Defense’s.

      1. You input is always welcome, Matthew. Part of the fun of doing this blog is to share everyone’s take on things…even folks who don’t agree with me! It makes like more interesting!!! 🙂

    2. All excellent analyses, Matthew…as usual. And I’ll be covering all of these myself in a few more days (maybe several more days–it’s gonna be a BUSY week!).

      I would like to point out one common misunderstanding, though. What JJ Abrams said about his belief that fan films were a good thing and what Justin Lin said about Star Trek belonging to the fan is really IRRELEVANT and likely won’t be coming out at trial. Obviously, neither man is an official representative of the studios.

      BUT!!!

      There’s another VERY INTERESTING thing that came out during deposition. Justin Lin said that he was unfamiliar with Garth of Izar and didn’t really know who he was. Lin was hired by the studios specifically because he was a self-declared “super-fan” of Star Trek. So if he couldn’t recollect Garth of Izar, it goes to the argument that Garth wasn’t really an essential part of the “heart” of Star Trek and therefore should not be considered a protectable character. Similarly, JJ Abrams, while not a self-professed Star Trek fan, presumably did a good amount of research on Star Trek before creating his reboot in 2009. Abrams was, it turns out, familiar with Garth (based, one would guess, on his research) and stated in his deposition that he did not believe Garth to have been a significant character in the overall history of the Star Trek franchise as a whole. (Kirk, Spock, McCoy, etc. would be considered significant characters…not Garth of Izar.)

      Both directors, while not studio spokespeople, can be considered special kinds of experts in Star Trek, having been trusted enough by the studios to shepherd their prized franchise into the contemporary world of summer blockbuster feature films. If neither of these men feel that Garth of Izar is a significant character (and one of them doesn’t even know who he is), then that should carry a lot more weight with the jury than if the defense lawyer simply stated it as either fact or opinion.

  17. This is incredibly ridiculous !
    The whole thing is about fan films and they want to discard testimony about fan films data ?
    Well, any judge would/should be curious to see what these data are because no matter the plaintiffs say, it IS relevant, particularly considering the defense strategy about willful/non-willful aspect.

    And for the expert status, no one needs it to testify about the results of a search he/she performed and, fortunately, rendred public recently… It contains enough references, and is in fact relatively easy to reproduce by anyone, so an eventual “real expert with the proper official degree” could not say fan films do not exist.
    More, criminal affairs deal with witnesses on daily basis, and very few of them are statutory experts. And this is the very difference between experts and witnesses, between proper and lazy legal work. Plaintiffs can not argue that the core of the affair is a waste of court time !
    For instance, it is absolutely wrong to say the document is too long to be used: again they are too lazy to summarize it in a table where infos are presented in a synthetic form (you know that thing with rows and columns…).
    But everyone understands that this document is the lethal sum of evidences of the defendants that can not be disputed as they are public knowledge.

    It could seem it is too late for plaintiffs to claim now after 50 years of tolerance, but unfortunately, I can not see the judge to make a precedent in forcing the owners to sue any copyright infringement to keep their option available (nor deprivating them of their rights on this sole basis). His only solution there is to rule infringement, but non-willful one. A no-win and no-lose scenario…

  18. Don’t sell yourself short, Jonathan. The only one here that sounded like Michael Hinman was Sandy Greenberg. Seriously though, would that pic of you in the Axanar shirt work for or against the plaintiffs’ arguments?

    1. Actually, the purpose of that photo woudl be to show that, four months before CBS and P filed a lawsuit against Axanar, a different $375,000 fan film had a red carpet premiere in the heart of L.A., sold merchandise and tickets, and even had the words “Star Trek” up on the theater marquis. What shirt I’m wearing is actually mostly irrelevant aside from showing (thanks to my blog post) that Alec Peters was most likely aware of this red carpet premiere…reinforcing his belief that the studios were okay with Star Trek fan films.

  19. These motions from the defence reek of desperation. The bulk of what they’re trying to exclude and the grounds for it has already been denied by the judge in the MTD. There’s no way he’s going to grant these. Trying to exclude the testimony of Terry and Christian is laughable. I can certainly understand the Plaintiffs wanting to exclude your “testimony” because you certainly don’t fit the definition of an expert witness:

    Rule 702 of the Federal Rules of Evidence says experts can be qualified:

    “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

    (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

    (b) the testimony is based on sufficient facts or data

    (c) the testimony is the product of reliable principles and methods; and

    (d) the expert has reliably applied the principles and methods to the facts of the case.”

    1. I’d say I qualify on all of the above, Mr. U.:

      a) I obviously have specialized knowledge of fan films–read the blog, dude!–and worked on four of those films personally.

      b) I personally viewed over 100 different Star Trek fan films that do, in fact, exist and are accessible on the Internet. One of the facts that will be presented to the jury (hopefully) is that there were at least 100 different Star Trek fan films and series produced and released onto the Internet without challenge by the studios. Those are facts I can attest to from having:
      1. Viewed them personally;
      2. Researched them thoroughly and written about them, including interviewing dozens of fan filmmakers themselves;
      3. Worked for Paramount/Viacom as a Star Trek consultant for eight years (meaning I know a Star Trek fan film when I see it–I’m not just guessing).

      c) In this case, the method is the oldest scientific technique known to man: observation. I also use research and journalistic query (interviews).

      d) Since the facts of the case include the existence of many, many Star Trek fan films and I myself spend countless hours writing about them, them I would say, yes, I apply the principles of observation, research, and journalistic query (interviewing) to the facts of the case.

  20. Well thanks for the very entertaining blog post, as I was ROFLMAO at various, multiple places while reading. Loeb & loeb should take that material to Saturday Night Live! I mean, do they enjoy insulting the Judge’s intelligence and that of a possible jury, I can only say WOW,….JUST WOW. Almost equal to weapons grade stupid. But I digress, as I may be too easily amused

  21. Now if anyone could believe the BS he’s shoveling and have balls enough to call himself Mr Universe it’d have to me Hinman

    1. I don’t think Michael Hinman has any reason to hide his identity, though. I post all of his comments unless he uses his potty mouth (since I already gave him his warning). Mr. U. doesn’t seem to be dropped f-bombs, so had Michael posted this comment, I would certainly have approved it.

      That said, this e-mail was routed through an IP address on the Island of Malta, and although Michael lives on the island of Grenada, the two islands are pretty far apart! (Grenada’s in the southern Caribbean and Malta is in the eastern Mediterranean.) And anyway, Mike’s in Pennsylvania at the moment.

      1. I’m curious if the “Mr. Universe” handle is a hat tip to the character of the same name in Serenity/Firefly? You know *spoiler alert* the character who married a sex bot and betrayed the noble members of the resistance who were fighting against the monolithic powers of a ubiquitous and corrupt institution, right before that corrupt institution killed him off. Now, for what might that be an analogy?

  22. Jonathan,
    The attorneys for CBS/Paramont are just trying to save time, and money. You have nothin to contribute. I have never made a Stsr Trek fan film (always wanted to), and even I knew the rule of “don’t make money”. Alec Peters, who claims he was a producer of Star Trek New Voyages, and even got their studio for them, damn well knew the rules! He even stated in an article on The Wrap (I think that was where) that he knew those rules. Yet, he still put money and other perks with monetary value in his own pocket (and his girlfriend, and others).
    Let us stop playing games!

    1. “Yet, he still put money and other perks with monetary value in his own pocket (and his girlfriend, and others).”

      Just curious, Daniel, for the record: how do you know that what you just said is true? Is it because the plaintiffs told you it was and the plaintiffs have been stating only the objective, unbiased facts this entire time because they have no reason to do otherwise?

        1. Alec told you personally, “I put perks with monetary value in my own pocket and my girlfriend’s and other people’s pockets…”? That’s quite an incriminating thing to say, don’t you think?

          Somehow, I doubt Alec used those words. But feel feel to shoot me a copy of the e-mail or IM where he said that to you…unless it was over the phone. Was it over the phone, Daniel? Because that just doesn’t sound to me like something Alec Peters would say.

          But hey, maybe I’m the one who’s wrong in this conversation. Anything’s possible! 🙂

          1. Jonathan,

            Instead of making silly jokes, and attempting to deflect facts, please address the issues.

            No where in my post did I write a quote from Peter’s stating “I put perks of monetary value” and etc….
            I was referring to an interview he gave admitting he knew the rule, and pointing out how he broke that rule anyway.
            Let us deal with the issues.

            Do you deny that Peters knew the rule about not making money?

            Do you deny that Peters took money from Star Trek fans for the purpose making a Star Trek fan film and then paid himself (and others) a salary (plus travel, expenses, etc…)?

            Do you deny that a huge portion of those funds (intended for a fan film) went into a studio to be used for Alec’s profit ?

            Please don’t bother with the “Alec Peters paid the money back” line, or claim he donated $150,000 of his own money. It sounds like he just paid the rent on the studio lease that he was personally responsible for. And wasn’t he using the studio to house his other business?

            I have read a lot of Peters interviews, posts and watched his videos. His story is always changing, he is always pointing the finger at others.

            It is time to be as transparent as Alec claims!

          2. I’m going to deny all three of your suppositions, Daniel, but please hear me out because I think there are a LOT of misunderstandings and misconceptions out there about what really happened here.

            1) There was never any official “you can’t make a profit” rule about Star Trek fan films. It was an assumption that most fan filmmakers made based on James Cawley’s claim that that was what the studio told him back in 2003. James never produced an e-mail or letter from the studio(s), and neither Viacom, Paramount, nor CBS ever confirmed or denied the “rule” existed, so fan filmmakers continued to just assume it was true. Why not, right? But the rule was never official until six months AFTER the lawsuit was filed and the guidelines came out. So did Alec “know” the rule about not making money, as you ask? He knew the RUMOR of the rule, and he spoke many times with CBS about his plans for Axanar and requested each time that they either confirm or deny that rule to provide him (and other fan filmmakers) more guidance so that none of them (including him) ever accidentally stepped over some invisible line. The fact that, after four in-person meetings with studio executives, CBS still refused to confirm that the “you can’t make any profits” was an official rule means that Alec may indeed have been justified in believing that this rule wasn’t official. Nevertheless, he still intended to distribute Axanar for free and make no profit. Now we just have to define “profit,” and I think you and I have different definitions of it. I’ve owned two small businesses in my life, so I use that as a basis of my definition of the term. So let’s take a look at what “profit” might mean.

            2) Profit and salary are two VERY different things. When my brother and I owned 2-Lane Media, Inc. in the 1990s, we each got a salary, as did the 20-or-so people we employed. But our business was never profitable…even after seven years. We’d finish a fiscal year with $2 million in gross revenue and $2.2 million in expenses. Had it been the reverse, then yes, we would have been profitable. But that entire time, my brother and I still paid ourselves salaries. And to be honest, our salaries were half of what our art directors and designers and marketing/sales people were getting paid. David and I could afford to live modestly for the sake of growing the business.

            Some fan films are very similar to small businesses, or at least, business endeavors. Axanar wasn’t the first fan production to pay professionals, Daniel. It wasn’t even the second or the third. I don’t think people are acknowledging that Star Trek Continues has paid people salaries for more than three years, most about the same amount as Diana Kingsbury was paid. Does that make it right? Well, actually, it’s not entirely wrong. There is nothing inherently problematic about paying an electrician or a prop maker if they are the only ones who can do that job (and aren’t willing to do it for free). The same goes for VFX, make-up, costumers, editors, etc. Heck, the editor for New Voyages’ George Takei episode “World Enough and Time” was paid $60,000 for eight straight months of work. Renegades pays a lot of its actors and crew.

            So the question is, if it’s okay to pay people who work on fan films, then why should the show-runner be the only one who does NOT get paid? Should my brother and I have taken zero salaries for seven years because we owned the small business? I’ve never seen the logic in requiring a show-runner to either be independently wealthy or to go broke just for being the one guy who probably works the hardest and holds it all together. Alec’s primary job (along with everything else he did) was to RAISE MONEY. That’s what an Executive Producer does (look it up). And in the end, Alec was able to generate over a million dollars in donations. Compared to that, $38K is a very reasonable “salary” (the fact that it was actually REIMBURSEMENT is something I’m ignoring right now because that truth seems to upset you, Daniel…so let’s call it a “salary” for the sake of argument).

            So if Tobias Richter usually charges $200/hour to do his visual effects (I have no idea how much he actually charges) and offers to do it for Axanar for only $38/hour, then I say we got a bargain. And if a regular Hollywood Executive Producer would charge $200,000/year to raise a million dollars in financing and offers to bring in the same amount for $38,000/year plus expenses (like travel), then again, I’d say it was a total bargain.

            I don’t think the detractors out there understand that Axanar was always intended to be a new kind of fan film, building on the professional nature of other fan films like Renegades but also trying to surpass it. And back in 2014 and 2015, it was indeed a bit of a “space race” among fan films. We look back on that now with “shock,” in the same way we look back at pre-September 11 airport security measures (remember when you could meet people at the gate as they got off the plane?) with that same “What the heck were we thinking???” hindsight. But that was the pre-Axanar-lawsuit world of fan films. And everything Alec Peters was doing, he told the studios about. They never tried to stop him, despite being told everything.

            3) And that included the plan to build Ares Studios. That was never hidden from CBS. Of course, what some have called “for profit” was never meant to generate wealth at the levels of “Lifestyles of the Rich and Famous.” Alec simply wanted to put the proceeds back into the studio–pay rent, utilities, host classes and seminars, and yes, pay a few people salaries to run the place. Money raised would go back into operations. And with this “engine” of rental fees paying expenses, Ares Studios would be–like Starbase Studios in Oklahoma and Retro Studios in New York State–a place for fans to come and film their projects in a professional-quality studio for a fraction of what a normal studio would cost to rent. That was the dream. It wasn’t a dream for Alec Peters to buy a yacht to catch all his own fish so that his personal chef could make him and his cronies fresh sushi each night.

            And remember that, when all is said and done, Axanar has NOT made a profit. Nor was it ever intended to. That fact will be brought up at trial. Millions of people have seen Prelude to Axanar for free. Had they even paid $1 each for a ticket, that would have been a million dollars in profit. But viewers have paid nothing, so the fan film has not generated any profit.

            Donations are not profit. They just aren’t. Try to find a law that shows they are, Daniel, but you won’t find one. If ten or twenty people pool their money to make a fan film, that’s not profit. If a hundred people pool their money to make a fan film, that’s also not profit. If a thousand people pool their money to make a fan film, is there suddenly a difference? I don’t think there’s a line where it kicks in (157 donors is okay but 158 suddenly isn’t?). And if those funds are used to pay electricians or make-up people or costumers or VFX artists, that’s not profit for those professionals any more than the salary my brother and I paid our lead programmer was profit for her. And if an executive producer is being paid a fraction of his usual rate to generate more donations, that is not profit either…even if his expenses are getting paid, as well. Business expenses are still justifiable expenses, just like money for lumber and paint to build sets or toilet paper for the bathroom or craft services to feed the actors and crew during filming. When my development team flew to Itasca, IL to visit the Willy Wonka Candy Factory (Nestle was one of our clients) and work with the executives there on plans for designing Wonka.com, 2-Lane Media paid for airfare, rental car, hotel, and meals. That wasn’t profit either.

            So there you are, Daniel. Probably not the answer you were expecting or wanting, but still a very mature and intelligent and respectful response. I hope that you will respond in kind. You may choose to disagree with some or most or all of what I’ve said…and that’s fine. I welcome discussion and debate on this site. Just please be respectful and (if possible) at least a teensy bit open-minded. Everything I’ve said is true. Whether or not you choose to believe it as I do is, of course, up to you.

  23. Jonathan,

    No where did I use the term “profit” I know Peters and his supporters like to use a strict accounting interpretation of that word to further their agenda.

    Long before the lawsuit, at Fedcon 2014, Alec Peters responded to a convention goers question about Axanar getting licensing. Alec related that CBS laid down general guidelines, “that basically that general guide line is Don’t make any money” (you can YouTube this). In August of 2015, in an interview with The Wrap, Peters related that he and his team met with CBS prior to production, and the network didn’t offer any specific guidelines concerning what his crew could and could not do, simply that he couldn’t make money off of the project. You can still google this article. Clearly, Peters knew what the rule was and still made money from the project (as well as world travel, food, gas, tires, etc…).

    My understanding is that Peters formed a for profit corporation (calling it a non profit) with the donations and is paying himself a “salary”. This is clearly a feeble manipulation to get around the guidelines.

    I do agree with you about there not being anything wrong with paying others to work on your project (electricians, SAG actors, etc..).
    If you need to.

    I absolutely do not believe it was appropriate for Alec Peters to pay himself a “salary” to make his hobby film, something that he desired to make. No one asked him to do this. It was his choice. If he could not afford the time, he should not do the film.

    You related that Peters deserved to be paid $38,000 (I hear it was closer to $65,000) as the Executive Producer because he raised so much money to produce Axanar, yet you failed to mention that there was no money left to make the movie! The money went to all those expenses. Maybe he should have hired someone else to produce.

    I don’t think you can compare Peters studio with Starbase studios or Retro studios. To begin with the people that run them do not pay themselves! They do not put money into their own pockets!
    Alec took money from fans that was intended to be used to make a fan film and built a studio that would later be used to garner revenue. Who was going to be paid to run it? I think I know.

    1. “The money went to all those expenses.”

      You mean like building sets, filming equipment, costumes, props, etc.? I think those are totally justified expenses.

      Anyway, Daniel, Prelude to Axanar hasn’t made a dime because its available for viewing for free online. If Alec were charging to see it, then yes, I’d say he was violating the unwritten, unofficial guideline. But the plan was always to spend every penny that was donated on the film itself and production related expenses (including the expenses of building a studio and raising money for the film itself).

      “I absolutely do not believe it was appropriate for Alec Peters to pay himself a “salary” to make his hobby film, something that he desired to make. No one asked him to do this. It was his choice.”

      No one asked my brother and me to start a small multimedia business back in 1993. It was our choice. Should we not have paid ourselves a salary?

      “My understanding is that Peters formed a for profit corporation (calling it a non profit) with the donations and is paying himself a “salary”.”

      Your understanding is incorrect. In the U.S., you cannot call yourself a non-profit corporation without first being a for-profit corporation and then filing for and being granted non-profit 501c(3) status. Ares Studios was always intended to be non-profit (and non-profits are allowed to pay salaries–just ask the Red Cross), but you can’t simply pop out of the starting gate as non-profit. You must have established financial records first as a regular corporation before you can apply for non-profit status.

      I hope this helps you understand the situation better. If not, then I’m running out of ways to explain it to you, Daniel.

  24. Jonathan,

    Your quote, “the money went to all those expenses” raises a good point. Where did the money go? I mean other than the personal benefit of Alec Peters. Can you show us photographs of a million dollars worth if sets and costumes? I would love to see them! I saw the unfinished bridge set.

    I don’t know why you brought up Prelude To Axanar, it was Star Trek:Axanar that started the controversy. As far as the plan for “every penny” of donated money, well it sure didn’t work out. Did it? Why would anyone build a studio for one movie? That was either just an irresponsible business move, or someone with a hidden agenda for other than what he solicited funds for. Why did a fan film need a lobby, office space, dressing rooms, prop dept., make up room etc…? You only build that stuff if you are an ongoing concern, and not a fan film.

    Didn’t the lawsuit come out immediately after news of the studio and Alec’s first transparent financials?

    You are probably right, no one asked you or your brother to start a business! It was totally appropriate for you to pay yourselves. Star Trek:Axanar was not a business. It was a fan film. One that raised money from donors for a fan film (not investors that weigh risks and hope for profit), one that the IP owners had a rule to “not make money”, one that the producer knew the rule and paid himself mucho dinero anyway! Strange that there is no money left to make the film.

    Also, Long ago Alec Peters told people his group was a non profit. Then when it was publically determined to NOT be a non profit he claimed he was in the process of making it one. It still is not one! It has been over a year! Him paying himself from donated funds, from a “non profit” he created for a fan film he wanted to make is a sham. How can you not see that? I understand he is your friend. I respect you for defending a friend (to a certain point), but there is so much information out there, from Peters himself, that clearly portray him as a liar, manipulator, and thief.

    Additionally, you did not respond to any of the points I made (such as Peters admitting to knowing the “rule” about making money, his making money anyway, the difference between his studio (which he now claims is not a studio) and Starbase studios. I think most of us are more interested in facts than “spin”.

    1. Daniel, because I love you so darn much and making you happy is my number one priority in life, I shall respond to ALL of your points in this latest post…one by one:

      – – –

      “Your quote, “the money went to all those expenses” raises a good point. Where did the money go? I mean other than the personal benefit of Alec Peters. Can you show us photographs of a million dollars worth if sets and costumes? I would love to see them! I saw the unfinished bridge set.”

      The money went to, among other things, computer hardware and software for editing, contract labor, convention tables and displays for marketing purposes, costumes, filming equipment, insurance, Internet fees, legal expenses not related to the lawsuit (like contracts and the such), merchandise like patches and T-shirts and other perks, music (for Prelude and the short Vulcan scene…the composer was paid), office furniture and supplies, payment processing fees for donations, payroll, permits and fees, phone, printing, production expenses on the two video releases, props, rent, set construction materials like lumber and paint, shipping of donor perks, shipping supplies, travel expenses (all justified as legitimate trips to conventions where Axanar had a presence), utilities, and visual FX for both Prelude and the Vulcan scene.

      So no, I can’t show you photographs of a million dollars worth of sets and costumes, but I can show you what a couple of hundred thousand dollars will buy you. Remember that, back in 2003, James Cawley reportedly spent $125,000 of his own money building half of a bridge set, a transporter room, and a partial crew quarters and corridor. Axanar built a full bridge of a higher frame quality on casters that could roll, a transporter set, crew quarters, a partial Klingon bridge, and a few other smaller things…ten years after James Cawley did (so allow for a bit of inflation). Alec also paid industry professional set-builders (who actually worked previously on Star Trek and Babylon 5), so those costs need to be included, as well. As such, set costs in the low 6-figure range are perfectly reasonable and actually rather frugal considering how much such sets cost to construct when the major studios build them. The Enterprise-D bridge alone cost $600,000…back in 1987!

      – – –

      “I don’t know why you brought up Prelude To Axanar, it was Star Trek:Axanar that started the controversy.”

      What controversy specifically are you referring to? There seem to be so many! 🙂

      – – –

      “As far as the plan for “every penny” of donated money, well it sure didn’t work out. Did it? Why would anyone build a studio for one movie? That was either just an irresponsible business move, or someone with a hidden agenda for other than what he solicited funds for.”

      Hmm, it seems like someone did not bother reading the Axanar Kickstarter page! Wait a second, I’ll get the text for you, Daniel. Okay, here it is:

      We have two potential locations we are negotiating for to serve as our sound stage in Valencia, CA, just north of LA. This will be the permanent home of Axanar Productions and allow us to do more than just Axanar, from other adventures in the Star Trek universe and beyond. David Gerrold (author of “The Trouble with Tribbles”) is already lined up to shoot his sci-fi series “Running Dark” here. First year’s rent is $ 125,000.

      If there was a “hidden agenda,” Daniel…well, Alec needs to learn the finer points of HIDING things, then, doesn’t he? Mentioning his evil plan right there on the Kickstarter page for all the donors to see seems more transparent than sneaky…at least to me.

      – – –

      “Why did a fan film need a lobby, office space, dressing rooms, prop dept., make up room etc…? You only build that stuff if you are an ongoing concern, and not a fan film.”

      Well, let’s see. A lobby is a place to greet people when they arrive. Office space includes rooms for Robert Meyer Burnett to do editing, for Diana Kingsbury to store and ship perks from, and for Alec Peters to manage the project, raise more funding for additional projects, and negotiate rentals of the studio with other fan films and also with independent producers making movies, web series, and/or commercials. Dressing rooms and make-up rooms would seem to be a given if you want to have actors looking like Vulcans and Klingons and Andorians and not wearing jeans and T-shirts in every scene. 🙂

      And remember, using Ares Studios to help other fan productions have a quality facility in which to film at an affordable price was ALWAYS part of the game plan, Daniel.

      – – –

      “Didn’t the lawsuit come out immediately after news of the studio and Alec’s first transparent financials?”

      Well, if you define “immediately” as “five and a half months later,” then yeah, I suppose. The annual report was released on July 7, 2015. The lawsuit was filed on December 29, 2105.

      – – –

      “You are probably right, no one asked you or your brother to start a business! It was totally appropriate for you to pay yourselves. Star Trek:Axanar was not a business. It was a fan film. One that raised money from donors for a fan film (not investors that weigh risks and hope for profit), one that the IP owners had a rule to “not make money”, one that the producer knew the rule and paid himself mucho dinero anyway! Strange that there is no money left to make the film.”

      Again, you need to define “mucho dinero.” Personally, I think it was a bargain price considering that Alec’s efforts (and really, back then, it WAS his efforts and Diana’s doing 90% of the work day after day) brought in that $1.2 million dollars. I’m still confused every time I hear someone say that Alec is the one guy who should NOT have been paid.

      As for saying a fan film is not a business, I have to ask, “Why isn’t it?” Let’s take a look at Star Trek Continues, for example. Absolutely a fan film series. But they have a permanent facility, too. They pay people. They have to organize and manage many moving parts. Up until this past year, they had crowd-funding campaigns, processed donations, and fulfilled perks. They have many professionals working for them, including make-up people, musical composers and actual musicians, lighting specialists, and of course, many of the actors themselves. I would say that, yes, there are many aspects of Star Trek Continues that qualify as a business. Granted, it’s a non-profit business which does not employ people full-time, but there are many businesses that fit that description (including one I did freelance work for a few years ago).

      As for there being no money left to make the film, there would have been more than $200,000 available had the lawsuit not happened.

      – – –

      “Also, Long ago Alec Peters told people his group was a non profit. Then when it was publically determined to NOT be a non profit he claimed he was in the process of making it one. It still is not one! It has been over a year!”

      How about I just quote from The Foundation Group website:

      Typically, IRS 501(c)(3) approval takes between 2 and 12 months, inclusive of likely written follow-up questions. Sometimes it takes a little less; sometimes a little more.

      I am told by Alec Peters that the 501(c)(3) approval process is nearly complete and should be finished by early next year. How long did you think it was supposed to take, Daniel, if I may ask? Sometimes it can take as long as 8 months just to get your application assigned to an agent for review.

      – – –

      “Him paying himself from donated funds, from a “non profit” he created for a fan film he wanted to make is a sham. How can you not see that?”

      Non-profit organizations run on donations and are allowed to pay people salaries, Daniel. I could respond “How can you not see that?” But I won’t bother. You seem to have your mind made up anyway that this is a sham…despite anything and everything I’m telling you. I wonder why you lock out and disregard the information I give you. Surely, you can’t believe it’s ALL spin. Heck, your “information” (mostly hearsay) is much more spin-worthy than anything I might be telling you. You’re simply trying to pin everything against Alec Peters. But spin is spin, Daniel.

      – – –

      “I understand he is your friend. I respect you for defending a friend (to a certain point), but there is so much information out there, from Peters himself, that clearly portray him as a liar, manipulator, and thief.”

      Maybe I missed that memo about him being a liar, manipulator, and thief. 🙂

      Look, Alec has never lied to me, and he’s never stolen from me. I donated my money to make a mockumentary fan film, and he delivered. I donated my money to help build a studio, and he delivered. I donated my money to make the first half-hour of a two-hour Axanar movie…and a lawsuit got in the way. I don’t blame Alec for that; I blame Paramount (initially) and (after May) I blame CBS. As for manipulating, well, I can’t really speak to that, as it’s a pretty vague term. My 6-year-old manipulates everything from the remote control to Legos to his Spider-man action figure. Alec has a lot of action figures, too (a long line of Captain America collectibles). Is that what you’re talking about? Oh, you mean he manipulates PEOPLE! Personally, I haven’t seen it personally. He’s ASKED me a number of times to help with this or that. He’s SUGGESTED a few articles I could write here on FAN FILM FACTOR (like doing a piece on Dreadnought Dominion…that was his most recent suggestion). Sometimes I agree; sometimes I don’t. Over Thanksgiving, he suggested I write a blog on what would happen if Axanar wins the lawsuit…since nobody was really looking at that yet. I thought about it and decided not to (for a number of reasons that I won’t get into right now). Had Alec been a true manipulator, one would have expected him to try to manipulate me into writing the article he wanted me to. Instead, he respected my decision not to.

      Look, I’ve known Alec for more than two years now. I think he’s a good person at heart, an excellent project leader, an amazing marketer, and a die-hard Trek fan. Can he be a dick sometimes? Yep. That’s true of many people, Daniel, as I’m sure you’re personally aware. That doesn’t make Alec a liar or a thief, though. So if given a choice of trusting my gut and my two years of experiences dealing directly with Alec Peters or putting my faith into a bunch of strangers who just want to publicly crucify him with vitriolic accusations based mostly on misinformation (remember, I’ve got the full financials on my laptop now; you don’t, Daniel)…well, I think you can understand my decision to stand by my friend. No, I don’t have blinders on. In fact, I think I know more about this case and this person than the vast majority of people purporting to be purveyors of righteous indignation and “truth.”

      – – –

      “Additionally, you did not respond to any of the points I made (such as Peters admitting to knowing the “rule” about making money, his making money anyway, the difference between his studio (which he now claims is not a studio) and Starbase studios. I think most of us are more interested in facts than “spin”.”

      My apologies, Daniel. I wasn’t aware that I had an obligation to respond to every one of the points you bring up. I’ve now spent just over 90 minutes writing this response, and frankly, I would like to have some lunch before I pick up my son and then prepare for what promises to be a wild Christmas weekend. So I hope you’ll forgive me if I don’t repeat this level of personal TLC each time you post a comment, Daniel.

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