In Part 1, I explained what a motion in limine is, so I don’t need to explain it again, right? Instead I can just jump into the ten motions the plaintiffs made in the AXANAR lawsuit to try to get certain key witnesses (including me!) and pieces of evidence excluded so that the jury will never see or hear them.
Here are all ten motions collected into one document:
To save you from having to read all 63 pages (!!!), I’ll be providing a nice ‘n tidy summary for you of each motion. In a few cases, I might comment on the strength or weakness of a particular argument. But for the most part, I’m going to stick to giving an overview of why the plaintiffs believe each item should be excluded, and also how that item could potentially hurt the plaintiffs if it gets in front of the jury. (After I finish going through all of the plaintiffs’ motions, I’ll do the same for the defense team.)
My apologies in advance for another long blog, but this time, there are TEN motions to cover! Read it in chunks if your eyes start to glaze.
So here’s what the plaintiffs want to exclude…
1. Alec Peters’ revised financial statements
Reason(s) the plaintiffs give for excluding it – Alec Peters prepared a revised financial statement AFTER getting sued. The financial statement he published in 2015 in the Axanar Annual Report 2015 was the catalyst that (at least in part) triggered the lawsuit…and it’s one of the things the plaintiffs are suing him over. The more recent revised financial statement was, according to the plaintiffs, obviously prepared to make Alec look as good as possible in front of a jury, and that’s prejudicial (and possibly hearsay…although I’m not exactly sure how it’s hearsay, and my legal eagles are already on vacation this week!).
Reason(s) it could hurt the plaintiffs’ case – The plaintiffs are trying to negate the “fair use” defense by focusing on how much Alec Peters personally profited–and planned to profit–from the Axanar works. (The fact that “fair use” does NOT require zero profits in order to be valid may be a point that the plaintiffs are a little fuzzy about.) As such, the more greedy Alec appears to be, and the more “profitable” Axanar seems, the more likely that the jury will perceive this “fan film” as a professional commercial endeavor. And even though this particular motion is redacted like a zebra, I’m guessing Alec’s revised financial statement–the one prepared last month by a professional accountant–paints a much less “profitable” picture of the entire venture and would therefore undermine the “greedy” perception that the plaintiffs want the jury to have of the defendant.
2. Axanar scripts (re)written after the lawsuit was filed
Reason(s) for excluding it -The studios sued Alec Peters on December 29, 2015. At that time, the script for the Axanar movie was “locked” (which, I think, does not mean what the plaintiffs think it means). However, THAT script is (in part) what they are suing for. Of course Alec is going to say he’s re-writing it. However, at least according to the plaintiffs, it doesn’t matter at all what Alec did AFTER getting sued. They’re suing over the script as it was WHEN he got sued…and anything else is irrelevant to the case.
Reason(s) it could hurt the plaintiffs’ case – If Alec Peters changes the Axanar movie to something that qualifies as fair use (assuming he convinces the jury that Prelude to Axanar is fair use, too), then he’s off the hook completely. The studios don’t want that. They want the script to remain as potentially damaging and full of infringements as possible!
3. Testimony and documents from J.J. Abrams and Justin Lin
Reason(s) for excluding it – This motion is also heavily redacted, mostly because it contains references to testimony given by Abrams and Lin during deposition, and that’s been designated as confidential. However, the main reason the plaintiffs give for excluding the testimony of the two directors is that neither man is a copyright owner of Star Trek nor authorized to speak on behalf of the copyright holders. Therefore, any testimony they give is irrelevant. In other words, it doesn’t matter what Abrams or Lin think of Star Trek fan films personally; their testimony would carry the same amount of weight as pulling any Trekkie out of a con and putting them on the stand. Also, apparently Abrams and Lin hadn’t even seen Prelude to Axanar when they made their two now-well-known public comments about fan films…
JJ ABRAMS: “…this wasn’t an appropriate way to deal with the fans. The fans of Star Trek are part of this world.”
JUSTIN LIN: “This is getting ridiculous! I support the fans. Trek belongs to all of us.”
Even though the two men were directors hired by Paramount to produce major Star Trek blockbuster features, the plaintiffs say their comments do not reflect the views or opinions of the studios themselves and are, therefore, irrelevant.
Reason(s) it could hurt the plaintiffs’ case -The plaintiffs are correct that Abrams’ and Lins’ feelings about fan films are probably irrelevant. But we leaned in one of the defense filings during motions for summary dismissal that the two men had also said other things during their testimony…things that could be problematic for the plaintiffs when trying to beat the fair use defense. Although not spokesmen for the studios, these two men could be considered Star Trek “experts” because of their close, professional association with the franchise. Indeed, Lin was hired (according to reports and interviews with both himself and studio publicists) specifically because he was such a huge Star Trek fan. In deposition, Justin Lin said he had no idea who Garth of Izar is/was. J.J. Abrams said during deposition that Garth was not a major character in Star Trek lore. Obviously, the use of Garth is a huge linchpin in the studios’ complaint about infringement. But the defense is arguing that Garth is such a minor character that he isn’t even protectable with an individual copyright. While what Abrams and Lin have to say about fan films could be considered irrelevant; what they have to say about Garth could be quite relevant.
4. Testimony and documents from Reece Watkins
Reason(s) for excluding it – Reece Watkins is a fellow Axanar guest blogger (like myself) and supporter (like myself). He spends a lot of time on Facebook and claims to have a good deal of evidence, based on posts from other fans, that Prelude to Axanar didn’t harm the Star Trek franchise at all and instead rekindled interest in it. Reece himself actually went out and bought more Star Trek merchandise because Axanar re-energized him as a fan, and many Facebook friends said the same in posted comments to him. The defense wants to share those comments with the jury.
The problem, say the plaintiffs, is that most of Reece’s testimony would be hearsay and therefore inadmissible in court. Witnesses can only give testimony based on things they directly saw, heard, experienced, or did. Reece would not be allowed to talk about what other fans did because, well, he didn’t do them himself. If a fan said, “Hey, I saw Axanar and then went out and bought the boxed set of the Next Generation Blu-ray!” then great. But Reece has no proof that actually happened. And even if he himself can testify to doing that very thing, in the end, he’s just one fan…and his impact is minimal. Therefore, his testimony would be mostly irrelevant and would potentially provide an unfounded conclusion for the jury that they would actually need to make for themselves: that Axanar is not harmful to the studios financially.
Reason(s) it could hurt the plaintiffs’ case – Just as it will be nearly impossible for the plaintiffs to prove that Axanar will damage their property significantly (or even a little), it will also be nearly impossible for the defense to prove the opposite. Reece’s testimony, however, could tip the jury toward the Axanar camp, as Reece is “plugged into” fandom. So if he says that fans found new energy and enthusiasm for Star Trek based on watching Prelude, the jury will likely believe him rather than trying to decide for themselves. And because, in the end, Reece only speaks for himself or, at best, a few dozen out of a few million Trekkies, his unscientific, non-expert opinions that fans love Trek MORE because of Axanar is totally unreliable. And yet it would likely be easily believed by a jury unless the plaintiffs work really hard to bash Reece’s credibility, a time-consuming task that could backfire if the jury sees the plaintiffs as bullying a poor, helpless Trekkie. Better to just not let Reece up on the stand to begin with.
5. Testimony and documents from Jonathan Lane
(See my ranting blog from Saturday for more on this particular motion.)
Reason(s) for excluding me – I wrote up a massive 128-page History of Star Trek Fan Films that details a hundred different fan films and series with 250 hours produced and released/available online. My testimony, the plaintiffs believe, would only elaborate on what is in this document, which they consider to be hearsay evidence because, with the exception of YouTube links, my document is mostly “unsourced.” (This is incorrect, by the way. I sourced and included links to dozens of websites for fan films created by the filmmakers themselves.) Add to this the fact that the plaintiffs believe that I am a “lay witness” and not a qualified expert. (Of course, the plaintiffs might not be aware that I was paid as a freelance Star Trek expert consultant by Paramount and various Trek licensees for eight years!) And finally, say the plaintiffs, because the document is so long and includes so many fan films, each could become its own “mini-trial” and wind up taking days to go through in court…a waste of time for the jury.
Reason(s) it could hurt the plaintiffs’ case – If Alec Peters thought that it was okay to make a Star Trek fan film because there were 100 different Star Trek fan films and series that preceded his, and none was ever taken down by the studio, then he can argue that any infringement he may have committed was non-willful…which carries a penalty of only $200 per violation (and the plaintiffs have listed 57 alleged violations). Otherwise, without a justification for thinking the studios were okay with fan films, Alec Peters could be found guilty of willful infringement, and that carries a penalty of $150,000 per violation if he’s found guilty.
So 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 $11,000 or so. Naturally, the plaintiffs want the verdict to be as large as possible…and what better way to do that than to keep me and my 128-page document away from the jury?
6. Testimony and documents regarding Star Trek fan films
Reason(s) for excluding it – From the Department of Redundancy Department, the plaintiffs bring you essentially the same motion they just filed as #5…just without the Jonathan Lane part. But they want to make extra, extra sure that the jury never learns that other Star Trek fan films exist or have ever existed!
And the reason? Well, they’re still using the “wasting time” argument, as the amount of infringement of each fan film would, according to them, need to be examined. (Frankly, all Alec Peters needed to see were a few fan series–like New Voyages, Continues, Renegades, and a few other obvious infringers–to make a reasonable assumption that the studios were okay with high-end Star Trek fan production. I doubt that would take days or that the jury would need to see 100 different fan films!)
But the other argument is one the plaintiffs have made time and time again, from their earliest filings all the way to their most recent motions for partial summary judgment. In trademark law (this is NOT a trademark case), there is a requirement for the trademark holder to vigorously defend their ownership or risk losing the ability to sue others for trademark infringement. The same is NOT true for copyright cases. In cases like this one, the plaintiffs don’t need to sue anyone–even for fifty years!–and they still have the right to sue anytime they choose to. The plaintiffs don’t want the jury to be confused about the differences between trademark and copyright law. So just because there are 100 different fan films and series and none was ever sued by the studios, that is totally irrelevant to this case. (Of course, it IS relevant if you’re talking about grounds for non-willful infringement–see #5 above–but for obvious reasons, the plaintiffs leave that part out of their motion.)
And there is a final, very interesting argument that the plaintiffs are throwing in: the professional quality of Prelude to Axanar. Even though there is nothing in copyright law defining quality as a basis for determining fair use (or the lack thereof), the plaintiffs are nevertheless trying to make it an issue for the jury. Therefore, they want to categorize Prelude to Axanar (and the never-completed full Axanar movie) as somehow not fan films because Axanar raised $1.4 million and employed professional actors and film crew…while other fan films didn’t. According to the plaintiffs, “…the jury could be confused into thinking that the Axanar works were the same as these amateur, low quality, low budget fan films.”
Perhaps…although that does assume that all other fan films were “amateur, low quality, and low budget”…which is far from true for such endeavors as Star Trek: Renegades, Star Trek Continues, and Star Trek: New Voyages. So obviously, it’s in the plaintiffs’ best interests to keep the jury from finding out about any of them. Remember that I’ve still got this photo (and many others) from the red carpet movie theater premiere of Star Trek: Renegades.
Reason(s) it could hurt the plaintiffs’ case – Pretty much the same reasons I gave for #5: the more the jury knows about other fan films and their quality, the less likely they are to think that Alec Peters was a lone wolf going too far.
7. Testimony and documents discussing Alec Peters’ previous work CBS and Paramount cataloguing the Star Trek props for auction
Reason(s) for excluding it – Years before Alec Peters began working on Axanar in earnest, he worked for the studios professionally. His job was cataloguing hundreds (perhaps thousands) of Star Trek props and set pieces for auction. But the plaintiffs aren’t suing him over his previous work for them; they’re suing for infringement of copyright. Therefore, any work he did for the studios previously they say is entirely irrelevant to the case at hand.
In one of their thinnest (and some might say weakest) attempts to exclude potentially damaging evidence, the plaintiffs are trying to convince Judge Klausner of the following (better to quote than to summarize because I just can’t do these words justice):
The admission of any such testimony and documents would be prejudicial because they are an obvious attempt to link Peters with CBS, to fool the jury into thinking he was authorized in some way to create the infringing Axanar works, when in reality, Peters’ work with CBS was performed years before the Axanar works, and had nothing to do with Star trek films. Such testimony would be highly confusing to the jury, and not probative of any of the issues in this case.
Reason(s) it could hurt the plaintiffs’ case – Despite the plaintiffs trying to justify their argument as fear of a confused jury, what they’re really afraid of is that the jury will ask the obvious question: “Well, if Alec Peters had a close, professional relationship with the studios, and he even talked to them about his project four different times, why didn’t they just tell him to stop?” This would, again, go toward proving non-willful infringement. Additionally, one might think that a person who had worked for the studios directly would be aware of their “hands off” policy regarding fan films and respect their ownership of Star Trek…and not just go off half-cocked doing willful infringement thinking they wouldn’t catch him. (And of course, Alec telling the studios multiple times what he’s doing is not the best way of making sure he doesn’t get caught.)
So yeah, the jury would likely be confused, but more by the arguments the plaintiffs would be making stating that Alec Peters was somehow doing all of this behind the studios’ back without them knowing about it.
8. Testimony, documents, or other evidence that that was made or created AFTER the initial filing of the complaint last December
Reason(s) for excluding it – So apparently, time stopped on December 29; anything that existed in the Axanar case was “locked in;” and nothing that has happened since matters. This includes things that were already mentioned, such as Alec Peters’ revised financial statements and the new Axanar script versions. It also includes J.J. Abrams’ and Justin Lin’s comments, fan reaction to the lawsuit, and of course, the fan film guidelines themselves. Why should all these things be excluded from evidence? Simple: they’re irrelevant. And why are they irrelevant? Um, er, well…I kinda can’t answer that because, y’know, the plaintiffs didn’t really explain it either. They’re just irrelevant, people! Don’t think about it.
Reason(s) it could hurt the plaintiffs’ case – Of course, if you do think about it, you realize that, in addition to what I’ve said above about the financials and script revisions and Abrams and Lin, there also the fan reactions to the lawsuit and the guidelines to think about. If the plaintiffs are trying to prove damages and it turns out their lawsuit has caused damage to the integrity of the property and fan enthusiasm for the brand, then it’s hard to blame any financial losses exclusively on Axanar and to rule out the bad publicity from the lawsuit. Also, the fan film guidelines being issued six months AFTER the lawsuit was filed only underscores the fact that Alec Peters had no guidance whatsoever from the studios despite repeatedly asking for some.
But most important is what seems to be a pretty obvious double-standard (or hypocrisy, if your prefer). So NOTHING post lawsuit filing is admissible? Well, wouldn’t that include the uncompleted Axanar feature film???? I mean, seriously! You can’t have it both ways, plaintiffs!! If the Axanar movie was only an unpublished, unfilmed script on December 29, 2015, then there’s nothing illegal about that. Do you know how many Trekkies write fan fiction that never gets published or filmed? I’ve got a few stories of my own (including an hysterical Voyager parody I should share one day…not today, though). But if time stopped the moment the lawsuit was filed, then the unfilmed Axanar script is just as irrelevant as all that other stuff…assuming the plaintiffs aren’t full of baloney.
9 and 10. Testimony of Christian Tregillis and Henry Jenkins
Reason(s) for excluding it – There were two briefs (in addition to my History of Star Trek Fan Films) filed on behalf of the defense. One was an essay by accountant Christian Tregillis saying, essentially, that:
- Fan films generally benefit commercial film studios;
- Prelude to Axanar benefited the plaintiffs in the same manner;
- There doesn’t seem to be any substance to claims that funds donated to Axanar were diverted from money that would otherwise have been spent by fans on “real” Star Trek films and products; and
- The defendants did not earn profits from Prelude to Axanar or their other Axanar projects.
The other was an essay by Henry Jenkins, the Provost’s Professor of Communication, Journalism, and Cinematic Arts at the University of Southern California. He’s also written over a dozen books and even has a rather lengthy Wikipedia page. In other words, Pr. Jenkins is a pretty big deal. And apparently, he wrote quite a bit about the Axanar lawsuit and fan films in general. To summarize quickly (since the professor outdoes even me in his ability to opine at length!), Jenkins says that:
- Fan films are generally good for a studio’s business because they keep fans involved and excited (and are free publicity);
- Axanar itself is pretty transformative and different from traditional Star Trek in many ways.
In short, the plaintiffs don’t believe either of these men qualifies as an expert witness. I mean, sure, one of them is a partner at a top-level accounting agency, certified in financial forensics, and the other is a distinguished professor at a top film and media school who has written 17 books, but that doesn’t make them experts.
How so? Well, for one thing, neither man has talked to the plaintiffs or examined their financial records. So how can Mr. Tregillis know that the studios benefited in any way from fans seeing Prelude to Axanar? How does he know for sure that fans weren’t spending their Trek dollars on donations to Alec Peters instead of buying a ticket to Star Trek Beyond? Did he personally interview all 14,000 donors or conduct some statistical analysis…or is he just assuming?
Same goes for the professor. He claims to believe that Axanar is transformative, but he isn’t an intellectual property attorney. He hasn’t practiced the finer points of law to know what should be the distinguishing legal characteristics of transformativeness. Instead, according to the plaintiffs, “…Prof. Jenkins is promoting a political agenda as to what he would like copyright law to be, rather than analyzing such films or Prelude to Axanar under existing copyright law.”
The plaintiffs also ding the professor for one very obvious error he made in his essay (probably because he never watched Voyager):
He remarks that seeing a female starship captain in Prelude to Axanar contrasts with the “promise of female equality that Star Trek producers have often failed to deliver upon.” Prof. Jenkins is apparently unaware that Plaintiffs produced a seven-season television series starring Kate Mulgrew in the lead role as the female captain of the titular starship Voyager. Thus, not only are Prof. Jenkins’ opinions lacking in any scientific or technical basis, they are uninformed and incorrect.
OUCH! But hey, they do make a good point.
Reason(s) it could hurt the plaintiffs’ case – Well, it would seem to be pretty obvious that both of these learned men (who may or may not be considered “experts”) have some very strong opinions in favor of Axanar. If the jury hears a high-level accountant say that Axanar didn’t make any profit and that the studios benefited from its existence, that’s damaging to the plaintiffs’ case. If a world-renown professor from USC says that fan films are a good thing and Axanar isn’t all that similar to Star Trek after all, well, even if his methodology is somewhat questionable (research, talking to people, and just kinda knowing things), his testimony would still influence the jury’s thinking about the case…possibly significantly.
But hey, isn’t that what’s supposed to happen in a lawsuit? Aren’t the jurors supposed to hear as much about the case as possible?
And that’s why challenges to expert witnesses don’t usually get upheld in the in limine motions. Judges are much more likely to allow a witness to be put on the stand and then let the opposing counsel challenge their expertise directly. “Professor, when you said that Star Trek producers often failed to deliver on the promise of female equality, was there a reason you completely ignored Kate Mulgrew’s leading character of Captain Kathryn Janeway on Star Trek: Voyager?”
Also, the judge can always rule later on, when a witness is questioned or at any time during the trial, that a particular piece of evidence or line of questioning is no longer permitted. So judges will usually err on the side of letting a witness testify and then seeing what happens..rather than keeping potentially key evidence away from the jury.
Next time, we take a look at what the DEFENSE doesn’t want the jury to see!