A closer look at the MOTIONS TO LIMIT EVIDENCE in the AXANAR LAWSUIT (Part 4)

In Part 1, I explained what a motion in limine is (so if you don’t know, go click on that link).  In Part 2, I took a look at the ten in limine motions that the plaintiffs filed asking the judge in the AXANAR lawsuit to exclude specific evidence from trial and prevent certain key witnesses from testifying in front of the jury.  And in Part 3, I began looking at the first four of the nine motions from the defense of what evidence and testimony they did not want the jury to see.

Here is a PDF document compiling all nine of the defense’s in limine motions:

Defense Motions to Exclude

And now, as God is my witness, I am going to finally finish up my analysis of all 19 of these motions (there’s only five left)!  Let’s get to it…

5. Personal drama, smear campaigns, and feuds with guys like Christian Gossett and Terry Macintosh (oh, and nothing about Diana Kingsbury being Alec’s girlfriend at the time)

Reason(s) the defense gives for excluding it – There are some BIG egos in this case…and a LOT of bluster.  Yes, some of it definitely came from Alec Peters himself.  But Alec isn’t the only one in this case with a ax(anar) to grind.  Prelude to Axanar‘s director, Christian Gossett, and its original marketing director, Terry McIntosh, have become quite the social media thorns in Alec’s side.  And if you don’t know the back story and all the ugly details, consider yourself lucky!  Seriously.  The less you dive into this cesspool of vitriol (from all sides), the happier your life will be.  Just imagine the Hatfields and McCoys and then put it online and raise it to an exponential factor of at least 10.

That said, the defense wants both Christian Gossett and Terry McIntosh excluded as witnesses entirely…which would be fine with Terry, as he reportedly doesn’t want to schlep all the way down from Washington State to Los Angeles just to sit in a courtroom for a few hours.  (I don’t blame him; it’s our rainy season.  People come to L.A. from Washington to see blue when they look up!)

So, can the defense use “They really, really hate Alec Peters, and so they shouldn’t testify…” as a reason for excluding both of these guys as witnesses?  Well, the defense can certainly try.  But there’s nothing the the law that states all witnesses must love the defendant.  And if there’s something that Alec Peters said or did that only Christian or Terry witnessed, then that argues for the judge to let them testify.

However, the judge could still bar the plaintiffs from asking these fellows about certain specific things that could either confuse or prejudice the jury.  One example the defense included was Terry’s testimony about Alec Peters trying to trademark the name “Axanar,” which the plaintiffs would obviously try to use to prove that Alec intended for his films to be commercially profitable.  But there are two problems with presenting this “fact” to the jury.  The first is that Alec Peters did NOT register Axanar as a trademark, so anything Terry says about Alec’s plans is purely speculative (you go on trial for things you did, not things you talked about doing but didn’t actually do).  And second, this is a copyright case, not a trademark case.  And the jury could easily be confused by bringing up this speculation if they don’t understand that there’s a huge difference between copyright and trademark.  Even if Alec was planning to trademark Axanar, that does NOT mean he was trying to copyright Star Trek for personal profit.  So it’s possible the judge could allow Terry and Christian as witness but place limits on what they’re allowed to be questioned about.

As for Diana Kingsbury’s relationship to Alec, well, that’s totally not relevant to a copyright infringement case.  And if the plaintiffs try to imply there was some “nefarious plot” the the two concocted for Axanar because they were dating, then this case quickly strays into National Enquirer territory and will not only waste the jury’s time with irrelevancies, but it’ll very likely prejudice the jury with something beyond speculative and bordering on ridiculous conspiracy theory.

Reason(s) it could hurt the defendants’ case – Well, obviously, anything Christian and Terry say can and will be used against Alec Peters in a court of law, so excluding them would certainly benefit the defense immeasurably.  As for Diana Kingsbury, there’s no law against dating someone you work with.  So to try to imply that there was something fishy going on (that’s a sushi pun, folks!), would only serve to distract the jury away from the facts of the case, which have nothing to do with Alec Peters’ love life.

6. Any outdated Axanar movie scripts that are no longer valid because of later revisions

Reason(s) the defense gives for excluding it – You might remember that the plaintiffs want to exclude any version of the full Axanar movie script that came after the lawsuit was filed.  The defense, on the other hand, wants to exclude any version that came before the most recent version (from a few months ago).  If both sides get their way, there won’t be ANY version of an Axanar script presented during trial…but that’s certainly not gonna happen!

The plaintiffs say that nothing written after the lawsuit counts because, of course, Alec is gonna rewrite it to make it LESS infringing…and he shouldn’t be allowed to get away with that kind of chicanery.  So what is the defense arguing to counter that?

Well, first, let’s look at what happened and when.  Back when Judge Klaunser denied the defense’s motion to dismiss last spring, he believed the plaintiffs when they said the Axanar script was “locked and final.”  But that was then.  In May, after J.J. Abrams’ announcement that the lawsuit was “going away,” Alec and company figured that Axanar was going to be allowed to be made after all.  So Alec began revising the script, anticipating that the studios would be happier if he cut down on the direct references to established characters and other things that would seem like he was significantly ripping off Star Trek.  All in all, Alec made 616 changes from the prior draft and added two completely original characters.  He also put the new script into a mockumentary format similar to Prelude to Axanar…with four separate 20-minute (or so) segments from the Memory Alpha archives.  That way, he wouldn’t be releasing a single feature-length movie.

Obviously, this new version of the script is VERY different from the original…different enough that the plaintiffs don’t want the jury to even know about it, let alone see it.  And it’s different enough that the defense doesn’t want the jury to see the previous version from before the lawsuit.  What should Judge Klausner do?

Well, previous case-law has a lot to say about the admissibility of uncompleted draft scripts in copyright infringement lawsuits, and the defense considerate enough to include them in their motion (I’m leaving out the legal case references, but you can find them on page 50 of the Defense Motions to Exclude document):

  • Courts have held that preliminary works such as draft screenplays are “too unreliable in determining substantial similarity” as to the final work.
  • “The Court is under no obligation to consider the draft scripts[.]”
  • (refusing to consider “draft screenplays or the shooting script” of movie because they were “not relevant”).
  • Rather, it is “the works as they were presented to the public” that are relevant, not preliminary internal drafts.
  • (to determine substantial similarity, “the court need only consider the final version of [defendant’s] film as presented to the viewing public”)
  • “[C]ourts have routinely rejected requests to consider earlier [screenplay] drafts.”

Each of those rulings is from a different case, so it’s fair to say that this is a pretty standard guideline for a judge to follow.  Since the Axanar movie hasn’t been released or even made yet, the jury needs to consider what it will look like what it is finally completed.  At this point, it’s pretty much a certainty that the final movie will no longer look like the “locked” version that was included in the December 29, 2015 complaint.  What’s MUCH more likely to be presented to the public is the newer version or something very similar to it.  So why waste the jury’s time analyzing an outdated script that will never be filmed?

Reason(s) it could hurt the defendants’ case – Quite simply, if this case results in a ruling of “fair use,” then that’ll be–at least in part–because of the mockumentary format of Prelude being ruled trasnformative.  If so, then a similar mockumentary-style script is much less likely to run afoul of the jury (and the judge) than the previous pre-December 29 version.

7. Any reference to Alec Peters’ financials and plaintiff claims that Axanar made any kind of “profit”

Reason(s) the defense gives for excluding it – Whoo boy…this one is a BIGGIE!  And the reason is that Alec Peters’ financial records have been one of the most controversial aspects of this entire case.  But are they actually relevant…or are they simply misleading and prejudicial?  Here’s what the defense has to say…

Alec Peters submitted two sets of financial records.  There is a misunderstanding by those who haven’t seen them that he has somehow “cooked the books” to appear less greedy or not guilty of some kind of embezzlement.  I’ve now seen those books.  And although I signed a non-disclosure agreement and can’t talk about the specifics of those books, I just told Alec that they look fine to me, and I actually think he should release them all publicly.  They really do look like perfectly justifiable business expenses intended to build a studio and assemble sets to create a movie.  (I didn’t even see a line item for sushi!)

I realize that last parenthetical comment sounds like a joke, but it’s actually quite relevant.  You see, the first set of financials were a messy, disorganized compilation of every receipt that was ever logged for Axanar, and it included a lot of stuff that Alec paid for himself personally…like meals.  But because he intended to use those receipts personally as tax expenses (one is allowed to deduct meals related to business), he kept those receipts, as well, and everything was dumped en masse into Quicken.

It was that “catch all” file with EVERY receipt (personal and business) which went to the plaintiffs first…and boy, did they salivate over it!  In fact, they were able to pull out all the juiciest expenditures that they could find and imply all sorts of different nefarious mischief on the part of Alec Peters.  And unfortunately, despite a confidentiality order from the judge, the plaintiffs either inadvertently or through some kind of purposeful negligence released those wild accusations to the public in an improperly redacted filing.  And now I’ve got to spend lord knows how many hours writing responses to FAN FILM FACTOR comments posted parroting these wild (and mostly inaccurate) accusations against Alec.

(Alec, I so need to have that interview!!!)

Anyway, I’ve also seen the organized version of these books.  Knowing how the unsorted pile of Quicken receipts would paint an inaccurate picture of the Axanar expenses, Alec hired an actual CPA to do his financial statement properly.  And it looks very professional now.  Everything is organized down to the penny: studio build-out, equipment, set construction and materials, payroll, permits and fees, supplies, rent, utilities, and yes, even travel expenses.  It’s all there in black and white (and red), and everything looks very reasonable.

So the argument for not using the “messy” version of the financials is pretty obvious: it’s inaccurate and misleading and would likely prejudice the jury in the same way the plaintiffs have smeared Alec Peters reputation by releasing their own skewed and unverified accusations.

However, the defense actually doesn’t want ANY of the financial details released beyond the fact that, all told, Axanar raised $1,432,382.15 and spent (so far) $1,451,816.40.  In other words, all the jury needs to know is that Axanar has NOT made any profit, and there’s no reason to show them precisely how much was spent on furniture from IKEA or plumbing repair or shipping supplies.  Indeed, a deep dive through all of those hundreds and hundreds of individual checks written would very much be a waste of the jury’s time…and essentially irrelevant.

Why irrelevant?  Because this case is about copyright infringement, not about how Alec Peters spent donated money.  The plaintiffs will, of course, try to argue that he intended to built a for-profit studio with the money raised from donations, but there’s actually nothing inherently illegal about that, even if the catalyst for those donations was a fan film allegedly derivative of Star Trek.  The plaintiffs might want the jury to THINK that it’s somehow illegal, but it’s not.  Fair use (a defense that team Axanar will be using) allows for the alleged infringer to generate revenue…even a large amount profit.  That said, Axanar hasn’t generated any profit (donations are not profit), but that’s all irrelevant anyway and would likely confuse the jury as to what this case is all about.

Reason(s) it could hurt the defendants’ case – In a perfect world for the defense, they’d like there to be absolutely no discussion whatsoever about Axanar‘s financials and the focus to be solely on the fan film Prelude to Axanar and whether or not it infringes on intellectual property owned by the studios.  But that’s a pipe dream.  Money WILL be discussed in front of the jury.  So the defense is trying to minimize the amount of discussion that will happen.  At minimum, they don’t want the following things discussed:

  • The specific expenditures of Axanar Productions (the general totals are fine);
  • Business plans for building out a “for-profit” studio (or any kind of studio) or any other future plans since things that haven’t happened yet are not relevant, and it’s not illegal to simply plan something;
  • Any mention of alleged “profits” made.

Whether or not the defense will get everything they want on this one is anybody’s guess.  But if they even get the judge to simply exclude the “messy” records, it’ll take away a huge arrow from the plaintiffs’ quiver.  (Yes, I’ve moved from chess analogies to archery, folks.)

8. The words “Star Trek“

Reason(s) the defense gives for excluding it – Okay, go on…have a good laugh at this one.  It does sound ridiculous, doesn’t it?  Here’s a Star Trek fan film being accused of ripping off Star Trek, and the defense wants the judge to rule that no one can say “Star Trek” during the trial???  Even I looked at that and said, “Oh, you have GOT to be kidding!”

Needless to say, I had to have a closer look at how the defense team was justifying this one.

So the first thing I discovered is that is NOT what the defense is asking for.  The plaintiffs and their witnesses and pretty much anyone can say “Star Trek” all they want during the trial.  (It’s not like calling Voldemort “He who must not be named!”)

Instead, this motion deals with a very specific allegation against Alec Peters: that he tried to make a Star Trek fan film.  “Well, of course he tried to make a Star Trek fan film, you idiot!” I can already hear some of you typing away.  “What did you THINK he was making…The Partridge Family??”

In fact, the plaintiffs agree wholeheartedly with your assessment, as they’ve already said (in various filings) the following things:

  • “…purpose was to make an authentic film that would ‘look and feel like a true Star Trek movie;”
  • “…sought to create a business model that would compete with Plaintiffs, distributing high quality, professional ‘Star Trek’ films…;”
  • “…production that’s going to change the way people view Star Trek;”
  • “…he set out to create a professional Star Trek movie…”

So how could the defense possibly have a problem with THAT if it’s all true?  Well, to understand the answer, you have to first understand that there is a very significant difference between a copyright and a trademark.  You can’t copyright a word or phrase like “Star Trek.”  So no, CBS and Paramount do not own “Star Trek” as a copyright (although they do own elements of it and specific expressions of the concept…just not the concept of Star Trek as a whole).

The studios do, however, own “Star Trek” as a TRADEMARK.  That’s why you’ll see the words “[TM] Star Trek is a registered trademark of…”  You’re actually allowed to trademark a word or phase; you just can’t copyright a word or phase.

So why does that even matter?  Simple: this is a copyright infringement lawsuit, NOT a trademark infringement lawsuit.  Had the studios sued Alec Peters for trademark infringement, as well, then the trademarked words “Star Trek” would have been totally fair game.  But the plaintiffs only sued for copyright infringement, and there is no copyright for the words “Star Trek.”

Yeah, I know.  It still sounds ridiculous.

But I’m just trying to explain the argument, not necessarily to defend it or say it’s going to work.  The defense wants the judge to consider that the jury could easily be confused between the concepts of copyrights and trademarks, and keeping juries from being confused (and thereby potentially prejudiced) is one of the main reasons judges are allowed to exclude evidence.

While it might be a long shot to convince the judge that “Star Trek” should not be used in ANY way to describe Prelude to Axanar, there is one thing the defense might have a chance of getting the judge to rule on in their favor: referring to the fan films as Star Trek: Prelude to Axanar and Star Trek: Axanar…something the plaintiffs do repeatedly as a way to reinforce their arguments.

But the truth is that the words “Star Trek” were dropped by the prodcution long before the lawsuit, and in fact, when Prelude to Axanar was released to the public, it was NOT called Star Trek: Prelude to Axanar.  As I mentioned above, previous case-law supports the idea that only what is finally released to the general public counts in an infringement case.  Any pre-release drafts (including the title itself) are not considered relevant, and in this case, once again, could prove extremely prejudicial to the jury.  So the judge might toss the defense a bone on this one and exclude any references to Star Trek: Prelude to Axanar and Star Trek: Axanar.  Or maybe the judge will grant this motion in its entirety and all of our jaws will collectively hit the floor (except the jaws at Winston & Strawn).  Or maybe he’ll reject it entirely.  We’ll know in about six weeks.

Reason(s) it could hurt the defendants’ case – Y’know what I just realized?  The way that each of these items could hurt defense are pretty much contained in the reasons the defense states for excluding them in the first place.  That wasn’t the case for the plaintiffs.  I don’t mean to bash the plaintiffs, but when I first structured these summaries, it seemed like most of the plaintiffs’ arguments were actually trying to mask what they were really afraid of.  For example, keeping J.J. Abrams and Justin Lin from testifying had little to do with them not being official spokesmen for the studios (the reason given by the plaintiffs) and more to do with their saying that Garth of Izar is not a major character in Star Trek.

So I structured these summaries to give the stated legal reason first and then the “real” reason separately for each motion by the plaintiffs.  I kept the same format for the defense, but after doing eight of these, I’ve just realized that the defense is stating the real potential harm right there in the motion itself.  They aren’t hiding their true concerns and are just wearing their vulnerability on their sleeve.

As I said, I don’t want this to seem like a criticism of the plaintiffs for trying to “hide the truth” or something like that.  Each side has their own approach and strategy, and both are perfectly valid.  It was just something interesting that I noticed.

And finally…

9. The quality of Axanar

Reason(s) the defense gives for excluding it – Look, we all know that Prelude to Axanar was an awesome fan film with top-notch acting, high production value, breathtaking visual effects, incredible make-up, emotionally charged music, and tight and suspenseful editing.  In all ways, Prelude to Axanar remains one of the top “must see” fan films of all time–Star Trek or otherwise–and it has 47 industry awards to prove it.

And some believe that same high quality is what got Alec Peters sued in the first place.  Indeed, the plaintiffs kinda hammer home that point by trying every chance they get in their motions to paint the Axanar works as standing somehow apart from other fan films because Axanar was professional instead of amateur, used real actors from Star Trek, and raised nearly a million and a half dollars.

Here’s the problem: the law doesn’t state that you must be amateur and low quality in order to be considered fair use.  I’ll just quote the defense’s motion…’cause they do a better job than I can explaining it:

Plaintiffs have presented not a single case in seeking summary judgment or opposing summary judgment where the Court has found that the use of professionals to create a work, which would lead to a higher quality artistic work, has any bearing on any copyright issues in this case. Indeed, the works that qualify as fair use are commonly of high quality and made by professionals.  [Lots of examples you can find on page 71 of the document.]  There is no aspect of substantial similarity where quality comes into play. The “amateur” exception Plaintiffs appear to advocate for has no support in law.

Oh, wait, the defense isn’t done yet…

And while it is true that Plaintiffs may not want individuals to be able to create high quality works that are transformative and so qualify for fair use, or are otherwise not substantially similar to any of Plaintiffs’ works, copyright law is not meant to be used as a weapon against technological innovation and high quality.

And one more thing that I really like (’cause it lands a direct hit on CBS’ fan film guideline #5–my personal pet peeve)…

Further, the fact that an actor that has appeared before in prior Star Trek works elects to participate in a fan film—unless it violates a specific contract with that actor which would then be between Plaintiffs and that actor—is not illegal under California or Federal law. Thus, Plaintiffs’ argument that Defendants infringe the Vulcan “species” merely because the same actor who appeared in a handful of Plaintiffs’ works also appears in Defendants’ works fails. Of course, Plaintiffs have no rights to actor Gary Graham’s identity or features.

Take that, guideline #5!

Reason(s) it could hurt the defendants’ case – The defense comes right out and says it.  Trying to make an issue of quality and the use of professional actors is not a valid aspect of copyright law and could very well confuse or prejudice the jury against Alec Peters both unnecessarily and incorrectly (and therefore, unfairly).

Now, the plaintiffs could argue that the quality of Axanar could lead to brand confusion, but the studios’ lack of action in telling YouTube to take down Prelude kinda works against that argument…something the defense made sure to remind the judge of in this motion.

And…whew!

Man, I didn’t write this much even back when I was in college!!!  But we’re now done for at least the next two weeks.  Opposition briefs arguing against all 19 of these motions are due January 5.  And of course, I’ll try to cover those.  Then on January 21, final replies to those opposition briefs are due from both sides (the same procedure as for the motions for summary judgement).

In the meantime, have a wonderful Christmas and Hanukkah and Kwanzaa and Festivus, everyone!  I’ll be in Palm Springs living the good life for the next week and trying to get ahead on a few new fan film blog posts that are NOT about Axanar!

I’ll see you all in the new year!

100 thoughts on “A closer look at the MOTIONS TO LIMIT EVIDENCE in the AXANAR LAWSUIT (Part 4)”

  1. I LOVE YOUR POSITIVE POSTS JONATHAN, but (as I say after each segment) this reads as if the plaintiff’s case is super iffy while the defense case is super strong. I realize where your feelings stand on this issue but I feel that I should mention this after each segment that you write so that whoever reads these articles realize that there is more than one perspective to have on this subject. Please note my professionalism and lack of anger or hatefulness…much better than I used to be, huh?

    I will say that your writing is terrific and if you have written any fiction I would be honored to read it!

    1. Thanks for the kind words and the positive and constructive attitude, Edward. It is certainly appreciated.

      Now, feel free to take the following comment with as large a grain of salt as you’d like, Edward, but deep down, I really do feel as though the defense has a much stronger case than the plaintiffs. I didn’t always think this. There were moments in the early days when I honestly and truly believed the Alec Peters was royally screwed and there goes my $300. And yes, I freely admit that he still well may end up being legal toast in this whole affair…despite any beliefs I have to the contrary.

      But the more I studied this case and learned about the finer points of copyright law (much of it very different than the assumptions I brought with me going into this whole case), the more I began to realize that the defense is using the law very, very carefully and effectively in their arguments. Granted, Judge Klausner could issue a ruling on the motions for summary judgment or exclusion of evidence that could prove that I’m totally naive and patently wrong. But I’ll still go out on a limb and say it…

      The more filings I review, the more it sounds like Winston & Strawn did the homework and studied for the test, and the more it seems like Loeb & Loeb didn’t do the assigned reading and is just kinda winging it based on the few pages of each chapter that they bothered skimming.

      It kind of makes sense, though, as the two law firms are very different. Winston & Strawn specializes in intellectual property law–which includes multiple industries like technology, pharmaceutical, consumer protection, patents and trademarks, and of course, entertainment. In other words, their focus on this entertainment-based infringement lawsuit grows out from an expertise in intellectual property law. On the other side of the courtroom, Loeb & Loeb is (among other things) an entertainment law firm. They specialize in negotiating strong contracts that protect the studios and leave them in the stronger position. There isn’t a lot of call for a scalpel in entertainment law because it’s more about the hammer. The studios are big and they know it. They usually hold all the cards and can come out on top in most negotiated transactions. This explains a lot about their approach to this case. But while Winston & Strawn is an intellectual property expert applying that knowledge and experience to an entertainment-based lawsuit, Loeb & Loeb is an entertainment law expert applying that knowledge and experience to an intellectual property-based lawsuit.

      This has led to a lot of bluster by the plaintiffs and little by the defense. The primary weapon of the plaintiffs is the righteous indignation and calls for common sense justice. They come in like a wrecking ball because that’s the approach they’re used to with most contract negotiations (and breach of contract cases) and also with most infringement cases where they’re usually able to scare and bully the other side into submission.

      The primary weapons of Winston & Strawn are the specific points of precedent-setting case-law and rulings by both Federal courts and the Supreme Court itself. Sure, Loeb & Loeb quotes some specific cases in support of their arguments, but they usually leave out certain aspects of the rulings because those would negate their points. Winston & Strawn, on the other hand, makes sure to include those missing details of the rulings when it responds.

      What I think a lot of people who are watching this case don’t understand is the inherent conflict between copyright laws and the First Amendment’s constitutional guarantee of free speech. The two kinda cancel each other out, so they exist in a very legally ambiguous state of equilibrium. As such, there are many, MANY facets and details involved in the concept of both “fair use” and in proving infringement in the first place. Not that’s it’s impossible to ever prove infringement; it’s far from that. But it’s not as much of a slam dunk for CBS and Paramount as many people think.

      It’s those facets and details that I’ve been pointing out in most of my blogs. And to be perfectly honest, it just seems to me as though W&S has a much better command of how to wield those nuances as both a weapon and a shield than does L&L. Now, I could certainly be wrong! I’m not claiming to be anything other than a hobbyist blogger who is talking to a number of much smarter people and doing a lot of research into all of this. And it really does seem (to me) that the defense has a stronger case. Am I biassed? Yeah, admittedly so. But I don’t have blinders on. It just seems to be a lot easier for me to find the weaknesses in the plaintiffs’ arguments than in the defense’s. It’s not that I never find the plaintiffs making a solid point (which I usually point out) or the defense with a “Hail Mary” long shot pass (which I also point out). It’s simply that I’m generally (and often) finding it easier to poke holes in the plaintiffs’ arguments than the defense’s.

      As for reading my work, while it’s not fiction, my book “Being Santa Claus” has gotten a lot of very positive reviews. Why not check it out? It’s a wonderfully feel-good book full of much-needed Christmas spirit.

      1. I donated 300, also. I picked a reward at half that value (the other rewards weren’t that interesting to me), but upped the donation to 300. It would be disappointing if Axanar loses, but I don’t think the loss of the donation would really be a loss. IF that happens, my view on the loss would be, quoting another Sci-Fi show, “May have been the losing side; still not convinced it was the wrong one.”

  2. Forgive my apparent confusion on one of the details mentioned, specifically with a notion attached to #7….

    Since the beginning of all of this, ire has been issued against Mr. Peters for ‘profiting’ from Axanar. If so, any money paid to him would had to have come from the funds from the Kickstarter campaign and not in any way from CBS/Paramount.

    So, why would that be an issue? If the donors don’t care (and I, for one, don’t mind) then why would this be a concern for CBS/P?

    So, on the subject of Mr. Peters’ profiting, I’m of the opinion that someone needs to better define this.

    Just an opinion.

    1. Although I didn’t cover this in my summary of motion #7, the defense did point point out that CBS and Paramount didn’t donate to Axanar (although wouldn’t it be hysterical if they had???) and so do not have any legal standing to complain about how he spent the funds. As for defining “profit,” since the plaintiffs didn’t offer their own definition, the court must use the standard definition from Black’s legal dictionary: “It is total revenue minus total cost.” Obviously, Prelude to Axanar is shown on YouTube for free, so it has made zero revenue. If you somehow count donations as revenue (which you shouldn’t, since they’re not), then Prelude still hasn’t made any profit as it cost more to make than was raised. If you want to then consider the total $1.4 million in donations that included money for the studio and the main feature, then there STILL is no profit, as expenses again have exceeded collected donations by about $30K.

      Now, if you want to talk about Alec Peters personally profiting, then you also have to look at HIS personal expenses (total revenue minus total costs). He’s put in $100-$125K of his own money. So even if he got a “salary” of $38K or $65K, that’s still LESS than his compensation…and that means no personal profit. Some people are trying to claim that he got free plane tickets and had elaborate meals and got new tires, but there’s actually no proof of this. In fact, most of those expenses were justifiable business expenses and/or places where Alec was again putting in his own money (based on the financial statement that was submitted by the CPA, which is the only one that’s officially accurate).

      So any way you look at it, there was no profit earned. That being said, even were the plaintiffs to somehow prove there was profit, that doesn’t disqualify a work from being ruled as fair use. So the phrase “barking up the wrong tree” comes to mind…

    2. One of the potential characteristics of fair use is whether it is a non-profit use, so the defense wants to leave in a minimal mention of Axanar’s not being profitable to help establish fair use, (ie. that it’s already spent more than was raised in crowdfunding, so that even if you count crowdfunding as revenue rather than investment, Axanar can’t be said to be profitable) wheras the plaintiffs presumably want to paint Axanar as an exercise to personally enrich Alec and thus “for profit,” presumably using the original financials that included tax deductions that weren’t actual expenses of donor money.

      1. Two things you must remember, Matthew:

        1) You can make profit/revenue and still win on a fair use defense. “Done Gone Da Wind” was a commercially available novel and still won a fair use defense, being re-designated as parody (even though it wasn’t intended to be funny).

        2) Donations are not profit. Just ask any church group that operates as a non-profit entity based solely on donations from parishioners. The Temple of the Heavenly Cruiser? Our Lady of Perpetual Kharnage? The Holy Church of Our Lord Garth? The First Ministry of Signus III? The Loyal Disciples of Admiral Ramirez? Any way you slice it, donations are not profit. But even if they were, Axanar’s profit is non-existent at the moment…and remember that the plaintiffs want time to stop on December 29, 2015.

  3. I completely agree with you about #5, as someone who has had to sign a non-compete contract I know that CBSP is trying place a burden on fan films that it legally can’t. Unless it’s officially licensing it’s “brand” to these film makers, then it can place whatever it wants in the contracts. Otherwise such restrictions can only be placed on their actors, and usually non-competes expire which is likely the case here.

      1. You keep missing the point on this one. CBS/P did not say that it would be illegal for a fan production to hire professionals. Hire as many as you like. Hire William freakin’ Shatner if you want. They can’t stop you from doing so, but then again they’ve never suggested otherwise. What CBS/P have said is that if you do hire professionals, they will consider that a violation of the rules that they have established in which fan films can be made without risk of an IP infringement lawsuit. You keep confusing the legal right to work with the IP safe harbor carved out by CBS/P. Totally different.

        1. I beg to differ, James. The guidelines can be argued to be an assumed oral contact, an understanding between the two parties that if one side adheres to these guidelines that the other side will not take legal action against them. However, any contract in the state of California “…by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” And thus would Guideline #5 be considered a null-and-void aspect of the guidelines.

          Assume, for the sake of argument, that a fan film adhered to all of the guidelines EXCEPT #5…that the film featured Garrett Wang playing Harry Kim or Marina Sirtis playing Deanna Troi. And assume that same fan film employed and paid professional cameramen, lighting specialists, sound editors, and VFX artists. Assume they were entirely within the maximum $50K in crowd-funding limit, kept the film to two 15-minute episodes, bought licensed props and uniforms, yadda-yaddda-yadda. So the only thing they’re doing is hiring and paying professionals.

          Now, let’s say that CBS sues this fan production. One of the pieces of evidence that will be entered is the guidelines, and it will be argued by the defense that the guidelines serve as an oral agreement and implied consent by the studios to grant a soft license to Star Trek fan productions…very reasonable argument to make. California Business and Professions Code Section 16600 voids Guideline #5, and all of the rest of the guidelines were followed. As such, there is no breach of contract, and the case becomes very difficult for the plaintiffs to win because they now have to show a breach of contract, not simply infringement.

          1. If someone should test that case in court, I propose a gentleman’s wager that CBS/P would win as they are within their rights to modify their guidelines at any time, even ex post facto.

          2. I don’t wager on legal matters, James, not even a gentleman’s bet. I have too much respect for the law to treat it so frivolously.

            As for CBS being within their rights to modify the guidelines at any time, that is certainly true. But the judge will weigh the applicability of the oral understanding at the time the infringement was committed. If CBS/Paramount change the guidelines even one day after the release of the fan film, the judge will very likely dismiss the case on the grounds that the fan film producers were not psychic and had no reason to believe the guidelines would be changed. Also, as I said in the parameters of our hypothetical scenario, all the guidelines were followed but #5. In such a situation, guideline #5 represents a null and void clause in the implied oral contract, meaning the rest of the agreement was followed. Due to the existence of the guidelines, this ceases to be an infringement case and becomes breach of contract. Breach of a null-and-void clause, if that is the only material breach, is insufficient to to support a cause of action. The studios can certainly TRY to sue, but they likely will not get very far.

          3. “I have too much respect for the law to treat it so frivolously.”

            A surprising statement from someone who advocates activities– fan films– of questionable legality, many of which would likely be found in violation of federal copyright laws were the rightful owners inclined to press their legal rights. Clearly you ascribe to George Carlin’s theory of law enforcement, i.e. “Cop didn’t see it, I didn’t do it”.

            But perhaps I’m wrong. Do you support only those projects that are properly licensed or have otherwise demonstrated their legality? Surely someone with as much respect for the law as you would never lift a finger to support anything illegal, yes?

          4. Copyright law doesn’t necessarily preclude fan films, James. That’s the thing I don’t think you and many others are understanding about this case and its complexities.

            You see, by their very nature, copyright infringement laws violate the first amendment of the U.S. Constitution. So in the extreme, this country should have NO copyright infringement laws–except that that is preposterous. There has to be some protections for copyright holders, for creators to own their work. But the more you have of the latter, the less freedom of speech there is. It’s an interesting push/pull that has influenced copyright case-law for many decades.

            That’s why there are “fair use” guidelines codified into the law and requirements to register characters and specific expressions of creativity before suing for them (along with statues of limitations, which is three years…so any Trek fan film released before January of 2014 is completely safe).

            Now, if the studios had asserted their copyright ownership all along and not allowed any (or most) fan films, I would not be taking the stance I do on fan films (mostly because they would never have gotten this far, and we likely wouldn’t have so many of them or ones of such high quality). But the studios DID allow them…for five decades! And that has colored my opinion of and support for fan films. I don’t consider them willful infringement but rather permitted efforts of support and dedication to this property we all love called “Star Trek.” And just as I support fanzines and literary fan fiction and audio series and fan-produced schematics–as long as each of them is making no or minimal profit–I support fan films. (Axanar has made no profit. Donations are not profit.)

            And to be honest, depending on the nature of the fan film or other fan project, I actually don’t think “no or little profit” is even a constraint…depending on the nature of the work. Y’see, the more I learn about copyright law through this case, the more I realize how those laws are NOT black and white. It’s not like speeding through a residential neighborhood (which is both illegal and dangerous). What some would call copyright infringement, others would call fair use…and if it goes to trial, that determination would fall to a jury to decide. For example, the wall poster of the USS Ascension class tri-nacelled starship that I used to have hanging in my geeky dorm room back at Cornell…definitely not copyright infringement and possibly not even trademark infringement (although that’s a more questionable opinion on my part).

            That said, New Voyages and Continues are obvious infringers…and yet I still support both of them. Why are they infringers and Alec Peters isn’t (at least in my opinion)? They use registered characters in their episodes; Axanar didn’t. Also, their format is nearly identical to TOS episodes, while Prelude is a mockumentary. However, I feel that I can support both series because the studios do/did. “The White Iris” was taken down by YouTube because of possible copyright infringement, and CBS told YouTube to put it back up! So if CBS can get behind STC, then so can I!

            And what I am really hoping that happens in this lawsuit is that a clear loss by the studios serves as a wake-up call that there might be another way to handle Star Trek fan films rather than spending a million dollars suing one. Perhaps the studios can consider a limited-licensing safe harbor scenario, similar to the guidelines but less restrictive. And maybe they can even make a little money off of the effort by charging 99 cents or $1.99 or even $2.99 for an exclusive download of the the more professional-quality episodes that license at a level that goes beyond the standard guideline limitations. There’s a lot to consider and work out, but a big victory by CBS and Paramount will do nothing to motivate either studio to reconsider their approach.

  4. Thanks Jonathon for doing all this and putting things into layman’s terms. I can see now how things get tied up in the courts for so long. Anyway, Merry Christmas to you and your family and have a Happy New Year.

  5. Jonathan,

    As always, I enjoy your analyses immensely. I eagerly anticipate each and every one and thank you for them. I have worked for many Lawyers in my life (as a Private Investigator) and (personally) have known only two that were not devious lying pricks with egos the size of Texas ( however, I am certain there are plenty who are not). They are usually devious to the extreme and vindictive beyond belief. Hell, for the most part, they are trained to be that way.

    As an Axanar supporter, I examine the actions and filings of the Plaintiffs and Defense attorney’s with care. I can see in the Defense filings, that Miss Ranahan knows well the devious and sneaky tricks used by Plaintiff attorneys to shape a trial for their benefit. She seems to be a very sharp tack to me and I have high hopes that a jury will see through the Plaintiffs BS. Most do in the end. When it comes down to it, jury’s can be quite intelligent.

    1. My wife is not a devious, lying prick either…so please add her to the list, Thomas. 🙂

      Wendy is no pushover, but she does everything in her legal practice above board and directly. She also bakes Christmas cookies and treats each year for everyone in her department at her firm and treats the executive assistants (secretaries) extremely well. She’s a very special lady, and I’m so lucky that she somehow decided that an overweight Trekkie would make a good husband.

      Likewise, I find Erin Ranahan to be very honest and straightforward with me, and very friendly. Granted, I’ve seen her go toe-to-toe like a pit-bull with the Loeb & Loeb attorneys in e-mails that were submitted into evidence, so I wouldn’t want to piss her off any more than I’d want to piss off my wife. But from what I can see of Erin thus far, she doesn’t seem to be playing fast and loose with the legal rules and procedures in this case. I can’t say the same for the plaintiffs’ attorneys…and that’s not me being biased; that’s based on actual facts of what has happened so far. Only the plaintiffs were warned by Magistrate Judge Eick of a Rule 11 violation, not the defense.

      1. Jonathan, no disparagement on the character of your wife intended. I believe I said “only two “I” have known(personally)”. Do you get to enjoy some of the cookies? Or, are you limited like I am to “just a taste”? The backs of my hands can get rather sore this time of year.

        Once again, thank you for your efforts. They are most appreciated.

        Merry Christmas to you and your family!

        1. This year, there was fudge and a concoction of Crispix cereal with a chocolate/peanut-butter/peanut drizzle covered by powdered sugar. It’s affectionately known as “Christmas crack,” as it really is quite addictive. Fortunately, Wendy made three batches, two for the office and one for us at home. Same with the fudge. And earlier today, she and Jayden and Mimi made Christmas cookies for Santa and the rest of the family. They actually look pretty good. (Last year when Jayden was five, well, the cookies were more of a mess.)

          Anyway, a Merry Christmas to all, and to all a good night!

    2. Something that has never been answered, to my knowledge… did Alec Peters ever receive a C&D from CBS or Paramount before he was sued?

      1. Nope, he never received a Cease and Desist letter or even a phone call. He also met in person with CBS representatives on FOUR different occasions while producing Axanar (at least one of those times at Paramount studios in Hollywood) to go over his project and ask them for guidance so that the wouldn’t inadvertently do anything to upset the studios. They gave Alec no guidance and did NOT say, “Stop, don’t do this.”

        The plaintiffs stipulated to all of the above facts early on (in their reply to the defense response to the plaintiffs’ amended complaint). This is actually a HUGE aspect of the case and likely to be VERY key in proving that any infringement was non-willful.

        1. Let me suggest an alternative interpretation of the facts that you state here.

          1. “he never received a Cease and Desist letter or even a phone call” CBS/P are not required to give notice before filing lawsuits.

          2. “He also met in person with CBS representatives on FOUR different occasions while producing Axanar (at least one of those times at Paramount studios in Hollywood) to go over his project and ask them for guidance so that the wouldn’t inadvertently do anything to upset the studios.” This is clear evidence that Peters was aware of CBS/P’s rights of ownership of the Trek IP, thus crippling any claim of inadvertent infringement.

          3. “They gave Alec no guidance and did NOT say, “Stop, don’t do this.” As with the C&D issue, CBS/P were under no obligation to issue such notice. Generally, a company who wishes to use IP obtains a license prior to using it or, in its absence, has some rock solid IP legal advice on why such a license is not necessary. Axanar certainly didn’t have license and it appears that they had no solid legal counsel either.

          In Summary: Peters acknowledged that CBS/P owned the Trek IP in which his project is set, and approached them seeking their approval of his use. When that approval was not forthcoming, he chose to proceed without it, gambling that their silence was some kind of implied approval and that they would ignore his use of the Trek IP as they had every other Trek fan film.

          The problem with this approach is that it places the burden on the IP holder. Under this theory, not saying ‘no’ is the same as saying ‘yes’. That may work when you’re an eight year old with mom and dad but I don’t think that the courts will be as understanding. Why in hell didn’t Peters contact Ranahan– or any other IP lawyer– prior to proceeding to solicit their advice on whether Axanar would qualify for Fair Use? On whose legal advice was he acting?!?

          1. “Why in hell didn’t Peters contact Ranahan– or any other IP lawyer– prior to proceeding to solicit their advice on whether Axanar would qualify for Fair Use? On whose legal advice was he acting?!?”

            Precisely! You’ve just proved the defense’s case, James. (Thanks for that.)

            Confused? Let me explain…

            What you’ve outlined in your post is the perfect argument for non-willful infringement. Why didn’t Alec seek out an IP lawyer? Why didn’t Sky Conway or James Cawley or Vic Mignogna seek out an IP lawyer? One would think that every fan film producer would be smart enough to know to do that…especially someone who graduated from law school like Alec Peters. And indeed, Alec Peters had a professional relationship with the studios and kept them apprised of everything he was doing. So why indeed would Alec ever assume that what he was doing would be okay with the studios?

            And that, my friend, is the crux of the argument for non-willful infringement. Alec did not have any reasonable cause to believe that what he was doing was anything the studios had a problem with. They allowed over a hundred other fan films and series to exist unchallenged. Why would his project be the first in 50 years to get sued? He’d met with studio executives four different times seeking guidance, and they did not tell him that what he was doing wasn’t kosher. They had FOUR opportunities to do so. So tell me, James, what part of the last two sentences would have lead to Alec having a reasonable belief that what he was doing was a problem for the studios?

            Anyway, don’t take my word for it, James. In fact, I’m just the messenger. The actual attorneys–the ones working on the 33rd floor of the Wells Fargo Center- KPMG Tower in downtown Los Angeles, the ones who routinely bill $500-1000/hour for their legal expertise–THEY are the ones making the argument that you are so desperately trying to disprove. So argue with me all you want, James. It won’t make any difference in the Federal Courthouse on Spring Street and Temple. That’s where it really counts. 🙂

          2. My father was a cop and he had many instances of people fighting their speeding tickets in court using the same argument as you propose here, i.e. everyone else was doing it without getting a summons, so it’s not fair to single me out. How does that driver differ from Peters? The speed limits were clearly posted yet every driver was exceeding them without being stopped by a cop. Doesn’t the driver who gets the ticket have the same argument?

            According to my dad, the judge rejected this argument every time.

          3. I’m not sure why so many people try to use the speeding ticket analogy when this is a CIVIL case, not criminal. That said, I’ve beaten three speeding tickets in my life (and my friend beaten more than twenty!!) using the law properly. In my case(s), I used an aspect of the California vehicle code dealing with illegal speed traps. (Click here for an explanation of that.)

            It’s actually very similar to the “well, everyone else does it” defense, but it’s codified into California law. In Alec’s case, his defense is codified in copyright law. I won’t go into all the details yet again (you all know the drill about willful versus non-willful statutory damages by now!), but yes, Alec can 100% say that he believed–because of the studios’ lack of previous action over the past 50 years) that they were absolutely fine with fan films infringing on the their intellectual property. And if Alec somehow loses this case, that argument (if successful) could potentially decrease the amount of the verdict from $8,550,000 to just $11,000.

            I’d say that’s worth it…wouldn’t you, James? Especially if it’s written into the law itself!

          4. Damn tootin’! I’m not blaming them for trying to argue that point. In my humble opinion, it’s the best one they’ve got. I’d also argue that the money raised was not specifically intended to infringe on Trek IP but to build that studio. That could also be a strong argument. CBS/P will argue that it was raised on the back of its IP used in the Prelude film but that’s going to be difficult to prove. I think the defense should win on the script.

          5. The script for the full Axanar movie or for Prelude? If it’s the full movie script, that’s a hard one to prove…as the script itself was never sold, nor did any fan(s) see it before donating. As such, as a work, the script did zero harm as it was never released to the public. To use your speeding ticket metaphor (although I find it inaccurate), it would be like a cop overhearing a guy in a diner talking about his plan to speed down the freeway after he finishes his lunch and the cop citing the guy for speeding while he’s still eating and hasn’t left yet.

  7. After reading Erin’s submission for ‘motion to exclude’, I pretty much agreed with them and for the reasons she gave. And after reading the plaintiff’s ‘motion to exclude’, I certainly understand why they want those items excluded but their reasons and supporting case law were a bit less convincing.

    It could be that I prefer the ‘surgical’ strike method of Erin Ranahan over the carpet bombing ‘hammer’ approach or perhaps I’m just partial to Alex’s position in this case. But each time new document filings come out, I tend to award one side or the other with a moral victory. And though I have not always awarded victory to the defense each time, I have awarded them (just from my personal evaluation) the majority.

    Am I biased? Absolutely! But I’m realistic as well. So, I understand that the judge may well see things differently from me. And that’s ok. Besides, the reason it’s a court case in the first place is because we all see things differently and are sometimes influenced by our own biases. That is certainly true between the plaintiff and defendant. It’s probably true with supporters and nay-Sayers. But what we need to realize is that it may also be true with anyone who ends up on the jury.

    All in all, I have been glued to this lawsuit from the first notification that CBS/P was bringing suit. It just so happens it was about something I contributed to and believe in. (In some small way I even feel responsible for it AND a target of it!) But my interest in this lawsuit is not limited to just that.

    Actually, I loved ‘Perry Mason’ growing up and how he often got his clients off during the preliminary hearing! (Which is totally unrealistic in real life.) But it taught me about court proceedings to a certain extent. But then I had to sit in as a juror in a real life domestic violence case and render a verdict with my 11 fellow jurors and I got to see how courts really work.

    With all that being said, the ex-juror in me loves reading your evaluations and opinions as they often parallel my own. (It’s an ego thing, I’m sure.) And I’m insatiably curious how right me end up being.

    One last thing, though, that caught my attention in this post. (Not sure why it stuck out to me but it did.) This was not the first time you used an archery reference. You in fact used one in Part 1 of this series!

    1. Ah, I was wondering if I’d left the archery reference in previously. I couldn’t remember where I’d put it, and I recalled pulling at least one colorful metaphor out in an attempt to trim the length (yeah, I actually do try to trim these, folks!). But I couldn’t remember where, and I was too exhausted this morning to look. With Jayden to take care of, I don’t usually start writing these until after 10PM and then go to about 2AM when I take Jayden to pee before I head to bed myself. Then it’s up at 7AM, and the days are often filled with errands. As such, I do the proof-reading in the mornings after dropping off Jayden and before errands…working on little sleep. It’s not optimal, but I wanted to get these particular blogs out before Christmas, as next week, Wendy and I go for a much-needed vacation while Jayden stays with his Mimi and Papa for the week. I fear that, if Wendy catches me writing Axanar legal blogs while we’re paying hundreds of dollars for a luxury resort, she’s gonna throttle me!!! 🙂

  8. Thanks for this answer Jonathan until now I couldn’t figure out why I had the feeling, that the defense got stronger and stronger with each motion or response filed. Now I know. I’m also wondering, will the plaintiffs ever try to direct the force of their hammer with a chisel. Brute force is surely a possible strategy at the beginning of litigations but at some point, I think, you have to go into details of case-law to win or to not lose big. In my opinion this point is arriving fast if it’s not already there. Plaintiffs should have used at least a chisel part time in their in limine motions since they could use as much paper as needed. I had to take a second look to confirm my first impression, that the defendans relied during their motion much more on either case-law or federal court rules than the plaintiffs.
    I would assume a judge is only expected to rule on the case-law presented by the partys and not to research on his own. If so I would make damn sure I have either a veeeery strong case without much difference to my own and only based on the amount of case-law cited a assume the defense covered their flanks mor effective (I don’t have the time to look up every case cited).

    1. It’s a very different thing to convince a judge versus convincing a jury. Judge Klausner lives, eats and breathes the law. He will likely be much more receptive to the defense’s attention to legal detail. But a jury’s eyes might glaze over, and they could very well respond to the righteous indignation of the plaintiffs. Their hammer approach could pay huge dividends with the jury while the defense’s scalpel approach could backfire if the jury members have short attention spans.

      Just look at the way the detractors react to this blog. For them, the simple arguments are easier and quicker to grasp, so they usually don’t look much farther than that. They think Alec Peters is a “thief” (easy thought to keep in their mind) and don’t use the brain cells it takes to thoroughly examine the basis for that accusation and analyze it enough to see the fallacy of the claim. So if the jury is the same way and doesn’t want to think, only to be fed the wild accusations and conspiracy theories, then the plaintiffs could have this case wrapped up in a bow. On the other hand, if the jury is made up of intelligent people wanting to learn more about this complex and intriguing aspect of law known as intellectual property before reaching a verdict, then I think the advantage goes to the defense.

      But again, I’m just a humble blogger. 🙂

      1. Oh, that comment though. You know that one’s going to get screencapped. They’re already mad about today’s article. 😀

        1. Hey, at least they’re reading my blog, Dexter! In return, I visit the CBS/PvAxanar Facebook page about once a week…just for the goof. They really do seem to be all about the quick ‘n’ easy concepts, though, and not the deep thoughts…mostly just school-yard insults (some of them downright R-rated!).

          Obviously, if Alec peters loses this case, the detractors will all be doing their happy dances and high-fiving their “I toldja so”s. But if Alec actually wins or loses with a small judgement of only $10,000 or so (a “slap on the wrist”), I find myself very curious how they will react. I suspect they’ll blame a liberal L.A. jury that hates big corporations or dirty tricks by the defense team or bribes or something simple and conspiratorial like that. Will any of them stop to consider that maybe the folks who thought the defense actually had a strong case may have been correct all along?

          I was chatting recently with one of my lawyer friends, and s/he said, “I think there’s a lot of denial going on at the studios. I really believe they can’t imagine there’s any way they can possibly lose this case.” I think my friend may be right. Depending on the judgments (or lack thereof) that come from Judge Klausner over the next four weeks, the studios are either going to end up feeling even more (over)confident…or they might start to panic a little. If the latter, you might see a last-minute settlement reached just before the actual trial starts.

    1. Still enough time to read it before before you take down the Christmas tree, Edward! Please let me (and the FAN FILM FACTOR readers) know what you think of the book…even if it sucks. 🙂

      Have a great holiday, my friend. Ho, Ho, Ho!

  10. On the subject of the Axanar books, just a few points.

    You’re not an accountant. I wouldn’t trust your judgment about the books looking “fine” like I wouldn’t trust an optician’s opinion about the tumor in my lung.

    Anyone else concerned about the mess you and Peters now both admit that Axanar’s accounting was in? And how that mess hadn’t been dealt with until just a few weeks ago despite Peters’ and Mike Bawden’s assurance EIGHT MONTHS AGO that an accountant was working on the books and the financial info would be released to donors?

    It’s totally up to Peters who he shows the books to; the protective order only applies to how the information is classified during discovery.

    You also don’t get that your admission you’ve been shown the books and that you concluded they’re just fine prejudices your status as an expert witness. You have publicly announced you support Axanar and how Peters spent all its money. Why would a jury conclude your judgment is objective? You’ve just given the Plaintiffs and the judge all the reasons they need to completely ignore your testimony.

    1. Sandy, I don’t make it a habit to call people dense, so I won’t start now.

      My testimony has NOTHING to do with how Alec spent his money. I’m up there on the stand to talk about one thing: other Star Trek fan films. Not Axanar. Not the books. Not the perks or the studio or even my favorite kind of sushi. I’m there simply to say, “Yes, I have watched over 100 different Star Trek fan films and series representing more than 250 hours of unlicensed, fan-made Star Trek. Some were low-budget, amateur-level videos shot by fans in their backyards, basements, and garages. And some were professional-level, high quality productions with budgets in the 5-figure and even 6-figure ranges, elaborate sets, intricate costumes and make-up, amazing visual FX, and featuring many actors who had played the same iconic characters in studio-produced Star Trek, such as George Takei, Nichelle Nichols, Walter Koenig, Tim Russ, Robert Picardo, Alan Ruck, and many others. In one case, a Star Trek fan film held a red carpet premiere in Westwood in Los Angeles, selling tickets and featuring a red carpet, Paparazzi, merchandise for sale (perks in exchange for donations), and free popcorn. There were two showings that night of the 90-minute feature-length film. This was four and a half months before the filing of the lawsuit against Axanar.”

      As for your opinion of my ability to read a budget, remember that my brother and I owned a small business together for seven years. By the time we sold it during the dot-com bubble, we had twenty-four employees and revenue in the seven-figure range. We worked closely each year with a CPA to prepare and file our expense statements and pay our taxes with the IRS. We had payroll, workers comp, company-provided healthcare benefits, a 401(k) plan, we tracked paid and unpaid leave, and we logged all business expenses such as meals, travel, marketing, equipment, software licenses, rent, utilities, furniture, and even uniforms for our company softball team (which, admittedly, sucked worse than the crew of Depp Space 9).

      So no, I’m not an accountant. But I do know my way around a company expense sheet. However, if you’re not going to trust my judgment about the books looking fine, then I guess you’ve just proven Alec right in his decision not to release them publicly. After all, most of you aren’t accountants either, so why trust your judgment? You likely wouldn’t understand them either–probably even less than I do, since you never owned or ran a million dollar company. (Actually, maybe you have. I shouldn’t assume. But even then, you seem to imply that need the accounting degree, as well.)

      So thanks for proving to everyone that Alec has made the correct call on keeping the financial statements confidential, Sandy. You’ve done my job for me! 🙂

      2. You are so missing the point. You statements show that you’re a prejudiced witness which is something an expert witness should not be. It doesn’t matter if you’ve comments are about the financials and you’re testifying about something else, it’s still prejudiced. So you can drop the thinly veiled insults mate.

        1. Ah,I get it! So you’re saying that John Van Citters and Bill Burke of CBS and Daniel O’Rourke of Paramount should NOT be allowed on the stand as expert witnesses because they work for the plaintiffs and are obviously biased.

          You’d better call Loeb & Loeb quickly and let them know they need to change their expert witness list! That could have been a real disaster. Good thing you’re so on the ball, Sandy! Thanks for clearing that up, dude, and Merry Christmas. 🙂

          2. That’s MISTER condescending boob to you, Sandy! 🙂

            And I beg to differ with you. John Van Citters has indeed been called by the plaintiffs as an expert witness. Just check out page 13 of this document where the defense’s Motion in limine #2 states:

            Furthermore, on November 2, 2016 (over a month after Van Citters had been deposed), Plaintiffs disclosed Mr. Van Citters as a purported expert “regarding matters that would be considered outside the knowledge of laypersons who are not knowledgeable about Star Trek works and/or who do not have the experience and knowledge possessed by Mr. Van Citters regarding the history of the Star Trek entertainment franchise.” Plaintiffs stated that Mr. Van Citters would provide “expert” opinion testimony, predicated on “his background and experience working for Plaintiffs …, and his personal knowledge in the Star Trek works,” that “Defendants’ Axanar Works are copied from Plaintiffs’ Star Trek Copyrighted Works, including Klingons, Vulcans, the U.S.S. Enterprise, Garth of Izar, Soval the Vulcan Ambassador, the planet Vulcan, and the various elements, including the settings, characters, plots, sequences and themes described in the First Amended Complaint.”

            So yes, Virginia, there is a way for a person to be declared an expert witness and still be quite biassed (in John’s case, because the plaintiffs sign his paycheck).

            Have a very Merry Christmas, Sandy.

        2. Sorry, that’s complete and utter nonsense. Neither do you establish any serious bias, nor is it in any way relevant that an expert witness has an opinion on something not related to their expertise. How could they not have? The notion about a jury concluding an expert witness’s statement was “objective” suggests the fundamental problem to begin with – juries usually have a rather disneyfied notion of the concept of “evidence”. Anyone with half a grasp of theory of knowledge knows there’s no such thing as an “objective” assessment. Any interpretation of data is fueled by the experiences and preconceptions of the person doing the interpretation. The difference between an expert and a layperson is that for the expert, that experience includes plenty of factual knowledge supported by citable evidence and third-party references, whereas the layperson deals in tropes and vague ideas. A PROFESSIONAL expert in addition knows commonly made misinterpretations and can check himself against them. That is not, however, a characteristic of being an expert but of professional conduct. And it still doesn’t make the assessment of a professional expert “objective”, it just makes it more trustworthy than that of the average Joe.

          1. Oops…I think I made a boo-boo. One of my legal eagles just got back and was reading through some of the comment threads to catch up. Earlier today, I received the following friendly clarification:

            “Jon, you were listed as a fact witness, not an expert witness. There’s a difference. Expert witnesses give opinions. You aren’t being asked to do that. You will just state the facts as you know them. If you watched 100 Star Trek fan films online, then that’s what you get to say. Your opinion of the quality isn’t relevant, but the defense can ask you to report the amount of crowd-funding that was raised by a specific fan film or series. You can also speak about the premiere of the Star Trek Renegades movie at the Crest Theater, since you were there and the showing is a reportable fact. Now, the defense could try to reclassify you as an expert witness or a hybrid fact/expert witness, but it’s pretty late for that at this point. I would expect the W&S team will keep you listed as a fact witness.”

            So apparently, I am a fact witness, not an expert. Lesson learned. Sorry for the inadvertent misinformation, folks.

          3. Only if you’re paying attention, OH-. 🙂

            Please note before reading the following that my testimony will be used to argue for a non-willful infringement consideration by the jury. Remember that. Now read the plaintiffs’ objection to me as a witness and try to figure out the ONE TEENSY THING that they left out:

            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. See Paramount Pictures Corp. v. Carol Publ’g Grp., 11 F. Supp.2d 329, 336 (S.D.N.Y. 1998) (the court held that a copyright holder may pursue a single infringer for reasons such as a change in corporate policy and that, “the lack of earlier litigation against other similar works is simply irrelevant.”). There is also no probative value to Lane’s testimony or compendium with respect to Defendants’ fair use defense. The issue for trial regarding market harm is whether if works like the Axanar works, self-described by Defendants as professional independent Star Trek films, made by professional actors and professional technical personnel (some of whom worked on authorized Star Trek works), that were produced and intended to be produced with a budget of well over $1 million, were to proliferate, whether that would cause market harm to Plaintiffs. This has nothing to do with the types of “fan films” in Lane’s compendium, which are completely irrelevant.

  11. Happy Holidays, Everyone! Jonathan, as always, you have done a stellar job of making very nuanced and subtle law understandable for us laypeople. Thank you!

    I have couple of thoughts on what Edward said, and your response to it, but I want to disclose first that I am a long-time Axanar donor, and I have an obvious preference for the outcome of this proceeding. I am not an attorney either, but I do work with them in my job as a state office administrator. Yes, it is state law and it is very different from federal law, but I have gone head to head with the attorneys and come out on top in some very heated arguments on the meaning and application of state law. Not sure if that says more about the state attorneys or me! Anyway, my point is that I am an amateur when it comes to law, in general, and IP law, specifically.

    Here are my thoughts: Edward might want to keep in mind, as I’m sure he does, that IF this goes to trial on January 31st, that it is people like us that will sit on that jury. It is unlikely that the jury will include attorneys, much less IP attorneys. That is fortunate for Alec and Winston and Strawn, because I believe, given the approaches of each of the law firms you cited above, that Winston and Strawn is better prepared to educate the jury and to steer it subtly towards the best outcome for us Axanerds. One thing W&S has taught us, via its filings in this case, is that they can educate, educate, educate! Any jury, faced with the Goliath (CBS/Paramount) must be educated along the way to see why this is, in my very humble opinion, NOT a slam dunk case for the plaintiffs. I just think after reading their filings, that they do a much better job at explaining their points than does Loeb and Loeb.

    Here’s another thought: let’s not lose sight of one thing, W&S is in this for three reasons – to win (obviously!), but also to use this case to enhance their own standing in IP law AND to actually SHAPE THE LAW via this lawsuit. Think about that last point specifically. What could be better, for any IP law firm, than establishing yet another precident setting case?! As you wisely point out, W&S are a top IP firm. But, I believe they are in this as much for themselves as for Alec and Axanar Productions. What a coup d’etat if they can win this!!

    Now that my moment of euphoria is past, I must admit, I COULD be all wet and Axanar and Alec could lose big time…but I just don’t think so. After everything that has been written about this case, at the end, it may come down to the jury – that collection of flawed, biased, uneducated in law people (like us).
    Assuming a trial, it will be extremely interesting for so many, and with luck, we could see the resumption of Axanar, like we fans always wanted. Here’s to a Great New Year!

    1. Very astute observations, Chris! I agree with pretty much all of them personally and believe a lot about the resolution of this case will come down to the make-up of the jury. Merry Happy to you and yours, my friend!

    2. I think you’re putting a bit too much trust into the average Joe’s ability and willingness to assess reasoned arguments vs. “righteous” indignation.

        1. I don’t need to – and please don’t see the following as an attack on your wife. It’s rather the frustration of a scientist with a system that has some very peculiar ideas as to how to establish fact. It’s sufficient to compare the CSI effect on jury decisions on the one hand and on the other hand the David vs Goliath decisions to just shake my head. I’ve seen decisions where a jury basically argued that the big bad corporation(TM) should have set aside the very laws of nature and do the scientifically impossible, for no other reason than underdog fighting corporate evil being a great sob story. Plenty of scientists have an axe to grind with the US judicial system because dick-swinging contests by experts is not really how science should world. Nor is anyone who invested decades of their life into understanding a topic really happy about some smartass lawyer getting the jury to dismiss their expertise on the basis of nothing but superior public speaking skills. It’s all too worryingly common for narrative to t/Trump actual solid evidence. Pardon the pun…

          It’s one of the reasons why I am glad to again live in a country where lay people ARE involved in criminal trials, but in direct cooperation with judicial pros, and experts are commissioned by the court as neutral third party. Well, it also helps having an inquisitorial rather than adversarial system, but that’s going deep into criminal jurisdiction anyway, which evidently is not at issue here. But hey, I lived in Texas during a time when they caught a judge at the highest criminal court scalping complementary tickets. Note that the guy had been fined for practicing law without a license in Florida before as well as having some very original ideas as to his duty to pay child support for his previous wife before running for office. He also lied about having been born and raised in Texas, but since he ran on one ticket with George W. Bush, that didn’t bother Texans the least, they elected the guy, because, after all, playing fast and loose with the laws is a prime qualification for being a judge on the Texas Court of Criminal appeals – the logic probably being along the line of “gotta be a crook to know a crook” or something like that…

          So yeah, if several years of observation up close and decades of observation remotely have taught me something, then that there’s areas in the US where there’s enough people who believe that “when hell freezes over” and “when pigs can fly” both refer to real, expectable and predictable moments in time that should be taken into account in planning public and private endeavors….

    1. Holy hot-button issues, Jason! I honestly and truly can’t believe I’ve written that much on this one single lawsuit. Granted, it’s a fascinating lawsuit, and I’ve still got close a thousand people a day reading these posts (blows…my….mind!!!–especially since this is Christmas week and I wrote some long-ass blogs!). But hey, they say, “Give the public what it wants.” That said, I’m still working on some non-Axanar blog entries, as well. I just need a week without motions and filings and briefs, oh my! 🙂

  14. One thing you didn’t comment on, Which is OK. Since it was more of an addendum. I found it interesting where she says. Whom Gods destroy – is an adaptation of. E.A.Poe’s Dr Tarr and Professor Fether. (basically it’s the same inmates running the asylum story) And the title Being taken from H.R.Longfellow. And as it turns out as an idea dates back to the 1600’s.

    Gene Roddenberry himself basically says Kirk is Capt Horatio Hornblower, As we all know there are lots of bits lifted from Shakespeare, Moby Dick, Sherlock Holmes, tons of other sources. in Star Trek. Another notable lifting of the plot, Happens in Requiem for Methuselah, which is a rewrite of Forbidden Planet which is, a Rewrite of Shakespeare’s The Tempest. Star Trek itself owes a huge debt, to Forbidden Planet.

    Star Trek seems to have played the “fair use” card more than a few times, and it just goes to show there’s not much out there that’s truly original.

    1. “it just goes to show there’s not much out there that’s truly original.”

      Yeah, I just saw that there will be a new version of “Beaches” with Idina Menzel. Is nothing sacred??? And don’t get me started on that new “Wizard of Oz” coming to NBC. Scarecrow as Christ? Are you kidding me???

      But yeah, Star Trek did borrow a LOT from Shakespeare, other poets, classic sci-fi, and yes, Horatio Hornblower. But remember that all of the above was in the public domain and, therefore, Star Trek didn’t need the fair use defense. (A notable exception was when TNG used Sherlock Holmes in “Elementary, Dear Data”…not realizing that the Arthur Conan Doyle estate still held the rights to that character.)

      It was smart for the defense team to bring up the inspirations for “Whom Gods Destroy,” but it’s certainly not the linchpin of their case…more like just another brick in the wall. “Hey, CBS! Leave us fans alone!” 🙂

  15. This is fascinating.

    I’m priming myself for the trial.
    I watched “A Few Good Men”;
    I’m planning to watch “Inherit the Wind”, “QB VII” and “Twelve Angry Men” (I don’t think I can stretch to “The Crucible”).

    For yourself and your contributors, I wish the best of the season…

  16. Hi, Merry Christmas everyone,
    I’d like to comment on the #9. The quality of Axanar is alleged by plaintiffs to be bound to professional status of Alec and AP Productions. This can be said of several other fanmade shows of which the producers used to set company(ies) to support their activities or just simply to be able to rent place, equipments, energy, insurrance, etc. Please see Cawley entertainment Company and Retro Films Studios for New Voyages, Trek Continues Inc, ST Renegades LLC, and many others that were never considered harmful in spite they reach the top notch quality level. More, this professional status is not a guarantee of excellence since the size of the project generally dictates the equipment to be used. The period of time has its role too, since early projects might be considered as poor quality by now with our modern viewing equipments but were OK at the time. If they were given the proper equipment then, they wouldn’t be considered so badly now.
    So, the professional status is something difficult not to use by whom wanting to work properly.

    And there is no reason to oppose amateurs and professionals, since the border between them is very thin. Amateur does not mean incapable, and for instance, there are numerous cases where amateurs actually do equal or better job than professionals. Amateur comes from the french “qui aime” (who likes/who loves, for a person closely interested in something and willing to practice for the passion of it. A lot would step to the professional if they were given the oppotunity, and some are.

    The opposition between professionals and amateurs is not new and there are examples of middle age craftmens that protected their business in carefully keeping their knowledge inside corporations. Newcomers were to be drastically selected and initiated (accepted) according to a moral contract between the master and disciple. The latter had to “steal” (learn) the knowledge of his master by observation and eventually practice when authorized to.
    Such corporatism is not as hard today but still has effects in the mind of some professional that do not want their know how to be used by laypeoples.
    Strangely, professionals are often involved in know how dissemination. Some market training sessions, some sell equipments, and some cry afterwards because there is competition by pupils that overcome the master.
    Axanar is just the most up to date project so far. It used the same recipe as the others but set the lever higher, as every others did before, that is the logical evolution of fanfilms and it is not limited to Star Trek.
    The entertainment world is changing. The new business model to fear is not the one set by Axanar. Netflix is far more evolved and the CBS/P lawsuit would only make it the prefered one for independants but very capable newcomers. We will discuss again in a few years (maybe not so far) if John Van Citters is still right not to bother “micro-managing” fanfilms nor consider licensing and easy profits. An expert, huh ? No, lazy business !

    Where the very superior quality of Axanar is, is that Alec Peters did the hell of a job reaching fans worldwide and offering them the dream of a new story in the form they relish. It is a talent that should not be allowed to be lost. If not for the right reason, at least for the proverb: “keep your ennemy at hand and get your friends at bay”…

    Thanks Jonathan for your work. One day it will be the script for a Law and Order episode. In fact I guess you turn it up into a whole season of the series. 😉

  17. First – Merry Christmas! Second – Thank you for all the long, hard writing and interpretation. 3) Something a little different…I’ve never read legal papers like all those for Axanar before, so this has been enlightening in many ways. Just ran across another legal case of interest (a n apparently landmark case where a group of young people is suing the US government in a Federal court in Orgeon for not properly dealing with climate change: fossil fuel usage, etc.). I was 10 pages into it and was congratulating myself for reading all the legal stuff, but by page 20 I found myself wishing for “a Jonathan Lane” to help out. (grin) It’s 54 pages long and I still don’t know the reasonings for the results yet. 🙁 I’ll get there, but it’s getting pretty dense! However, the point is that if not for you, I wouldn’t have made it even this far. Thank you! Have a Happy New Year!
    BTW – I didn’t explain the case very well, so if anyone wants to check it out :
    General Info: https://www.ourchildrenstrust.org/us/federal-lawsuit/
    Judge Aiken’s response: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf

    1. You’ll forgive me if I pass on reading even MORE legal filings, Tony. I do have to say that this entire experience has made me appreciate my wife Wendy and truly feel genuine sympathy for her, as these sorts of filings are her life–both reading and writing them! It might seem like all this legalese is just unnecessarily complicating what should be simple and straightforward matters, but in fact, it’s often the exact opposite. Law is there specifically because what SEEMS to be simple and straightforward really isn’t.

      In me pre-blogging days, one of my many hats was business analyst. What’s that, you may ask? Put simply, I’d sit down at a conference table (often with a white board) surrounded by managers and project stakeholders…and then I’d ask REALLY dumb questions. The dumber the better! Often, some of them would think I was the biggest, most ignorant idiot they’d even seen. And I’d say, “Exactly! I am your user/client/potential customer…and I know NOTHING! You know everything. Never assume I already know what you know. Always assume I know nothing. That’s where we start.”

      After a meeting or three, I’d take a notebook full of notes and sketches and process flows, and I’d make up a Business Requirements Document (BRD) that essentially would just spit back what everyone had told me. And here’s where it would get fun…

      Back around the conference table, I’d pass around copies of my beautiful BRD (or turn on the overhead projector) and start going through it. “Okay, folks, this is what you all told me you wanted…” I’d usually make it through maybe a page or two at the most when someone would invariably say, “Wait, that’s not right. I never said that!” Then someone else would say, “Actually, you did,” and a third person would agree. If I’m lucky, the first person would simply grumble, “Well, that isn’t what I meant…!” and I promise to fix it. At more lively meetings, World War III would sometimes break out. And that’s just page TWO!

      At the end of such a meeting, I’d smile at everyone and say, “This was exactly what was supposed to happen folks. This BRD was a piñata, and you whacked at it just as you should have. Now I get to fix it, incorporating all of the clarifications you’ve just given me.” And off I’d go to make version 2.0. Occasionally there’d be a version 3.0, but I pride myself on seldom needing one. But version 2.0 is a given. Every. Single. Time.

      The beauty of that ugly second meeting is that, optimally, it HAPPENS before anyone starts working on the actual project. The alternative is reaching those same points of miscommunication, mis-assumption, and misunderstanding only AFTER hundreds or thousands on expensive man-hours have already gone into development. That’s a really BAD time to hear the words, “But that’s not what I meant!”

      What does this have to do with law? The precision is there to keep away the “But that’s not what I meant!” from legal arguments. When an attorney is forced to write so thoroughly and elaborately, it’s hard to say, “That’s not what I meant!” It’s EXACTLY what you meant, and we can tell that specifically BECAUSE you wrote so much so precisely citing legal precedent and elements of the law.

      In that way, maybe Wendy and I aren’t that dissimilar after all…except for the fact that she works 70 hours a week while I just sit on my ass all day and write a Star Trek blog. 🙂

  18. NO, no…I really wan’t wishing another case on you. Heaven forbid! However, you’ve done such a great job so far, it made me wish for someone “like” you to interpret this other apparent landmark case for us laymen. (GRIN)

    Your description of your previous job sounds fascinating. Also, sounds like skills some marriage counselors could use! (“That’s not what I said.”) Probably WWIII and 3rd session. LOL Clear communication is obviously an art for the general public. Still, hadn’t thought of all the legal verbiage as being for clarity. IF it was all that clear, seems we wouldn’t need so many court cases. (grin) Still, my sympathies for your wife.

    Best wishes for the New Year and great results for Axanar.

  19. Boy,

    The level of cogent discourse here certainly leaves the postings on the CBS/Paramount Vs. AXANAR in the dust.

    1. Yeah, not even close! For anyone who doesn’t visit the CBS/P v Axanar Facebook page, this is the kind of comment you’ll typically find there:

      Dayton Ward – I have to wonder if the judge – who appears from photos that he may be nearing the end of his career and may even be considering a well-earned retirement – sitting in his chambers as he reads over the various motions and other paperwork connected to this case. He begins to think about his life, career, and accomplishments. Then he reaches for that bottle of bourbon in his lower desk drawer before kicking his feet up on the nearby windowsill, drinking straight from the bottle as he shakes his head and mutters to himself, “This. This is how I go out. F*ck me.”

      (I masked the full f-bomb there, but it appeared in all of its glory in the original post.)

      Or this one from just a few hours ago:

      Michael Hinman – If you’re going to start calling me by my last name, David, then you should probably take a break. Maybe you think such hostility is appropriate here. It’s not. Either call me by my first name, or don’t call me by anything.

      If you want people to understand what it is you’re trying to express, then try doing it in more than seven words, so maybe people will know what you’re trying to say.

      And if you choose not to do that, that’s fine. But don’t get pissy when people either don’t understand, or misunderstand you.

      Personally, I don’t care whether people use my first name, last name, Slow Lane, or Mr. Condescending Boob. Everything’s fine as long as it doesn’t use the ol’ potty words. 🙂

      But yeah, that place is just a cesspool. I would NOT share a pie with those people, as it’s probably filled with all sorts of bitter ingredients. And it’s kinda sad, as there are a few people in that group who sincerely try to elevate the level of conversation. But the knuckle-dragging bottom-feeders in there are like quicksand, just dragging things down, down, down into the muck. Heck, somebody even conjectured that my son has special needs (no, he doesn’t, but I’ve volunteered with a few special needs children during my time as a substitute teacher–and it’s nothing to casually joke about). And of course, they insult Alec Peters every chance they get with every name in the book. RMB is a lush, apparently, Their comment about the lead defense attorney at Winston and Strawn was “Little Erin read ‘Getting Sued for Dummies’.” The list goes on and on.

      Honestly, there’s nothing there that I would ever be proud to be involved in (heck, I usually feel all scummy just reading it). But part of me is actually glad it’s out there (and boy, is it out there!) because, by its very existence, it helps make the pro-Axanar folks look so much better, nicer, and more civil…better human beings, in general. There really is no comparison, but if there were, anyone objective would look at the posts of the 1,131-member detractor group as being hateful, vile and obscene. Then they’d look at comments on the 8,353-member Axanar fan group, comments like this one from a few days ago…

      Edison Cook – To all those incredible people in Team AXANAR. I just want to say thank you, you are appreciated, and noticed. The fans that go unheralded as they go about their normal lives. This is a shout out to you as well, because, you are the team. Alec and crew are the face , you are the body. Your spirit makes all this possible. Thank You all!

      …and know in a second which of the two was a happy place filled with love and support and respect for others. I certain know where I’d rather be!

  20. I find terrible irony in the fact of Hinman getting all bent out of shape over someone calling him solely by his last name when he’s had no compunction with calling me “Knob Job” over there…..

    1. “Knob Job”? Does that even make sense? I mean “Slow Lane,” despite being a little pedestrian (get it?), at least makes a little bit of sense. Y’see, my last name is Lane, and they’re implying that I’m slow (presumably in mental sens, I would guess), and since there’s usually a fast and a slow lane on most highways and freeways, well, using the name “Slow Lane” to refer to me would make for a seemingly clever double-entendre, yes? Extremely deep thinkers, those haters. It’s almost like they stay up late into the night figuring out these fourth-grade level taunts. (Actually, the fourth-graders back when I was at elementary school had a much more original and deeply hurtful way of insulting me with my own name. Next to that, “Slow Lane” is just, well, let’s just say it’s more of a tickle than a punch.)

      As for Michael Hinman, I tried calling him “Mikey” once. He said he didn’t like it, so I stopped. See? Behaving like an adult isn’t so difficult if you practice just a little.

        1. Oh, um…that’s definitely worse than “Slow Lane” or “Mr. Hinman.” So much worse.

          Not that I have any problem with the act or the folks who engage in it. But, man, that’s just nasty name-callin’. Assuming it’s true (and I’m guessing you have no reason to lie), that right there pretty much cancels out “journalist” in any sentence containing the words “Michael Hinman” (unless the sentence includes the phrase “is totally not a…” directly between his name and “journalist”).

  21. Wow. What a mess. Jonathan, I greatly enjoy your writing on the subject f this lawsuit. I’m still quite saddened by CBS/P’s stance in this whole thing. When I learned about the production, the lawsuit was already in progress. I have been closely following Star Trek Continues and have been enjoying it, and have am looking forward to the end of this battle, which I sincerely hope ends in favor of fan films. I’ve been frustrated as a fan for over two decades for the lack of originality from the film industry and the apparent inability to formulate an original thought. I am never really concerned when I see a nod within a story toward or even direct reference to a previous work that had some influence. So much of the studio work has been so derivative for so long and so willing to cave to whatever social/political concerns may be currently popular, that they’ve been sacrificing good storytelling. Star Trek has not been immune to this – my biggest peeve (still) is the Klingon Empire running out of ozone, due to a moon exploding (!?!). Now here, in the whole Axanar plot, is an unexplored storyline possibility, at least on film, derivative of the TOS episode I watched tonight (because my wife and daughter and son are watching TOS in order). The whole concept is compelling to me as a Trek fan, especially since I’m doubtful Paramount can produce a reasonably good show.

    I’m just disappointed in CBS/P, and am eager for the mess to be over with. I’m really hoping that the ruling is in favor of Axanar, and am greatly appreciative that you are relaying a sort of play-by-play.

    Happy New Year!

    Awaiting January 5.

    1. Thanks for the kind words, Jimmie. I’m likewise taking my son Jayden (six years old) through the TOS episodes in order. We’ve just completed “Mirror, Mirror.”

      I don’t think the Klingons were going to run out of ozone after Praxis exploded. I think they were mining it for energy (whatever that means), and their process made the moon unstable and it exploded. This isn’t quite as far fetched as it might sound. Even though Trek VI came out decades before fracking became common, our process of injecting toxic wastewater sideways underground to push natural gas to the surface has been theorized to be destabilizing and might be responsible for the increased earthquake activity in places like Oklahoma in recent years. (Check out this article from Forbes magazine.) I’m not saying that fracking in inherently bad or destructive, but assuming that it could be, than one could imagine an advanced alien society with little regard for the environment (the Klingons) mining to the point of destabilizing an entire small moon, especially if the material being mined was particularly unstable.

      As for the case, well, it’ll be over soon enough…one way or the other. Rulings that could come any moment on summary judgment might result in a sudden and unexpected settlement agreement…or the dismissal of the entire lawsuit (something I doubt we’ll see). Then, in the days between January 21 and 31, the judge could rule on excluding evidence or witnesses. This could likewise lead to some last-minute negotiations before trial. And if we actually go to trial. I’d expect a verdict before the end of February.

      As the Mohel said before the circumcision: “It won’t be long now.” (I’m Jewish’ I’m allowed to make that joke.) 😉

  22. This is a very interesting read. Thank you!

    I do have a question about non-willful infringement. If that is indeed the outcome, wouldn’t the Axanar production has to be closed down? CBS can ask for an injunction to stop production, right? And wouldn’t any future star trek fan film work by Alec become willful automatically even if he is found non-willful this time?

    I do not think CBS is looking for financial gains here. In no shape or form that even CBS would believe, even in their best scenario, that this lawsuit is going to pay anything but a fraction of their lawyer costs.

    I think they are in it for the control. To send a signal that they can close down any fan film at will, if you do not abide by what they want. So my question is .. wouldn’t the court concluding in any form of infringement accomplish that?

    1. Absolutely. In fact, I suspect that is the main reason the studios have not yet put forth settlement terms that are reasonable enough for Alec Peters to accept. However, to quote Spock in “Requiem for Methuselah”…there is a risk. Obviously, the first risk for the studios is that Alec wins on fair use, and that is the worst case scenario for CBS and Paramount. But there is also the possibility of the following things happening:

      1) The judge throws out violations like the use of Vulcans and Klingons because they are not characters. He also throws out uniforms, medals, planet names, UFP logos…all because they are not copyrightable either. (Expect LOTS of bootleg Starfleet uniforms and UFP patches for sale if that happens!) The same goes for characters like Soval and Garth, who might also not be protectable. If they are thrown out as well and, say, out of the 57 alleged violations, only a dozen or so are left, then those 45 that got thrown out are now sauce for the goose. Any fan film could use Vulcans, Klingons, Soval, Garth–even Alec could!–and not have to worry about infringement. The precedent would be set. So in the second-worst case scenario for the studios, let’s imagine that Alec is dinged solely on the use of the USS Enterprise in “Prelude” and nothing more. Then he’ll get to make the full Axanar movie and just leave out the NCC-1701 (put in the NCC-1700 or NCC-1704…and he’ll be essentially immune from copyright infringement damages. (Now, trademark could be another matter if the Constitution-class design is re-trademarked–it currently isn’t, folks…go check!!–but that would be a whole other lawsuit and now nearly as time-consuming or costly to litigate.)

      2) Even if Alec loses, HOW is loses is huge. Let’s say there’s a judgment of only $10,000 against him (a decent possibility). Then it’s conceivable that a future fan series plans their project similar to the way Prelude was done, violates the guidelines, raises a few hundred thousand dollars, and then sets aside $50,000 to pay the $10,000 “fine” plus the $40,000 in legal fees that it’ll take to copy-paste all the arguments from the Axanar filings into their case filings.

      On the studio side, this case has already cost them a half million to three-quarters of a million dollars. If it goes to court, the final bill will be waaaaaay over a million dollars. To spend that much for only $10K plus a moral victory of “YAY! We sued our fans, and we won!!!” might save at least a little face when Jonathan Anschel walks into Les Moonves’ office in mid-March. But the other studios like Disney and Warner will likely look at the damage CBS and Paramount have done to their franchise (DISCO would likely have tanked on All Access anyway, but now they’ll never be certain if this case had something to do with its failure or not) and wonder if such “control” was really worth a million dollars and the permanent loss of goodwill from a percentage of the hardcore fans…the same ones who would have formed the core audience for DISCO.

      In the distant future, I sincerely believe this lawsuit will be viewed as a huge mistake, corporate overreach, and bad judgement on the part of executives who failed to understand the transition that was happening in media at the moment. And this heavy-handed attempt to hold onto a rapidly disappearing status quo only underscored how backward-thinking the studios had been all along.

      But yes, Alec could lose on non-willful infringement and find himself challenged to find a way to produce any more Axanar (unless he wants to try to follow the guidelines, which is problematic). However, there are also multiple outcomes of this case where Alec loses that could still result in a clear and safe path for Axanar or, conversely, potentially unforeseen (except by me) problems for the studios.

      1. Two more questions/comments:

        1) You mentioned that it is possible that “the judge throws out violations like the use of Vulcans and Klingons”. So what exactly can copy-write protect? And how are separate elements in the relevant creative work being considered? Can the court says something like yellow shirt/black pants combo is fine, but not the exact chest emblem is not, and pick-and-choose which element is protected, and which not?

        2) I have issues with your scenario: “Then it’s conceivable that a future fan series plans their project similar to the way Prelude was done, violates the guidelines, raises a few hundred thousand dollars, and then sets aside $50,000 to pay the $10,000 “fine” plus the $40,000 in legal fees that it’ll take to copy-paste all the arguments from the Axanar filings into their case filings.”

        In this case, wouldn’t the future fan series be found to have engaged in willful infringement because this case served as guidance? Even if not, after paying the $10000 “fine”, they would not be able to proceed as planned, right? So again, while the small size of the fine protects individuals from being ruined, it does not necessarily provide a path for the said fan film to move forward.

        So if my interests is to see the proliferation of fan films, point (1) about what is in violation, and what-not, is more important than the size of the fine. Is my reasoning reasonable?

        1. Excellent questions! (My apologies for taking so long to respond. Wendy and I took a spa day, had awesome pizza at Mario’s, and then saw two movies tonight. Jayden’s with his grandparents.) 🙂

          So let’s tackle your questions in order. First, yes, the court can say, “You can’t copyright clothing, so that violation is being thrown out.” In fact, the defense team is counting on whittling down the list of 57 violations at least a little. You see, you CAN’T copyright clothing. You can only copyright something that is unique ON the clothing…like the Starfleet arrowhead insignia. The only problem is, that insignia doesn’t appear on and of the Axanar uniforms. Garth is wearing the spear insignia of the USS Ares, and that is unique. And anyway, the complaint did not specify the insignia, only the clothing style:

          Uniform with gold shirt
          The Prelude to Axanar uniform style is taken from The Original Series episode “Where No Man Has Gone Before” (1966) (Reg. No. PA-58-303), which includes a gold shirt with a particular type of collar.

          There is another violation that does list an insignia–the cluster “flower” that appears on Starfleet Command uniforms:

          Cowl neck and Starfleet Command Insignia
          This style of women’s uniform seen above with the cowl neck was seen in the first pilot of The Original Series episode “The Cage” (Reg. No. PA 314-430). The footage was reused in the episode “The Menagerie Parts I & II” in 1966 (Reg. Nos. PA-58-294, PA-58-295).
          The Starfleet Command badge seen below was first seen in The Original Series episode “The Menagerie Part I” in 1966 (Reg. No. PA-58-294).

          This second one is more interesting. They can’t claim a copyright on the women’s uniform, but they could try for the insignia…except for one problem: the two never appeared together at the same time. The “Cage”/”Where No Man…” cowl neck always had the arrowhead insignia. The cluster “flower” insignia was only ever seen on the later TOS black-collar uniforms. So we’ll have to see what the judge says on this one.

          But at minimum, I’d predict at least the first alleged violation comes off the list, and that could shave anywhere from $200 to $150,000 off the verdict!

          As for your second question, that’s MUCH more complex! So let’s go over a few things…

          1) The Axanar case itself sets a precedent. Assuming that some of the violations are tossed out as being unprotectable, that becomes a future defense: “I thought we were only using unprotectable elements of Star Trek and so it was okay.” If that happens, then a future fan film could also argue for non-willful infringement using Axanar as precedent…unless they do something clearly in violation like using Kirk or Spock or Picard, etc.

          2) The guidelines create an interesting wrinkle, as well. They imply that the studios will actually accept Star Trek fan films, despite their potential financial “harm.” So if a few of the guidelines are violated, then the question becomes: how much are they violated? The jury would then have to determine if a fan film that raised $200,000 represents a more significant risk of harm to the studios than one that raised only $50,000…or if a 45-minute fan film harms the franchise significantly more than a 15-minute one. And if so…how does the studio prove that? If the damage risk is minimal, so too will be the jury award. THAT would be a REALLY interesting case to follow (possibly even more than this one)!

          3) Most likely, a fan production won’t be sued until AFTER it is released. In fact, as Axanar will likely show (although we still don’t know for sure yet), you probably can’t sue a fan film that hasn’t been made. So the fan production would be made, posted to YouTube and Vimeo, and then the studios would see it, get pissed, and sue (assuming they want to travel down that road again…as it’s been such fun this first time!). Assuming the studios win the suit (with either a large award or just a “slap on the wrist” verdict), the fan film is still out there and available. And even though YouTube will likely be agreeable to taking it down, there are lots of other ways that fans can make it available to each other. So the genie will definitely be out of the bottle.

          Can the studios try to enjoin the fan filmmakers from working on any fan film again? Well, the studios are trying that this time, and the defense team is arguing first amendment rights. Judges like to be VERY certain before they start screwing with freedom of speech. So if that motion for partial summary judgment is denied by Judge Klausner, then future fan filmmakers, even if successfully sued, could conceivably dive back into the pool for more legal punishment. Granted, I suspect few will WANT to do that, but you never know when someone will live just to make a point.

          And now my song is done. 🙂

          1. I hope you don’t mind me asking more questions.

            Can you explain the principles of copy-write law regarding actual work versus the planning of work?

            I understand CBS can sue for copy-write violations in Prelude because that is an already existing piece of work. However, in the case of Axanar, nothing is there yet. Is copy-write laws only cover violations that already occurs in works that have been produced, or planning of such work counts?

            And if planning counts, how is violation determined without a final product?

            I can imagine i will write a script of a star-trek movie tomorrow. But without the actual movie, who is to say i won’t try to sell the script to CBS, or i can re-purpose it to something non-star trek (which i believes happens all the time) later.

            Now i suppose the considerations may be different if I start hiring directors, actors, and so on. But where do the law draw the line?

            This issue, i think, go to the heart of the availability of fan films. If CBS has little ground to sue (despite they are obviously trying) before a particular work is completed, then all we are talking about is the deterrent effect of a big judgment, and the size of the judgment becomes an overriding issue (and i agree that it is going to be very hard, if not impossible, to show that prelude would have move the needle with respect to, say, the box office of beyond). However, if CBS can sue (and obviously with a decent chance of winning) BEFORE a fan film is completed, then they can shut things down, and a nominal judgement, as long as CBS wins, will be detrimental to fan films.

          2. I’m happy to answer questions, Narius. I just got back from a ridiculously fattening and wholly amazing dinner and then seeing “La La Land” (excellent movie–go see it), and now it’s 60 minutes until the ball drops for us here in the Pacific time zone. So yeah, time to answer some legal questions! 🙂

            But keep in mind, I am NOT a lawyer. I simply hold one’s hand in the movie theater.

            So first of all, and forgive me for being pedantic, but it’s copyright…as in a right that you hold to something you create. And while a copyright can apply to something written, such as a book or play or script, it can also apply to a piece of artwork, sculpture, music, or (of course) film. So copyright, not copy-write. Okay, end of sermon. 🙂

            So how can the studios sue over something that hasn’t been made yet? Well, according to the attorneys at Winston & Strawn, they can’t. And at least from where I sit in the cheap seats, I think they’ve got a point. On the other hand, the studios say that the Axanar movie script was an actual infringing entity at the time they sued because the script was supposedly “locked and final.” Now, it turns out that “locked” has a specific definition in film making, and it does NOT mean the script cannot be changed again. (One would think a film studio would know this.) A “locked” script simply means that all subsequent changes must be logged in a new, numbered script version. Before locking, any changes are simply ones to the draft version. Once locked, then you have things like Version 1a, 1b, 2a, or 1.0, 1.1, 2.0, etc. This is how changes are tracked.

            The studios are also seeking an injunction on the filming of the locked Axanar script (or any further Axanar anything), as that could harm their ability to create and/or license derivative works. In other words, let’s assume that the new Star Trek: Discovery wants to feature Garth of Izar as major character. Axanar plans to create a quality version of a Star Trek movie that would depict Garth and cause confusion in the marketplace. Here’s a different example…

            Imagine if a Star Trek fan film of Axanar’s quality had been made after “Star Trek: The Motion Picture” and released in 1980 or early 1981. In this fan film, Khan (possibly even played by Ricardo Montalban) is discovered on a green and lush Ceti Alpha V, having built a spacecraft to leave the planet. He is able to use that small ship to gain access to a larger Starfleet vessel and commandeer it–the USS Hood, a refit Constitution class starship. Khan heads for Earth. There’s a huge space battle, but Khan’s genetically engineered intellect fights off and destroys starship after starship…until the Enterprise gets there. Kirk beams over and sabotages the Hood, crippling it. He and Khan struggle as the Hood crashes into Earth’s moon and is destroyed. Only Kirk emerges, and there is no sign of Khan.

            NOW imagine the studio releasing “Star Trek II: The Wrath of Khan” AFTER this fan film is out there and viewed by 3 million people. Sure, the studio’s feature film will be seen by 50 million people and will obviously be the “real” Star Trek. But how many fans might skip he studios’ movie because they’ve already seen the fan film and think it was just fine (or they didn’t like it but thought the studio produced it and now Star Trek sucks)? That could cot the studio untold millions of dollars…but it’s hard to prove or to ever know for certain how much harm was done.

            The studios are asking for the injunction because, once the full Axanar movie is made, there’s no un-ringing that bell. The damage would be done, and the studios would be screwed. So the judge has to stop the damage BEFORE it happens, even if there is no proof that it WILL happen…only that it COULD happen.

            That said, as the defense points out, such an injunction does kind of step on the first amendment, and judges don’t like to do that without a REALLY good reason. So I suspect this round will either go in favor of the defense or at least come out a “draw” (no injunction, but the judge might still allow the “locked” script to be placed into evidence). But as I said, I’m no lawyer, and my predictions aren’t really worth the electrons they’re printed on. But hey, we’ll know if I was right any day now!

  23. LOL. Thanks for the response. I’m eager to see the end result. I’m really hoping for a favorable response on the part of the court. Again, I am truly grateful for your candor and the relaying of information.

    Overall, I’m disappointed in what I and many perceive to be a slap-in-the-face to fans who love Star Trek enough to want to produce their own works within that universe. I’m concerned regarding what it means for the creative fans. I’ve produced a number of sculptures over the years honoring Trek. Tons of people have done other works honoring Trek.

    It’s the scene in Undiscovered Country where Spock volunteers the Enterprise for the mission, and I misquoted. He said the Ozone was polluted, depleting them of Oxygen in approx. 50 Earth years. It was the only thing that made me say ‘Huh?’ when I saw it in the theatre. I have said ‘huh’ every time I’ve watched it. LOL. It still remains one of my favorite of TOS films.

    Sorry for the digression.

    2. Clearly, CBS does not exist for the fans. Certainly they will work with, and tolerate fan actions to some extent if it makes good business sense. In this case, rightly or wrongly (i suspect wrongly but I don’t see their internal business plans/projections …), they do not believe it is so in the case of Axanar.

      I also suspect that the recent trek business are generated mostly by non-fans. The recent trek box office (Beyond, ITD, staring from the Abram reboot) are driven by the masses, and often not even in the US. How many of those are “real” trek fans?

      While personally i would like to see Axanar made (prelude is quite nice), most of my friends … even those who like star trek, are not even aware of fan films, not to mention the masses. I think CBS would like to keep it that way, and make sure fan films do not adversely impact their business.

      At the end of the day, we have to remember that CBS is 100% more accountable to their shareholders, than trek fans. Jonathan has painted a hypothetical but reasonable scenario when a fan film can hurt the trek business. So this conflict of interests (or at least the perception of it) is not purely academic. CBS clearly think so. Otherwise, we won’t be here talking about the lawsuit.

      1. While the box office draw of Star Trek Beyond went absolutely, er, beyond the hardcore Trekkie, the audience for Star Trek: Disco won’t be nearly so diversified. For $6-10/month, the subscriptions will very likely build on a subscriber base of hardcore fans. If subscriptions for All Access don’t jump dramatically in the weeks following the network premiere of Disco on CBS (and I strongly suspect they won’t), then that’ll just underscore the sad fact that not only is Star Trek no longer a mainstream property (for a number of reasons), but that the hardcore Trekkie is no longer willing to follow everything Star Trek regardless of the cost or commitment.

        I also predict that, by season two, Disco will be available exclusively through Netflix even in the U.S. and Canada. We’ll see if I’m right. Stranger things have happened. 🙂

        1. Or they’ll just cancel it altogether. Enterprise was complete dross, up until Manny Cotto took over the writing, had he been able to keep going until season 7 I don’t think Enterprise would have been spoken of with a sour taste. But that requires long-term thinking, something which TV executives’ brains are ill-equipped for.

          1. Netflix is paying CBS enough to finance season one of the series. So it’ll be easier and more cost-effective to just let Netflix license the property…like they do with the Marvel series. Then CBS can sit back, do essentially nothing, and just collect money for nothing other than owning Star Trek. That would seem like the best business decision. And if the shareholders don’t like it, just point to Disney and take a look at how much they’re making off of franchising out Daredevil, Jessica Jones, Luke Cage, and Iron Fist (and The Defenders).

  24. I am already a subscriber to NetFlix (with 2 accounts – plenty computers and tablets and phones connected) and thoroughly enjoy their original series now. I would welcome Star Trek going over to them and given some freedom. I would even welcome Disney taking it over. At this point I think ANYONE would do better than the current owners……such WASTED potential!

    1. As an employment litigator, my wife is keeping a close eye on a lawsuit (two actually) involving Fox and Netflix (no, her firm is not handling the case):

      http://www.hollywoodreporter.com/thr-esq/netflix-countersues-fox-claims-employee-939847

      Apparently, Netflix is poaching the best people in the industry from the major studios. Is it legal?

      If you just can’t get enough of Hollywood lawsuits, and Axanar is leaving you wanting more, this Fox/Netflix lawsuit is the one to watch!

      1. Hey, Jonathan, I also want you to start blogging on Harry Shearer’s fraud suit against Vivendi over “This is Spinal Tap” (scroll lower in that same link you provided)

        That trial will definitely go up to 11 . . . . .
        🙂

        1. Wow, that Spinal Tap lawsuit looks pretty awesome–total good guy/bad guy situation!

          “You know, dozens of people spontaneously combust each year. It’s just not really widely reported.”

      2. Thanks for the link Jonathan
        Great read
        and just maybe there is something in this lawsuit that links to the Axanar case. One could argue in both cases an old Hollywood studio is challenged by a new player on the internet who ignores “gentelmen agreements” and practices of the industry. The new player even dared to ask is the way things work around here by the book or are things consindered a no-no actually not covered by law and the studios can’t continue buisness as they have for decades. So maybe the fear of changes triggered both suits. As for the fear of changes just look at the strike of voiceactors against certain gamedevelopers, from my perspective its reason is the fear of changes by gamedevelopers. And since its all based in LA/Hollywood and its somehow all interconnected it would be a huge coincidence if wouldn’t be at least some connection.
        I think studios/developers are beginning to realize there licence to print money is about to be revoked and have no idea how to operate under the new conditions

        1. Fear of change and of the unknown is understandable, though. The studios are huge entities, with infrastructure developed slowly and steadily (and strategically) over the years and decades to do things in one particular way. Studios don’t make sharp U-turns like a sports car spinning donuts on the asphalt. It’s more like an ocean liner doing a 3-point turn in the English Channel. Unfortunately for the studios, the world doesn’t really give a crap how fast the studios can maneuver and will just go right on changing and evolving. If the studios can’t keep up, they’ll still have a certain portion of the pie…just not as much as they used to.

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