Judge R. Gary Klausner has just issued his Order on Motion for Partial Summary Judgment in the AXANAR lawsuit.  I’m reading it over right now, and I’ll have a more comprehensive analysis in the next few days.  But on first glance, it seems to be much more of a blow to Axanar than to the studios.  However, it is not a knockout blow in that the judge has not issued any rulings that end the case in favor of the plaintiffs.  Unfortunately for the defendants (Axanar Productions and Alec Peters), though, the judge has essentially tossed out Axanar‘s best hope for a “win” by declaring that fair use is invalid in this particular situation.  That’s a biggie, but Axanar can still argue (according to the judge) that Prelude to Axanar is NOT substantially similar to Star Trek…which might be an uphill battle.

All in all, not a good day for Team Axanar, but the game isn’t over yet (and it could have been).  More to come after I have a chance to read and discuss things further…


  1. This was one possible outcome, but Axanar will almost certainly appeal if they lose at trial. Seeing as how Erin Ranahan is 5-0 before the Ninth Circuit Court of Appeals does give some hope.

    What silver lining there is from that ruling is that the judge seems to lean toward a finding of non-willful infringement, based on CBS’ lax enforcement of their copyrights with respect to fan films beforehand. That lessens somewhat the possibility of a ruinous judgment against Axanar, at least.

          1. I can’t see how I help the plaintiffs much. The judge all but stated that in today’s court order. My one purpose is to help prove non-willful infringement. I’m not there to help with fair use (now off the table anyway) or with Axanar being substantially similar or not.

          2. Wouldn’t the word Stalemate be a more proper word since neither side got what they wanted ?

            Granted things were pointing in this direction for sometime however truth be told haven’t the studio’s hit much more than Alec Peters ?

          3. If you want to use a chess analogy, the game is not yet over. However, Team Axanar just lost a queen, while the plaintiffs still have all of their pieces on the board. The piece the defense lost was the ability to use fair use as a defense. It’s still possible to win, but it’s much more difficult without the queen.

        1. Wouldn’t the plaintiff have to treat Jonathon Lane as a hostile witness? I have very little understanding in legal areas.

          1. A hostile witness is one who is hostile to the party that called him/her as a witness. For example, if the defense calls John Van Citters as a witness, he works for CBS and would be potentially considered to hold opinions contrary to the arguments of Alec Peters and Axanar. He might be considered a hostile witness.

            I was called by the defense, and I certainly side with them. So I am not, by law, considered a hostile witness. If I had been called by the plaintiffs instead of the defense, then yes, I could be considered a hostile witness. But the plaintiffs didn’t call me.

    1. Exactly so, Reece. My assumption from the start has been that if this goes through the full trial, Erin will win on appeal regardless of which side appeals the jury verdict of the first trial.

      I did appreciate all the Star Trek references sprinkled into the ruling, though. 🙂

    2. Maybe this ruling helps set some parameters for a settlement. Axanar kind of knows where they stand legally and CBS/Paramount may not want protracted and costly legal proceedings into the forseeable future, especially with a new show coming out. I’m sure both legal teams had contigencies for a ruling like this and it should make for interesting times leading up to the trial date.

      1. Quite possibly. Right now, the earthquake has just hit. The next step is assessing the damage and planning to the next steps. Of course, that’s all for the plaintiffs and defendants to figure out. The rest of us can only watch the game.

    3. From AxaMonitor:

      Peters’s statement touted its attorney Ranahan’s successful “5-0 record” of appeals before the Ninth Circuit. AxaMonitor has only been able to confirm four such cases where she was listed as counsel, but in none of them was she “counsel of record,” the lead attorney who actually argued the case. And two of those four cases were voluntarily dismissed before the Ninth Circuit issued a decision.

      The two most relevant cases where Ranahan was listed (again, not as the lead attorney) don’t really shed much light on how the Ninth Circuit would respond to an appeal in a case like Axanar’s. The first case, UMG Recordings, Inc. v. Shelter Capital Partners, involved the application of the safe harbor provision under the Digital Millennium Copyright Act. The second case, Graham-Sult v. Clainos, dealt with misappropriation of intellectual property.

      In both cases, Ranahan’s client supported affirming, not reversing, the district court. That’s critical because, as noted above, affirmed decisions are statistically much more likely than reversals. And in Graham-Sult, the Ninth Circuit actually reversed on one issue, against the position advocated by Ranahan’s client.

  2. Well, that ruling is a pretty hard hit to Axanar’s best chance at a win. The “win” of getting the infringement ruled as non-willful and damages substantially reduced is probably the strongest hope for the outcome at this point.

    I gotta feelin’ that there will be an appeal based on this ruling, no matter the outcome of the lawsuit.

  3. It’s kinda hard to argue it’s not Star Trek when Axanar claimed it’s the best canon Star Trek fan film ever produced – lol ..
    Incompetence at camp Axanar has already shot their only defense in the butt – lol..
    A jury sure isn’t going to have a problem seeing this as Star Trek, especially since a 2 year old could see that it’s obviously a direct rip off – lol ..

    1. Yeah, it could be tough to say that “It’s Star Trek like you’ve never seen it before!” actually meant more of the “like you’ve never seen it before” than the “It’s Star Trek.” But hey, at least it goes to a jury. And as a lot of people are now saying, there’s always the appeal.

  4. I’m not sure why anyone would just assume that this case would be winnable on appeal simply because of the track record of defense counsel. There will have to be some misapplication of law during the trial for an appeal to be successful. Were I on the defense team, I’d advise settlement discussions toute suite. Better to walk away without a film than walk away without a home to show it in.

    1. Erin past track record of 5-0 on the court of appeals has been on the copyright holders strong suit, she’s never had to attempt to reverse a court ruled violation of copyright, which will probably be the case here !

        1. Which will happen only is Klausner made a mistake which is why I think in this ruling you see him hand a few things like the substantial similarity to the jury to avoid that. He seems to be being very careful to not give appealable issues.

    2. Obviously the defense counsel has an established record of finding cause for appeals to be able to win said appeals.

      Also, even if the defense loses and doesn’t appeal, non-willful infringement won’t add up to anyone losing a house in this case.

    3. I don’t think you’re right on this James. I haven’t found an example that exactly matches this case, but from what I’m seeing, matters decided upon in summary judgements in general can be appealed.

      I’m sure Jonathan is querying his LEs on this as we speak…..

      1. Just spoke to one of the birds of prey, Dave, and yes…that could be the gift that Klausner gave the defense today (either purposefully or not…I personally don’t believe in conspiracies, so I think it wasn’t on purpose). I’ll go into it more in the next couple of days. I’m working on the major blog first.

      1. The more interesting sections to me were

        – Garth and the other elements can be copyrighted
        – Axanar did violate copyright
        – Axanar is NOT transformative
        – Peters did directly profit.

  5. The judge is basically saying that Axanar is completely copyright infringement, that Garth and Vulcans and Klingons are part of that copyright, that Alec did receive benefit from the production, that Axanar is NOT fair use, and that there is clearly potential for market harm. This is his ruling based on the evidence.

    The only things he’s leaving for a jury to decide is if Axanar looks like Trek to them (hint: it will) and did Alec do it wilfully (hint: the evidence is pretty compelling in that regard).

    The bottom line is that the Judge has destroyed Ranahan’s entire defence, even admonishing her for resubmitting arguments denied previously. This is a big win for the Plaintiffs and there’s no way you can spin it otherwise.

    Pinning your hopes on appeal just reeks of desperation.

    1. Then color me desperate, Sandy! 🙂

      (Although I did just learn something VERY interesting about the appeal…and the defense may have gotten a bit of a gift from Klausner…a silver lining in the cloud, if you will. We’ll see what happens, but it’s an intriguing take on what just happened that I happened seen discussed anywhere else yet.)

      1. Perhaps you should share your very interesting item regarding the appeal and the silver lining…because some of us are wearing our Axanar tshirts and sobbing like someone took away our tribbles 🙁

        1. When all is said and done, Keith, it is what it is. This is a lawsuit, and things don’t always go the way of the side you’re rooting for. Anyone remember the end of “Kramer vs. Kramer”? Yeah, I’m feeling a little down, too, but at the end of the day, this isn’t about me or you; it’s about Alec Peters. And he seems to be pretty zen about it so far. So if Alec isn’t sobbing into his sushi, then why should we?

          It’s not over yet, of course, and we always knew Alec could lose. In fact, I seem to recall that I predicted the fair use defense to have a snowball’s chance to work at summary judgment and a 20% chance of working at trial. Now it’s simply a 0% chance of working at trial. But all along, I was predicting the greatest likelihood of a loss with only a non-willful “slap-on-the-wrist” verdict. And I still stand behind that prediction…even though it’s totally a lay person’s prediction of a legal result (and I’m not a lawyer). But I sorta think Klausner’s leaning that same way: non-willful infringement.

          So when I finally emerged from my dark cloud (didn’t take long, to be honest), I realized that I’m pretty much where I was yesterday only with the small hope of an unlikely victory on fair use having been snuffed…and everything else being pretty much the same.

          As for the very interesting item–hey, you know how much I like to keep people in suspense! 😉

          1. I cannot speak for Mr, Greenburg, but For those of us with actual legal training, and not purveyors of anti-Axanar grudge rhetoric or blogs, this was never about “rooting” for someone. This is not a football match. This was about whether or not Peters did something he wasn’t authorised to do legally, no more, no less – and the odds have always been stacked against him when one considers the legal principles involved.

    2. Wow, Curly Boy…..I don’t see Jonathan spinning it any other way than this being a win for the plaintiffs. You’re the one who’s veering substantially into hyperbole here……

          1. No Davey, I’m just fed up with your condescending and passive aggressive comments on every comment of mine.

          2. “Passive-agressive”? I’ve been direct and to the point with all of my comments.

            To quote The Princess Bride, “I do not think it means what you think it means.”

    3. The judge isn’t actually saying that it’s copyright infringement. What he’s saying is that it’s close enough that a jury has to decide, and that’s a very different thing.

      That said, I agree it is a much more difficult argument to make that the protected elements of Star Trek aren’t similar enough to Prelude to constitute copyright infringement. The argument is there, but the Judge has essentially pointed the plaintiffs in the direction he expects their case to go: that yes, many elements of Star Trek are unprotected, but taken as a whole and combined with the protected elements, they constitute an original, protected work that Axanar admits to being based on. That’s an even harder case to make than that Axanar is transformative for Fair Use purposes.

      I expect at this stage that unwillful infringement is the likely outcome, which also means the contributory offenses would fall on Alec/Axanar Productions. (I’m not sure what sort of liability that would give him in addition to the actual infringements if he’s found guilty of unwillful infringement.

      I look forward to seeing Jonathan’s take on the ruling on Fair Use, as to me the part on profit was one of the most interesting parts of the whole ruling, and bodes badly for Axanar trying to appeal, even if they got a different judge somehow.

      1. Wrong. The court found contributory and vicarious infringement, which is indeed copyright infringement.

        Jonathan’s “take” on fair use is, with respect, completely irrelevant. He is not legally trained and his opinion is worthless in that regard. Furthermore there is little point in looking at it further unless it forms part of an appeal.

      2. I should probably add to my last post that the finding is such that if the Axanar works are substantially similar the court will not then need to determine whether or not Peters is an infringer as the judge has already said he will be.

  6. Johnathan…you need to secure the movie and book rights before this is all over, so you can be the only one who writes about what truly happened behind the scenes.

    as for the judges ruling, it does hurt the defense, but at least it was not summary judgement, and the Jury will still have their say.

    1. If I write about what happened behind the scenes, I will lose two friends. Like Donald Trump, I know things other people don’t know. But I promised not to name names or share details, and I will honor that promise. Alec is gonna need to license the film rights to someone else. As for the book rights…I have written a book’s worth of blogs…haven’t I? 🙂

  7. I found it interesting that the judge used the book and Four Years War in issuing his judgement. Everyone knows they exist, but the Paramount/CBS didn’t bring it up until the end and the Defense objected since it was brought in so late.

    1. Note the last line of the court order:

      “To the extent the parties object to any evidence relied on by the Court in this Order, those objections are overruled.”

      In other words, “I don’t want to hear it, kids! You’re going to eat you vegetables!”

  8. Mr. Lane,

    I know you have refused to allow some of my critical posts, so I suspect this will not make it onto your site, but you will still see it nonetheless. This order pretty much reflects what I said to you previously, and it absolutely damning for Peters. It’s this very reason why it was always preposterous for you to sit on this blog dressing up the case in a way that suggested Peters’ was going to barnstorm the litigation. It’s why I found it all so cringeworthy.

    Your common sense should tell you that with fair use now gone, there is very little scope for Peters to avoid disaster, let alone make Axanar, and frankly I would be willing to bet my house on a jury finding that Axanar is substantially similar to Trek. It’s a Trek spin off with all the requisite tropes. It was even called Star Trek at one point. It doesn’t take a genius to foresee the likely finding of fact. Any other finding would be perverse.

    I’m afraid Peters is screwed and, like I said to you before, you should think very carefully about your association with him. Don’t go down with the sinking ship.

    1. I don’t recall ever refusing to allow your critical posts, Neutral. If I did miss one, I apologize. Usually, I’m pretty good about letting everything on here unless someone is given a warning for either language or directly insulting of another person and then proceeds to ignore that warning and do the same thing again. But I’ve only done that a few times that I can remember, and I don’t recall it happening with you (Hinman, yes–total potty mouth on that guy). If I did pass over one of your comments, or if I accidentally hit “Trash” on your posting instead of someone else’s, or there was some kind of system glitch, I do apologize for that. I usually approve every comment, no matter how much I might disagree with it. You’ll see that the folks who criticize me early and often never mention my aversion to confrontational postings.

      Now, I will admit to being very confused about your final comment:

      “I’m afraid Peters is screwed and, like I said to you before, you should think very carefully about your association with him. Don’t go down with the sinking ship.”

      That doesn’t seem to make any sense to me. Alec Peters is a friend…and a pretty cool guy. He’s always been nice to me and my son (he only spoke to Wendy once, I think, but I’m pretty sure he was nice to her, too). And he’s the geekiest geek you ever did see! Robert Meyer Burnett…awesome fellow. Diana Kingsbury…one of my favorite people on the planet (they don’t come any sweeter). Crysstal Hubbard…very smart and intuitive thinker. I’ve had some amazing conversations with her.

      Why would I want to rethink my association with any of those people? It’s not like Alec is going to jail for murder. At worst, he has a multi-million dollar verdict that he can’t pay back and forces him to declare bankruptcy (in which case, I might have to treat him to lunch for a change). 🙂

      Look, for all my passion about Axanar and about this lawsuit, as Alec told me earlier today, it’s just a lawsuit. It’s just business. It was essentially a hobby for him. He didn’t work in the film business before Axanar, and if he loses this case, he likely won’t work in the film business afterward. That’s not a sinking ship; it’s just status quo.

      As for me, I’m just a blogger. If the Axanar feature film never gets made, there’s still a lot of fan films out there for me to blog about. In fact, I’ll have more time to blog about the other ones because this darn case will finally be over! (As it is, I’m now holding a fantastic 2-part feature on “Dark Armada” until next week since I’m spending so much time writing tomorrow’s and Friday’s Axanar blogs.)

      So respectfully, Neutral, I ask what the logic is in suggesting I “think very carefully” about my association with Alec.

  9. So break down of all of the Motions? Who get to testify and does not?What thing are in and what can not be talked on? Love to be the one doing the Jury profiling on this one.

    1. These weren’t court orders on the motions to limit evidence and testimony, Corsair. That’s still in process and won’t be ruled on until after January 21. Today’s ruling dealt only with the motions for summary judgment filed back in mid-November.

  10. I think this ruling was to be expected, fair use was a long shot, but non-willfull will still be a kick in the nuts for cbsp and is in mho imnal far more likely.

  11. Well, it was always probably a Kobayashi Maru at best, but there’s nothing wrong with hoping. I feel bad for Jonathan’s in box, however, as I’m sure you’re likely to see a considerable increase in acerbic, uncivil comments from people who inexplicably revel in the continued erosion of Roddenberry’s vision as if it were merely collateral damage in their Melvillian quest to burn Peters in effigy. They shall chase him round the Moons of Nibia and round the Antares Maelstrom and round Perdition’s flames before they give him up! 😉

    1. Yep, my in-box was PRETTY busy yesterday! You might have noticed fewer replies from me than usual. I spent the day reading and researching and typing blog entries (oh, and being a dad). Apparently, I have become the nexus for “I toldja so”s! (I kinda expected that, though. It’s what happens when you put yourself out there. I have no regrets, though.)

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