Okay, we now know one very important thing that we’d only suspected up until now: Judge R. Gary Klausner is a closet Trekkie (or possibly, it’s one of his law clerks)!
Before I start a deeper dive into the judge’s 15-page Order on Motion for Partial Summary Judgment issued on Wednesday morning, I’d just like to share a few quick quotes from it:
Like many other Star Trek fans, Peters wants to make his own Star Trek production. However, going where no man has gone before in producing Star Trek fan films… (Now, I would have said “where no fan has gone before” but still, nice way to start off.)
Thus, the copyright infringement claim can live long and prosper if the Axanar Works are substantially similar to the Star Trek Copyrighted Works. (I seem to recall seeing that one before in the judge’s denial of the defense’s motion to dismiss…but wait, there’s more!)
Sometimes a feeling is all we humans have to go on. (Kirk said it first in “A Taste of Armageddon,” but now Judge Klausner–or one of his clerks–has said it, too, on the bottom of Page 4.)
These works have transported the hearts of a legion of fans to the Star Trek universe. (I can’t believe the word “transported” was coincidental, folks.)
Defendants’ attempt to treat the Battle of Axanar as a private little war is unpersuasive. (Seriously, now someone’s just showing off!)
Peters “was interested in creating alternative ways for fans to view Star Trek” – the way to Eden perhaps. (And…..no. Sorry, that one was too much of a reach. Herbert!)
Okay, enough of the cutesy stuff! It’s time to take a look at the GOOD, the BAD, and the UGLY…and Axanar certainly got a little of each (and more of some). Shall we begin?
Let’s start with the silver linings for Axanar…
THE GOOD
It ain’t over till it’s over, and it’s still not over. The best news that Axanar got Wednesday (and admittedly, there wasn’t much), was that Judge Klausner denied ALL motions in the case, including motions that would have placed the plaintiffs just a few yards from the end zone. Here’s what the plaintiffs wanted the judge to say (quoted from their Proposed Order Granting Plaintiffs’ Motion for Partial Summary Judgment–which is required for attorneys to submit):
Defendants Axanar Productions, Inc. and Alec Peters (collectively, “Defendants”) are liable for copyright infringement, and for contributory copyright and vicarious copyright infringement.
The Court also declares that Defendants’ works Prelude to Axanar, Axanar, and the script for Axanar (collectively, the “Axanar Works”) infringe upon Plaintiffs’ Star Trek Copyrighted Works.
This would have, effectively, ended the case. It would have left open only the question of how much to award to CBS and Paramount because the judge would have already ruled that Alec Peters infringed on CBS’s intellectual property (Star Trek).
But Judge Klausner was not willing to go so far as to determine the infringement solely on his own. He wants to let a jury decide, based on the determination of “substantial similarity” (more on that momentarily). Klausner himself states that he’s leaning toward the plaintiffs’ claims of infringement based on his personal opinion (that comes under “the BAD” section), but he feels that the actual determination should be made by a jury.
The plaintiffs also wanted the judge to say the following:
The Court finds that this is a proper case for issuance of a permanent injunction…
Essentially, they wanted the judge to forbid Alec Peters or anyone he’s associated with from making any more Axanar anything. And again, Judge Klausner stopped short of issuing that order.
That said, he did leave open the possibility of doing so after the verdict…assuming the jury determines that Axanar is substantially similar to Star Trek…
Because the jury must determine issue of subjective substantial similarity for a finding of copyright infringement, the Court cannot rule on Plaintiffs’ request for declaratory and injunctive relief at this time. Plaintiffs must motion the Court for such relief if the jury finds subjective substantial similarity.
The judge also said something very significant that could, potentially, lower the verdict award (if Alec Peters loses) from seven figures down to just five figures. It seems the judge is partial to the non-willful infringement argument that I’ve been discussing these past few months (he even referenced my History of Star Trek Fan Films document). And so he denied the plaintiffs’ motion to declare Alec Peters’ infringement to be “willful” (which would have locked in a $150,000/violation penalty). Here’s what Judge Klausner said:
A determination of willfulness requires an assessment of a defendant’s state of mind. Questions involving a person’s state of mind are generally factual issues inappropriate for resolution by summary judgment.”
Here, Star Trek has a long history of fan films that stayed free from copyright disputes. (Lane Decl. Ex. 1, ECF No. 75-26.) Although Peters repeatedly stated that the Axanar Works were not to be called fan films, Defendants assert that this statement was made only to distinguish the quality of the Axanar Works. Thus, Peters’ belief that the Axanar Works were noncommercial fan films in light of his understanding from CBS that it would tolerate such films creates an issue of his state of mind that must be adjudicated by the jury. Furthermore, before creating the Axanar Works, Peters sent several emails to CBS to report third parties whom he believed were using Star Trek intellectual property without authorization. Viewed in the light most favorable to the nonmovant Defendants, Peters’ actions demonstrate a respect for Plaintiffs’ intellectual property that makes a finding of willfulness on summary judgement inappropriate.
(Remember when I toldja that the plaintiffs’ “dig” about Alec reporting other fan films would come back to bite the plaintiffs on the hiney? Read the final nine paragraphs–they’re short–of this blog to see what I predicted.)
Now, keep in mind, just as the judge is leaving the determination of substantial similarity (infringement or not) up to the jury, he’s also letting them decide willful versus non-willful infringement if they find Alec Peters liable. So that means there’s still hope for Axanar because juries are made up of people, not judges or lawyers. But as you’ll see in the next two categories, it’s now a much, MUCH narrower path to victory for Axanar and a substantially higher probability of defeat.
THE BAD
So yes, the plaintiffs didn’t get what they asked for in summary judgement, but neither did the defense. And in the defense’s case, the reasons the judge gave for denying their requests lasted for nearly a dozen pages and were pretty thorough. That said, the defense’s arguments were pretty thorough, too (citing a seemingly endless parade of legal nuance and case-law precedent), so the judge was likely matching them argument-for-argument, carefully suturing every scalpel cut. The plaintiffs were using a hammer, so all the judge really had to do with them was simply remove the nail temporarily and say he’ll give it to them later if the jury rules in their favor.
The first thing the defense wanted was for the judge to toss out the charges dealing with the full Axanar movie because it hasn’t been completed, and you can’t hold someone accountable for something they haven’t done yet. In other words, suing over the Axanar movie is premature.
The judge disagreed, citing the same reasons he gave when he denied the defense’s Motion to Dismiss on the same grounds that the Axanar feature film was “unripe” (premature).
The Court will not repeat its rationale here, except to note that evidence of a final shooting script satisfies the judicial standard for summary judgment.
Strike one.
- The character must generally have physical as well as conceptual qualities.
Since Garth has appeared as a live character, he has physical as well as conceptual qualities.
- The character must be sufficiently delineated to be recognizable as the same character whenever he or she appears.
In the episode [“Whom Gods Destroy”], Garth discussed his victory in the Battle of Axanar with Captain Kirk, the Captain of U.S.S. Enterprise. In addition, a 2003 novel, titled Garth of Izar and copyrighted by Paramount, further developed the character.
- The character must be especially distinctive and contain some unique elements of expression.
Garth was a former starship captain and was famous among Starfleet officers for his exploits in the Battle of Axanar. In fact, his exploits were required reading at the Starfleet Academy. He charted more planets than any other Starfleet captain. Garth’s identity as a Federation hero sufficiently delineates him and sets him apart from a stock spaceship officer.
Strike two.
As for species, like the Vulcans and Klingons, the judge didn’t throw them out as as non-copyrightable either:
Taken together, these characteristics of Klingons and Vulcans are not “elements of expression[s] that necessarily follow from the idea” behind the expressions (visual expressions, for example) and may be entitled to copyright protection.
Strike three.
Then you might recall me explaining that clothing designs are not, in and of themselves, copyrightable. Only things that go onto clothing and have their own functional uses can be copyrighted. Well, here’s Klausner’s take…
The artistic aspects of these costumes that “can be identified separately from, and are capable of existing independently of, the utilitarian purpose of the costumes” may be copyright protectable. [] The combination of artistic visual elements of these uniforms likely contains original expressions protectable under the Copyright Act.
Strike four. (Four strikes?)
And then there’s the “and the rest…” grouping of planets, ships, spacedocks, Vulcan mountains and buildings, Surak, the Federation and Klingon logos, transporters, phasers, stardates, warp drive, and the Klingon language. Each of these things is not copyrightable individually (you can’t copyright a word or a planet or a mountain). However, taken together as a whole…
Although each of these elements may not be individually original and copyright protectable, they are “numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship,” especially when combined with the costumes and fictional characters and species…”
So, um, strike five…?
Anyway, the batter is out. All of the defense motions for summary judgment saying that Axanar did NOT use copyrighted intellectual property in its film(s) because those items cited were not protectable was shot down with the following sentence:
Accordingly, the Court finds that Defendants use copyright-protected elements in the Axanar Works.
So the next thing the defense argued in its summary judgment motion was:
[N]one of Defendants’ Works are substantially similar to Plaintiffs’ Works. Plaintiffs own a limited number of Star Trek episodes and films, but they do not own a copyright to the idea of Star Trek, or the Star Trek universe as a whole. Defendants’ works do not borrow sufficient material from the heart of any of Plaintiffs’ Works to be considered substantially similar to, or derivative of, any particular episode or film owned by Plaintiffs.
“Not so fast!,” says Judge Klausner:
Indeed, Defendants use and reference so many distinctive and widely recognized elements from the Star Trek universe that the Axanar Works invoke Star Trek in the minds of viewers. Together these elements are “qualitatively important” enough for a finding of substantial similarity, even if they are “relatively small in proportion to the entire work” (which they arguably are not). Defendants’ extensive use of elements from the Star Trek Copyrighted Works to create a Star Trek prequel can constitute infringement in spite of Defendants’ new story.
And to add insult to injury, this next paragraph was pretty harsh:
Defendants further argue that the Axanar Works are inspired by many sources. Assuming that to be true as the Court must on a summary judgment against Defendants, the argument still fails. Defendants must obtain permission to use protectable expression from any and all preexisting sources to which their work bears substantial similarity.
To be fair, just because Alec Peters was inspired by Band of Brothers and M*A*S*H doesn’t mean he infringed on their intellectual property and needs permission from those studios. But I get the point the judge is making. The defense has thrown everything including the kitchen sink into their filings. Next time, leave out the sink.
Anyway, the end result is still the same. The judge denies the portion of the defense motion for summary judgment claiming that Axanar is not substantially similar to Star Trek:
After reviewing evidence before the Court, including the Axanar Works, the Court is satisfied that Defendants have achieved their goal of creating authentic Star Trek films and script. The Axanar Works are substantially similar to the Star Trek Copyrighted Works, at least under the extrinsic test.
By the way, did you catch that, “Defendants have achieved their goal of creating authentic Star Trek…”? In other words, the judge is not buying the argument that there was any intention here other than to create authentic Star Trek. So…OUCH!
And if you think that’s bad, get ready for Part 2 tomorrow where we look at…THE UGLY!
How long will it typically to take to get a trail date set and jurors picked?
The trial is set to begin on January 31. It could take anywhere from a day or two to select a jury to weeks or even months (jury selection in the O.J. Simpson trial took THREE MONTHS!). That said, looking at the prospective jury questions (there’s a lot of them), I’d predict jury selection in the Axanar case could take at least a few days and maybe as much as a week. But you never know!
What are the chances of Axanar actually winning ?
Unless we open up the box, we have to assume that Axanar is both alive and dead at the same time!
(Sorry, channeling college physics classes there.)
Okay, we need to define “winning.” If it’s being found not liable because there is no substantial similarity between Axanar and Star Trek…well, that’s gonna be tough. I think the best that the defense can hope for is convincing the jury that there is obviously SOME similarity, but it’s not SUBSTANTIAL similarity. Substantial would be Captain Kirk and Mr. Spock and the Enterprise. But using just two obscure characters, introducing a never-before-seen Klingon, and exploring an unexplored time in Star Trek history–and doing so in a mockumentary style–is that just different enough NOT to tip the scales as “substantially?” It would be like arguing in a criminal case that a guilty verdict is “not beyond reasonable doubt.” Sure, it might look like the defendant might be guilty, but can the jury be totally sure? Axanar might look like Star Trek, but is it different enough not to cross the “substantial” threshold? Granted, that’s a MUCH lower threshold than “beyond a reasonable doubt.”
Long shot, to be sure, but it’s the only chance the defense has at this point for a win (at trial)…and it’s not impossible to imagine. What I’d do if I were the defense is show this video:
https://www.youtube.com/watch?v=kWxwFyGhJ7E
…and I would say, “This certainly qualifies as SUBSTANTIALLY similar. So please keep that in mind as you watch ‘Prelude to Axanar’ and carefully consider the meaning of the word ‘substantially.'” If you find ‘Prelude to Axanar” to be just somewhat similar or even mostly similar to Star Trek, then this does not reach the level of infringement because that would require it to be substantially similar. We’re not saying ‘Axanar’ this isn’t at all like ‘Star Trek’–that much is obvious to any reasonable person. But there is a big difference between being a little like ‘Star Trek’ but still an original work of creativity and crossing that line into substantial similarity.”
But I’m not a lawyer. 🙂
Now, does winning mean losing but having an embarrassingly (for CBS and Paramount) small jury award like only $10,000? After all, the studios chased this rabbit down a million dollar hole in legal fees. It is a moral “win” to escape with only a slap on the wrist? If that’s your definition of “win,” then I think the odds are much better for Axanar…maybe even better than 50-50. But again, I’m not a lawyer…or a bookie! 🙂
Or does winning mean dragging this lawsuit out another year with an appeal that could, potentially, send this case back to trial and reset the odds completely? If that’s the case, then the odds are about 1 in 6…which is better than 1 in 10 or 1 in 100…but certainly not as good as 50-50 or better. On the other hand, considering the number of times Kirk beat odds like this…
https://www.youtube.com/watch?v=SQEh9gm2xcs
…6-to-1 odds don’t seem so bad! 🙂
Schroedinger’s Fan Film?
Hey, Boomer could be in that box…get him out!!!
“But using just two obscure characters, ”
See this is where your blatant bias shows, Johnathan. While I suppose an argument could be made that Garth is an obscure character in relation to TOS (Never mind the two licensed novels about him), that isn’t the case of Soval. While Soval wasn’t a main character in Enterprise, he was a recurring character. And considering how much of the series arc of Enterprise dealt with the relationship between Earth, Vulcan and Andoran, and the Soval Character had an important part in that relationship, I am offended that someone who considers himself a Trekkie would even try to argue that Soval is an Obscure character.
With regards to your video comparing the ST:C Vignette with the Episode of TOS, while that defiantly shows substantially similar work, keep in mind, that all Plaintiffs have have to do is show footage of Gary Graham as Soval in Enterprise, and a shot of the Enterprise in TMP in Dry Dock, before letting them see Prelude…
While I will give Axanar and Peters the possibility that the Jury could find that infringement was not willful, I am 99.9999999999999999999% certain they will find the Axanar Works as being subjectively, significantly similar….
O.J., I think you’re not reading my blog correctly…and I don’t mean that facetiously. When I said “two obscure characters,” I’m not arguing that I personally think they are obscure. What I think doesn’t really matter. I was playing the role of a hypothetical attorney. If I were arguing in front of a jury, I would call both characters obscure. To do anything else would be bordering on malpractice. I don’t want to call Soval significant or important or recurring. I’ll let the plaintiffs do that. What I would do would be to point out that there were 100 episodes of Enterprise, and Soval appeared in 11 of them. Of those, he averaged a total of X (small number) minutes of screen time per episode. In most episodes where he appears, Soval doesn’t appear for long. I’d be sure to point that out.
Now, don’t get me wrong. I love Soval. I think Gary Graham dominated that role, and I worship him as an actor. But if I were a lawyer trying to convince a jury that Axanar was NOT substantially similar to Star Trek, I would talk about Soval as a minor player and a teensy part of the overall four seasons of Enterprise.
Klausner’s closested clerks, clearly cloistered & Klingon clothing clad, cleverly clack keyboards cleaving cliches in a case’s cursory conclusion clarifying a creator’s claimed klepto clivities.
(Never mind me… I’m just that odd guy in the group who randomly says weird things.)
I love alliteration a lot! Way to plunder the dictionary, Bill! 🙂
Holy biased judge!#*@ Batman!!!
Or, clerk who did the write up.
Something smells in Gotham, and it’s only part one.
My pulse is racing, and the suspense killing me. I guess I’m going to read the document tonight. But, hurry up part ….?
Thanks as always Jonathan. This is great theater.
Love Judge K’s trek references! =D
…so yes, Axanar INFRINGES on Star Trek …so, it will come down to INTENT …which i think a jury will find to be UNWILLFUL …and taking everything into perspective, will award a SLAP-ON-THE-WRIST =P
i think the only way the plaintiffs win, is if they can get an injunction against Alec (which i hope they don’t) (they deserve to lose, IMHO)
If the Jury finds a substantial subjective similarity Klausner has already said that he would approve injunctive relief for the Plaintiffs….
So does that mean that, even in a best-case scenario, Axanar is now dead in the water as a production?
I prefer to think of it like this:
https://www.youtube.com/watch?v=xbE8E1ez97M
…until proven otherwise. 🙂
I think the “best-case scenario” is referred to as jury nullification. 😉
http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
Jury nullification usually applies to criminal cases, though. However, yes, it would be nice if the jury wanted to stick it to CBS…possibly for canceling “The Good Wife” and then charging the to see the new spinoff series on “All Access.” Maybe the challenge questions should have included, “Are you a fan of either Star Trek or The Good Wife?” 🙂
While disappointing, I suppose that most of this is not unexpected. That being said, I am still saddened at the way CBS/P has approached this whole situation. Alec Peters even according to this account tried to work with CBS/P in various ways to not run into this problem. And rather than just filing a cease and desist, they have drug not just Alec through the mud, but by extension, those of us who are interested in seeing Axanar completed. Through the mud as well… And that is short sighted for their new series.
One thing is clear here, no one operates in a state of grace, as far as they are concerned.
Hurry up and get that ugly part out Jonathan I want to see if we are on the same page there.
Finishing THE UGLY tonight. What I think you’re waiting for, though, is Saturday’s blog about the appeal. Patience, young Jedi. 🙂
“Patience is the virtue of an ass, who treads beneath his burden and complains not.” ― George Granville
Apparently, ol’ George preferred the dark side. 😉
What are grounds for appeal in a case like this? My limited understanding is that you cannot appeal simply if you think the opinion of the judge is wrong or that you do not like verdict from a jury.
For example, can the fair-use issue revisited or is that a done deal and would not affect appeals?
Wait for Saturday. I’m still writing the blog about the appeal. 🙂
Hmmm, from what I read here, it does sound like this is going to be an incredibly tough, if not near impossible, battle to win. The way things are right now; I think Axanar itself is in an impossible spot and the best news out of all this is that Alec might not get ruined just because he tried to create an awesome movie for the fans and stuck up for what he believed in.
I’ve been a New York Jets fan for decades. I’m used to setting my expectations low but hoping that this year will be the year. Hasn’t worked yet. 🙂
What a tough case, and man is this judge a tough cookie! It has been a roller coaster ride since this whole thing began. I do agree with the judge that the Axanar works do invoke Star Trek in the minds of the viewer. I do agree with him also that Alec Peters didn’t willfully infringe upon the copyrighted works of Star Trek either. I suppose the biggest thing is, when this is all over, will Axanar Productions be shutdown for good? What still baffles me is why CBS/Paramount can’t find a way to integrate all of these fan productions into their money making model somewhere?
Yeah…sigh.
You know what I think the “dream” scenario should be?
Have CBS hire Alec and make Axanar for Netflix .. either as a tv movie, or a short 8 episode type series (aka stranger things). If Alec can do Prelude on almost no money, what can he do with a real budget?
Yeah, I don’t think the studios see it that way. It’s more like Goliath hiring David because he’s such a good marksman. Yes, that’s a valuable skill that Goliath doesn’t have and could certainly benefit from. But he doesn’t really see David in quite that positive a light…
+1
It seems to be sheer bloody-mindedness on the part of some CBS exec whose image will be hurt if he/she backs down. Instead they should be trying to come up with a new business model that everyone looks at & thinks “Wow. Why did no one do this before? Isn’t CBS wonderful.”
Can see Paramount/CBS Studios making a mini-series out of this case alone! Having just finished the Order on Motion document, can see this isn’t going to bode well for Peters or Axanar Productions… at least based upon what I could understand (which was little) in this Order. I think it will be awfully hard to put together a jury from within the LA Basin, since most who live there are likely to have a fairly good idea of Star Trek, its fans, and its endurance through the decades – becoming (as I’ve heard described many a time) a Cultural Icon.
All we can do is cross our fingers & hope…
As someone who lives in Los Angeles, I’ve met quite a few people who only vaguely know Star Trek. It’s not like the 70s when everyone would “Grok Spock!” or the 80s and 90s when Patrick Stewart made it cool to be a Trekkie…and a fan of Shakespeare. Now, unfortunately, Star Trek is a fading echo, a frail shadow of its fading self. That’s why fans wanted and needed Axanar so badly. The studios just don’t get that.
What he said..
The problem is that Alec and company intended to make Star Trek. Through ship design, characters, tone… everything was meant to make a fan say, “this is Star Trek!” That makes it substantially similar. Heck, most every fan film is substantially similar. But it’s CBS and Paramount’s IP and they can enforce their rights however they see fit. They could shut down every fan film and get them removed from YouTube if they really wanted to.
Alec crossed a line that others haven’t. What that line is only the Plaintiffs can say, though I can make some good guesses. How similar other projects are to Star Trek isn’t really relevant, because they aren’t the ones getting sued, and “Hey, you didn’t go after THEM” really isn’t a defense.
Well, actually it is when considering willful versus non-willful infringement…as I’ve mentioned many, many times. That’s why they need me as a witness and why the judge mentioned my executive summary on the history of Star Trek fan films specifically in his order when he discussed determining willfulness. As for substantial similarity, if the defense can set the jury’s “bar” for judging “substantial” by first showing them “Fairest of Them All” from STC, then they have a chance. It’ll depend on the jury. And to be honest, I think that’s the defense’s only chance to come away with anything resembling a win.
But read my next two blogs on Saturday and Sunday…I hit some fascinating “what if?” points for what could happen if/when Axanar loses at trial.
Jonathan makes a damn fine point here.
The devil is likely to be in the details, and the jury’s decision on substantial similarity will likely rest on whether or not the whole is actually greater than the sum of its parts. If the defense were to successfully set the benchmark as Jonathan suggests (though, I’d use STC’s Turnabout Intruder vignette instead), that would give them at least a puncher’s chance of prevailing.
What bothers me the most about this whole thing is this: Once judge Klausner ruled that fair use was inappropriate in this case and that Axanar does, in fact, infringe on copyrighted IP, it really comes down to whether or not the infringement was ‘substantial’ and ‘willful’.
As I understand it, if it is not substantial, we’re home free and we can expect Axanar to get made. However, if, on the other hand, a jury finds it is substantial, then the next question they must answer is ‘was it willful’. Here’s where I think the problem really arises.
I understand that Alec believed his project would largely be ignored since CBS/P has ignored so many productions up to this point already. But I believe the jury’s decision of willfulness hinges on only two things. Did he ‘know’ he was using their IP and did he use it anyway. Just that simple.
Look, I get it. Alec thought it was ok to borrow some of their IP because so many have done it before and to a much greater degree. I hate to say it, but why he thought it would be ok is irrelevant from a legal standpoint. Or at least, it seems that way to me.
Let me explain why that worries me. I was a juror on a domestic violence case. The accused was arrested at his estranged wife’s house in violation of an existing restraining order. He claimed that his wife called him and asked him to babysit their son while she went out one night. When she returned almost 4 hours later then she originally told him she would, an argument ensued and her mother called police. As a juror, we were told to only consider whether or not he had violated the restraining order and not if he thought it was ok to do so when she was the one that called him. Even though the wife did not testify, whether she called him or not was not in dispute. She did. We had no choice but to find him guilty. Many of us didn’t want to because of the circumstances but we had to go by the law.
I hope I’m wrong. I love what Alec was trying to do and I thought it would not end up like it did. But I’m worried that the doors are closing and the lights will be turned off soon. And the chances of an appeal seem just as distant. I have not given up yet but to say I’m not discouraged would be unrealistic.
I think someone needs a hug.