AXANAR lawsuit SUMMARY JUDGMENT Order – THE GOOD, THE BAD, and THE UGLY! (Part 2)

In Part 1, we began looking at the hard-hitting, 15-page Order on Motion for Partial Summary Judgment issued by Judge R. Gary Klausner in the AXANAR lawsuit early on Wednesday morning.  It was mostly bad news for the defense, although not fatal.  The judge didn’t grant either side’s motions for summary judgment, leaving the jury to decide whether Axanar is similar enough to Star Trek to qualify as copyright infringement.

The judge did rule that, in his opinion, Axanar was “substantially similar” to Star Trek and should be considered contributory and vicarious infringement.  So that’s definitely bad for the defense, since it pretty much rejects a good portion of their motion for summary judgement.

However, he also didn’t grant the plaintiffs’ requests to declare Axanar to be infringement (which would have taken the decision away from the jury) or to issue an injunction against Alec Peters of his associates producing anything else Axanar.  So that was good for the defense.  Also good was the judge’s opinion that given the benefit of the doubt, “…Peters’ actions demonstrate a respect for Plaintiffs’ intellectual property that makes a finding of willfulness on summary judgement inappropriate.”  If the jury agrees, the judgment against Alec Peters (if he loses) could drop from the seven-figure range down to the five-figure range.

But then things got UGLY.  The judge nixed the “fair use” defense completely.  But is he allowed to actually do that?  I’ll go through what the judge actually said first, and then tomorrow we’ll look at how he may have actually given the defense a gift (of sorts) if and/or when it comes time to appeal.

Here we go…

THE UGLY

Unfortunately (or perhaps fortunately), the defense brought up “fair use” in their motion for summary judgment.  And so Judge Klausner got a chance to smack that argument down…hard.

The “fair use” defense is a fickle mistress.  The determination is always made on a case-by-case basis based on four factors…none of which by itself is a slam dunk either for fair use or against it.  Instead, it’s an ambiguous grouping of the four elements together that is typically left up to a jury to weigh as they see fit.

So even though I’ve gone through the four elements before, I’ll do it one at a time with the judge’s commentary after each one…

1. Purpose and Character of the Infringing Use

Is Axanar transformative?  Does it add something new, with a further purpose or different character, altering the first with new expression, meaning, or message…or merely supplant the original?  Apparently the latter:

Viewed as a whole, the Axanar Works do not have “a further purpose or different character, altering the [Star Trek Copyrighted Works] with new expression, meaning, or message.”  On the other hand, Defendants want the Axanar Works to supplant the Star Trek Copyrighted Works. Peters “was interested in creating alternative ways for fans to view Star Trek.” He wanted to create “a whole new way that fans can get the content they want, by funding it themselves.”He used “a fully-professional crew – many of whom have worked on Star Trek itself – [to] ensure Axanar will be the quality of Star Trek that all fans want to see.”  The Axanar Works are not transformative.

This first element of fair use also asks whether or not the work is commercial or non-profit in nature.  The defense argued (fervently) that Prelude to Axanar was shown for free and was therefore not commercial (and that donations are not revenue or profit).  And of course, the Axanar movie was never made and therefore could not be considered profitable in any way.

The judge was not convinced:

Here, it is undisputed that the Defendants did not pay Plaintiffs for a license.  It is undisputed that Peters hoped to derive non-monetary benefits, for example, other job opportunities, from the Axanar Works.  Defendants “profit from exploitation of the copyrighted material without paying the customary price.”  The Axanar Works are commercial.

Is it over yet?  No?  Oh, dear…

Defendants argue that the Axanar Works are not commercial because they are, and will be, distributed for free.  This argument is unpersuasive because, even though Defendants do not profit directly from distributing the works, “common experience suggests that [Defendants] stood to gain at least indirect commercial benefit from the [viewership] boost which [they] had reason to hope would (and in fact did) result from the” Axanar Works.

The successful fundraising campaign leveraging the popularity of Prelude is an example of such indirect benefit.

Yeesh!  Axanar is gettin’ clobbered here.  Well, what about the mockumentary format?  Isn’t that transformative?  Or maybe it’s critical parody or something like that?  Please?

For the purposes of copyright law, however, parody must use some elements of a prior work to create a new work that criticizes the substance or style of the prior work.  “The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole.”   “The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.”

Here, the Court has difficulty discerning from the Axanar Works any criticism of the Star Trek Copyrighted Works. This is not surprising since Defendants set out to create films that stay faithful to the Star Trek canon and appeal to Star Trek fans.

Thus, the Court finds that the first factor weighs in favor of Plaintiffs.

Well, drat.

However, I do have an editorial comment to insert here in the midst of simply summarizing the judge’s ruling…because here I think there’s an important argument being missed.  One of the FAN FILM FACTOR readers pointed out to me recently that the “criticizing” purpose of Axanar was to show the studios that good Star Trek could be made on a very low budget, and that hundred-million-dollar blockbusters, while fine, weren’t the only answer.

Was Alec Peters “criticizing the substance or style of the prior work“?  Damn straight, he was!  He was criticizing the studios pouring hundreds of millions of dollars into rebooted rubbish that had lost sight of the very heart and soul of Star Trek (remember that Prelude came out prior to Star Trek Beyond, which attempted to recapture the ol’ Trek magic a bit…but still cost nearly $200 million to make!).  Prelude to Axanar was saying, “Hey, it’s possible to do this another way, for 1% of the cost…and here’s how!”  And sure, Alec could have just written a letter to the studios or posted a blog, but part of the purpose of parody is to get attention…and Axanar certainly got attention!

So yeah, if I were the defense team, I would have gone up to the jury during trial and said, “This is indeed criticism of the substance of the original…or rather, the lack of substance that Star Trek was turning into.  And rather than just telling them, Alec Peters was showing them…which is at the very heart of the idea of fair use.  And without making it meticulously accurate Star Trek, the message to the studio wouldn’t be nearly as powerful.

Okay, getting down off my soapbox.  The other elements of fair use are faster to get though…

2. Nature of the Copyrighted Work

See, this is the shortest one.  Does Star Trek deserve copyright protection in the first place?  Of course, it does!  Even I wouldn’t argue with that.  And the judge warped his way through this one quickly:

Here, the Star Trek Copyrighted Works include thirteen motion pictures and six television series set in a fictional universe. These works have transported the hearts of a legion of fans to the Star Trek universe. The creativity in these Works and their status as published works are not disputed. They are the type of works that are given broad copyright protections.

Yep.  Next!

3. Amount and Substantiality of the Portion Used

On this aspect of fair use, the defense was trying really hard to argue for what is known as de minimus use.  In other words, yes, they used elements from Star Trek, but only enough to do what they needed to do to make their fair use commentary (see my soapbox mini-rant above).  After all, compared to something like Star Trek Continues or New Voyages (which use Kirk and Spock and McCoy and all the rest), Prelude to Axanar used just two existing characters, and pretty minor ones at that.  They used Vulcans and Klingons (and mentioned the Andorians), but they didn’t use Romulans, Gorn, Tholians, Ferengi, Borg, Cardassians, Betazoids, Trill, Bajorans…the list goes on and on.  There’s just so much Star Trek out there, and what Axanar used wasn’t the “heart” Star Trek.

Or apparently it was:

While it is difficult to quantify the amount of the portion used in relation to the Star Trek Copyrighted Works as a whole since “the portion” involves many recurring elements in the Star Trek universe and the Star Trek Copyrighted Works are numerous, it is fair to say that elements of the Star Trek Copyrighted Works pervade the Axanar Works. For example, every scene involving a Klingon or a Vulcan can conjure up Star Trek in the minds of fans. The same is true of Federation spaceships, Klingon battlecruisers, transporters, phasers, and so on. The elements from the Star Trek Copyrighted Works that Defendants use are qualitatively important because they give the Axanar Works the Star Trek feel and enable Defendants to stay true to the Star Trek canon. Thus, the third factor weighs in favor of Plaintiffs as well.

Not going well for the defense, is it?  Last one…

4. Effect of the Use upon the Potential Market

There’s no question that it would be virtually impossible for the studios to show a direct correlation between Axanar and the revenue stream for Star Trek.  The multi-billion-dollar franchise is just too huge.  But Judge Klausner has found a legal way around that challenge to still show Axanar could harm the studios…

Here, the prequel depicted in the Axanar Works is the kind of potential derivatives Plaintiffs “would in general develop or license others to develop.”

I kinda wish they had licensed it!  In fact, they still can…and should!  Alec Peters would purchase that license in nanosecond!  But I digress…

Judging by the success of Defendants’ fundraisers, the Axanar Works are the type of work “for which there [is] a separate demand that [Plaintiffs] may one day seek to exploit.”

Well, d’uh!  That was kind of the whole purpose in trying to show the studios how commercially viable “classic” Star Trek could still be if done correctly!!!  Oh, sorry…interrupted again.

The fact that Defendants distributed Prelude and the Vulcan Scene for free online and intend to likewise distribute their future works may likely increase the risk of market substitution as fans choose free content over paid features.

Hmmm, seems the judge is drawing a factual conclusion from a “may likely” conjecture.  Can he do that?  Well, he just did.

Darn…shutting up now!

Defendants further argue that the Axanar Works, through their promotional value, actually increase the sale and visibility of the Star Trek Copyrighted Works.  But “the boon to the [latter] does not make [Defendants’] copying fair.”

Well, I can’t argue with that last point.

The Court thus finds that all four fair use factors weigh in favor of Plaintiffs. If the jury does not find subjective substantial similarity, Defendants did not infringe and fair use defense is moot. If the jury finds subjective substantial similarity, the Axanar Works are rightfully considered derivative works of the Star Trek Copyrighted Works. Rejection of Defendants’ fair use defense is consistent with copyright’s very purpose because derivatives are “an important economic incentive to the creation of originals.”

And thus dies the “fair use” defense.  The judge has ruled it “invalid” and, therefore, it cannot be argued for in court by the defense.  So the only two things left for the attorneys to bring before the jury are…

The Court leaves subjective substantial similarity and willfulness for the jury to determine. Findings of direct, contributory, and vicarious copyright infringement are contingent upon the jury’s finding of subjective substantial similarity.

Sounds pretty devastating for Axanar, doesn’t it?  After all, their one chance of getting an outright “win” was fair use, and now they’re not allowed to argue that in front of the jury.  The best they can try is to prove that Axanar (Prelude, the Vulcan scene, and the full feature script) are not substantially similar to Star Trek.  And as many people have commented to me yesterday: good luck with that…

Granted, even if Alec loses, there’s a reasonable likelihood it’ll just be a slap on the wrist judgment in the low five-figure range (rather than millions).  But is there a way Axanar can win on appeal?  Lots of Axanerds are now predicting and rooting for an appeal (having already assumed a loss for the defense at trial…love that optimism, guys!).

But is an appeal even possible, and if so, will it make a difference?

Well, as it happens, Wednesday’s ruling by Judge Klausner might end up being just what the holographic doctor ordered when it comes down to getting and possibly even winning an appeal.  So what exactly did Klausner do to help Axanar despite all of this carnage?

Tune in next time to find out!

(And if I can write fast enough…tune in two blogs from now to see if the Axanar lawsuit could actually make it all the way up to the SUPREME COURT.  The answer may surprise you!)

71 thoughts on “AXANAR lawsuit SUMMARY JUDGMENT Order – THE GOOD, THE BAD, and THE UGLY! (Part 2)”

  1. Well you hit on a few of the issues, that I found pretty distressing.

    Which is the indirect benefit issue, which can be anything, apparently. The example given was adding your credit to a resume’ to get a better job.

    Well lots of folks do just that, a Dec 19 post at the Star Trek Continues facebook page is about a girl who is now a PA and script supervisor for The Walking Dead.

    Another really big example is HitFilm which is a Editing and VFX software. Who do all sorts of tutorials, based on current movies. Including Star Wars. What a great way to learn.

    I also agree, that Axanar was in large part a more enjoyable experience than the rebooted, Movies. It stands in contrast, to the throw away spectacle of the last 3 movies. And shows what Star Trek once was, and could be again.

    And if that isn’t criticism, I don’t know what is.

  3. I think the fair use is a lost cause. Out of the 4 criteria, i think the defense would only have a chance on the last one.

    1) Purpose & nature – I disagree with Jonathan here. I think he is clouded by what he wants to happen, not what he objectively thinks what will happen. I am referring to the “criticism argument”. I don’t think anyone on a jury (clearly that is moot since it is not an issue at trial) will be convinced (including myself) that the goal of Prelude or Axanar is to criticize Star Trek. There is no breaking of the 4th wall. There is no commentary track saying Prelude/Axanar is a better take of star trek. Heck, at most, you can argue that they are showing a different way of doing star trek. Alec himself does not claim that Axanar is better than the reboot, does he? If you want to use an argument about the “spirit” of star trek, you have to show that Alec is intended to communicate what the “spirit” of star trek is .. there is none. Just doing a straight forward narrative film done in a way that Alec think is better .. that does not count.

    It is also hard to argue the non-commercial nature. Sure, Alec has to put in his own money (that is not in dispute, right?). But one can always argue that a) like all start-up, you lose money first before you make money, and b) may be he is just bad at business .. losing money does not mean that an enterprise is not commercial. The linchpin is that if KS donation is counted as “revenue”, then it is hard to wiggle out of this one. In fact, most KS campaigns are commercial (which CBS probably can easily point out if fairness is indeed an issue at trial .. though it is moot now) and not all of them make money.

    2) + 3) copyright and amount – i don’t think there is any argument here. These are very clear.

    4) Impact on market – this one i do not agree with the judge .. or at least I don’t think the argument is air tight. There is really no way to demonstrate harm in advance.

    However, if it is already demonstrated that 3 out of the 4 goes to CBS, it is much harder to argue fair use based on just (4) alone (not that i know anything about court cases).

    Lastly, and that is my layman mind speaking … in the spirit of fair use … Axanar does not count. Despite the fact that I want to see it happen, Alec *is* making Stat Trek. He is not trying to criticize anything .. his primary purpose is to make good entertaining trek. In fact, that is why I want to see Axanar. I am not interested (well .. less interested anyway) to see a film criticize how star trek is done today than seeing new good star trek movie. Even if there is an element of “hey i can do better than CBS” … it is not a central goal of Axanar .. otherwise, it would have been a documentary.

    1. Actually, a lawyer who shall remain nameless told me that my “It’s trying to make a point about how to make better Star Trek more cheaply” kinda kills the main argument that Axanar is NOT substantially similar to Star Trek. So the defense has good reason NOT to listen to my advice…which is why they get paid hundreds of dollars an hour to litigate while I’m taking in 36 cents (so far today) in Google Ad commissions for writing a blog. 🙂

      But I think you’re right in that Klausner declaring fair use off-limits in trial might have been the best thing that could have happened for Alec. (Actually, you didn’t say that; I did.) Because fair use would have been hard to make a jury agree with, it’s better to have the invalidation of it providing a good justification for an appeal. But I’ll discuss that more tomorrow!

      1. Really Johnathan ? You really think that losing the “fair use” fight in court battle is a positive for Alec Peters and Axanar ? Let’s consider this, just a few weeks ago Axanar very existence in the battle was “fair use” – with that now out the window, all of a sudden it’s totally irrelevant .. This is now playing out more like a criminal case where the defense is grabbing anything left in the tank to toss out as defense, and in the real cases of law it’s a useless defense ..
        I understand that you and this group of followers do stand strong with Axanar, but in reality the war is about over !

        1. Actually, this war could stretch out another 2-4 years and end up at the Supreme Court!

          Think I’m crazy? Don’t answer that until after you read my next two blogs on Saturday and Sunday. THEN you can call me crazy! 🙂

        2. “all of a sudden it’s totally irrelevant”

          Can you cite this since I can’t see where anyone is claiming that.

          Perhaps you are missing the distinction between losing the fair use fight in front of a jury and losing it in advance in an appealable way such as just happened?

    2. Again, “impact on the market”.
      A fan will spend and spend on ‘Trek’ – because they are a fan.
      Because it’s free, after watching “Ananar” the fan STILL has that dollar in their pocket to buy the studio’s output – the only reason not to buy is if the official output is a steaming pile of ‘bill’ – but that would be down to the studio.
      😐

        1. Of course, the argument is that if fans don’t have other sources to get good Trek, they would have no choice but to go with the crap from the studio. Also courts don’t generally look at infringement in terms of fans that will get EVERYTHING they can find. They generally assume that if you can get what you want for free, you won’t go out and pay for something similar. Which very often is the case with copyright infringement cases. This is a bit different in terms of what Trek fan will do. Which is one reason judges alone shouldn’t be ruling on Fair Use I guess!

    3. “There is no breaking of the 4th wall. There is no commentary track saying Prelude/Axanar is a better take of star trek”

      Um, so?
      “Show, don’t tell”. You don’t need to spell everything out explicitly. You can comment on social mores without breaking the fourth wall and stating “This is why XYZ is bad and why YZX should be done”, you SHOW how XYZ leads to problems which YZX avoids.

      “Alec *is* making Stat Trek. He is not trying to criticize anything .. his primary purpose is to make good entertaining trek. In fact, that is why I want to see Axanar. I am not interested (well .. less interested anyway) to see a film criticize how star trek is done today than seeing new good star trek movie. Even if there is an element of “hey i can do better than CBS” … it is not a central goal of Axanar .. otherwise, it would have been a documentary.”

      Nope. Roddenberry managed to put a whole lot of commentary and criticism into a dramatic sci fi show. He didn’t have to do a documentary either.

      Compare CBS referring to Star Trek as a military drama with the speech by Admiral Ramirez in prelude that the true threat to the Federation is NOT the Klingons – it’s what the Federation might to do itself to beat the Klingons. Compare Garth saying that he never saw himself as a warrior first.

      We’ve had S:AAB. We’ve had B5. We’ve had tons of lesser military or cop drama in space. There’s no point in reducing Star Trek to yet another one. Axanar could have SHOWN that even WHILE depicting a war, Star Trek can be so much more than military drama.

      To quote the great bird of the Galaxy:
      “Star Trek was an attempt to say that humanity will reach maturity and wisdom on the day that it begins not just to tolerate, but take a special delight in differences in ideas and differences in life forms. […] If we cannot learn to actually enjoy those small differences, to take a positive delight in those small differences between our own kind, here on this planet, then we do not deserve to go out into space and meet the diversity that is almost certainly out there.”

      Much like Ramirez states that his greatest fear is that the Federation loses itself, my greatest fear is that Star Trek will never again truly be about embracing that diversity, but about providing pure popcorn entertainment for the kind of people who believe Colonel Jessup was actually the good guy in “A Few Good Men”.

    4. Have to agree with narius’ assessment here. The idea that you would ‘criticize’ Trek by making even a better Trek movie than they are would NEVER fly as a Fair Use argument. If the “criticism” is not inherent in the production but requires additional, outside explanation, that’s not going to convince anyone of it being the main intent. I don’t think this has much chance of going to the SCOTUS, it’s just not enough of a “close call” on Fair Use for them to consider it, but I guess stranger things have happened. It doesn’t look good for Axanar to get an outright win at this point, but it still has a very good chance of being a very small amount of money particularly with the history of CBS/P ignoring fan films.

  4. Oh yeah the other thing that irritated me was the jusdges assertion that if your not currently Pay Per Viewing Star Trek via Netflix or whatever, then you were some how cheating CBS/P.

    If you guys are anything like me your Trek collection stretches clear back to the original Books by James Blish and Spock must die, and runs on through VHS/DVD/Blue Ray. With some model kits, action figures, Some of them Mego. T-Shirts Coffee cups,,, AND MORE!!

    Believe me Trek has been given more than it’s due.

    1. Apologies
      (and that will teach me to read down before posting)
      You state the point I wanted to make.

      Yes I have the red cover “Spock must Die!” and the screenplay adaptations and the others; and the space taken up by the VHS tapes was unbelievable…

      🙂

  5. The actual court documents go into a lot of detail about what they were doing wrong
    Mr. Peters also took the money obtained from fans and rented out a studio in Valencia, California. \zlr. Peters’ stated intent in doing so was to create a film studio (using funds from Star Trek fans) that he could utilize in the future to create for-profit projects. Mr. Peters’ production team generated a marketing plan for his project stating that the first goal of Axanar Productions (Mr. Peters’ corporation) was to complete the Star Trek: Axanar film, while the second “objective” of Axanar Productions was to “create and develop new models of sponsorship and funding that will help Axanar productions generate profits on low budget productions.”
    Axanar used the money to set up a movie studio, to make money.
    Further, emails turned over by Christian Gossett, the directot of Star Trek: Prelude to Axanar, show that Mr. Peters met with Netflix and Amazon regarding Axanar Productions. Mr. Peters was exploring methods by which he could distribute high-quality Star Trek content, without a license, in order to enable him to continue to personally profit from Plaintiffs’ intellectual property.
    They were trying to sell their shit to Amazon and Netflix
    Mr. Peters personally profited from Plaintiffs’ intellectual property by paying himself with funds raised from consumers of Plaintiffs’ intellectual property and by spending tens of thousands of dollars of those funds on his own personal expenses. Mr. Peters used fan-raised funds to pay for the tires on his Lexus, to service his car, to pay for his gas, each and every week for nearly two years, to pay for his girlfriend’s gas for the same time period, to pay for two years of personal phone bills for himself, his girlfriend and Robert Meyer Burnett, to pay for his health insurance, his car insurance, his annual A,Al{ memberships, his TSA airport precheck fee, and his personal travel to conventions, both in the United States and internationally. Mr. Peters also used these funds to pay for tens of thousands of dollars in restaurant meals. Mr. Peters and his girlfriend were provided with debit cards that they used to pay for these expenses from the Axanar Productions account – which account was populated with funds contributed by Star Trek fans.
    Using money raised with the Star Trek IP to pay cell phone bills, buy new tires for his car, gas money, car insurance, 10 thousand dollars worth of restaurant meals….
    Mr. Peters was also fully aware of the infringing nature of his activities, as over the course of several years, Mr. Peters (a trained attorney) repeatedly sent CBS notices informing CBS that Mr. Peters believed that other entities and fan film creators were engaging in “infringing” conduct. Again, Mr. Peters did not turn over these communications in discovery, although CBS did.

    1. Wow, it’s almost like you memorized the plaintiffs’ redacted document word for word. And if there were only one party arguing this case with only one set of opinions, you would be completely right, Brady! 🙂

        1. “Kool-Aid drinkers”? “Regurgitators”? “Kool-Aid Regurgitators”?

          How about “gullible”?

          (Of course, I’m sure that’s what they call us, too. The only difference is…well, there is no difference, really.) 🙂

        1. Two cannibals are having lunch. One says, “What kind of person are we eating?” The other says, “I think he was a clown.” “Oh,” says the first cannibal, “that explains it. He tastes funny.” 🙂

    2. The anti-axanar folks in the facebook echo chamber keep taking one true thing and exaggerating and then taking the exaggeration as facts.

      Some over there were saying a while back that Axanar got a cease-and-desist, then not two posts later, it’s not one but five of them, and others agreeing to that. Bullshit, there was zero. But this is typical of that crowd, now let’s go post those fantasies in tons of other forum. Some are also pushing the narrative that there was no intention to ever produce Axanar and it was all a hoax.

      “Mr. Peters met with Netflix and Amazon regarding Axanar Productions” It’s NEVER happened. Peter daydreamed about meeting them, and only ever declared in an email that he has an in” to talk to talk to someone at netflix. Nothing about Amazon was ever said, it’s just a passing mention in the defendant’s papers, for all you know it might even be an error.

      And all that stuff about expenses is the way everyone works in the film industry around L.A., where this is located, and the way it works for any self-employed person anywhere. Non-profits also pay business expenses. I’m getting my internet, PC paid, car rental paid by a side job. That’s how the smart people manage money. Also when they hire pros for a fan film production, they also get paid, and the restaurant doesn’t give you the food for free. There is always money being made by someone in a fan film production, maybe just the guy you rent the camera from or Adobe software. It’s never 100% “clean”.

      Now, Peters considered that going to conventions and promoting Axanar to go get more money for it was a legitimate expense. I think a lot of donors would agree with that: if it costs 5000$ but results in 100K of more donations to do something more awesome, it’s worth it. Again, it’s how stuff works and it’s not paying yourself “a lavish lifestyle” (a favorite anti-axanar catchphrase)

      It’s also obvious that Peter’s goal with the studio is to set it up so that’s self-sustaining and will be used to produce future trek fan film content, and that means you keep the studio in use all the time by having people rent it to whoever wants it when it’s not in use, and that lessens the pressure on needing more donations drives and allows investing more in the studio.

      Now, of course the crazies are making it like Peters is building a “for-profit” studio (another catch phrase — as though studios are not made for profits) for non-trek productions on the backs of fan donations. That is SUCH a disingenuous and dishonest lie.

      The court documents and all the public statements show that Peters intended to make Axanar and then more trek fan content, and that would necessarily require a constant stream of money to keep that going.

      It’s nice to be able to donate and get high quality fan film, but it’s even better if you do NOT have to donate and still get content. And that can happen if you bootstrap something that is then self-sustaining, like that studio.

      2. Ya that gossip tendency you point out is historically a human trait and nothing new I’m afraid. Atleast your not aloud to burn people at the stake anymore.

  6. From what I could ascertain, this, seemingly, does not bode well…not only for Axanar, but fan films in general.

    Let’s hope the appeal works in our (and Axanar’s) favor.

    Doug

    1. I just want to remind everyone of something I’ve been saying for the past few months. There’s a saying among litigators (I’m told) that many lawsuits settle on the courthouse steps…right before the trial begins. While I’m certainly looking forward to sitting on the witness stand and talking about fan films, if the two sides can come together and work things out, this lawsuit is history (and no one will read my blog anymore…WAH!!!!). Actually, I still get a few hundred views per day on non-Axanar stuff…but when there’s something Axanar–BAM!–hundreds turn into thousands (1,802 views yesterday alone). It’s staggering!

      1. Of course, the answer to that, Jonathan, is does CBS/P have enough business decision and settle while they’re still ahead (sorta) or are they so determined to make a big example of Alec, that they choose the nuclear option and it gets forced all the way to SCOTUS, withe burning up of even more money and delay of Discovery. I wonder if they are trying to clear the way to use the Four Years War and Axanar in Discovery, especially after the “resignation” of Brian Fuller as show runner.

        1. One question I’ve often been pondering is Cbs using Alec Peters as a Scapegoat to cover their own problems ?

          Will J.J. Abrams be called to testify ?

          2. Does it matter? Let’s say CBS is using Alec as a scapegoat. There is no law against it. The case is about Alec’s conduct, not CBS’s.

            In fact, isn’t the judge quite clear? The issues the jury is going to determine are:
            a) Is there “subjective substantial similarity”?, and
            b) If (a) is yes, is the infringement willful?

          3. True on both counts, Narius. There is no law against using someone as a scapegoat or to set an example or just because you woke up on the wrong side of the bed.

          4. Narius, as Frank Miller points out, the key issue here is not the legal decision but the business decision. For me, the most interesting thing in the decision has been the judge’s opinion that Alec Peters was evidently so respectful to the material that he could not dismiss non-wilful infringement as a matter of summary judgment. That makes such a finding in trial a very real prospect. And then CBS/P have to ask themselves whether they are willing to continue this fight, possibly for years, just to give Alec Peters a slap on the wrist at the end, while at the same time generating some questionable press and alienating a bunch of people with resources and skills that might otherwise be used for marketing purposes.

        2. The answer to that question is… It depends on your PoV, however since Axanar is a fan film and not Canon. (official) then C BS can do what ever they want and it would be official. so. The only conflict/ co there would be the obvious ones that fans in the know, would draw. And knowing trekkies there would be more than a few.

          I often think that the reason that SNV and STC, and some others haven’t been targeted. Is that they film in a style that is mostly 1968 TOS. So while it’s quaint, it’s not threatening.

          The real question I think is why is STD set pre TOS, if they set it. in the natural Trek time line (TNG +23 yrs) then you could guest star almost anyone including… JLP, the real No1 WTR, CKJ, or 7/9 and anything you do would be new fresh and not bound by canon.

          And I hope that’s enough TLA’s for you guys.

  7. If Axanar is pretty similar or mostly similar, they will fail the substantionally similar test. “a nontrivial amount of content”.

    Substantial Similarity Law and Legal Definition
    Under copyright law, substantial similarity refers to a strong resemblance between a copyrighted work and an alleged infringement. Thereby, it creates an inference of unauthorized copying. The standard for substantial similarity is whether an ordinary person would conclude that the alleged infringement has appropriated nontrivial amounts of the copyrighted work’s expression.

    Substantial similarity is considered to be an appropriate test for infringement. It is also called ordinary observer test, whereby, it determines whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.[Cameron Indus. v. Mother’s Work, Inc., 338 Fed. Appx. 69, 70 (2d Cir. N.Y. 2009)].

    1. Two interesting and somewhat ambiguous terms there:

      “nontrivial amounts”

      and

      “ordinary person”

      I’m not sure Los Angeles has many of the latter. 🙂

      1. An “ordinary” person probably couldn’t tell the difference between star trek and star wars.

  8. I’m having a hard time seeing Axanar win on substantial similarity. I mean, frankly, that it is similar—that was the whole point in the first place.

    So I think the best we can hope for is a ruling of non-willful infringement. That would be a “win” in some sense of the word. But not in the sense I care about. I want Axanar to actually get made, following its original vision. A non-willful ruling would get Alec (mostly) off the hook, and could potentially make the studios look like fools (if the penalty is small enough)… but it would still prevent anyone from using any Star Trek IP to make Axanar. It would still be possible to go and make Axanar (the story), but Axanar (the Star Trek version of this story) would be effectively dead.

    There are some snowball-in-hell possibilities, like settling, but I’m not holding my breath for any of those.

    Which is all unfortunate, because I agree with Jonathan that Axanar *is* a reaction to how the studios have strayed from what fans actually want in a Star Trek film. Maybe that’s not an argument that flies in court but it does explain the dissatisfaction among a certain segment of fans (and not just those who care about fan films).

    1. I wouldn’t call settlement a snowball-in-hell possibility, Elliott. Both sides are motivated to settle but for different reasons:

      Alec Peters is motivated to settle if he can get permission to make some form of Axanar…even if he has to follow the guidelines. He doesn’t really care about losing because he’s got nothing much to lose. A big jury award and he declares bankruptcy. A small jury award and he writes a check. Or he appeals. On appeal, Alec has everything to gain and nothing to lose…so this case could drag on for years. (Not sure the studios want that.) So the main way to entice Alec to “play nice” is to let him play but in a much more controlled and tightly approved sandbox. Maybe Axanar doesn’t get to be a 2-hour, $1.5 million feature film. Maybe it’s one hour or a half hour (or two 15-minute segments with a $50,000 crowd-funding cap on each segment). Alec managed that once before with Prelude. Maybe he can do it again.

      The point is, the studios can no longer use the stick. They have to use the carrot. The question is: will they want to?

      Well, the studios are motivated at this point by 1) pride, and 2) a concern about a long, drawn-out trial while they’re trying to launch a new Star Trek series. Now that it seems the verdict will be appealed and that Alec has nothing to lose, everything to gain, and free legal representation for as long as this case lasts, CBS and Paramount need to ask themselves: “How much farther down the rabbit hole do we follow this guy?” The trial itself will likely bring their legal bill to close to a million dollars. Add in an appeal and potentially another trial (see tomorrow’s blog entry), and that number could easily double.

      Add to that the fact that while Alec Peters has everything to gain and nothing to lose on appeal, for the studios, it’s the opposite. They could go from winner to loser if the case is sent back to district court for a re-do. And if CBS and Paramount win on appeal, then they’re right back to where they were after winning at trial. So nothing to gain and everything to lose…even if they win at trial.

      And so the studios have to decide if their pride is worth the hundreds of thousands of dollars they’re about to spend in the next few months (and more $$$ beyond)…and the publicity distraction that this lawsuit will be while they launch ST: Disco. Thanks to Judge Klausner’s Wednesday ruling, if the studios settle now, they drop the mic on a high note. They won. Everyone knows it. (Well, not me–but I’m the eternal optimist.) No other fan film will try what Alec Peters did. So they got what they wanted and can walk away having made their point. And a settlement allowing Axanar to be made just says, “Hey, we’re not evil overlords. We just wanted Axanar to be reined in, and now it is.”

      So really, I don’t think settlement is as far away as some might think. Then again, I’m just sitting here in the cheap seats. 🙂

      1. I’m all for anything that results in Axanar being made in some fashion. The reaction from the “haters” if that is allowed, though… wow.

  9. Everything that has happened due to Star Trek Discovery delay is thanks to this trial .

    Which is why CBS is trying to end it .

      1. There are failing 2nd part due to two reasons .

        1. Star Trek Discovery was supposed to air in January but was pushed back a few months due to production reasons .

        2. Bryan Fueller left the production

        3. Even the concepts look similar .

        I’m not blaming the delay on the trial but I’m stating a fact it’s obvious that it’s having a impact .

        1. I said in the very beginning when all this started CBS has no idea what kind of hell it has created and it seems so far I’ve been proven right .

          1. I don’t think it’s created an actual “hell,” David. When all is said and done, there are, at best, only a few tens of thousands of fans even aware of this lawsuit. I know that sounds like a lot, but there’s an estimated three million serious Star Trek fans out there right now. (Don’t ask me where I got that number, but it’s pretty close.) If correct, then 30,000 fans out of 3,000,000 fans means that 99% of Star Trek fans have no idea what’s going on with Axanar. And even if it’s 300,000 fans aware of the lawsuit, that still means 90% of serious Trek fans remain blissfully unaware.

            Sure, Axanar has had 3 million YouTube views, but just because someone’s watched the video doesn’t mean they know about the lawsuit. That said, the longer this case goes on, the more coverage it gets. This past week’s articles in the Hollywood Reporter and Bloomberg make that quite clear. And coverage just ups that number of fans aware of the lawsuit. Eventually, CBS really will want the negative publicity (and the lawsuit) to just “go away.”

        1. I think the natives call it Canada. 🙂

          There are a lot of elements that went into the DISCO delay, including Bryan Fuller working on two other shows at the same time and CBS pressuring him to cut his budget (and ultimately firing him). And yes, the decision to shoot in (not move to, they never had to “move” because they hadn’t really started yet) Toronto was problematic because there’s a glut of productions shooting there now and a dearth of qualified production labor with the proper skills. Industry tradesmen (and women) from the U.S. (mostly from Hollywood) are trying desperately to get work visas, but the Canadian government hasn’t sped up that process…leaving a lot of qualified people on this side of the border eager to get working and productions frustrated with the slowness in processing the paperwork.

  10. Good luck with that indeed! I mean… the jury would probably find a substantial similarity even if Axanar was sued by Disney for infringement of their Star Wars copyright. Most people just can’t tell any difference between one sci-fi film and another. It all one and the same “tech stuff in space”. I have a bad feeling about this.

    2. Even if they can .. should they?

      I am pretty well versed in sci-fi, and have watched almost all star trek (except enterpise), stargate sg-1 (and the other series), firefly, … and i also read sci-fi.

      I think Axanar (at least prelude, since axanar does not exist yet) does invoke star trek, and there is a substantial similarity. In fact, how can it not be? The whole point of Axanar is to tell a star trek story, based on an event already mentioned in an episode?

      I think we need to be realistic, and intellectual honest about this. Fan films, by definition, are trying to create entertainment that is substantially similar to the original. So the defense cannot lie in trying argue that they are different.

      1. “So the defense cannot lie in trying argue that they are different.”

        Ah, you are making the same mistake the judge did, Narius. You are assuming that just because YOU believe it, the jury will come to the same conclusion.

        In the U.S. (and elsewhere) the reason that we have juries to to get a better view of what society thinks, not just one person. The following quote is from a professor of law at South Carolina University:

        “If a judge resolves fair use issues as a matter of law on summary judgment, one person’s life experiences control the relevant cultural standard of fairness; if a jury resolves those is sues at trial, a plurality of life experience controls that standard, and such a plurality more likely reflects the views of society.”

        That’s what juries are for: to lessen the likelihood that a single person can say something like “So the defense cannot lie in trying argue that they are different…” and then have that be the final word. Yes, the entire jury can reach that conclusion, and that’s fine. But the legal system does not want one person having that much power or influence unchecked by “the people” (the jury).

        Just wait till tomorrow’s blog!

        1. Very true in fact the reason we use the jury is during prewar colonial days the jury used to nullify harsh English laws imposed on their fellow colonists, the jury decision would then be overturned thus the seventh amendment. This is why the jury is believed to be a tool of justice over law.

      2. narius: I am still not convinced. Axanar was obviously trying to make a film telling a story that is set in the Star Trek fictional universe. That much is undisputable. But does it make it necessarily “substantialy similar”? Probably yes, but not necessarily. I don’t know the exact legal definition of this term, but how I understand it, it takes a lot more than some superficial resemblance and the same fictional universe. Axanar was obviously trying to do something that was very different from Star Trek production-wise, using a new medium and it has also quite “non-startrekky” main theme and it’s redefinition of Garth looked like a very original take on the main character, at least in compare to what we can see in official Star Trek. So, as I said, in my understanding it takes more than just “surface resemblance” to call the similarity “substantial”. But that’s just my (uneducated) opinion.

        Jonathan Lane: Well, you know there already are couple of fan film crossovers between Star Trek and Star Wars, so, what do we know? Maybe we will yet get to see that 🙂

        1. Star Trek Wars??? Oh, please save me!!!

          As for substantial similarity, let me take you on a journey to analogy-land…

          Is BAND OF BROTHERS substantially similar to SAVING PRIVATE RYAN?

          Let’s take a look. They both take place in the same “universe.” In fact, they’re in the same country (France) during the same time period during the same war. They both feature a range of soldiers with both expertise and different degrees of experience and inexperience. They both feature Germans, French, and Americans. They both have characters dressed in the same uniforms. They both show tanks and jeeps and planes and machine guns and all sorts of technology of the time. They both refer to the same events (like the invasion of Normandy).

          Are Axanar and Star Trek any more similar than Band of Brothers and Saving Private Ryan because they take place in the same universe with the same settings, showing members of the same cultures dressed in the same uniforms using the same weapons and vehicles and talking about the same events?

          1. I didn’t mean Star Trek Wars exactly, that one was indeed very bad. I was refering to things like A Tale of Two Galaxies and such.

  11. I REALLY want to see “BATTLE FOR AXANAR” – the documentary in IMAX …NOW! And I hope it grosses $100 Million

    2. I don’t want a documentary. The best case is Alec make some deal with CBS, and make a real Axanar film (or tv movie on netflix?) for CBS.

  12. Well, fingers crossed that the jury members are all smart and can see that what Paramount and CBS are doing is wrong.

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