Can AXANAR win on APPEAL if they lose at TRIAL?

When I was preparing my previous 2-part blog–THE GOOD, THE BAD, and THE UGLY!–the first thing I did was to reach out to my legal eagles and ask them what from Judge Klausner’s Order on Motion for Partial Summary Judgment that they thought should go into each of the three categories.

I was surprised when one of my birds of prey typed back: “Ruling of Fair Use to be Invalid – Good.”


That seemed like the baddest of the bad!  Fair use was the only realistic way Axanar could win!  Now, the best chance they have is to convince a jury that a fan film full of Vulcans, Klingons, Starfleet, phasers, and Garth of Izar isn’t substantially similar to Star Trek…a bit of a Herculean task.  I was sure my eagle meant to type “Ugly” and not “Good.”  So I asked.

Nope.  They confirmed it was a good thing–and then explained why…

It’s all about the appeal.  Everyone seems to be planning for it.  Even Alec Peters himself said, “Depending on the outcome of the trial, Axanar may choose to appeal the verdict to the Ninth Circuit, where Erin Ranahan is 5-0.  The Ninth Circuit Court of Appeals is also known to favor artist rights.”

It seems as though, now that Judge Klausner has made his summary judgment invalidating the fair use defense, there’s some shared Vulcan mind meld among fans throughout the world that Axanar will now lose in trial.  And while I do like to be the optimist myself, even I have to admit that the path to victory in the courtroom has just gotten VERY narrow.  Granted, I’d previously given the fair use defense only a 20% chance of working.  I actually thought it was much more likely there’d be a loss but with an embarrassingly small (for the plaintiff) jury award because of a finding of non-willful infringement.

But why in the name of Kirok was my lawyer friend telling me that going from a 20% chance of working to a zero chance of working (because fair use is no longer allowed to be argued at trial) a good thing?  I waited for my phone to ring (my friend said they’d call me shortly).  It felt like forever.

My latest lesson in law began with an explanation of the appeals process, which I have to admit I didn’t really know much about.  I mean, I kinda knew that if one side lost a case, they can appeal it to a higher court, and that court can potentially overturn or reverse the first verdict or send it back to the lower court.  But I didn’t really know what exactly happened in an appeal and how.  Does the appeals court hear the whole case again?

Nope.  Absolutely not.

Appeals are not new trials or retrials.  There are no witnesses and no new evidence gets presented.  All the appeals court sees are the documents the parties filed, the transcripts from the trial, any exhibits from the trial court, and the legal arguments of the parties.  If the appeals court wants to hear oral arguments (which is not always the case), only the lawyers get to talk…no testimony from anyone else.  And instead of just one judge, appeals courts tend to have a small panel (usually three judges picked at random from the “bullpen”of judges available…the Ninth Circuit has a few dozen full and part-time appeals judges available).

So, can any case be appealed for any reason?  No.  You can’t appeal a verdict simply because you didn’t like the outcome.  Let’s say Alec Peters loses the case but the jury award is only a measly $4,000 (which is a possibility, folks).  Now, Alec might not like the fact that he lost, and the studios might not be happy with such a tiny slap on the wrist (especially after spending a million dollars or thereabouts on legal fees).  But neither side can appeal the decision simply on the grounds of “This verdict sucks!”  The jury’s decision is a very sacred thing in law.  It’s one of the very pillars of our legal system.  You can’t just toss it because you think they got it wrong…

…unless a legal mistake directly led to them getting it wrong.

I don’t mean that the jury made a mistake.  I mean the judge.  Judges are human (even if they claim to think like a Vulcan!), and they don’t always get everything perfect.  And that’s why the appeals courts exist.  If one party or the other feels the judge screwed something up, THAT is the basis for an appeal.

For example, if the jury was given an incorrect set of instructions, that could be grounds for an appeal.  Let’s imagine that the Axanar jury is not told about the difference between willful and non-willful infringement and thinks that their only option is to award the plaintiff $150,000 per violation.  They look at the number of violations and the potential of an $8.55 million verdict and realize that Alec Peters doesn’t have that kind of money.  So rather than handing a victory to the big, faceless corporation, the jury does the only thing they’re allowed to: they rule that Axanar is not substantially similar to Star Trek, letting Alec Peters off Scott free.  (Remember, this is an imaginary scenario.  Don’t start typing those angry comments, folks!)

Of course, if this happened, the studios would be furious.  They would certainly want to appeal.  But they can’t just say, “The jury got it wrong–reverse the verdict!”  But they CAN say, “The jury was given improper instructions, and if they’d known there had been a way to find Axanar Productions liable without awarding a multi-million dollar penalty, they would likely have come to a different decision concerning infringement.”

Now, there’s no guarantee that such an argument would convince the appellate judges to overturn the verdict or send the case back to the lower court to be retried.  But at least the mistake in issuing jury instructions gives the studios a valid reason to file an appeal and keep their chances alive.

The other thing that can justify an appeal is a judge’s improper application of the law.  If the law says one thing and the judge says or does another thing, that’s grounds for an appeal if his mistake cost one party or the other something when the verdict was reached.

It’s this second kind of legal “mistake” that might give Axanar valid grounds to appeal.  Judge Klausner ruled that the “fair use” defense was invalid in this case and thus cannot be argued for by the defense during trial.  That ruling was devastating…as it removed the last, best hope of Team Axanar to score an all-out win.  (Well, it wasn’t the last hope.  There is another.  They could convince the jury that Axanar is not significantly similar to Star Trek.  But that’s an uphill climb to say the least!)

So why is this possibly a good thing…according to my legal eagle?

Well, let’s assume for a moment that Judge Klausner had not made that summary judgement ruling that fair use was invalid.  Let’s imagine for a moment that Alec and his lawyers could argue for fair use in front of the jury all they wanted during trial.

And now let’s imagine for a second that they lose.

After all, even in my best scenario, fair use had a 20% chance of working (but what the heck do I know?).  But seriously, there was no guarantee the jury wouldn’t reach the same conclusion as Judge Klausner did.  So let’s assume that’s what ends up happening.  The jury finds no fair use, Alec is liable for infringement, and there’s a verdict award for the plaintiffs (whatever the amount ultimately is).

Then what happens?

Well, then the trial is over.  Period.  There’s nothing to appeal (unless the jury instructions were bad or the judge excluded some key piece of evidence).  But assuming everything else was kosher, then game over, man.  No appeal.  Alec is stuck with the loss, CBS gets their jury award.  Done.  (And the studios are really happy because this trial will be over and hopefully forgotten by the time Star Trek: Discovery premieres in late May.)

Now, let’s take another hypothetical scenario, this one stemming from the reality that fair use is now off the table.  And Alec loses (as most lawsuit watchers now expect to happen).  Can he appeal if fair use was taken completely off the table by the judge before trial?

The answer is most likely yes.  The question of fair use is, arguably, one that should be left up to the jury, not the judge.  In legal terms, it’s a matter of determining fact (which is the duty of the jury) and not a matter of determining law (the duty of the judge).  Alec’s attorneys can make the argument that summary judgement is not the time nor the place to decide whether fair use is a valid defense because there are so many facts to determine.  For example:

  • Was Axanar transformative due to its mockumentary style or creative content?
  • Did the Axanar works actually earn any profit?
  • Is there likely to be measurable market harm to the plaintiffs because of Axanar?
  • Does Axanar count as parody or criticism?

These and other examples are questions of fact that should be determined by a jury, not a judge.  Oh, sure, a judge is welcome to have an opinion, too.  And in fact, Judge Klausner said, in his opinion, that Axanar was, indeed, substantially similar to Star Trek.  That’s fine…if it stops there.  But here’s the important difference and why there is now grounds for appeal:

In the case of substantial similarity, the judge stated his opinion and then put it aside and is instead leaving the question up to the jury to decide.

In the case of fair use, the judge did NOT put his opinion aside and took the decision completely away from the jury.

BIG difference!

Now, the defense will likely argue on appeal (assuming they lose the case at trial–a trial must be over in order to appeal it) that Judge Klausner should have treated fair use the same way he treated substantial similarity: leave both to the jury as the triers of fact.  But by taking fair use away before the trial even begins, he is depriving the defendant a right to a proper defense.  By improperly applying the law, Judge Klausner arguably sabotaged the defendant’s ability to achieve a fair and beneficial verdict.

And that, my friends, is grounds for Axanar‘s appeal.

Now, just because Alec Peters gets to appeal the case, that doesn’t necessarily mean he wins.  Hardly!  First of all, the appeal only gets him to the appellate panel of judges.  His lawyers still have to convince the appeals court that Judge Klausner screwed up…and that’s no easy task.

But let’s assume that Team Axanar is able to convince the 3-judge panel that fair use should not have been ruled invalid by the judge because its a matter of determining fact, not law.  Does the verdict get overturned and Alec Peters declared the winner?  Nope.

Most likely, the appeals court would send the case back to the federal district court for a do-over.  Yes, NOW there would be a retrial!  A new jury would need to be seated, and this time they would get to hear the case with the fair use defense.  And if they decide that fair use applies, then Axanar finally wins.  If not, then they lose and have no realistic recourse to appeal again.

But here’s the thing: THIS COULD TAKE YEARS!!!

The appeal alone is another year or even two.  The Ninth Circuit covers the cases of FOUR STATES: California (lots of cases!), Arizona, Alaska, and Hawaii.  Every federal case in these four states that gets appealed at the district level bottlenecks in the courtrooms of only three or four dozen judges sitting in groups of three, reading hundreds or even thousands of pages of motions and rulings and transcripts, and then writing opinions.  A year waiting for an appeal review is pretty optimistic…expect two.

And then, if Axanar wins their appeal, then there’s a whole new trial to deal with.  All the while, CBS and Paramount are paying Loeb & Loeb tens of thousands or even hundreds of thousands of dollars.  Meanwhile, Alec Peters’ attorneys are still working for free (Alec reported that Winston & Strawn intend to continue their pro bono status throughout appeal).  Alec’s own out-of-pocket expenses decrease significantly on appeal as there are no more witnesses to depose (which is what produces the majority of the cost for someone being represented pro bono).

And really, Alec has nothing to lose and everything to gain by dragging this out on appeal.  After all, if he loses at trial, it doesn’t get any worse on appeal.  The appeals court can’t make the jury award any higher.  So things can only get better for Alec because at least he’d have another shot at winning if the appeals court orders a new trial.

For CBS and Paramount, the opposite is true.  On appeal, they have everything to lose and nothing to gain.  If they win on appeal, they’re right back where they were after trial (no change).  But if the case is thrown back to the district court, the studios have to pay for a whole new trial, and this one they could potentially lose!

Frankly, I wouldn’t be surprised to see a settlement initiated at this point…not by Axanar but by CBS and Paramount.  Alec has nothing to lose, and the studios now have a lot to lose…especially if they win.  (Hmmm, that made more sense in my head.)

And one other possibility I didn’t cover yet: what if Alec Peters loses his appeal?  Is it finally over?  Can we all just go home at long last?

Well, there is one last place to the appeal a decision at the federal appellate level: the SUPREME COURT of the United States.  But could this case actually get that far?  The Supreme Court usually tackles cases dealing with constitutional issues.  Is a case about two studios suing a Trekkie and his fan film really a constitutional case?

I think it is.

And tomorrow, I will tell you why.  (And no, it’s not about the First Amendment…it’s about the Seventh!)

111 thoughts on “Can AXANAR win on APPEAL if they lose at TRIAL?”

  1. As I posted on the Axanar Fan Group yesterday, a settlement is the optimal solution for CBS at this point. It makes the most business sense at the smallest risk.

      1. But the question stands: What they want to do with it? After all, Axanar threatens the popularity of the whole new timeline franchise. Can they risk to allow Axanar to happen and cause even more harm to them? It would be more than a Paulian about-turn if they would suddenly allow and possibly even support Alec’s project. Especially if they win big in the trial – something that can’t be dismissed. They would go for a settlement only if the jury finds Alec non-willful.

    1. At what time in this game does Reece wake up ?
      CBS’s best interest is to settle, obviously Reece never played sports before, why would the winning team need need to quit – lol..
      Reece is a funny

      1. There are always possibilities, Spock said. I can see justifications for CBS/P settling and also reasons they wouldn’t want to. I know what I’d do, but hey, I’m just a blogging Trekkie! 🙂

      2. Well, any judgement without willful infringement isn’t much better than losing to CBS. If such a judgement occurs, they may wish to settle so as to avoid a costly appeal that’s not likely to gain them any of their sunk costs back.

  2. As they like to say “very interesting, very interesting indeed”.

    This case has more twists and turns than a water slide.

  3. …i’ve read almost all of your posts, but not the court docs =P

    does Judge K backup his summary invalidation of fair use…?

    i can’t see it (fair use) myself, but does he justify his call?

    1. Read the blog post just before this one, Not Herbert. I quote most of the significant parts of the judge’s ruling on fair use. But short answer, yes, he did back up his summary invalidation of fair use.

      1. …ok, upon review: IMHO, there is enough ambiguity in “indirect commercial benefit” to invalidate the Judge’s call on the 1st element of fair use

        IMHO, that should be heard and weighed by a jury

        so, if that’s the reason for appeal, i agree =)

        1. you’re a lawyer? You folks sound like the election crap…You don’t like the results so it should all be invalidated

          1. Guess what Edward……both civil and criminal cases do get overturned upon appeal, and some get to go all the way to the US Supreme Court. this is called “redress”, and it has been in place since the beginning of our nation. Many lawsuits have been decided through the appeals process.

            this judge made his ruling, and if he did not apply the law correctly, it allows either the plaintiffs or defense to bring up facts that show he ruled in error at appeal. this ensures that both the plantiff and defense have a “fair trial”.

  4. I like the analysis you have been doing, but you are making one assumption that really can’t be determined. That is that CBS/P is suing Axanar from a rational rather than an emotional motivation.
    If the motivation is something like Axanar is making us look bad by providing quality work for pennies on the dollar, lets put them in a hole so deep they never climbs out, or at least tie them up in court til they have no hope of making anything ever again. CBS/P might stretch this out as long as possible. If CBS/P could find an excuse, they would take Axanar to trial at the international court inn the Hague (I think Axanar has been viewed in almost every country on Earth).

    If they were being rational, Axanar would be an anchor show CBS All access.

    1. Officially, I can’t speak to what is going on in the heads of the executives behind this lawsuit. But I’m not sure that having this case drag on or get national/international attention is what they want most of all…if at all.

  5. tl/dr:

    Judge Klausner has given out two gifts in this ruling, one to the Defendant and one to the Plaintiffs. He gave the Defendant one hell of a big “Get Out Of Jail Free” card. To the Plaintiffs he gave the possibility of a Pyrrhic victory. All without looking like he’s playing favorites. Merry (late) Christmas everybody!

      1. Well, you know there are those people out there who have the attentions span of OH! SHINY! ;D

  6. “the last, best hope of Team Axanar to score an all-out win. (Well, it wasn’t the last hope. There is another.” Babylon 5 and Star Wars – yes! So you’re hoping for a Lorien to tame the CBS/P Shadows or perhaps for the dark side of the legal force to lose on appeal and retrial. As long as team Axanar can find a Kirk-like solution to what CBS/P tried to make a legal Kobayashi Maru I’ll be happy.

  7. Hahahahaha! Alec had nothing to lose waiting for an appeal??? Are you serious? So he’s sitting on a white elephant of a studio with no air con or sprinkler system that he has to pay rent on, most likely an injunction against him making Axanar, and no way to fund anything. What happens when he can’t pay the rent?

    I’ve also heard from a few lawyers (and not just by training) that Klausner’s application of law dismissing the fair use defence is sound. That’s the problem with law, it’s all about interpretation. Even if this drags on years it’s not like a lot of billable hours will be racked up waiting for appeal anyway. The Plaintiffs have shown a willingness to take this all the way so I doubt they’ll give up now. It’s Alec who has refused their terms to settle.

    The Axanar Marines seem to be taking the line that CBS won’t want the bad publicity if the case moves to appeal and drags on. For the most part people seem to be siding with the studios more and more as the evidence from the case is made public. If Alec loses and all of the redacted stuff that comes up in trial becomes public even more people will likely side with them. Of course there’s also the old adage that there’s no such thing as bad publicity.

    1. “For the most part people seem to be siding with the studios more and more as the evidence from the case is made public.”

      I’m not sure I’ve seen evidence of that, Sandy. Even the echo chamber seems to be losing a few members. I saw this posting earlier today on the CBS/Paramount v Axanar Facebook group:

      “Admin, please remove me. I find people on this site disagreeable and no longer wish to follow. It’s people like them who’ve killed to joy ST gave me for nearly a half century. I’m tired of them, tired of the crap and now I’m tired of ST. I’m done. There’s no point to it or them anymore. I’ll just focus on my work until I die. You know the REAL world.”

      That FB group still has only 1,152 members…about the same as it did for the past couple of months give or take a few (I think the last time I checked it was 1,163). I haven’t noticed a sudden influx. The Axanar Fan Group is at 8,348 members…also about the same as the past few months. In other words, I think everyone has picked a side in this and is planting their feet, especially after this week’s ruling.

      1. That was just one idiot who wanted to flounce out and couldn’t find the “unfollow” button. I’m not talking about our respective echo chambers Jonny, I’m talking about comments on articles about the case.

        I like how you chose that little nugget to comment on while ignoring the rest. Good job controlling the message.

          1. Jonathan’s absolutely right about the relative populations of those groups. And that whole circus seems to be led by about 1/2 dozen rabble-rousers with nothing better to do than be as mean and nasty as possible.

            I also feel sorry for the guy that quit, and I understand how this whole fiasco could sour someone on Trek because it’s been that way for me, for quite a while now.

            C BS new Pay Per Trek, is certainly not helping that any at all.

            It’s also worth noting that…
            Fanfilmfactor had 30k views in December
            contrast that with, axamonitors 5k views.
            1701news has sat fallow for 4 months, although suddenly this week hinman put up some new stuff.
            And although I heard ailockalpha may be back a quick double check shows that sits fallow as well
            And as for geeknation. Hinman doesn’t seem to be able to do much rabble-rousing there. as this article points out…

            Judge Should Throw Book At Klingon Language Disruptors
            By Michael Hinman January 4, 2017
            0 Comments 0

            Contrast that with the average FFF blog.
            Feel free to check my numbers

          2. Wow, I got 30,000 views in December??? Man, that’s amazing (especially considering that my traffic was in the virtual toilet from the week between Christmas and New Years (barely 500 views a day).

            As for Axamonitor being at only 5,000 views for the month, keep in mind that we’re two very different kinds of blog sites. While I realize that my traffic doubles or triples when I talk about Axanar, I do actually feature articles and news and interviews about OTHER fan films. (Next week, non-Axanar fan films make a return appearance here, folks. I promise!!!) Carlos Pedraza pretty much plays one song…and that’s fine. His blog is, after all, called AXAmonitor and not FANFILMonitor. 🙂

            Also, while Carlos and I both have our slants, his slant seems to attract mainly the detractors, and there’s obviously fewer of those out there than there are Axanar supporters (just looking a the 4-to-1 size differential in membership on the Axanar FB fan group versus the CBS/PvAxanar FB group). So naturally, I attract a larger audience of Axanar supporters than Carlos does.

            And finally, Carlos doesn’t allow commenting. Not only do I allow commenting, but with the exception of a few prudish rules, I pretty much approve every comment I get–pro and anti-Axanar. So not only do I get supporters here on FAN FILM FACTOR, but I also get detractors who want a chance to spar with the supporters. And if you think about it, FFF is one of the few places online where the two groups can meet en masse and try to fling dung at each other. Granted, I didn’t ever intend for this blog site to become the steel cage match for rabid Trekkers to come to verbally wrestle. But hey, it is what it is…and I actually enjoy at least some of the back-and-forth debate (the intelligent stuff; not the insults).

            So anyway, there you have it…one lay man’s (or Lane man’s) perspective on the reason for the differential in web traffic to the two main news sources for Axanar. As for Hinman, well, I just don’t go there. 🙂

    2. Seems like it must be another slow day on the CBS v Axanar FB page (again) since Sandy and the rest are here (again) trying to spook the rest of us.

  8. So then here’s my question – assuming that is the case is anyone going to point out that denying them is grounds for appeal.

    I can see why C BS might want to and the defense might not.

    1. “So then here’s my question – assuming that is the case is anyone going to point out that denying them is grounds for appeal.”

      Isn’t that what I just did, Mickey?

        1. When you say, “To the court,” do you mean to the judge? He doesn’t really care. Remember that “grounds for appeal” is not the same as “successful appeal.” After tomorrow’s blog, try to figure out why Judge Klausner specifically left Axanar with the slim chance of arguing against substantial similarity…rather than declaring that opinion of his to also be final. After all, if his opinions about fair use can be applied at summary judgment, then why not just do the same with his opinions about substantial similarity. The judge is a smart guy, and I don’t think he’s done any of this by accident.

  9. Once again the Jonathan Axanar positive spin! Not only is the worst thing to happen to Axanar in over a year now a good thing but it also can quite likely lead to a positive outcome for Alex Peters and Axanar Productions (whatever their current name is) I love reading this stuff and as I usually say, I completely respect your opinions and of course defend your right to present them however it seems to me (and I could be wrong) that after the judges ruling that it might be time for damage control rather then giving false hope to folks who have supported Axanar from the beginning.

    I did want to ask, you mention that your ‘legal eagle’ gave you these ideas about the appeal…my question is, was it only one lawyer who gave you this idea or several? It just seems to me that one lawyer does not make a legal precedent and it is dangerous to follow one opinion without knowing the majority opinion. (again my opinions!)

    I did want to mention Jonathan that my girlfriend and I have read your Santa Claus book and it’s great and full of info I never knew existed. Thanks!

    1. I don’t just do positive spin on Axanar; I’m the eternal optimist, glass-is-half-full kind of person. Drives my wife crazy–she’s great at worrying. We bring balance to the Force. 🙂

      As for the legal eagles, one has mostly dropped off the radar while a new one has popped in to have a look see. That one hasn’t really offered me anything concrete yet, so I haven’t identified him/her yet, but I’ll check if I can if/when I get something usable. Eagle number two wasn’t really available this week, and I was in a rush. So I really only had one to give me my law lesson on the appeals process.

      That said, I didn’t just take that one lawyer’s word for it, I looked up a LOT of stuff. In fact, that led me to the article I’m using as a basis for tomorrow’s blog about the Supreme Court. Keep in mind that everything I’ve said on this blog and will say tomorrow is mainly my own opinion and research. The eagle gave me a ten-minute crash course, but I spent the next several hours writing the blog. And I don’t say that Alec WILL get an appeal or will WIN an appeal…only that he now has GROUNDS for an appeal. Had Klausner not nixxed fair use in summary judgment, Alec might have NO grounds for appeal at all.

      And thanks for the positive words about BEING SANTA CLAUS. Glad you liked it…tell your friends! 🙂

  10. I’m not sure if the seventh can apply in this case, it only covers federal jury trials and I thought this was a state level trial, that would be governed by California’s constitution instead and each state has a different view on civil jury trials. Infact civil jury trials began falling out of favor immediately after the revolution and many states do not support civil jury trial today. Unless you were going to argue the interstate commerce clause as well, then you could argue that the case being one concerning interstate commerce should be under a federal court to begin with.

    1. This case is the the Ninth Circuit Federal Court…central district. Copyright infringement is typically a federal complaint because it usually crosses state lines.

  11. I can’t imaging Alec agreeing to a settlement unless it allows him to make Axanar in some form. Right now, *even if he loses*, he can still make Axanar—he just has to strip out all the Star Trek IP to do it. (Yes, the trial will still continue, but he can just go bankrupt if he loses, and bounce right back to continue doing whatever he wants.) So that’s a baseline for him. Any deal with the studios has to be better than that, otherwise he has no reason to agree.

    The studios could offer to let him make Axanar, as long as he sticks to the new fan film guidelines. But I have a hard time imagining Alec going for this. Maybe I’m wrong about that, but in my opinion it wouldn’t really be the same vision he originally started with. He’d still be better of starting over with fresh IP.

    I’m having a hard time imaging the studios giving Axanar any better deal than that (i.e. lifting any of the restrictions on their existing fan film guidelines). From their perspective, this is all about smacking down the fan film that went too far. If they start giving said fan film special attention, that goes directly against their goals, as it would encourage others to bend the rules.

    Yes, there is a risk that the studios might lose if they continue—but given the course of the case so far, I think it’s reasonable for them to think this is a very small chance. (Not saying I agree with that, just saying it’s reasonable for them to think that.) And yes, they’re burning a truckload of money as long as they keep this up. But to them, I suspect this is an Ender’s Game situation. They want to win this fight as decisively as possible so that they’ll win all the future fights by default.

    Not that I don’t want them to settle. I’d like Axanar to find a way out of this that doesn’t involve throwing away all the Star Trek IP. My favorite option by far is to have CBS obtain the license to Axanar and offer it on their streaming service. I’m just not sure that can actually happen.

    Anyway, I appreciate the optimism, Jonathan, regardless of what I expect to happen. 🙂

    1. Hope is a powerful thing, Elliott. It’s gotten me through a lot of things in my life…including the dread that I’m not gonna finish writing tomorrow’s blog entry in time!!! 🙂

  12. If your “so-called” Legal Eagle actually believes the having the Judge toss out the “fair use” defense, which in reality and by their own admissions, was Axanar’s only really solid defense, then it’s definitely time to get a much more competent legal advisor. Of all the posting which are and have been attempting to sway donors and supporters of Axanar to believe they have a remote chance to continue, as with original Star Trek at least, the statement of the the irrelevance of this Judges order simply tosses the legal credibility of the any future or even past article twists into the trash can !
    It’s beginning to become more obvious that this Axanar Production is attempting to twist whatever remaining scraps of hope which remain, if any, into a win win situation and your simply blogging to these dying hopes ..
    In playing into a time frame of with years to pursue this case, this would only sway more advantage of the lawsuit to the studios which have the law on their side with IP and as your “legal eagle” should have informed you, the money usually dictates how far these lawsuits play out – with one of Hollywoods strongest studios and television networks going after a little guy with no experience and little talent who’s solely relying on a Pro-Bono defense, otherwise this case would have been closed months ago .. Even with the Pro-Bono defense, the filing and some of the discovery costs are still racking up somewhere and somewhere there’s a useless warehouse mocked up studio which is eating away money which will eventually run dry! So, you see the major studios have the element to wait this out until Axanar itself self destructs itself, there hands or even somewhat tied by the lawsuit from even attempting to capitalize on their investment because most major players who rent out or lease studio space require solid backing or a security bond before dumping money blindly, unlike the Kickstarter fokes who were being taken for the ride of their life !
    Then there’s the final issue with the Supreme Court, which is highly unlikely and seems the biggest grab for a lifesaver which could be conceived by Axanar or otherwise Alec Peters shaky defense. The Supreme Court is usually extremely picky about what subjects they overhear and a small time guy who lost a IP case infringement probably isn’t going to even get into there radar. But, for the sake of argument, let’s pull an Axanar move and say they’ll welcome this case with open arms (almost laughable) well then what’s next ? In most cases which they overhear it has to be a solid case of trial mismanagement or misinterpretation of the laws, which in the case of Axanar there “fair use” claim would still be non valid, because of already obvious reasons, so where’s to go except damages .. Also, with the Supreme Court Justices they usually sway heavily with the legal statutes of the laws, which in this case, favorite and protect the copyright issues and there rights of the owners of such materials – the final strike out for Axanar and Alec Peters ! Don’t worry though, the dreamland is about over and the curtain is closing soon !

    1. Oh, you’re gonna love (or hate) tomorrow’s blog, Tony! 🙂

      Just to be clear, though, Industry Studios now has nothing to do with the resolution of this case. What I mean by that is that CBS and Paramount are not looking to close it down (that’s not part of the relief they are seeking from the court). Alec has a year left on that lease. Assuming it runs out, it runs out. The resolution of the case doesn’t affect that (unless Alec wins and makes Axanar after all). If he loses and drags this on and then the studio closes down and, four or five years ago after a de novo trial actually wins, he can always do a new crowd-funder (or just bootstrap it) and finish Axanar then. I’m sure he’d find a lot of supporters happy to back him again after winning. If he loses a new trial, then it doesn’t matter whether the studio closes down this year, next year, or five years from now.

  13. Question 1: *if* Alec lost the trial, CBS can obtain an injunction, and so he cannot produce Axanar while going through the appeal process, and potentially a new trial. Is that correct?

    If so, whether he has a chance or not, we lose (no Axanar) unless a deal is made with CBS.

    Question 2: If Alec wins the appeal and gets to the second trial, can lawyers bring up anything about the first trial? If so, the fact that he already lost one may push the jury to the side of the plantiff and Alec will have a lesser chance to prevail. Your original estimate of 20% is not a great number to start with 🙁

    While CBS certainly have more to lose, they have deep pockets. For example, ST Beyond grossed $300M+ world wide. Can Alec hold out for years even if the lawyers are free? He needs to make a living and move his career forward too. If things drag on, did he say he will make Axanar even if it takes years to win the lawsuit?

    1. Oy, good questions to distract me from tomorrow’s blog!

      1) I believe (not sure, no eagle on my shoulder right now) that Alec’s legal team can petition the court to set aside the judge’s injunction pending appeal. That said, CBS would then argue irreparable harm if Alec is allowed to make and release Axanar in that time, whether or not the appeals court upholds the ruling. So expect that, yes, any injunction will remain in place if he loses.

      2) Can lawyers bring up anything from a previous trial in a new trial? Yes, to an extent. My guess is an in limine motion would be filed by the defense prior to trial requesting that the verdict from the previous trial be precluded from being mentioned during the new trial on grounds that it would confuse and prejudice the jury. The previous trial had no fair use defense allowed, which obviously affected (well, will affect) the first verdict.

      As for Alec holding out, well, his lawyers are VERY committed to him and this case. They intend to continue working pro bono (which is no small offering!). His out-of-pocket costs are minor at this point. So yes, Alec can take this as far as it needs to go if he chooses to.

  14. Why doesn’t Alec settle and make a different movie? If a year ago he had settle and agreed not to make a Trek film couldn’t the donors have a different film or at least part of it by now?

    1. Well, you could always ask Alec. The idea was floated to some of the backers early on. Personally, I donated my money to make Axanar, not just some random sci-fi flick. So if Alec was willing to fight this, I’d stand behind him.

      1. “I donated my money to make Axanar”

        That money is now all gone and there is no movie and yet you still back him. I find that simply astounding.

          1. Well everyone has their faults Jon,

            Anyway, if it’s true that they are out of money, I’d have to say it’s largely the fault of CBS/P. Because they were finishing set construction, and starting to film. How else would one end up with a Vulcan scene featuring Gary Graham.

            It’s not like they took the money and ran off to,,,, Oh I don’t know let’s say Grenada.

            And Sandy you can make all the noise you want about them building a studio, but All the other Trek sets and Studios out there came from somebodies pocketbook some where…
            Usually private donors.

            They aren’t “Magically Delivered by Unicorn Express!!” I know that’s a disappointment Jon, And Those guest stars on New Voyages they didn’t work for Free, and neither did the pro cinematography crews, that filmed them. Same for Continues.

            I think that’s why it’s so irksome to see Axanar singled out in this way by CBS/P and the small number of detractors with an axe-anar to grind. And other fan film studios who think they are superior, but who really are just lucky,,, so far..

            OK you can have your soap-box back now

          2. Thanks, I use the soapbox often. But I’m not so selfish as to refuse to lend it out to those who are deserving. 🙂

            Y’know, it was shortly after reading Sandy’s comment that more people in the media and online are turning against Axanar that I found the following video podcast…with 18,000 views in just four days. It doesn’t seem to be trouncing Axanar at all:

  15. Thank you again Jonathan.I very much appreciate you keeping us the fans in the loop.Please keep up the good work.May Axanar live long and prosper..

  16. A question about the appeal process: suppose it goes to appeal. The appeal decides whether Axanar gets to have a fair use argued in front of a jury. And suppose Axanar wins this appeal. Now there’s going to be a second trial.

    Does this second trial rehash *all* of the elements of the first trial (including substantial similarity and willfulness) or *only* the issue admitted by the appeal (fair use)?

    1. Excellent question! If it weren’t 9:37 on a Saturday night, I’d text my legal eagles. (I’m not allowed to ask my wife!) Unfortunately, I’m on an island of “I don’t know” right now, so I can’t say for sure.

  17. My apologies to the posters below who submitted comments when this blog first went live. I hit “publish” and then flew out the door for a full day of daddy-ing. I’m back, and I’ll try to get through as many of the two dozen comments that came in as I can. (Also got to finish tomorrow’s blog!)

  18. I’m not a lawyer, but I’ve passively read about a few cases that percolated up through the Federal Circuit Court system before. Hypothetically speaking, if Alec does lose without the Fair Use Defense (as I think is likely), and if/when that loss is appealed to the Ninth for the reasons you’ve outlined, only three judges would be seated to review the case (assuming they accept the appeal). If they ruled in favor of the Defense regarding Fair Use, couldn’t the Plaintiffs at that point request that the Ninth seat a full panel for an En Banc Review?

    I don’t know if this type of case allows for that. I only ask because it would be yet another step in this process, which would drag this out even further (assuming the En Banc were granted, and assuming the En Banc still ruled in favor of the Fair Use Defense on appeal).

    In other, other words, if there is an En Banc, there would be one more step between the Ninth’s ruling and a new trial. To live long enough to see this whole thing pan out, at some point we may all have to get in the transporter and lock the pattern buffers into diagnostic mode so we can wait 70 or so years to rematerialize.

    1. Yeah, there’s a possibility of an En Blanc by either side depending on the appeal ruling. And yeah, that could delay an appeal to the SCOTUS and/or a trip back to district court. The blog was getting pretty long already, so I decided to skip explaining the full-panel appeal. But yes, it’s possible.

  19. My only question is: How can a jury find something that is not in existence yet to be substantially similar? Scripts are not the film and even after “finalization” get altered by the director during shooting. Just curious.

  20. I keep hearing “Defense can win on an appeal” yet there is a very good chance it may not get an appeal.

    I also hear things like “Alec will settle if he can still make Axanar in some form” , well any settlement offer from the plaintiffs will include Axanar can not be made in any form.

    All of the donor money is long gone as it was used to support Mr. Peter’s life style.

    Why is he so afraid to release the accounting statements?

    This is all food for thought.

    1. I’m wondering how the Admiral here knows any proposed settlement terms well enough to proclaim that.

      I also like how he ignores that the statements will be released at the end of an independent review process….

      1. Well it’s not hard to figure out because the plaintiffs have offered to settle and I’m willing to bet with 99% chance that those settlements all included the words “NO Axanar”.

        We can safely deduce that’s the ONLY reason the defense hasn’t settled.

  21. What would happen if the fair use is inadvertantly referenced by one of the plaintiffs and/or one or more of their witnesses? Since it would open the door for the defendants to claim fair use would they be allowed to add a fair use defense or would the judge order the jury to disregard the fair use reference or would he declare a mistrial? There is no guarantee that the jury would disregard a reference to fair use and may rule in favor of Axanar and in doing so weaking the copyright.

    1. Few lay jurors will understand the nuances of fair use coming into a trial cold. So just because it is mentioned doesn’t mean they’ll know how to discuss the concept or apply it. In order for fari use to truly be employed as a defense, the attorneys would need to explain it in opening statements, question witnesses specifically about aspects of fair use that would support their arguments, and then help guide the jury during closing to reach those conclusions. So I don’t think fair use would “sneak in.”

  22. If Alec loses and it is declared non-willful CBS should consider paying Alec handsomely for exclusive distribution rights as well as paying him regularly to develop exclusive content for CBS to distribute. They would not only be uniting star trek fans rather than dividing them they could also profit from the increased revenue resulting from such a move. CBS could use prelude to axanar as a promotional trailer to drive interest. CBS could also allow all fan film creators the option to submit their films for the potential for lucrative deals.

      1. I posted this suggestion here in hopes that you could forward it to the right people. Feel free to edit it as needed.

  23. There is no doubt Alec directly benefited off the donor money and off IP infringement. It’s is a proven fact he spent a rather large portion of donors money on crap donors were not responsible for. Plus, I am sure the IRS is going to very interested whether Alec reported it as income since he spent most of it on himself. Donors were not responsible for his “$alery”, warehouse rental aka studio rent, car repair, tires, AAA membership, car insurance, cell phone bills for Alec, Diana, Crysstal, and RMB, Alec’s Sushi addiction, gasoline for 2 years for him, Diana, Crysstal and RMB, his plane tickets and trips for his US Tour of ComicCons, meals in expensive restaurants, expensive drinks, or his Wahammer40k games hobby. Fact of the matter is this Alec spent that money, never delivered a product, ripped off fans money to directly benefit himself and the above named parties.

    1. Yep, totally proven fact there…

      Wait, what? Did I miss a memo? What did skewed allegations in one-sided legal filings based on non-audited and incomplete financials become prove fact?

      Man, Alec…I want that interview!!!

      1. When Rand goes off the deep end, he REALLY goes off the deep end!

        At least he’s moved on from whining about being left off a list of donors that never existed……

        1. Dave no reason for you to be a condensending prick. My comment is spot on. Yet again you and Jonathan avoid the contents of my comment and refuse to address the fact Axanar is flat broke. There is no way Alec can make the film even if by some miracle he does win and the odds of that happening is a snowball’s chance in hell. The evidence against Alec is overwhelmingly against him.

          Rather than coming off angry and dropping profanities I was TRYING to be polite but if I’m going to get insulted I’ll just go back to dropping f bombs and insults.

          1. No reason to devolve, Rand. F-bombs are meaningless anyway…and you don’t want to be meaningless, do you?

            Anyway, you make some very interesting assumptions that are leading to to some equally interesting conclusions. From what I know, I’m pretty secure in not agreeing with at least certain of those assumptions and, by extension, conclusions. But hey, there’s always a chance you could be right. I’m not saying with 100% certainly that you’re wrong. Definitely not 100%.

    2. Rand, the problem with your entire comment is as follows, Alec is being sued for copyright infringement, NOT FOR MISUSING Donor Funds. constantly bringing up what he spent money on, does nothing more than turn a straight line case, into a squiggly line. if you choose to sue him for embezzlement, please do so, but until such case is actually filed. try sticking to the facts in question.

        1. You might be at “the Love Shack” with your car “as big as a whale, about to set sail”, now i must ask, are the B-52’s playing live or memorex?

          The “he spent money” line is just so dumb at this point. well DUH!!! when you take money in from whatever source you have, you inevitably have money going out. that is the way the world works. heck(not in the mood to cus) CBS/P for all the money they bring in inevitably will spend that money on something…..or the shareholders will revolt.

          all in all, this is an interesting case, one that will have legs after whatever ruling is made at the district level, simply because that is what lawyers are here for.

          1. You probably don’t know that the first time I ever sang karaoke was to the song “Love Shack!”

            And, come to think of it, you probably don’t particularly care, either! 🙂

  24. Depending on how the trial goes CBS may be forced to settle the case to avoid their copyright being weakened due to the jury appearing sympathetic to the defense. A good settlement might be to offer pay Alec handsomely in exchange for exclusive distribution rights.

  25. Let us assume that the jury instructions properly define the difference between a non-willful violation vs a willful violation.

    What happens if the jury rules that Axanar is not substantially similar to Star Trek?

    Would the copyright be weakened as a result of the above ruling?

    Assume the jury were to later admit that they would have ruled it “fair use” rather than “not substantially similar” if given the option to do so.

    If so would the plaintiffs be able to appeal the decision on the grounds that in improperly exluding the “fair use” the jury was forced to rule in such a way that resulted in the diminishment of their copyright?

    If the plaintiffs can not appeal the exclusion of “fair use” would such a ruling of “not substantially similar” have an effect on other future fan films and if so what effect?

    1. Captain, I have a patient here with many questions…

      1) What happens if the jury rules that Axanar is not substantially similar to Star Trek?

      Game over. Lawsuit done. Alec wins. There’s no injunction and no finding of infringement. (Alec should be so lucky!)

      2) Would the copyright be weakened as a result of the above ruling?

      Hard to say. It’s not just one copyright. CBS holds hundreds, thousands even. Different fan films would also likely wind up with different juries and different verdicts. In fact, even if one jury sided with Alec, a different jury given the same evidence and testimony might not.

      3) Assume the jury were to later admit that they would have ruled it “fair use” rather than “not substantially similar” if given the option to do so.

      Same result in the end: Alec wins. Also, juries are typically not “debriefed” after rendering a verdict.

      4) If so would the plaintiffs be able to appeal the decision on the grounds that in improperly exluding the “fair use” the jury was forced to rule in such a way that resulted in the diminishment of their copyright?

      As I said, same result. Fair use gets Alec off the hook and so does no substantial similarity. Remember, neither party can appeal simply because they don’t like the verdict. And “It will diminish our copyright” isn’t a valid claim either, as that’s impossible to prove as a direct harm. Alec could say, “I suffered direct harm–a verdict of liability–because I was not permitted a proper defense.” THAT is grounds for appeal.

      5) If the plaintiffs can not appeal the exclusion of “fair use” would such a ruling of “not substantially similar” have an effect on other future fan films and if so what effect?

      Again, hard to say. Let’s assume Star Trek Continues gets hauled into court next. They have Kirk and Spock, and the USS Enterprise. If a jury is determining substantial similarity, STC would be much closer to that line (or crossing it) than Axanar.

    2. The only scenario in which CBS/P’s copyrights are weakened is if the jury is allowed to rule on whether certain things were actually copyrightable. The Judge’s ruling has said there is objective substantial similarity, (ie. Axanar features Klingons, the USS Enterprise, Vulcans, the Federation, etc…, and does not deny it is a Star Trek film) but it will be up to the jury to determine whether there is subjective substantial similarity. (ie. do those things amount to copyright infringement once protected elements are filtered out)

      It sounds like subjective substantial similarity will be the only thing the jury are instructed to consider in the trial, in which case, there’s no risk to the standing of CBS and Paramount’s IP, however there arguably is risk to the threat of a lawsuit failing to constraining future fan films to their guidelines if Axanar is ruled to have unwillfully infringed upon CBS and Paramount’s IP, rather than willfully infringed.

  26. Is this a joke? CBS / P will never pay anything for Axanar. Would you pay to get use out of something that was stolen from you? Theft is something people here don’t want to think or talk about.

      1. Good point. Theft involves taking something away from someone else so they no longer have it. CBS still has Star Trek. Alec just used it without permission. Consider it more “improper borrowing” than theft. 🙂

  27. If the plaintiffs lose this case would they be legally prohibited from suing over the creation of a sequel to Axanar?

    1. Since the sequel is part of this case (which is still a possibility–the judge hasn’t ruled on in limine motions to exclude yet), then yes, CBS would be prohibited from suing over it. But if the judge tosses the Axanar script and limits the case only to Prelude, and Alec wins, then the sequel would be something the studios COULD sue for in a new complaint.

  28. I think one of your statements is incorrect:
    “In legal terms, it’s a matter of determining fact (which is the duty of the jury) and not a matter of determining law (the duty of the judge).”.

    This is not entirely correct. The judges job is to determine facts for which there is no argument and rule on them, so they are not passed on to jury and waste time and resources.

    Only facts for which there is doubt(ex state of mind) are passed to the jury to rule on.

    Was Axanar transformative due to its mockumentary style or creative content? While I think the ruling is fairly sound…I could see an appeal potentially asking for this to be looked at again on the grounds of seeking a different interpretation.

    Did the Axanar works actually earn any profit?
    The relevant fact (as per Klausner)/test(as per law) was personal gain to Alec…not seeing green on a balance sheet.

    Is there likely to be measurable market harm to the plaintiffs because of Axanar ?
    The test is harm(not potential benefits). I see nothing wrong with the ruling myself.

    Does Axanar count as parody or criticism
    The fact is Prelude to Axanar and the Vulcan scene… are hard to judge as parody in the most generous ruling…but I suppose there could be some validity to having a jury decide what are parody or criticism.

    1. “This is not entirely correct. The judges job is to determine facts for which there is no argument and rule on them, so they are not passed on to jury and waste time and resources. Only facts for which there is doubt(ex state of mind) are passed to the jury to rule on.”

      Good point. But as you mention, not everything in the fair use argument is undisputed. Does CBS own Star Trek? Yes, undisputed. Is Star Trek worthy of copyright protection? Yes, undisputed. Is Axanar transformative? Who the hell knows???? The judge has his opinion. I have mine. CBS has theirs. Alec has his. And a jury will have theirs. So if that one question is disputed (among others), then the question of fair use cannot be ruled undisputed.

      At least in my opinion. But I don’t wear a robe at work. (Well, maybe a bath robe.) 😉

  29. Judge Klausner found that Axanar has “objective substantial similarity to the Star Trek copyrighted works” and can not be claimed as fair use. This is properly a question for the finder of law (the judge) and not the finder of fact (the jury). Your questions (that supposedly only a jury can answer) do not provide grounds for an appeal:

    Q: Was Axanar transformative due to its mockumentary style or creative content?
    A: The “mockumentary style” was nothing more than a story-telling device — that is, Prelude to Axanar isn’t really a documentary. If Peters’ film had in fact been a documentary about (for example) the making of really bad fan fiction, that might be considered “transformative”. Nothing about Axanar is.

    Q: Did the Axanar works actually earn any profit?
    A: “Profit” is a red herring that the Axanar crowd has been milking for quite a while now. There’s no question that Alec Peters and his associates have gained financially from his Axanar scheme. Not that Paramount and CBS require that an infringer actually gain financially from their infringement. The copyright owner can sue (or refrain from suing) any infringer for whatever reason(s) they choose. The issue is infringement… not “profit”.

    Q: Is there likely to be measurable market harm to the plaintiffs because of Axanar?
    A: Will there be measurable harm to plaintiff’s property if any drooling idiot can stumble in off the street and make his own commercial, for-profit Star Trek movies? Obviously.

    Q: Does Axanar count as parody or criticism?
    A: No. Axanar was never intended to be anything but entertainment. Defendant’s own statements bear out that his intention from the very beginning was to create a Star Trek film. Not a parody of Star Trek or criticism of it.

    Peters and his lawyers can file an appeal if they like. My prediction is that it will be denied.

    1. And my prediction is that it will go to the Supreme Court!

      And a legal expert whom I just interviewed thinks we’re both wrong! 🙂

      (And believe it or not, this expert is NOT going to remain anonymous! Look for his fascinating interview in just a few more hours.)

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