Yesterday in Part 1, we began looking through Judge R. Gary Klausner’s TENTATIVE (important word!) rulings in the AXANAR lawsuit regarding the exclusion of evidence and witnesses from the jury trial. The rulings were issued to the attorneys early Monday morning (before oral arguments, which is standard practice) and released to the public the following day.
Court-watchers on both sides of the case (pro- and anti-Axanar) were left confused and somewhat speechless, and neither side knew whether to gloat or mope. Some of the rulings seemed to slam the hopes of the defense, while other rulings seemed to cripple the chances of the plaintiffs. And a few of the rulings even contradicted each other! (We’ll look at an example of the latter in just a moment.)
Yesterday, we began with the plaintiffs’ motions in limine (to exclude evidence and testimony). All but one defense witness was tossed out (I was tossed out–bummer!). And the plaintiffs were able to get the judgeto exclude any script version and any other piece of evidence produced or created after the lawsuit was filed on December 29, 2015. But confusingly, the judge allowed Alec Peters’ revised and audited financial statement (which wasn’t produced until just two months ago). The plaintiffs also received a nod from the judge preventing the defense from bringing up Alec Peters’ previous professional working relationship with the studios prior to his making of Axanar. And the judge is still considering whether or not to allow the defense to mention the existence of other Star Trek fan films.
All in all, if I had seen only that, I’d have said it’s pretty much over for the defense (assuming all these TENTATIVE rulings stand, which is fairly unlikely). Some of those exclusions are potentially devastating (especially if the judge rules the defense can’t bring up other fan films…even though the judge himself did on page 14 of his Order on Motion for Partial Summary Judgment).
But then I read his TENTATIVE rulings on the defense’s motions, and it suddenly seemed the plaintiffs could be in major trouble, too! So today, we go through those…
Please keep in mind that a total 143 pages of Oppositions to Motions In Limine were filed last Friday by both sides. Also, the attorneys for the plaintiffs and defendants still have to file replies to those oppositions on January 20. So this game is far from over, and you’re likely to see at least a few changes and/or clarifications when the judge issues his final rulings on exclusions sometime between January 20 and the start of trial on January 31. (More on that at the end of this blog entry.)
Okay, let’s take a look at what the defense TENTATIVELY did and did not get in the judge’s rulings:
D1 – Defense wants the plaintiffs precluded from saying anything about the fact that Alec Peters did not turn over all of his e-mails and social media posts, etc. during the discovery period. GRANTED
This could be highly prejudicial to the jury, painting Alec Peters as some nefarious shyster trying to keep important evidence hidden from the court. The judge likely reasoned that, since it wasn’t even Alec Peters who turned over his e-mails and other communications to the plaintiffs but rather his attorneys who did so, that holding the defendant responsible for sins he didn’t commit was indeed unfair and misleading. I wouldn’t expect this ruling to change.
D2 – Defense wants the plaintiffs precluded from using any evidence that was not delivered timely during the discovery period. DENIED
The discovery period closed on November 2, 2016. By the rules of the court, you can’t introduce any evidence after the discovery period ends. (Well, apparently, you can…although, if the judge doesn’t change this ruling, it could be additional grounds for appeal.)
Specifically, the defense doesn’t want the plaintiffs to be allowed to mention the novels Garth of Izar and Strangers from the Sky nor the FASA role-playing game supplement The Four Years War…all of which were never mentioned until after discovery was finished and they could no longer question witnesses about it. Obviously, taking those three items out of play (plus a few other things like DVDs of actual Star Trek episodes and movies) would go a long way toward making it more difficult for the plaintiffs to prove substantial similarity between Star Trek and Axanar…perhaps too difficult, thought the judge.
D3 – Defense wants the plaintiffs precluded from introducing evidence from any alleged works that were not mentioned in the original amended complaint. GRANTED
This was essentially the “back-up” plan if motion D2 was denied (which, so far, is the case). You see, you’re supposed to list everything you’re suing about in the actual complaint, and there are 57 alleged violations contained in that amended filing. But MUCH later on, the plaintiffs brought up additional alleged infringements based on the aforementioned novels Garth of Izar and Strangers from the Sky plus the FASA role-playing game supplement The Four Years War.
So while the defense didn’t get those particular items excluded as part of D2, they apparently did get them tossed as part of D3. Let’s hear it for back up plans…TENTATIVELY!
D4 – Defense wants the plaintiffs precluded from introducing at trial any evidence regarding items that should be filtered out because they are unoriginal, in the public domain, or from third parties. GRANTED
THIS IS HUUUUUUUGE!!!!
Granting this motion (if the judge doesn’t change or narrow his ruling) could quite literally make it nearly impossible for the plaintiffs to win this case. Many of the detractors, who were ready to jump for joy when they saw the TENTATIVE rulings on the plaintiffs’ motions (7 out of 10 of which were granted) suddenly felt a significant increase in the gravity under their feet when they saw the judges ruling on this motion.
If this ruling stands as is, based on the original motion in limine as written by the defense, here is a list of the things that the plaintiffs will NOT be allowed to present as evidence:
- Garth of Izar
- Ambassador Soval
- Richard Robau
- John Gill
- Captain Robert April
- Archanis IV
- Tellar Prime
- The Starship Enterprise
- The Federation
- Space docks
- Beaming up
- Warp drive
- Dilithium crystals
- Starfleet uniforms and medals
- Klingon uniforms
WOW! Imagine simply showing Prelude to Axanar to a jury and then having to shut up about it. Is it substantially similar to Star Trek? Better hope there’s at least a few classic Trekkies on the jury.
But before any Axanerds get their hopes up, I really can’t imagine that the judge won’t reverse or at least narrow the scope of this particular ruling. After all, he himself referenced many of these elements when he concluded in his summary judgment ruling that there was substantial similarity between Axanar and Star Trek. So don’t break open the champagne just yet.
D5 -Defense wants the plaintiffs precluded from introducing any evidence or testimony from either Christian Gossett or Terry McIntosh. GRANTED
Apparently, Judge Klausner doesn’t like witnesses in his courtroom! I kid, I kid… But he has now tossed out five different witnesses and only left one still allowed at trial. In the case of these latest two, Christian Gossett was the original director for Prelude to Axanar, and Terry McIntosh was the original marketing director and the programmer who first attempted to create Ares Digital. Both of these guys have what is euphemistically called by the defense “personal scores” to settle with Alec Peters. Their testimony would likely be prejudicial to the jury, and in the opinion of the defendants, would not be relevant to the determination of actual copyright infringement.
While there is no law against having witnesses on the stand who don’t like the defendant, there is at least a requirement for relevant and valuable testimony and not simply a “smear campaign” (the defense attorneys’ words). Now, I’m sure the plaintiffs will counter that both men do, in fact, have valuable and relevant testimony. We’ll see if it’s enough to change the judge’s mind.
D6- Defense wants the plaintiffs precluded from referencing any script for the Axanar feature film that has been superseded by a more recent version. GRANTED
Now, wait just a cotton-pickin’ minute!!!
Didn’t the judge say when he granted the plaintiffs’ second motion in limine that only the Axanar script which existed at the time the initial complaint was filed would be admitted into evidence? But that script has now been superseded by later scripts…and now the judge is saying that all scripts that have been superseded are excluded as evidence???
So the latest script is out AND the previous script from December of 2015 is out. Dos that mean that ALL the scripts now excluded from evidence??? If so, then this case is now only about Prelude to Axanar and the Vulcan Scene and nothing else. But I doubt that’ll be the case. Once the judge really gets his head wrapped around this contradiction, I suspect at least one of the GRANTED rulings is gonna turn into a DENIED…possibly both!
D7- Defense wants the plaintiffs precluded from using or referencing Alec Peters initial financial records that were submitted to the plaintiffs during discovery (the ones not prepared by a CPA). DENIED
The judge also denied the plaintiffs‘ first motion to exclude Alec Peters’ audited financial statement (the second one he submitted that was prepared by the CPA). So now the jury will get to look at “dueling” financial records!
That said, it’s probably mostly irrelevant at this point. Without fair use, the question of whether Alec Peters personally profited is essentially moot. All the jury will decide is whether Axanar is substantially similar to Star Trek and whether infringement, if there was any, was willful or non-willful. As for the dueling statements, they are both essentially saying the same thing. The first shows all of the expenses. The second shows all of the expenses but includes the money Alec put in personally, which covers personal expenses like auto repair and meals and health insurance. In other words, the amount spent is the same, but the second document simply specified which of those expenses Alec Peters paid for himself.
(NOTE: Axanar will be releasing its full financial summary next week–or so I’ve been told by Alec–so you’ll all be seeing what I’ve been so gosh-darn eager to show/tell you these past two months.)
D8 – The defense did not want the words “Star Trek” used during trial. No, really! DENIED
C’mon, we all knew this one was going down in flames. But in the words of Admiral Kirk in Star Trek III: The Search for Spock when he asks to take the Enterprise to Genesis to retrieve Spock’s body: “I had to try.” And the defense gave this motion their best shot, arguing that “Star Trek” is a trademarked name, not a copyrighted one (you can’t copyright a word or phrase). So by using the words “Star Trek,” you risk confusing the jury into thinking that this is a trademark case, which is a very different animal than a copyright case. Good try, though. But I don’t expect this one is getting changed.
D9 – The defense wants the plaintiffs precluded from mentioning the quality of the Axanar works. GRANTED
Well, this could be problematic for the plaintiffs. They’ve been harping for such a long time that Axanar isn’t a fan film but a quality professional independent Star Trek production. It stands above the rest of its ilk by virtue of it looking so good. And if it looks as good as Star Trek, then it’s substantially similar, right?
On the other hand, the defense can now say without contradiction something like, “Look, Alec Peters and his friends filmed the whole thing in one weekend against a green screen. The had no sets. Alec had never even acted as the lead in a film before. Most of the professionals involved were charging the bare minimum just so Alec could afford them. And of course, the whole 20 minute Prelude to Axanar only cost about $100,000. The last Star Trek movie cost $2oo,000,000! How could they possibly be substantially similar?”
Now, some of the detractors might not agree with that reasoning at all. But imagine trying to rebut it in the courtroom without being allowed to reference the QUALITY of Prelude. Not so easy!
Of course, not only can any of these DENIED rulings be switched to GRANTED rulings (and vice-versa), but the judge can also partially deny or partially grant any motion. So he could rule that Jonathan Lane is excluded as a witness but still allow my History of Star Trek Fan Films document (which I suspect will happen…despite my lifelong dream of being witness in a Star Trek fan film trial). Or maybe the judge partially grants defense motion #4 but only as it applies to Andorians and Romulans and triangular medals…allowing everything else to be used at trial. Big difference, huh?
So as you can see, this is still anybody’s game!