Right after the settlement in the AXANAR lawsuit was announced, rumors were flying that the reason for this unexpected development was because the Court had lifted the confidentiality designation on Alec Peters’ financials. According to some detractors (well, most of them), Alec suddenly panicked that the jig was up and hastily rushed to settle so as not to let those financials become public.
You know me and rumors, right?
So I e-mailed Axanar lead defense attorney, Erin Ranahan, to see if these rumors were true or not. And she gave me a surprising answer. And then I asked her a few other quick questions, and she answered those, too. “Geez, if only I could get an official interview with you!” I e-mailed back to her.
A few seconds later, she responded: “Send me a list of questions and I’ll let you know which I can answer.”
Whoa! Did Erin just agree to do an interview with Fan Film Factor??? I didn’t even know that lawyers in big cases like these were allowed to give full interviews. Usually, all I see are quick sound bytes that don’t really say much.
And so I put together a list of questions, and Erin actually answered most of them. The couple that she didn’t dealt with items like the specific terms of the settlement, which are confidential.
So, is that rumor about Alec’s financials true? Read on…
Before I begin the interview, let me say a few words both personally and professionally about Erin. Although she was a real pit bull in her e-mails back and forth with the plaintiffs’ attorneys at Loeb & Loeb (some of those exchanges were included with filings made with the Court while the lawsuit was still going on), Erin was always warm and very helpful to me. Much more often than not, despite a ridiculously busy schedule, she would respond very quickly to my e-mails asking clarifying questions about this or that filing. (No, she wasn’t an official legal eagle, but she was sure an honorary one!)
On a professional level, I’d like to share with you a bit of her legal background. You can read her entire info page on the Winston & Strawn website. Erin Ranahan received a B.A. in Anthropology and Communications, with high honors, from the University of California at Santa Barbara in 2000. She received a J.D. in 2004 from the University of California at Los Angeles, where she was a staff member of the International Law Journal. (As a side note, my wife Wendy also got her J.D. from UCLA Law back in 1998.)
Erin is now a partner in the firm’s Los Angeles and San Francisco offices, where she focuses on copyright, new media, entertainment, trademark, right of publicity, and false advertising litigation. She has litigated complex commercial disputes in the entertainment industry, including contract disputes involving movie producers, distribution companies, and individuals. She has handled several high-profile intellectual property matters, including litigating matters concerning copyright infringement and the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). She has extensive experience litigating jurisdictional actions arising from California’s anti-SLAPP statute.
There’s lots more information about the cases she’s handled and the speaking engagements she’s had that you’re welcome to read on the W&S website. But suffice it to say, Alec Peters didn’t just get assigned some wet-behind-the-ears second-year associate. Erin Ranahan is the real thing and a top-level intellectual property litigation specialist.
And here’s what she had to say…
JONATHAN: Erin, thank you so much for agreeing to do this interview. This case was obviously very controversial and polarized a portion of Star Trek fandom. As such, you had literally thousands of Trekkies (including me) cheering you on, day after day, and at the same time a bunch of detractors saying some pretty nasty things about you and your law firm. How did it feel to have all of this attention focused your way as you wrote and filed literally thousands of pages of legal documentation?
ERIN: As lawyers, at most, we typically expect the judge, their clerks, the opposing side, and the client to read our papers, but that’s it. Sometimes I will get my husband to read something to give me his thoughts (he’s a litigator too). I’d say in this case, it was actually quite flattering to have so many eyes reading the briefs we worked so hard on, whether they cheered us on or attempted to rip us apart or simply set forth our arguments, including everyone from the reporters from the Hollywood Reporter, Bloomberg and Law360, law students, legal commentators, professors, and bloggers from all over the place. I don’t take any “nasty” things people say about me personally, as we are simply lawyers doing the best job we can to provide pro bono representation to our clients who otherwise would have been in a very tough position trying to defend themselves in this lawsuit against two giant studios.
JONATHAN: What was it that initially convinced W&S to take on such a significant lawsuit pro bono in the first place? One would think that, with two deep-pocketed Hollywood studios involved, that this case would likely require quite a heavy load of resources and not be a small commitment on your firm’s part. So why take on such a major case for free?
ERIN: Our firm has taken on many significant pro bono cases that require a heavy work load in all sorts of arenas, including taking the Games Workshop copyright case all the way through trial. Every attorney at our firm, whether a partner or associate, is expected to devote a minimum number of hours per years, and most attorneys far exceed that requirement. Every attorney in our LA office met or exceeded their minimum requirement for 2016.
As far as pro bono cases I have worked on at Winston & Strawn, I have worked on Section 1983 prisoner cases, criminal appeals, a case where we fought to allow an autistic boy to bring his service dog to school, an asylum case, and a trademark case in Colorado, including many others.
When we first took this case, we actually believed there was a chance it could settle relatively quickly. But if it didn’t, it presented a great opportunity to work on a high profile and interesting case that presented many fascinating and complex copyright issues, while giving great experience to the many attorneys at our firm who pitched in. We also felt that, without our assistance, Axanar and Mr. Peters were at serious risk of being shut down, and we did not want to see that when they had put out such an impressive short, Prelude to Axanar, and had lots of donors who were counting on them to create more.
JONATHAN: Alec Peters has, of course, had incredibly flattering things to say about you and your law firm. And he’s reported that multiple W&S lawyers have lent their services to this pro bono case over the past twelve months…even some of the top partners! All in all, how many attorneys at your firm have contributed hours to this case? And why were they so eager to do so? (Are there just a lot of Trekkies at W&S?)
ERIN: There are Trekkie-lawyers at our firm who did indeed come out of the woodwork to assist on this case when they heard we had agreed to take this case on. All in all, we had sixteen different attorneys pitch in on various levels, including four partners and twelve associates. And that does not even include all of the paralegals and support staff that pitched in, including my amazing assistant, who stayed very late with me to file things on multiple occasions. The case was actually a blast to litigate in many respects—it can be a nice break for attorneys to write legal briefs about pointed Vulcan ears, the Klingon language, and fair use. It is also gratifying to have the support of Alec Peters and those Axanar fans that routinely expressed their appreciation towards us.
JONATHAN: I read a number of those e-mail interchanges between you and the plaintiffs’ attorneys at Loeb& Loeb. The high level of passive-aggressive confrontation (and sometimes not so passive!) seemed almost constant…and I can only imagine how emotionally draining it must have been, particularly for you as point-person. As the case dragged on and the plaintiffs fought back tooth and nail for every inch, did you ever feel like pushing Alec Peters to just settle already and getting this albatross off from around your neck?
ERIN: What you see in snippets of emails and in pieces of deposition transcripts does not reflect the relationship we had with opposing counsel most of the time over the last year. You are simply seeing the most heated moments, and as a litigator, you cannot take those personally or get too emotional about them. But most of the time those exchanges energized me as opposed to draining me.
I actually had a great relationship with Jonathan Zavin, and we had many lengthy and respectful conversations about all aspects of the case throughout the case. I have nothing but respect for him.
I would never pressure a client to settle unless it was in the client’s best interest, and that is the same whether it is a pro bono or a paying client. Opposing counsel are doing their job as we are doing ours, and unfortunately that leads people to become annoying at times to serve the best interests of the client, myself included. As much as I was also salivating over the potential of taking the fair use decision up to the Ninth Circuit, I could not pressure my client to take on that appeal when it presented risks and a delay that would take years to get through. And of course, any Ninth Circuit appeal on fair use would have required us to lose trial, which we did not plan to do either.
JONATHAN: In the end, of course, the two sides did settle. Some detractors have said that the judge’s order (two days before the settlement was announced) removing the redactions from certain key pieces of evidence involving Alec Peters’ financials resulted in a rush to settlement on your side…with you personally signing the Joint Stipulation of Voluntary Dismissal the day after the ruling. Is that what happened?
ERIN: That is not accurate. The Court had found the very same financials to be confidential and sealed them on multiple occasions (despite Plaintiffs repeated efforts to make those public). Here, upon receiving the Order you are referring to, we called the Clerk and realized that the Court did not notice that we had filed the requisite declarations to seal those documents. So it was simply a clerical oversight, and if the case had not settled the same week, it would have been corrected. Also, both sides had been in settlement discussions throughout the case. The impetus was that trial was in less than two weeks; it had nothing to do with that mistaken Order. The notion that we could have finalized a settlement in just two days is also simply not realistic.
JONATHAN: So just to be clear, Alec Peters’ financials were NOT going to be made public?
ERIN: That is correct. They would have remained sealed.
JONATHAN: So if it wasn’t a sudden “panic attack” about Alec Peters’ financials being revealed to the public, then what did lead to the two parties settling after a year of impasse? Some (including myself) have hypothesized that Judge Klausner’s summary judgement the first week of January invalidating the “fair use” defense at trial was a game changer for both parties. Is that true? If so, who blinked first?
ERIN: We were working to finalize the settlement for a long time, and it was in the best interests of both sides to do so before trial.
Keep in mind that besides fair use, summary judgment did not go as Plaintiffs wanted. They still had not proven liability or willfulness, questions which the court found had to go to a jury, and the Court also declined to impose injunctive relief.
Of course, having our fair use defense taken away before trial was disappointing, and legally I am confident that the decision would not have stood up under scrutiny by the Ninth Circuit Court of Appeals. The question should have at least created factual questions that would get to a jury, as cases with far more subtle forms of commentary than what Prelude to Axanar had here have been declared fair use (check out the Green Day and Cairou cases).
The Court here said that it had “difficulty” seeing the commentary, but if a reasonable observer could disagree, it is supposed to go to a jury. And there were at least factual issues on both transformativeness and the impact on the market factors here, but the Court ignored those. If the Court was judging the “Pretty Woman” case before it reached the Supreme Court here, under its reasoning, it may not have seen that commentary worthy either. Justice Holmes of the Supreme Court famously wrote in the 1903 case that it would be “a dangerous undertaking for persons trained only to the law” to “constitute themselves final judges” of artistic merit.
JONATHAN: So when all is said and done, how do you personally feel about this settlement? Does one side come out more ahead than the other? And would you have preferred to actually go to trial after putting in SO much work for twelve grueling months?
ERIN: Every settlement can be characterized as a win for both sides, and a loss for both sides. This case is no different. No one ever gets everything they want from settlement, and it’s rare that anyone gets everything they want from trial, especially given that even a trial victory typically only leads to years of appellate practice.
I personally feel that this settlement was the best option for both sides, and that both sides got things in settlement that they could not have achieved through trial. As far as preference of going to trial, though trial in this case would have been fun and a great experience, it is never our preference to go to trial when our client has a way to resolve this case through an acceptable settlement that would bring peace and finality much sooner.
JONATHAN: What do you think the future holds for fan films–both Star Trek and other genres? Did this case make fan films more secure or more vulnerable to new legal challenges from big studios?
ERIN: Fan films will continue to flourish like they always have in the Star Trek community—just those that are not parodies, satire, or other clearly protected speech will have to run a little shorter, which forces a new level of editing and creativity. The studios went a long time without suing anyone, and I would expect that, given the experience in this case, they won’t be running out to sue fan film creators any time soon. Fan films for the most part offer free promotion and enhance the brand, not harm it, so business considerations would make an onslaught of lawsuits like this highly unlikely.
As far as any “precedent” regarding fair use, fair use is an incredibly fact specific inquiry. The Court’s ruling in this case foreclosing fair use before trial is problematic from our perspective in multiple respects, but is binding on no one (not even another district court in the Central District).
JONATHAN: Once again, Erin, thank you so much for agreeing to do this interview. And thank you, as well, on behalf of myself and so many fans who have been watching this case so closely this past year. It’s obvious to all of us that you and your law firm brought not only your A-game but an inspiring amount of dedication and loyalty in representing your client. I realize that’s what attorneys are supposed to do, but I also know that isn’t always the case. This time it was, though…by orders of magnitude.
So thank you, Erin and everyone at Winston & Strawn, for standing up for the little guy in a BIG way. May you live long and legally prosper!