Axanar – Page 10 – Fan Film Factor

Could the AXANAR LAWSUIT go all the way to the SUPREME COURT? (Part 2)

Yesterday I began taking you on a journey through 250 years of fair use in copyright law. My information came primarily from this excellent 70-page article by University of South Carolina School of Law Professor Ned Snow: “Judges Playing Jury: Constitutional Conflicts in Deciding Fair Use on Summary Judgment.”

For more than two centuries, the determination of fair use in copyright infringement trials was left to juries to decide. After all, the Seventh Amendment of the U.S. Constitution guarantees citizens the right to a jury trial in civil cases (like copyright infringement). But sometime between the 1970s and 1990s, fair use suddenly and inexplicably switched to being a matter of law determined by judges before trial at summary judgment.

This just happened last Wednesday to Alec Peters in the AXANAR infringement lawsuit, as I explained in this recent blog entry. Judge R. Gary Klausner ruled that, in his opinion, fair use was invalid in this particular case and could not be used as a defense during trial (taking away the primary path to victory for Alec Peters in this lawsuit). Although Judge Klausner also provided his personal opinion that Axanar was substantially similar to Star Trek, in that matter, at least, he chose to let the jury decide the ultimate question of whether there is substantial similarity. But on fair use, his opinion also became a court order and took that decision entirely out of the hands of the jury.

Two days ago, I told you that this ruling by Judge Klausner gave Team Axanar valid grounds to request an appellate review of the case to the Ninth Circuit Court of Appeals. But as I said, judges invalidating fair use before trial is now a commonly accepted practice in federal courts throughout America, and has been for three decades. There’s a fairly decent chance that Alec Peters’ appeal will be denied at the federal level. And that leaves only one more stop on the train…

The Supreme Court of the United States.

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Could the AXANAR LAWSUIT go all the way to the SUPREME COURT? (Part 1)

Imagine it’s about three or four years from now, and you’re watching the news. Suddenly, you start hearing William Shatner’s voice, “Space, the Final Frontier…” as the news anchor says, “Star Trek fans are about to go where they’ve never gone before. The Supreme Court has just agreed to hear a case involving a 2014 Star Trek fan film called Axanar…”

So you think I’m trippin’, huh? You think I’ve been smoking la weed a’ toka (now legal here in California, but still not my thing). Or maybe you just think I have delusions of grandeur about Axanar and I’m completely out of touch with reality.

Well, possibly. After all, the Supreme Court gets more than 7,000 petitions each year to hear cases…and accepts only about 100-150 of them. And Supreme Court cases generally involve very important and complex issues of law that have national implications…especially if someone’s constitutional rights are being violated in some way.

So you probably don’t think that a copyright infringement lawsuit against a small Star Trek fan film could possibly rise to the level of having national implications.

But thanks to Judge R. Gary Klausner’s ruling last Wednesday during summary judgement that fair use is an invalid defense at this trial, the Axanar lawsuit is now very much a constitutional case with national implications…

Continue reading “Could the AXANAR LAWSUIT go all the way to the SUPREME COURT? (Part 1)”

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.”

Huh?

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…

Continue reading “Can AXANAR win on APPEAL if they lose at TRIAL?”

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… Continue reading “AXANAR lawsuit SUMMARY JUDGMENT Order – THE GOOD, THE BAD, and THE UGLY! (Part 2)”

AXANAR lawsuit SUMMARY JUDGMENT Order – THE GOOD, THE BAD, and THE UGLY! (Part 1)

Okay, we now know one very important thing that we’d only suspected up until now: Judge R. Gary Klausner is a closet Trekkie (or possibly, it’s one of his law clerks)!

Before I start a deeper dive into the judge’s 15-page Order on Motion for Partial Summary Judgment issued on Wednesday morning, I’d just like to share a few quick quotes from it:

Like many other Star Trek fans, Peters wants to make his own Star Trek production. However, going where no man has gone before in producing Star Trek fan films… (Now, I would have said “where no fan has gone before” but still, nice way to start off.)

Thus, the copyright infringement claim can live long and prosper if the Axanar Works are substantially similar to the Star Trek Copyrighted Works. (I seem to recall seeing that one before in the judge’s denial of the defense’s motion to dismiss…but wait, there’s more!)

Sometimes a feeling is all we humans have to go on. (Kirk said it first in “A Taste of Armageddon,” but now Judge Klausner–or one of his clerks–has said it, too, on the bottom of Page 4.)

These works have transported the hearts of a legion of fans to the Star Trek universe. (I can’t believe the word “transported” was coincidental, folks.)

Defendants’ attempt to treat the Battle of Axanar as a private little war is unpersuasive. (Seriously, now someone’s just showing off!)

Peters “was interested in creating alternative ways for fans to view Star Trek” – the way to Eden perhaps. (And…..no. Sorry, that one was too much of a reach. Herbert!)

Okay, enough of the cutesy stuff! It’s time to take a look at the GOOD, the BAD, and the UGLY…and Axanar certainly got a little of each (and more of some). Shall we begin?

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OFFICIAL STATEMENT from ALEC PETERS…

This morning, Judge Klausner made a ruling that the case will go to Jury Trial to determine if Axanar is “substantially similar” to the CBS copyrighted works. If it is, then the jury will have to find if the infringement is “willful” or “non-willful”, and Judge Klausner already stated that “Peters’ actions demonstrate a respect for Plaintiffs’ intellectual property that makes a finding of willfulness on summary judgement inappropriate.” If the jury does not find “substantial similarity” then the case will be dismissed.

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.

So the story of Axanar continues…

JUDGE issues ORDER ON MOTIONS FOR SUMMARY JUDGMENT in AXANAR LAWSUIT!

Judge R. Gary Klausner has just issued his Order on Motion for Partial Summary Judgment in the AXANAR lawsuit. I’m reading it over right now, and I’ll have a more comprehensive analysis in the next few days. But on first glance, it seems to be much more of a blow to Axanar than to the studios. However, it is not a knockout blow in that the judge has not issued any rulings that end the case in favor of the plaintiffs. Unfortunately for the defendants (Axanar Productions and Alec Peters), though, the judge has essentially tossed out Axanar‘s best hope for a “win” by declaring that fair use is invalid in this particular situation. That’s a biggie, but Axanar can still argue (according to the judge) that Prelude to Axanar is NOT substantially similar to Star Trek…which might be an uphill battle.

All in all, not a good day for Team Axanar, but the game isn’t over yet (and it could have been). More to come after I have a chance to read and discuss things further…

AXANAR LAWSUIT – The Comic Book!

With things heating up in the AXANAR Lawsuit and trial set to begin in just 30 more days(!), there’s a LOT to keep track of. In fact, I expect to be typing pretty feverishly over the next few weeks as summary judgments are announced and oppositions filed to motions to exclude evidence and witnesses. So secure all stations and prepare for warp speed!

And what better way to get ready than…to read a comic book??? But it’s not just any comic. My fellow blogger-in-arms, Carlos Pedraza, has proven once and for all that he has waaaaaay too much free time (and, hey I’m one to talk, right!?!?!) by producing a really well-done Illustrated Guide (in comic book form) to the major points and arguments in the Axanar lawsuit…from both the plaintiffs’ AND defendants’ sides.

Yes, you read that right. I just paid Carlos Pedraza a compliment! (And oh, look: there’s Satan skating to work!) But no, seriously, for anyone out there imagining Carlos and me as the two Lazaruses from “The Alternative Factor” locked forever at each others’ throats in a chamber trying to keep the pro-Axanar and anti-Axanar universes forever separated…well, that’s just our day job, folks.

Continue reading “AXANAR LAWSUIT – The Comic Book!”

A closer look at the MOTIONS TO LIMIT EVIDENCE in the AXANAR LAWSUIT (Part 4)

In Part 1, I explained what a motion in limine is (so if you don’t know, go click on that link). In Part 2, I took a look at the ten in limine motions that the plaintiffs filed asking the judge in the AXANAR lawsuit to exclude specific evidence from trial and prevent certain key witnesses from testifying in front of the jury. And in Part 3, I began looking at the first four of the nine motions from the defense of what evidence and testimony they did not want the jury to see.

Here is a PDF document compiling all nine of the defense’s in limine motions:

Defense Motions to Exclude

And now, as God is my witness, I am going to finally finish up my analysis of all 19 of these motions (there’s only five left)! Let’s get to it…

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A closer look at the MOTIONS TO LIMIT EVIDENCE in the AXANAR LAWSUIT (Part 3)

In Part 1, I explained what a motion in limine is, so at least I don’t have to go through that again! And in Part 2, I took a look at the ten motions that the plaintiffs filed asking the judge in the AXANAR lawsuit to exclude specific evidence from trial and prevent certain key witnesses from testifying in front of the jury.

Today, it’s the defense attorneys’ turn under the FAN FILM FACTOR microscope. And if you think I’m just going to back up Team Axanar on everything and let ’em glide through this analysis unscathed, then you’re gonna be very surprised. I call ’em like I see ’em, and I freely admit that some of what the defense is asking the judge to exclude is pretty ballsy…in one case almost to the point of comedy relief (trying to exclude the words “Star Trek“–yep). On the other hand, they also make a number of very solid points and might actually have a chance of winning a few.

And in the end, that’s what challenging evidence and witness testimony is all about. Swing for the bleachers. The worst that happens (assuming you don’t piss off the judge too much) is that he says no and you just have to work a little harder during trial. But the rewards can be great if you do manage to take a key piece off the chess board.

Continue reading “A closer look at the MOTIONS TO LIMIT EVIDENCE in the AXANAR LAWSUIT (Part 3)”