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…
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…
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.
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?
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:
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.
In Part 1, I explained what a motion in limine is, so I don’t need to explain it again, right? Instead I can just jump into the ten motions the plaintiffs made in the AXANAR lawsuit to try to get certain key witnesses (including me!) and pieces of evidence excluded so that the jury will never see or hear them.
Here are all ten motions collected into one document:
To save you from having to read all 63 pages (!!!), I’ll be providing a nice ‘n tidy summary for you of each motion. In a few cases, I might comment on the strength or weakness of a particular argument. But for the most part, I’m going to stick to giving an overview of why the plaintiffs believe each item should be excluded, and also how that item could potentially hurt the plaintiffs if it gets in front of the jury. (After I finish going through all of the plaintiffs’ motions, I’ll do the same for the defense team.)
My apologies in advance for another long blog, but this time, there are TEN motions to cover! Read it in chunks if your eyes start to glaze.
Now that I’ve indulged my little emotional rant last Saturday, it’s time to sit down and take a somewhat less passionate look at the 19 motions in limine that both sides filed last week to exclude evidence and witnesses in the AXANAR lawsuit.
The plaintiffs are challenging TEN different items of evidence and potential witnesses (including yours truly!) while the defense team is challenging NINE. I’ve consolidated all those separate motions into two huge PDF documents:
In Part 1 of this blog series, I’d like to explore what a a motion in limineis and how and why it is used. In this way, I’m hoping to give you all a better idea of what is going on right now and why it’s so important (and also give myself more time to research and write up parts 2 and 3!).
Just when you thought you were out, I pull you back in! Yes, it’s AXANAR lawsuit time again…and I really didn’t expect this part to be quite so significant. Man, was I wrong!
As you may recall, the next major event in the Axanar case was supposed to be oral arguments for the motions for summary judgment in front of Judge R. Gary Klausner on Monday morning. But the judge canceled the in-person hearing and will be making his pre-trial rulings based solely on the documents filed by both parties. (This is not unusual. I’m told that Judge Klausner usually cancels oral arguments and rules based on filings.) This means that the judge’s rulings could come at any time…and this lawsuit could possibly even be over before it begins!
But if this case does go to trial on January 31, then yesterday (Friday) was an important deadline. It was the last chance each side had to challenge evidence and/or witnesses that the other side wants to use in court and present to the jury. This can potentially be pretty big. Imagine going into the big game with a few of your best players disqualified and benched. That could happen if the judge excludes one or more pieces of potentially key or damaging evidence from being used at trial!
The plaintiffs are challenging TEN different items of evidence and potential witnesses (like little ol’ me!) while the defense team is challenging NINE. I’ve consolidated all those separate motions into two huge PDF documents:
You probably don’t want to read all 140 pages (although there’s some interesting stuff in there!), so I’m gonna help ya out and do a summary…later this week. Assuming the judge doesn’t end the case before then, I’m gonna need at least a few days to parse through all this!
Except for the motion about me (starting on page 25). That one I wanna tackle right now because, dammit, it’s my frickin’ blog and I should be allowed a bit of self-indulgent righteous indignation every once in a while!
So let’s take a look at why the plaintiffs don’t want me ruining their case…
This time, we look at the equally fascinating Defendants’ reply to the Plaintiffs Opposition to the Defendant’s Motion for Summary Judgment. This is the way the law works, folks, with each side being given a fair chance to rebut the other side’s arguments and then to reply to those rebuttals. It is important to know copyright law even when dealing with owned property. If you are interested in finding out more about copyright law, you might want to check out somewhere like Bonamark to learn more.
As I mentioned last time, the plaintiffs’ latest filing comes in like a wrecking ball, angry and indignant and looking for strong emotion to carry the day. They want justice…and they don’t get particularly specific in describing what aspects of their intellectual property was copied and how. They give some general descriptions, like Klingons being “…a fictional, war-like species, speaking Klingonese, hailing from the planet Qo’noS and are known for engaging in battles with the Federation.” But they don’t go much further.
As you’ll see in a few moments, the Axanar defense team utilizes a very different approach. Less emotional and more (dare I say it?) logical, they go much deeper into the precise elements of copyright law and legal precedent. (As such, yeah, this is gonna be another long blog, folks…sorry.)
It’s the hammer versus the scalpel, and it’s time to see how an intellectual property “surgeon” operates…