Readers of the FAN FILM FACTOR comments sections know that I’ve spent months begging ALEC PETERS, executive producer for AXANAR, to discuss his production’s financials with me on an interview. A few weeks ago, he finally agreed! This is NOT that interview.
That interview is still coming. Before I conduct it, I want to invite interested people to submit questions to me that I can then present to Alec. (Yes, that means detractors, too. Just be aware that questions that are rude and belligerent won’t make it past the airlock. You have a question you want Alec Peters to answer? Fine. Just be polite when you ask it. It IS possible, folks.) I’ll be inviting people to submit questions to me next week after Alec releases his financial summary to donors–and therefore, to the public–and folks have had a chance to review it. No sense in asking questions when you haven’t seen the document yet (so stop typing, people!).
In preparation for what’s coming next week, I sent Alec a few questions via e-mail a few days ago, asking him to provide some information about the upcoming financial summary, how it is organized, and a little about the committee that was assembled to review it. Those answers just came back from Alec, so I’m copy-pasting them here to share with all of you (along with some brief IMing I just did to clarify a few points)…
To quote Scotty, “I’ve always held a sneaking admiration for this one.” Actually, my admiration for the efforts of Fan Trek Productions (out of the Netherlands) has never exactly been “sneaking.” These “semi-professional” (their words) fan filmmakers have consistently turned out really impressive, self-funded episodes of their fan series. And now, after ten years, that series, STAR TREK: DARK ARMADA, has released its final episode.
But that’s only the beginning!
I’ll explain that unusual comment in Part 2, but first, let’s take a look back at a decade of a truly remarkable fan series…
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…
Okay, nobody cheer, nobody panic! These are all TENTATIVE rulings in the AXANAR lawsuit. Judge Klausner himself even made sure to put the word TENTATIVE in ALL CAPS in his ruling yesterday:
The Court makes the following TENTATIVE rulings on the Motions In Limine:
Plaintiff’s Motions In Limine No. 1 – Denied
Plaintiff’s Motions In Limine No. 2 – Granted
Plaintiff’s Motions In Limine No. 3 – Granted
Plaintiff’s Motions In Limine No. 4 – Granted
Plaintiff’s Motions In Limine No. 5 – Granted
Plaintiff’s Motions In Limine No. 6 – Under Submission
Plaintiff’s Motions In Limine No. 7 – Granted
Plaintiff’s Motions In Limine No. 8 – Granted
Plaintiff’s Motions In Limine No. 9 – Denied
Plaintiff’s Motions In Limine No. 10 – Granted
Defendant’s Motion In Limine No. 1 – Granted
Defendant’s Motion In Limine No. 2 – Denied
Defendant’s Motion In Limine No. 3 – Granted
Defendant’s Motion In Limine No. 4 – Granted
Defendant’s Motion In Limine No. 5 – Granted
Defendant’s Motion In Limine No. 6 – Granted
Defendant’s Motion In Limine No. 7 – Denied
Defendant’s Motion In Limine No. 8 – Denied
Defendant’s Motion In Limine No. 9 – Granted
So what the heck just happened? Well, first of all, each party submitted motions in limine to Judge R. Gary Klausner on December 16 asking for certain pieces of evidence and witnesses (including me!) to be excluded from being presented or mentioned during the trial. I wrote about all of those 19 motions in a 4-part blog starting here. (It’s nice light reading.)
Then, last Friday, both the plaintiffs and the defense submitted 19 separate OPPOSITIONS to those 19 motions inlimine…which I’ve collected for your reading pleasure into this single 143-page PDF: Oppositions to Motions In Limine. (Yeah, talk about light reading!)
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…
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?
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.