Yeah, totally self-indulgent, but it is my blog and my birthday, so please cut me a little slack.
Earlier this morning, I got one of my first birthday wishes e-mailed from a friend of mine in the U.K. Apparently, in the European style, today’s date would be written as 17/01. THAT EXPLAINS SO MUCH!!! (And the embarrassing part: in five decades, I never noticed that before!)
So on my big FIVE-OH birthday (which CBS was nice enough to design a logo for!), I would like to thank my amazing family for putting up with me blogging all the time. And I want to thank all of you for reading what I write. Even if you don’t agree with me all the time, it’s still fun to know that I’m not just shouting out into an empty vacuum.
Based out of Scotland, the fan series formerly known as STAR TREK: INTREPIDhas been releasing fan films continuously since 2007. With the new guidelines stating that Trek fan films cannot include the name “Star Trek,” this celebrated fan series has shortened its name simply to Intrepid.
But the creative team remains the same, led by fan filmmaker extraordinaire (and awesome bloke) NICK COOK. Their latest offering, “Duty of Care,” is just under eight minutes long and features a small cast shooting outside on location. I won’t spoil anything about the plot, but it is a quiet, introspective story focusing primarily on two characters who become very well developed in the short amount of time they appear on screen.
You can keep up with all the latest Intrepid news on their Facebook page. And you can watch “Duty of Care” below…
Moses Avalon works as a leading proponent of artists’ legal rights with 30 years experience and four books under his belt. Two of his books, Million Dollar Mistakes and Confessions of a Record Producer continue to be required reading in over 50 music business courses around the world including the music business programs at such prestigious colleges and universities as UCLA, Loyola, and NYU. His latest book 100 Answers to 50 Questions on the Music Business is a tell-all guide to help recording artists at each stage of their music career.
In addition, Moses is also a court-recognized music business expert in New York, California, Florida and Puerto Rico, has acted in an advisory capacity to multiple State Attorney General Offices and the Senate Judiciary Committee in Sacramento regarding the music industry, and has appeared on numerous television news shows (Court TV, MSNBC, CNN Money Line, & Bill O’Reilly) seeking the inside info on the music business. (I got the preceding two paragraphs from his website.)
Although Moses does not currently practice law himself, he knows the ins and outs of copyrights and has served as a consultant and as an expert witness on dozens of cases. In fact, on cases where he’s testified as an expert, the party that called him as a witness has won 7-out-of-7 times. Not bad!
He’s been following the AXANAR lawsuit closely and has been offering his guidance to Alec Peters. Moses feels strongly that Alec has more ways to win this lawsuit than to lose it, and he spent about 45 minutes on the phone telling my how and why…
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!)
Okay, time to stop calling it STARSHIP TRISTAN. Show-runner RANDY LANDERS told me there are no series or episodes, there are only individual fan films made by the various creative teams working under the POTEMKIN PICTURES “umbrella”: Tristan, Deimos, Kupok, and Endeavour. The reason for this nominal change, of course, is the fan film guidelines that prohibit a fan film from releasing more than two 15-minute episodes of the same story “…with no additional seasons, episodes, parts, sequels or remakes.”
So the “elephant in the living room” (or “mugato in the cave”) question that I asked Randy was: if you’re being so careful to follow the guidelines, then why is this fan film 30 minutes long and not broken into two 15-minute parts? Randy’s answer:
It was filmed over a year ago, and it is our understanding that the guidelines probably wouldn’t apply.
Fair enough (at least as far as I’m concerned). Randy went on to tell me a little more about the making of this episode:
It was actually one of the first episodes we began filming once we moved here. Nearly all the dialogue shot at the park had to be ADRed…
[re-recorded and dubbed over later – Jonathan]
…and in some cases dubbed by a different performer. It was a challenging experience. We had folks recording their lines on phones. That’s where you can really tell. We’d’ve rather they’d returned to the studios for ADR, but that just wasn’t possible.
This is just a hobby for us, and real life and real jobs have to come first.
I always keep that last fact in mind when I watch the “low-budget” fan films. While not as slick and polished as the studio-made films and series with the professional actors and production crew, fan films like those coming from Potemkin Pictures show heart and dedication and, most of all, fans just having fun. For me, that’s extremely important.
Randy says the Tristan creative team currently has two films completely shot and now in post-production. And there’s three more films in pre-production for 2017. In the meantime, you can watch their latest release “Between Two Worlds” below or visit the website of Potemkin Pictures to catch up on all the episodes of their various series…oh, excuse me…to see all the independent fan films from the four creative teams.
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…