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.
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…
The year ended on a VERY happy note for the folks from STARBASE STUDIOS, the only full TOS bridge, transporter, and sickbay sets open to any fan film to use at any time they want to schedule to shoot their production.
You might recall from my previous blogthat Starbase Studios lost the use of their warehouse location in Oklahoma City after nearly half a decade of enjoying free rent. The building was being sold, and Starbase Studios had until the end of the year to get all of its amazing set pieces removed and transported to a new location.
Dan Reynolds offered studio space that he owns in northern Arkansas to be the new home for Starbase Studios…also rent free. And although staying in Oklahoma City would have been preferable, nothing beats free rent! So the decision was made to relocate. But deciding is easy…actual MOVING is the hard part!
Super fan and fan filmmaker Glen L. Wolfe stepped forward to handle the move, paying the costs up front for trucks and gas and driving the 6-hour (one-way), 333-mile distance back and forth himself…and it was more than just one trip (five actually!). The hope was that $3,500 could be raised from donations to a GoFundMe campaign to reimburse Glen his out-of-pocket expenses…’cause Glen ain’t exactly part of the 1%.
That $3,500 goal was reached on December 30, just as the last of FIVE TRUCKLOADS of set pieces were being loaded for a December 31 journey to Mountain Home, Arkansas. So STARBASE STUDIOS got out in time, funded its move, and all the set pieces arrived safely in their new home.
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.
Last week (seems like last year, doesn’t it?), Star Trek New Voyages: Phase II, International released the first in a new series of eBooks continuing the celebrated fan series in literary format. Their first offering, “Friends and Foes” (written by Glenn E. Smith) was made available for free for download in multiple formats. The story takes place between the Star Trek: New Voyages/Phase II episodes “Blood and Fire” and before “Enemy: Starfleet.”
The second eBook, titled “True To His Oath,” takes place between “Enemy: Starfleet” and the following episode that was released, “The Child.” This eBook is a novelette (about a third the length of the first eBook), also written by Glenn E. Smith but adapted from a story concept by Charles Root.
Star Trek New Voyages: Phase II, International is a non-profit team based on Germany that is dedicated to preserving the legacy episodes of the venerable fan series and running its fan-club…and now they are expanding into publishing original literature based on the fan series based on the original Star Trek TV series.. Another three eBooks are already completed, with plans to issue the next one (another novelette) on January 31.
The group is now inviting fans to submit their own stories in eBook form that fit into the New Voyages universe. (Please note that any story chosen for publication may be rewritten by their team as needed, much like submitted TV scripts are rewritten by a show’s writing staff all the time. The original writer would, of course, be credited.) They will publish the best stories as free eBooks. You can e-mail your story ideas to Peter Walker <firstname.lastname@example.org>.
Is it really Janeway? When I first watched the new trailer for the upcoming episode “Derelict” of VOYAGER CONTINUES from Starfleet Studios (the one in Iowa that just released the fan film Raven), I wasn’t sure. Then I got my answer at the end of the 45-second video.
It turns out that the voice is just a really good impersonation of Kate Mulgrew done by an actor named Liam Howarth-Mulgrew. And no, that name isn’t just a coincidence. I found out from show-runner David Whitney that Liam is just a huge fan and legally changed his name.
Unfortunately, Liam doesn’t actually look like Kate Mulgrew, so we probably won’t be seeing Captain Janeway on “Derelict” (although I suppose there’s always lip syncing). Liam had previously voiced Janeway on the audio drama series Star Trek: Voyager – The Lost Episodes in a two-part episode called “Ghosts.” You can listen to “Ghosts” Part 1 and Part 2 and hear Liam’s amazing rendition of Kate Mulgrew’s unmistakable voice.
And of course, you can also hear Liam on this short trailer for the upcoming Voyager Continues fan film “Derelict,” due out sometime next year: