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…
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.
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!).