Last time, we began looking at the intriguing case of the Dr. Seuss/Star Trek “mash-up” book Oh, the Places You’ll Boldly Go! by DAVID GERROLD and TY TEMPLETON. Last November, they got sued by Dr. Seuss Enterprises for copyright infringement, trademark infringement, and unfair competition. The defense quickly filed a motion to dismiss the case. After a brief extension, the judge issued a ruling last month. (For more details, read yesterday’s blog.)
The motion to dismiss centered around the “mash-up” being protected as “fair use.” And while judges do not usually rule on fair use this early in a case, the Honorable Janis L. Sammartino of the 9th Circuit Federal Court did (again for reasons explained in yesterday’s blog).
So did the fair use defense work or not? What did the judge say???
In short, it’s a tie. She called it a “near-perfect balancing of the factors” of fair use. And what does that mean? Get comfy, folks, ’cause Jonny’s gonna do his best to break this down into layperson’s English for you all…
Last week, I wrote a blog about what is rapidly becoming the second biggest copyright infringement lawsuit involving Star Trek in the last year. But this time it isn’t CBS and Paramount doing the suing, it’s Dr. Seuss Enterprises. And the target isn’t a fan film but rather a “mash-up” book that takes the characters, settings, and concepts of Star Trek and presents them in a style inspired by (the plaintiffs say “slavishly copied from”) the classics of Dr. Seuss.
The authors of the mash-up, entitled Oh, the Places You’ll Boldly Go!, include Star Trek “The Trouble with Tribbles” writer DAVID GERROLD and award-winning comic book artist TY TEMPLETON. Together with their publisher, ComicMix, they were sued last November for both copyright and trademark infringement, along with unfair competition, by Dr. Seuss Enterprises, the owners of all the works of Dr. Seuss. This lawsuit is seeking $150,000 in damages per infringement (of which there were multiple instances provided in the filing), for a potential judgment in the MILLIONS! And all of this for a small, grass-roots book project that took in only $30,000 in a Kickstarter last September (pledged money that is now being held by Kickstarter pending the outcome of this case) and has never been published.
(If you’re wondering how the non-publication of a book could cost the copyright owners millions of dollars in damages, well, sit tight. We’ll get to that in part 2.)
Anyway, last month, the judge in the case, the Honorable Janis L. Sammartino of the 9th Circuit Federal Court (yeah, the same court where the Axanar case was filed—but a totally different judge), made a series of significant pre-trial rulings. Among these were the dismissal of the trademark infringement and unfair competition portions of the complaint and declaring that the fair use defense was valid but still “too close to call” (my words, not hers) due to a lack of evidence of financial harm.
Many thought the case was pretty much over, but it wasn’t. So what happens now?
If you’re thinking this is gonna be another one of Jonathan’s long legal blogs, you’re probably right. But I’ll be walking you through it in helpful layperson’s English…and I guarantee you’ll come out of it much better informed. Ready?
Is CBS switching back from copyright infringement lawsuits to cease & desist letters? It’s hard to read the tea leaves when it comes to a multi-billion dollar corporation, but we may have just gotten a clue.
The year 2016 was a turbulent and uncertain time for the world of Star Trek fan films. It began with a copyright infringement lawsuit against Alec Peters and AXANAR, and then by the summer, fans were presented with a series of fan film guidelines listing the things fans were and were not allowed to do if they wanted to avoid legal action on the part of CBS and Paramount.
But were lawsuits now the “new normal”? Would fan films that violated the guidelines find themselves dragged into court for expensive litigation? The studios weren’t saying. For many years, most fan film producers had (perhaps naively) assumed that the worst that would happen would be they’d get a call (or letter or e-mail) from the studios saying, “Stop what you’re doing.” Even Alec Peters himself figured he’d probably get a call long before ever being served with a multi-million dollar lawsuit. Man, was he wrong!
Ironically, had the studios simply sent Alec a cease & desist letter instead of suing, they could have saved themselves nearly a million dollars in attorneys fees and 12 months of polarizing publicity with likely a similar result of a scaled-down Axanar. But that’s a “what if” scenario that we’ll never see played out in this universe.
But here’s a question: did CBS’s and Paramount’s experience with the year-long Axanar lawsuit leave a bad enough taste in the studio execs’ mouths that they’ve decided to dial things back from battlestations to just yellow alert? Are the studios ready to return to good ol’ fashioned cease & desist letters to get the job done?
The answer to this question might come from another copyright infringement lawsuit going on right now involving Star Trek…and Dr. Seuss!
This morning I face a bit of a dilemma. There’s an 800-pound mugato in the cave (a more appropriate metaphor than “elephant in the living room”), and I needed to decide how to deal with it.
On the one hand, it’s fan film news…major fan film news, in fact. A version of the 90-minute AXANAR script that was “locked” prior to the lawsuit (meaning it would be used to determine line item costs) was leaked yesterday by disgruntled (man, is that an understatement!) former CTO and Marketing Director for Axanar Productions, TERRY McINTOSH. It was actually an earlier version than the one used for the lawsuit (Terry released version 7.3, but the version submitted in the legal filings was 7.7—and the latest version that exists now actually goes to 11). But the fact is that a version of the Axanar script is now out there…and that’s news.
On the other hand, Terry violated a Non-Disclosure Agreement (NDA) in doing so. The thing about NDA’s is that, for a project like Axanar, they are unlikely to be enforced because ALEC PETERS would have to prove financial damages and injury. Since Alec is unlikely to lose any money from the release of an outdated script that’s been rewritten multiple times since 2015, there’s little reason to bother taking legal action. (But hey, who knows?)
That said, despite the lack of legal “teeth,” signing an NDA is like making a promise…saying that you’re trustworthy and able to keep a secret. I’ve signed an NDA with Axanar Productions, as well. The things I know could potentially explode my page views. But I don’t share them because I gave my word—and at least for me, that means something.
So, yes, there’s an outdated Axanar script out there now, and you’ll probably be able to find it fairly easily if you look. But I am not going to post it here. Nor am I going to link to any of the numerous detractor sites that have sprung up in the last 24 hours to tear the script apart.
Have I read the script myself? Not yet. I’ve been too busy reading through Alec’s new scripts for the two 15-minute Axanar films and preparing my feedback for him, and I didn’t want to get distracted. I might read the leaked script eventually…maybe not. I haven’t decided yet.
But what I have decided is to honor my own signing of an NDA and not facilitate access to the outdated script, even though it is now public. Unlike some people, when I give my word, I keep it.
Right after the settlement in the AXANAR lawsuit was announced, rumors were flying that the reason for this unexpected development was because the Court had lifted the confidentiality designation on Alec Peters’ financials. According to some detractors (well, most of them), Alec suddenly panicked that the jig was up and hastily rushed to settle so as not to let those financials become public.
You know me and rumors, right?
So I e-mailed Axanar lead defense attorney, Erin Ranahan, to see if these rumors were true or not. And she gave me a surprising answer. And then I asked her a few other quick questions, and she answered those, too. “Geez, if only I could get an official interview with you!” I e-mailed back to her.
A few seconds later, she responded: “Send me a list of questions and I’ll let you know which I can answer.”
Whoa! Did Erin just agree to do an interview with Fan Film Factor??? I didn’t even know that lawyers in big cases like these were allowed to give full interviews. Usually, all I see are quick sound bytes that don’t really say much.
And so I put together a list of questions, and Erin actually answered most of them. The couple that she didn’t dealt with items like the specific terms of the settlement, which are confidential.
So, is that rumor about Alec’s financials true? Read on…
In Part 1 of my interview with AXANAR executive producer ALEC PETERS, we covered the past and the present. We discussed what led up to the copyright infringement lawsuit from CBS and Paramount, what happened during the 13 months the lawsuit was progressing toward trial, and what led to the unexpected (to most of us, at least) settlement.
Now it’s time to transition toward a look into the future. What exactly is Axanar allowed to do going forward, and what plans are there so far. But first, there was one really important question that I think a lot of people–donors and detractors alike–wanted to know…
JONATHAN: Okay, remember when you said I could ask you any question?
ALEC: Oh, boy…
JONATHAN: How much personal blame do you accept for the lawsuit and the delay in producing Axanar?
ALEC PETERS, the executive producer of AXANARPRODUCTIONS) has arguably become one of the most controversial and polarizing figures in the world of fan films. Having worked on the fan series Star Trek: New Voyages/Phase II, Alec ultimately set his sights on producing a Star Trek fan film of his own: Axanar. Using the relatively new crowd-funding tools of Kickstarter and Indiegogo, Alec was able to go where no Star Trek fan filmmaker had gone before: past the $1 million mark in fan donations to build a studio and produce his dream project.
He also became the first-ever Star Trek fan filmmaker to get his ass sued simultaneously by two major Hollywood studios.
Rather than turning into a mass of quivering jelly and accepting a potentially multi-million dollar judgment against him, Alec was able to find a top intellectual property law firm to represent him pro bono (for free), and “David” took on “Goliath” in a case that I’ve analyzed extensively here on Fan Film Factor. It was ugly, surprising, frustrating, amusing at times, full of twists and turns, and even covered by the mainstream media. The case carried the potential of settling huge precedents in copyright law that could affect all fan films…for good or ill. And thousands of fans and donors watched eagerly to see what would happen next.
But fandom was not united in their opinion of this case nor their feelings about Alec Peters. Some fans (like myself) were huge supporters and proudly proclaimed, “I Stand With AXANAR!” Others felt just as strongly that an arrogant and overconfident Icarus had flown far too close to the sun and deserved to plummet to a painful, smashing oblivion far below.
Last Saturday, your sometimes-humble blogger, Jonathan Lane, appeared live on the SHANE PLAYS geek talk radio show to discuss the AXANAR lawsuit and surprising last-minute legal settlement. Since then, folks who weren’t able to listen when it first aired have asked me when and how they can listen to the entire broadcast online.
I’l be doing a live interview on the SHANE PLAYS radio program tomorrow (Saturday) at 2pm Eastern Time (that’s 11am Pacific Time for me). Shane will be talking to me about the AXANAR lawsuit and settlement–was there a clear winner and/or loser?–and about what this all might mean for the future of Star Trek fan films.
The show broadcasts live in the Little Rock area on 96.5 FM the Answer, and people can listen online at http://965fmtheanswer.com. You can also call in. The show will be archived afterwards for anyone to listen to who wants to.
Oh, and for anyone who is curious about my computer situation, a new MacBook Pro has been ordered and is now on its way from Brooklyn, NY to Los Angeles, CA (I order most of my expensive gadgets from &B&H Photo). As I feared, the culprit was indeed the logic board on my five and a half year old Mac laptop. I will miss the 17″ screen (not made anymore), but time marches on.
My old computer will works at ultra-slow speed (it’s taken me 25-minutes to type this blog so far), so Fan Film Factor will likely remain “in hibernation” until mid-to-late next week. My apologies.
While we wait for my interview with Alec Peters for be reviewed and approved by the AXANAR legal team (yes, they’re taking the confidentiality aspects of the settlement agreement quite seriously…as they should), there was a posting made yesterday morning addressing some of the questions many Axanar fans (and detractors) have been asking.
ALEC PETERS answered four frequently-asked questions and also provided a link to a special blog about the Axanar financials (coming really soon…right, Alec???).