Lawsuit – Page 3 – Fan Film Factor

AXANAR clarifies some additional questions about the SETTLEMENT

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???).

Here is yesterday’s post in its entirety…

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GUEST BLOGGER: CBS/Paramount vs Axanar: Join Me In A Drink To Celebrate Our Mutual Dissatisfaction

The puppets just learned their options were picked up for Ax’d-No-More!

Dave Heagney, Jr. is a fellow blogger and Facebook friend of mine.

Actually, I should correct that to say that Dave WAS just a Facebook friend and has since become an actual friend whom I speak with on the phone and look forward to meeting in person the next time I get up to the San Francisco Bay area. Dave is also a fellow Axanar supporter and has helped me immeasurably in serving as one of my moderators over on the Project: SMALL ACCESS Facebook group.

Yesterday, Dave wrote a blog entry for his site that was, quite frankly, nearly the exact same blog I was planning to write next week. I was gonna call mine “The AXANAR SETTLEMENT – Win, Loss, or Draw?” But Dave still hit on the same main points that I was going to. So rather than reinvent the wheel and just write a longer blog (’cause that’s what I do!), I asked Dave if I could reprint his editorial here–and he graciously agreed.

So without further ado…here’s Dave!

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MORE DETAILS about the SETTLEMENT in the AXANAR LAWSUIT!

And so it ends…not in fire, not with a warp core breach and a huge explosion that rocks the very foundation of the world of copyright law, but with a quiet settlement between the parties with sparse details revealed to anyone not directly involved in the AXANAR lawsuit.

Press releases were issued separately by both CBS/Paramount and by Axanar Productions two and a half hours ago. They both said mostly the same things, each with a different “spin.” But details were sparse.

But Axanar just sent out an e-mail to donors with more specifics…and I’m a donor so I thought I’d share some of the details here. In addition to the studios allowing Axanar to be produced and released, we now know a few more key things:

The Axanar fan film WILL be permitted to use Gary Graham as Soval! (Wow.) It will ALSO be allowed to use the other professional actors who appeared in Prelude to Axanar (J.G. Hertzler, Richard Hatch, and Kate Vernon…Tony Todd has previously announced he would not remain with the production).
The new Axanar fan film will have to adhere to all the other guidelines, including being limited to only two 15-minute parts of a single story, not having “Star Trek” in the title, etc. No professionals can be compensated for their work on the production.
Public crowd-funding campaigns will not be permitted, but private donations can be accepted (I plan to donate).
Alec Peters and Axanar Productions will be allowed to create OTHER Star Trek fan films in the future beyond the Axanar sequel. (Whether these other fan films will be in the Axanar universe or the more general Star Trek universe is still unknown, but any future films will also need to follow the guidelines.)

That’s what we DO know. What was frustratingly absent from the announcements were two key pieces of information:

Was Alec Peters required to pay any kind of financial penalty to the studios? (After all, by settling the case, he is avoiding a judgment in the thousands and perhaps even the millions of dollars.) I have yet to independently confirm that.
What happens to Ares/Industry Studios? There was no mention of its fate in today’s announcement. I suppose if its still around in another month or two, we’ll have our answer.

But I want answers sooner than that…and I know you folks do, too! I’ve already left messages for Alec Peters (voice-mail, text, Facebook IM), and I’m gonna keep pestering him for an interview…today, if possible! And as soon as I get it transcribed, you’d better believe it’s going up on this website!

In the meantime, here is the full text for the announcement to the Axanar donors:

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BREAKING NEWS – AXANAR SETTLES LAWSUIT!!!

The following press release was just sent out by Axanar Productions. I am told there will be more details coming in an e-mail to be sent out to donors later on today. As soon as I receive that e-mail, I will publish it here.

Feel free to submit comments, but please understand that there is still a LOT we all do not know yet–including me. So any responses I post will, for the time being, be only conjecture. Rest assured that I plan to be in contact with Alec Peters and Mike Bawden as soon as I hit “Publish”….in three, two, one, NOW:

AXANAR PRODUCTIONS STATEMENT REGARDING COPYRIGHT INFRINGEMENT LAWSUIT SETTLEMENT

Valencia, CA – Friday, January 20 – Axanar Productions is pleased to announce that we have reached a formal resolution to the lawsuit brought against Alec Peters, and the fan film production, AXANAR, by CBS Studios, Inc. and Paramount Pictures Corporation.

Since the beginning of the lawsuit, over a year ago, we have expressed our desire to address the concerns of the studios, and our willingness to make necessary changes, as long as we could reasonably meet our commitments to AXANAR’S over 14,000 donors, fans and supporters. We are now able to do exactly that.

Terms of the settlement agreement include an agreement to allow Axanar Productions to continue showing PRELUDE TO AXANAR commercial-free on YouTube and to allow Axanar Productions to produce the AXANAR feature film as two fifteen-minute segments that can be distributed on YouTube (also without ads).

Additional terms of the agreement will be made available to cast, crew and donors through private correspondence.

For the next sixty days, Axanar Productions will be working through some final legal requirements requiring immediate attention. In addition, there are several pre-production issues that need to be re-visited before we can begin principal photography on our project.

Axanar Productions was created by lifelong Star Trek fans to celebrate their love for Star Trek. Alec Peters and the Axanar team look forward to continuing to share the Axanar story and are happy to work within the Guidelines for Fan Films for future projects.

Throughout this process, we will continue communicating with our fans and backers to ensure they are informed and involved until we reach completion of the production.

FOR MORE INFORMATION:
Mike Bawden, PR for Axanar Productions – 563.359.8654 ([email protected])
Morey Altman, PR for Axanar Productions – +972.54.325.4350

LEGAL EXPERT says AXANAR has more ways to WIN than to LOSE the lawsuit! (Interview)

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…

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JUDGE issues TENTATIVE rulings on EXCLUSIONS in the AXANAR LAWSUIT! (Part 2)

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…

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JUDGE issues TENTATIVE rulings on EXCLUSIONS in the AXANAR LAWSUIT! (Part 1)

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 in limine…which I’ve collected for your reading pleasure into this single 143-page PDF: Oppositions to Motions In Limine. (Yeah, talk about light reading!)

I’d actually begun preparing one of my meticulously entertaining (or entertainingly meticulous) blog analyses of those oppositions, but I got sidetracked on blogs about the Judge’s ruling on fair use last Wednesday , the likelihood of a successful appeal, and a possible trip to the Supreme Court. And and much as I was looking forward to reading through and summarizing 143 pages of dense legal arguments, that all seems like “old news” now that we’ve got this TENTATIVE (ALL CAPS!!!) ruling to look at.

So let’s look, shall we…?

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Could the AXANAR LAWSUIT go all the way to the SUPREME COURT? (Part 2)

Yesterday I began taking you on a journey through 250 years of fair use in copyright law. My information came primarily from this excellent 70-page article by University of South Carolina School of Law Professor Ned Snow: “Judges Playing Jury: Constitutional Conflicts in Deciding Fair Use on Summary Judgment.”

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…

The Supreme Court of the United States.

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Could the AXANAR LAWSUIT go all the way to the SUPREME COURT? (Part 1)

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…

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Can AXANAR win on APPEAL if they lose at TRIAL?

When I was preparing my previous 2-part blog–THE GOOD, THE BAD, and THE UGLY!–the first thing I did was to reach out to my legal eagles and ask them what from Judge Klausner’s Order on Motion for Partial Summary Judgment that they thought should go into each of the three categories.

I was surprised when one of my birds of prey typed back: “Ruling of Fair Use to be Invalid – Good.”

Huh?

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…

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