Axanar: A Star Trek Fan Production

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Re: Star Trek: Axanar (Independant Movie Project)

Post by Psia » 05/10/16

Alec Peters wrote:This morning Judge Klausner denied our Motion to Dismiss stating in part:

​”​Although the Court declines to address whether Plaintiffs’ Claims will prosper at this time, the Court does find Plaintiffs’ claims will live long enough to survive Defendants’ Motion to Dismiss. For the foregoing reasons, the Court DENIES Defendants’ Motion to Dismiss.”

Winston & Strawn will now prepare our answer to the amended complaint, which is due in ​14 days.

In the meantime, we continue our​ ​efforts to settle this matter with CBS and Paramount so we can move forward with telling the story of AXANAR in a way that satisfies both the studios and the over ten thousand fans who financially supported our project.

The trial date has been set for January 31st, 2017.
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Re: Star Trek: Axanar (Independant Movie Project)

Post by Scrattch » 05/10/16

The above, translated into what the judge is really saying:

"While the lack of due diligence that the Plaintiffs have shown during this case is appalling, they still have enough legal standing that I can't dismiss outright... and I know that this is a huge can of worms that you stupid f*cks have opened up that will have far-reaching ramifications for both fans and industry (and may just sink your whole reboot series and movie coming out...) so I'm not going to make any snap decisions. Also, I'm hip enough to phrase it in proper Trek form, subtly mocking you by 'infringing' in open court brief."

Essentially, he's giving the Plaintiffs another chance to get their shit together and ducks in a line. Kudos for the sly "between the lines" remark there, your Honor.

Don't look for this to have a swift resolution.

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Re: Star Trek: Axanar (Independant Movie Project)

Post by Psia » 05/12/16

phpBB [media]
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Re: Star Trek: Axanar (Independant Movie Project)

Post by Tregarde » 05/12/16

That was awesome!
Even if I didn't understand a word she said.

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Re: Star Trek: Axanar (Independant Movie Project)

Post by Psia » 05/20/16

At a press event for Star Trek Beyond, the film releasing in July, an unexpected surprise from the panel discussion. On the topic of celebrating Trek fandom, film Director/Producer J.J. Abrams and Director Justin Lin confirmed the following:
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Re: Star Trek: Axanar (Independant Movie Project)

Post by Scrattch » 05/21/16

*eyebrow*

I smell a backdoor deal.

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Re: Star Trek: Axanar (Independant Movie Project)

Post by Psia » 05/21/16

Scrattch wrote:*eyebrow*

I smell a backdoor deal.
The only one I can come up with is that Paramount wants Lin to direct a Star Trek 4 film. They recently copyrighted the title. Just in case they want to take up the options in the cast contracts. Perhaps Lin responded with, "Sure. I will direct the next feature for you. If you drop your ridiculous lawsuit against loyal fans. Who we need to support these films." Maybe.
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Re: Star Trek: Axanar (Independant Movie Project)

Post by Psia » 05/22/16

I don't always agree with this guy. But his blog on this topic is worth a listen.

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Re: Star Trek: Axanar (Independant Movie Project)

Post by Psia » 05/25/16

http://fanfilmfactor.com/2016/05/24/why ... t-lawsuit/

Just when we thought it was winding down…

Three days after J.J. Abrams announced that the copyright infringement lawsuit against AXANAR and Alec Peters was “going away,” the Axanar attorneys at Winston & Strawn filed a legal Response to the most recent amended complaint and ALSO filed a Counterclaim for Declaratory Relief.

Now why would they go and do a provocative thing like that just when the studios were about to start playing nice???

I decided to ask Axanar‘s lead attorney in the case, Erin R. Ranahan. It turns out there was a filing deadline on Monday that, if missed, could have severely and negatively impacted Axanar‘s ability to successfully navigate this lawsuit. Ms. Ranahan explained the situation…

We filed the counterclaim only to preserve Axanar’s rights in the event that Paramount and CBS do not dismiss their claims as J.J. Abrams and Justin Lin stated they would, do not issue reasonable guidelines, or the parties are not able to reach a settlement.

While it is our contention (as described in the counterclaim) that Alec has been attempting to play nice both before and after he was sued for creating fan fiction in the universe in which he has been a lifelong fan, unfortunately the lawsuit remains pending, and we are thus required to abide by the deadlines governing this case.

Axanar was required to file an answer and any counterclaim yesterday pursuant to the case deadlines, and we know from experience that the Court is not likely to push back any deadlines (e.g., the Court moved up the trial schedule proposed by the parties, and denied Plaintiffs’ request to have more time to respond to Axanar’s first motion to dismiss).

The announcement by J.J. Abrams and Justin Lin Friday night was a complete surprise to Axanar, as was the announcement shortly thereafter that CBS and Paramount would be issuing guidelines for fans moving forward. Of course we are grateful for this support, and are pleased that Plaintiffs have reversed their position on providing guidelines.

We can confirm that since the case was filed we have made multiple settlement offers to Paramount and CBS, and have been engaging in ongoing discussions with them.

I then asked about the Counterclaim itself. Obviously, if a Response was due yesterday, then so be it. But even though yesterday was also the deadline for any Counterclaim to be filed, that doesn’t necessarily mean Axanar has to file one, right? After all, if Paramount and CBS have decided to move toward a settlement or even a dismissal, isn’t this the wrong time to suddenly “up the ante” with a Counterclaim?

Ms. Ranahan responded…
  • While we have included a single claim for declaratory relief, this claim is not “upping the ante” given that we are not seeking any monetary damages, but simply a declaration of fair use or non-infringement in the event that the case is not resolved, which we intend and hope that it will be. Of course, if CBS and Paramount dismiss their claims against Axanar, or we are otherwise able to resolve these claims, we have no intention of pursuing the declaratory relief claim, and would agree to dismiss it as part of any settlement.
And there you have it. For those not familiar with the term”Declaratory Relief,” it simply means that Axanar is asking the Court to make an official statement (a declaration) and is not asking for any monetary damages.

In this case, according to the filing (which you can read here) Axanar would like the Court to state as a ruling, “…the rights and obligations of Plaintiffs and Defendants under the Copyright Act, and declare that Prelude to Axanar and the planned Axanar scripts and film are not infringing.”

The first half of the filing is filled mainly with legalese guaranteed to make the eyes of the non-lawyer glaze over. However, beginning on page 15, the filing begins to outline the defense strategy as this case proceeds and their reasons supporting the Counterclaim.

I am certain that many fans will revert to their former “professions” as armchair attorneys in analyzing and debating those arguments…even though I really wish we would all just keep quiet and watch the show from a safe distance. I still believe we should be fans and not lawyers. It’s certainly an interesting read, folks, but there’s no need for the rest of us to do the judge or jury’s job for them.

The Axanar website now features an official statement regarding yesterday’s filing, very consistent with what Ms. Ranahan told me:
  • Yesterday, Axanar Productions, through its law firm Winston & Strawn, filed a response to the first amended complaint filed by CBS Studios and Paramount Pictures. The response includes a Counterclaim for Declaratory Relief that previews Axanar Productions’ fair use defense, provides substantive background on how Alec Peters operated in good faith in his dealings with the Plaintiffs, and describes Alec’s fruitless four year struggle with CBS to obtain fan film guidelines.

    This filing was necessary because, despite J.J. Abrams’ assurance that the lawsuit would be “going away,” and confirmation that CBS is in settlement talks and finally working on fan film guidelines, Paramount and CBS have not yet dismissed the lawsuit. Axanar Productions must therefore meet deadlines set by the court and proceed as if the lawsuit will continue until the situation is resolved.

    We’re also still working to address the concerns of CBS and Paramount in a manner that will allow us to produce AXANAR, and satisfy over 10,000 backers and fans as well as the tens of thousands who have rallied to our side on social media and in public.

    Regardless of the outcome, we are overwhelmed with gratitude for the words of support and encouragement we’ve received from J.J. Abrams and Justin Lin (as well as many other professionals in the filmmaking community). We are especially thankful for the support we continue to receive from our fans and backers.
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Re: Star Trek: Axanar (Independant Movie Project)

Post by Shank » 05/25/16

Seems pretty standard in legal circles. Nothing to get in a twist over. They have to proceed as if the case is still happening until they get a clear picture it's not.

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Re: Star Trek: Axanar (Independant Movie Project)

Post by Scrattch » 05/25/16

Precisely.

And not to be a serious devil's advocate and suspect slimy maneuvers of lawyers (nah... never! only used to work for one...)

But... the thought occurs to me that JJ and Lin's "announcement" could have been a deliberate ploy to see if W/S/Axanar would be stupid enough to accept this as gospel, let down their guard and NOT file the necessary response(s)...

Which would have resulted in a default win for the studios, or at least made things 10 times harder for our side to win.

Fortunately, W/S/Axanar seem to know what they're doing.

Now mind you, I'm not saying that JJ and Lin are in on something like this, but hey...
This *is* The Industry we're talking about here.

And JJ/Lin are *not* the official mouthpieces for CBS/Paramount, last time I checked. "Hot Directors/Producer" of the moment, perhaps.
But show me the official release, folks.

For my part, I'm not taking any "announcement" from either side as final until the judge says "case closed".

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Re: Star Trek: Axanar (Independant Movie Project)

Post by Psia » 05/25/16

Scrattch wrote:For my part, I'm not taking any "announcement" from either side as final until the judge says "case closed".
I don't think my elation is misplaced. Mostly due to the fact that I see a light at the end of what was originally a much longer tunnel. But I totally agree with that sentiment. We still have to sweat it out until it really happens.
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Re: Star Trek: Axanar (Independant Movie Project)

Post by Psia » 05/27/16

Hubcap Dave is a supporter and contributor of Axanar Production. This is a recently published personal blog.
Funny how a simple message of congratulations can turn into something worth writing about! After JJ Abrams announcement (and subsequent confirmation by CBS and Paramount) that the lawsuit would be settled amicably and Alec Peters and company would be allowed to continue producing Axanar, I shot Alec a message to congratulate him. He responded, and told me how much he appreciated reading my blog posts on the subject. I tried to get some idea of how the negotiations were going, but he obviously couldn't talk about those. However, he did tell me the following, which he is allowing me to share with you!

Based on the official statement from CBS that the network is finally going to issue fan film guidelines, Alec has put together a group of Star Trek fan film producers to discuss a guideline proposal which reflects their concerns, and the apprehension of the thousands of fans who have rallied behind fan films for decades.

Alec said he contacted almost every major fan film producer seeking suggestions on a proposed set of guidelines. Eight of them joined a private Facebook chat group and began to discuss the proposal. “I just felt that all the active fan films should be able to share their thoughts together in a constructive way,” he said. “Most of them don’t speak to CBS, and clearly we are communicating with them regularly, so it felt like the right thing to do."


“Unfortunately, James Cawley of Star Trek: New Voyages said no without even hearing a proposal. He was the only one who declined. Everyone else wanted to at least see what a set of proposed guidelines would look like.”

As a starting point, Alec created some suggested guidelines which he forwarded to Todd Haberkorn of Star Trek: Continues, John Broughton of Farragut, John Atkin of Yorktown, Nick Cook of Intrepid, Michael King of Valiant, Scott Johnson of Starbase Studios (who produces several small Star Trek fan films), Greg Lock of Star Trek Ambush, plus an unnamed representative of Star Trek: Renegades. “Everyone I sent this to agreed to at least look at the draft, and half of them became part of the ongoing discussion.As for the guidelines themselves, "It is still very much a work in progress, but we hope that we can at least have something to send to CBS so they appreciate the concerns of the fan film makers.”, said Peters.

Apparently, Peters has been lobbying CBS for fan film guidelines for over four years. He told me about his various meetings over the years. “I first spoke with Liz Kalodner, EVP of CBS Consumer Products and the Head of Licensing, after my first trip to New Voyages back in 2010. We actually met on the Paramount lot when Liz was out for some meetings in L.A. She’s really nice, and very sharp, obviously! She felt there was too many issues that would need to be overcome, but she was very positive about fan films in general.”

“I then spoke to John Van Citters, Head of Star Trek Licensing, who I managed the Star Trek: The Experience auction for in 2010. We had a very good working relationship. In 2013, at the Las Vegas Star Trek Convention, I met with Bill Burke, VP of CBS Consumer Products, and continued the conversation. Both gave me the same line. CBS simply couldn’t come up with guidelines because there were too many contracts, union and guild agreements, actor contracts, etc. It was too complicated. Bill even told me that it would take the CEOs of both CBS and Paramount sitting together in the same room, talking about Star Trek fan films, in order to get anything done.”

Then there was the well-known (and since thoroughly discussed) meeting between Alec and several CBS representatives at the Las Vegas Convention last Summer, where Alec’s auction company Propworx produced a giant Star Trek auction. “John Van Citters and Bill Burke met with me at my request. I was determined to get some guidance, but they still told me that CBS would neither tell me what I could do, or what I could not do. They were afraid that any such guidance would potentially give up IP rights. Ironically, here we now finally doing what should have been done years ago!"

It seems pretty obvious to me that if CBS had possessed the internal will to put out guidelines back then, they would have avoided a lawsuit and saved themselves hundreds of thousands of dollars in legal fees.

As I said previously, this situation was inevitable, as fan films have increased in popularity and quality over the years. These changes have led other studios, notably Lucasfilm Ltd., to publicly support and assist fan films, even hosting them on their own websites.

And for those who might be curious as to what guidelines Mr. Peters and his group are planning to propse, here is their working draft:

PROPOSED STAR TREK FAN FILM GUIDELINES (DRAFT)
  • 1.) There must be the following disclaimer at the end of each episode, and in all promotional and marketing materials, on all fan production websites:
    "Star Trek" and all related marks, logos and characters are solely owned by CBS Studios, Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-film intended for recreational use. No commercial exhibition of distribution is permitted.
    2) Fan productions may not sell, or give away as perks, any item with a Star Trek mark, logos or character including, but not limited to, the words "Star Trek", the Enterprise insignia chevron, images of the USS Enterprise, or any Star Trek trademark.
    3) Fan productions may take donations, but all donations must go to the production of the fan film and may not be used to pay any of the principals.
    4) Fan productions may pay professional cast and crew for their time working on the production.
    5) If a production uses a SAG member, he or she must become a SAG New Media Signatory.
    6) Finished fan films may be no longer than 50 minutes in length (the approximate length of TOS episodes).
    7) Fan film makers give to CBS an unlimited, unrestricted license to use their films, or any portion thereof, in any format CBS should deem appropriate.
Personally, I think this is a pretty good start! It will be interesting to see how much of this gets incorporated into the final guidelines. I find it strange that the Godfather of the modern fan film, James Cawley, declined to participate in this discussion. Alec has mentioned in his blog that his relationship with James has its ups and downs, so the lawsuit may have put it on the "down" side of things for Mr. Cawley. Even still, CBS will issue these guidelines regardless of his participation. One would think a man of his standing in the fan film community would want to have a say in shaping them. Then again, he shut down his Facebook page, and his website is now "under construction", so who knows what's going on with New Voyages in the first place?

Either way, kudos to Alec and the other producers for working together to propose guidelines. Incorporation of their efforts by CBS would certainly help guide Star Trek fan film producers, assuage concerned studio executives, and satisfy Star Trek fans who simply want more stories set in Gene Roddenberry's vast universe.

And thanks to Alec, for allowing me to share this with everyone!
I added the link to the SAG New Media Signatory. I wonder who, amongst the Axanar cast of professional actors, have and haven't agreed to this? I confirmed upon reading this that, indeed, Cawley had pulled New Voyages home page down from the internet for the time being. Though the Youtube and Vimeo pages for viewing finished works is intact.

With regard to the suggested guideline, I can't help but note the use of crowd-funding isn't directly addressed. IMO, it has to be in order to be current and thorough. My guess is CBS/Paramount will address it more directly when the time comes.
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Re: Star Trek: Axanar (Independant Movie Project)

Post by Scrattch » 05/27/16

Well, it is, actually:

Clause 3. "Donation(s)" would cover this area.

It's actually a fairly cleverly constructed document as is... obviously the big plum for the studios is Clause 7.

Which gives them total ownership over the fan properties if they do it better than the professionals... which works hand in hand with Clause 2.
So basically, if (insert Axanar/Fan production here) takes off bigtime, CBS/Paramount can franchise it, create merchandise, ect, ect...

The total effect is: Allow us to create and film fully in your playground, don't be dicks with what we can film and we'll give you the monetary rights (sans production costs) to our creative genius in return.

How is this not a win/win for the studios?

Good god, if I were a studio exec, I'd jump on this and then use it to recruit my next batch of talented people.
Hell, they'll recruit themselves.

But Cawley?
Not surprised he's not keen on this idea.

He's always struck me as the "you can play in my sandbox with my toys as long as you play exactly the way I want and if you don't I'll take my toys and go home" type.

*idea*

Someone needs to make a documentary about the Axanar case. Seriously, this is great stuff.

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Re: Star Trek: Axanar (indie film project)

Post by Psia » 06/22/16

phpBB [media]


This is one of three film teasers which were made last year. Prior to the lawsuit having unfolded and only now being made public. J.G. Hertzler provided voice over for who is intended to be the Federation President. Two more teasers to go.
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Re: Star Trek: Axanar (indie film project)

Post by Psia » 06/23/16

Another visually stunning teaser. Richard Hatch doing the voice-over. I'm not sure he captured the roaring presence needed for this.

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Re: Star Trek: Axanar (indie film project)

Post by Psia » 07/20/16

phpBB [media]
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Re: Star Trek: Axanar (indie film project)

Post by Scrattch » 07/20/16

That was a very good summation of the situation.

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Re: Star Trek: Axanar (indie film project)

Post by Psia » 07/31/16

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Re: Star Trek: Axanar (indie film project)

Post by Psia » 09/07/16

Oh. The quips they do keep coming. But here is real news about where things stand.

http://fff.trekbloggers.com/2016/09/06/ ... ry-part-1/

AXANAR enters DISCOVERY! (Part 1)
Jonathan Lane
Posted on September 6, 2016


It’s time for Star Trek discovery! No, not the new TV series. I’m talking about the next phase of the Axanar copyright infringement lawsuit: legal discovery.

Last week, former Axanar marketing director and tech guru, Terry McIntosh, posted on Facebook that he had just been subpoenaed by CBS and Paramount to be deposed as part of the copyright infringement lawsuit against Alec Peters and Axanar. Terry is not in any legal peril himself, as no other defendants other than Alec Peters were named in the lawsuit. Instead, the studio lawyers will probably just ask for copies of all of Terry’s correspondence (e-mails, IMs, chats) with members of the Axanar team, and the studios might set up a deposition to ask Terry some (maybe even a lot of) questions either in person or over the phone.

And this means that the (coincidentally named) DISCOVERY phase of the lawsuit is now in full swing. So what does that mean?

In civil law in the U.S., before a case goes to trial, there is a period known as discovery where both sides are allowed to request evidence from the other party, and all requests must be honored. Failure to turn over relevant evidence at discovery can result in sanctions from the judge or even a mistrial. Discovery can take the form of submitting questions for the other side to respond to in writing, requesting documents, and/or taking depositions during interviews with key witnesses and involved individuals.

It’s only after all the evidence is shared back and forth during discovery that the trial itself happens. And no matter how many legal dramas you watch on TV, that moment when something unexpected is revealed during the trial and everyone is suddenly shocked…that almost never happens in real life. The reason is that both sides know everything that’s going to come out in court because it’s already been covered in discovery. In fact, if one of the legal teams tries to ambush the other side with a piece of evidence that didn’t come out during discovery, the other side can object to the evidence, and the judge will typically disallow it.

ters DISCOVERY! (Part 1)

Axaanr splash imageIt’s time for Star Trek discovery! No, not the new TV series. I’m talking about the next phase of the Axanar copyright infringement lawsuit: legal discovery.

Last week, former Axanar marketing director and tech guru, Terry McIntosh, posted on Facebook that he had just been subpoenaed by CBS and Paramount to be deposed as part of the copyright infringement lawsuit against Alec Peters and Axanar. Terry is not in any legal peril himself, as no other defendants other than Alec Peters were named in the lawsuit. Instead, the studio lawyers will probably just ask for copies of all of Terry’s correspondence (e-mails, IMs, chats) with members of the Axanar team, and the studios might set up a deposition to ask Terry some (maybe even a lot of) questions either in person or over the phone.

And this means that the (coincidentally named) DISCOVERY phase of the lawsuit is now in full swing. So what does that mean?


In civil law in the U.S., before a case goes to trial, there is a period known as discovery where both sides are allowed to request evidence from the other party, and all requests must be honored. Failure to turn over relevant evidence at discovery can result in sanctions from the judge or even a mistrial. Discovery can take the form of submitting questions for the other side to respond to in writing, requesting documents, and/or taking depositions during interviews with key witnesses and involved individuals.

It’s only after all the evidence is shared back and forth during discovery that the trial itself happens. And no matter how many legal dramas you watch on TV, that moment when something unexpected is revealed during the trial and everyone is suddenly shocked…that almost never happens in real life. The reason is that both sides know everything that’s going to come out in court because it’s already been covered in discovery. In fact, if one of the legal teams tries to ambush the other side with a piece of evidence that didn’t come out during discovery, the other side can object to the evidence, and the judge will typically disallow it.

Very likely, Terry McIntosh won’t be the only witness subpoenaed. I’m guessing Alec Peters, Rob Burnett, and a host of other Axanar team members–past and present–are also being contacted by the studios’ attorneys. And it won’t just be the studios doing the subpoenaing. In fact, it’s very likely that Axanar’s team of lawyers from the firm of Winston & Strawn are going to be requesting a great deal of documentation from Paramount and CBS…most probably going back 50 years! And I wouldn’t be surprised if a few top-level executives from both the licensing and legal departments of CBS and Paramount end up having fairly grueling deposition sessions.

The two sides in the case were reportedly in negotiation to settle the lawsuit until recently. For all I know, they might still be in negotiations. But no settlement has been announced as yet, and so, with the sending out of subpoenas, discovery has begun. The trial is scheduled to begin on January 31 of next year (not all that far away!), and two questions emerge:

1) Will the case even make it to trial, or might there still be a settlement (or even a chance of the case being dropped completely) before the end of January?

2) If the case does go to trial, which side is most likely to win?

I know a lot of fans are already debating these questions with all sorts of armchair lawyering, and I’ve read many of the arguments. But the one thing I haven’t seen written about yet is an analysis of this case NOT from a legal standpoint but from a BUSINESS perspective. As things move closer to trial, will it actually be worth it for CBS and Paramount to continue to pursue this case…or will it be safer to settle or even drop the case entirely?

I know there are some people out there who want to see Alec Peters obliterated both financially and professionally by this case in the name of justice, and they’re not going to like what I’m about to write. Others who are Axanar supporters will rally around this article as further proof that Alec is in the right and should never have been sued in the first place.

In the words of Lt. Uhura, “Sorry, neither.”

My goal in this editorial is not to defend Alec Peters or Axanar nor to argue the merits of this case on a legal level. Instead I want to present a different and hopefully unique take on what might happen. Note, I did not say “will” happen. This is just my opinion, mixed in with some perspective I’ve received from legal consultants who are familiar with the Axanar lawsuit (but not working on the case professionally or directly). And I need to state for the record that my wife (who is an attorney) has not been involved with this case, nor has she advised me on the writing of this blog post in any way.

So let’s jump into the water, shall we?

As most of you already know, after Alec Peters was sued by CBS and Paramount for copyright infringement in late December of last year, he quickly went out and found a law firm that specializes in intellectual property to represent him, Winston & Strawn…and they agreed to take the case pro bono. That means that Alec will not have to cover any legal fees for the lawyers’ time (saving him literally hundreds of thousands of dollars). Alec will still have to cover certain costs during discovery, such as travel for depositions, court reporters, videographers, and the such. But the lion’s share of the financial burden will not be his.

Granted, Alec could still lose the case, and with 57 listed instances of alleged copyright violations priced at up to $150,000 each, the legal verdict could reach well into the millions of dollars! But it could also be a lot lower, as $150,000 is a penalty level for willful violation of copyright, which is a challenge to prove. Non-willful violation penalties are only $7,500 per instance and can be as low as $200. I’ll go more into the differences between willful and non-willful violations in part 2, but the point is that those expecting a financially devastating verdict (like CBS, Paramount, and certain folks out there with an Ax to grind…get it?) might be surprised by a much, much lower judgment.

And that brings us to a little story of a previous client of Winston & Strawn: a tiny company named Chapterhouse. Not much more than a few guys in a garage, Chapterhouse was being sued by a huge entertainment company called Games Workshop for millions of dollars for—you guessed it!—copyright infringement.

You can learn more about the Chapterhouse lawsuit here (scroll down the page to listen to the recorded discussion/analysis of the verdict). But in short, it was classic example of Goliath trying to stomp out David, and the odds looked heavily stacked against the little guy with a huge lawsuit and a potentially catastrophic financial judgment if the verdict went in favor of the plaintiff.

Winston & Strawn stepped in to represent Chapterhouse pro bono. (Don’t these guys ever charge a client???) Actually, yes, they do. And it’s because they win some very high profile cases. And this became a very high profile case…specifically because the judgment turned out to be the exact opposite of what most experts expected. After years in court, the ruling, while still against Chapterhouse, was miniscule: only $26,000 out of what could have been millions!

Games Workshop went into this fight expecting an easy win and instead came out with a whole bunch of headaches. Make no mistake; Goliath did still beat David, but only in a very small and nominal way. And after an appeal, the two sides eventually settled matters out of court. But the damage had been done. Games Workshop had to, quite literally, completely revise their business processes for new releases. Product lines had to be renamed and rebranded, resulting in unexpected marketing and printing costs. And shortly after the mid-2013 verdict, the senior legal counsel for Games Workshop, Gill Stevenson, quietly departed the company. (It’s assumed by many that she was fired.)

In many ways, CBS and Paramount are probably going into this case feeling just as confident as Games Workshop did…although things are already likely not going the way the studios had initially expected.

So what did they expect?

CBS and Paramount are used to threatening their way out of going to court in the first place because most people are scared to death of losing their house, their car, and their entire savings in a huge legal verdict. But Alec Peters rents his house. His car is nine years old. Ares Studios itself is just a monthly lease, so even that can’t be liquidated and taken…only shut down. So if Alec loses this case with a big financial verdict, he’ll likely just declare bankruptcy—which he’s done before for a previous company of his—and pay the studios nothing.

Now, I’ve heard some people who are rooting against Alec Peters predicting that he will somehow be “blacklisted” in Hollywood and “never work in this town again.” But Alec was never actually listed, so it’s hard to blacklist him. In other words, he didn’t really have a Hollywood career to ruin, so there’s not much there to take away. Also, no judge can order someone to be blacklisted as part of a legal remedy. So at worst, Alec would simply be the loser of a very public copyright infringement lawsuit. And even losing this lawsuit could be worth millions to Alec Peters. (Say what? I’ll go into that crazy comment in part 2!)

But back to the studios…

Their modus operandi is to try to intimidate the little guy as quickly and thoroughly as possible. It keeps the studios’ legal costs super-low. Just write up a really scary legal complaint (with staggeringly huge numbers) and file it in court. When faced with such a horrifying potential loss from a losing verdict, and looking at sky high legal fees for a protracted trial (lawsuits usually cost around $20K-$25K per month to litigate…or more!), most normal folks will pee in their pants, fall to their knees, and beg for a settlement, promising to do anything the studios demand of them. Unconditional surrender.

Had this happened with Alec Peters (I’m just guessing here), the studio would likely have agreed to settle the suit if Alec agreed to shut down his production completely, close the studio, return all the money collected from the donors, and probably never work on any fan production again. The “Battle of Axanar” would end with only one shot fired, this 15-page lawsuit.

But it didn’t happen that way. This upstart little pipsqueak Trekkie actually lawyered up, and worse, it was pro bono! He began working with a PR guy to get sympathetic coverage of this David and Goliath lawsuit in the press. And then those damn lawyers of his started forcing the studios and their lawyers to actually fight this battle, and fight hard.

The defense responded to the complaint with a motion to dismiss pointing out all the places where the original complaint was sloppy. This forced the studios to file an amended complaint where they had to actually do their homework and list the specific counts of infringement one by one. Alec and his legal team responded again, still seeking a dismissal. The studios then responded again (this had to be getting expensive for the studios), and then the defense came back one last time and actually added a counterclaim!

I can’t even imagine how shocked and pissed off the studios must be with how long this is taking and how much it is costing. Even though CBS general counsel Jonathan Anschel is a salaried employee of the studio, their lawyers at Loeb & Loeb are billing by the hour. CBS and Paramount’s costs at this point are probably already well over a hundred thousand dollars, and they will likely double in the coming months. Alec’s legal fees are only a small fraction of that for incidentals.

But for all that the studios are paying in legal services, added to the productivity lost by their own employees from the time being spent on this annoying distraction, CBS and Paramount actually have a great deal more to potentially lose…even if they win this case! And for this reason, I actually suspect this case will either settle or be dropped during the discovery phase…before it ever goes to trial. Remember, you read it here first.

Why do I believe this? Come back for part 2 and find out!
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Re: Star Trek: Axanar (indie film project)

Post by Psia » 09/07/16

http://fff.trekbloggers.com/2016/09/07/ ... ry-part-2/

AXANAR enters Discovery Part 2
Jonathan Lane
Posted on September 7, 2016


Last time: well, last time there was just way too much to summarize, so just click here to read it if you haven’t already.

Basically, with a trial date set for January 31, 2017 and no settlement announced yet, the case has entered the discovery phase. (So yes, “Star Trek: Discovery” now means two totally different things to CBS!)

During discovery, both the plaintiffs and the defendant must provide the other side with any piece of evidence they ask for that is relevant to the case. Witnesses are questioned (deposed), documents are collected and shared, and queries are submitted in writing requiring honest and open answers…and all this months before a jury is ever seated and the clerk says, “This courtroom will now come to order.”

The vast majority of civil cases never get past the discovery phase…believe it or not. Most cases are settled at some point before the trial begins because one side or the other either realizes 1) they can’t win, 2) settling for an agreed upon amount would cost less than a drawn-out litigation or a large punitive verdict, or 3) something comes out in discovery that one side or the other doesn’t want becoming a matter of public record.

As I’ll explain shortly, I suspect CBS and Paramount will encounter the third scenario. That said, I need to state up front that I am not a lawyer and I have no formal legal training. And although my wife is a litigator with a large firm here in Los Angeles, she has NOT discussed the Axanar case with me in any detail. She has simply confirmed to me that, yes, the vast majority of civil cases she handles do, indeed, settle before they reach trial.

Now, this might just be my view from the cheap seats, but Ares Studios and Axanar only date back about three years while Star Trek dates back fifty years. In other words, I suspect Alec Peters’ legal team at Winston & Strawn will be requesting and receiving a LOT more evidence from CBS and Paramount during discovery than the studios request of him.

One thing I suspect will be requested is all documentation relating to the transfer of ownership of the Star Trek copyright over the years from Desilu Studios through CBS…with stops along the way at Paramount, Gulf+Western, and Viacom. As was mentioned in Axanar’s first response to the initial legal complaint:

Which Plaintiff owns which alleged copyrights is critical to Defendants’ investigation into Plaintiffs’ claims, as it could be that the only works that Plaintiffs are actually alleging Defendants infringed are owned by one Plaintiff as opposed to the other. Plaintiffs’ joint ownership allegation is not plausible in light of the contradicting information in the Complaint regarding assignment, presenting another ground upon which dismissal is proper.

In other words, there might be aspects of the Star Trek copyright that are still owned by Paramount and not CBS, or vice versa. This will affect which studio can make money from licensing what elements. Right now, the two studios have it worked out that CBS pretty much owns everything Star Trek except for the three most recent “Kelvin-verse” feature films, which were specially licensed to Paramount by CBS for the purpose of producing movies. If it sounds kind of convoluted and confusing (and potentially messy), it is. But both studios enjoy a “gentleman’s agreement” of sorts where they don’t push the other to grab more than they have. It works for them.

But if documents produced during discovery threaten to upset that apple cart, the studios will have to think very carefully about proceeding further in the case. Any evidence produced during discovery becomes a matter of public record once the actual trial starts. And a judge’s ruling, such as, “Paramount Pictures has no legal standing to remain as a plaintiff in this case because they do not own the Star Trek copyright,” can have a potentially disastrous impact on Paramount’s ability to generate revenue from licensing Star Trek in any form. And right now, Paramount can use all the revenue it can get!

And speaking of disasters, transferring the ownership of a copyright properly is a very well-defined procedure in law. If it wasn’t handled properly along the way (and remember that we’re talking transfers dating back to the 1960s), the judge could actually rule that neither CBS nor Paramount can claim any legal ownership of the Star Trek copyright. I’m NOT saying that such a thing will happen, but if it does: triple red alert! CBS and Paramount do NOT want such a determination of their non-ownership of Star Trek to EVER be uttered aloud…especially by a federal judge! If the case is suddenly dropped (not settled but dropped) seemingly for no reason before reaching trial, chances are, that’s what happened.

But there are actually a few other things that could go wrong during discovery or at the summary judgment phase. What is summary judgment? It’s basically one side or the other asking a judge to decide an aspect of the case (or the whole case) before the trial even begins. In this way, the court and both parties can avoid the time and hassle of a trial entirely if the ruling is so obvious as to not even require a jury. To use my example above, if it turns out that neither CBS nor Paramount has the legal documentation to prove proper transfer of copyright ownership through the entire 50-year history of Star Trek, then neither party has standing to sue, and the trial isn’t necessary. The judge can make that ruling before the trial ever begins. Similarly, if it turns out that CBS owns Star Trek but Paramount doesn’t anymore, then the trial can still continue, but Paramount is dismissed as a plaintiff. Ah, law…

So what else could go wrong for the studios before the case ever gets to trial?

If you look over the infamous amended complaint from the studios, you’ll see that it lists nearly five dozen separate infringing elements from Star Trek featured in Prelude to Axanar…including the uniforms with a gold shirt, triangular-shaped medals, and the Klingon language itself! Each of these elements could present a separate potential legal damages award of $150,000…or $8.55 million in the worst-case scenario for Alec Peters. Yeesh!

So as you can probably imagine, Alec and his defense attorneys are going to want to whittle this list of five dozen violations down at least a little…and so will the judge, most likely, because each alleged violation will take time to defend separately in front of a jury. Just picture in your head the expert witness sitting on the stand, speaking Klingon, in an effort to explain that it’s actually a living language and not subject to copyright. While it could be fun to have a Klingon testify, with 56 other alleged violations to get through, this could be a very looooong trail, and the judge probably doesn’t want that.

And thus will the defense team ask for summary judgment on most, possibly all, of the five dozen violations listed. And let’s say, for the sake of argument, the judge agrees to dismiss the violation dealing with the uniforms because you can’t copyright clothing.

Stop for a moment and consider what this means. A judge has just said that CBS does NOT and CANNOT own a copyright on Star Trek uniforms! There are official licensees making Star Trek uniforms—from Halloween costumes to the amazing Anovos reproductions—and they pay tens or even hundreds of thousands of dollars to CBS for that license. Well, not anymore! A judge has just ruled that CBS doesn’t own Star Trek uniforms, and suddenly anyone can make and sell them.

Uh, oh! This trial to sue an upstart little twerp of a Trekkie making a fan film is now not only costing the studios hundreds of thousands of dollars in legal fees, but it’s also just cost CBS hundreds of thousands in licensing revenue! If I’m Leslie Moonves (head of CBS), I’m gonna tell my general counsel that he’s got some serious ’splainin’ to do!

And that assumes just ONE violation is dismissed by the judge. What if there’s more than one? What if it’s 25 different violations that are ruled not part of the Star Trek copyright? Well, now the licensing revenue impact has just potentially climbed into the millions! And this is a bell that can’t be easily unrung once it comes out of a judge’s mouth in federal court.

So once again, if there’s suddenly an unexpected settlement offered by the studios to Alec Peters that lets him off scot-free, or if the suit is suddenly dropped with no explanation, something like this has probably happened.

But what if the case goes to trial?

Well, there are a number of ways that CBS and Paramount could win the case and still lose. The first is in the amount of judgment awarded. Remember the Chapterhouse case from part 1 of this blog where the final judgement was only $26,000 rather than millions? What if the same thing happened with Axanar? It’s not as far-fetched as some (including the studios) might think!

You see, that $150,000 penalty per violation is based on something known as willful infringement of copyright. But if the infringement wasn’t willful, the legal damages can be as little as $200! Check out this web page and this quote (bolding added by me):

In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

I can hear some of you typing those irate comments already! Please wait one moment and consider something. Before Prelude to Axanar was released, there were about a hundred different Star Trek fan films and series (I counted!) covering more than 250 hours over the span of four and a half decades. NONE of them was ever sued by any Star Trek copyright holder…not Paramount, not Gulf+Western, not Viacom, and not CBS. So if those other fan films weren’t sued, why should Alec Peters have assumed that his fan film suddenly constituted an infringement of copyright?

I would expect blog sites like Fan Film Factor and Star Trek Reviewed will be entered into evidence (geez, maybe I’ll get a subpoena!) by the defense. Their goal won’t be to get all the violations dismissed (although that’d certainly be welcome by the Axanar team). Instead, they’ll be focused toward showing that any infringement that happened was not willful (according to the legal definition I cited above, not the definition by fans rooting against Axanar). Indeed, the burden of proof will likely fall on the plaintiffs to show how Alec had some reason to believe he was infringing…despite him meeting four separate times with studio representatives and not being told by them to stop or alter his proposed film. It’ll be an uphill battle for the studios to get that $150,000-per-violation price tag to stick.

Of course, damages don’t have to be as low as $200 either. Maybe the judge awards $1,000 each for 26 different violations of copyright for example. And that’s $26,000…the same award as was given in the Games Workshop v. Chapterhouse lawsuit. Suddenly, CBS and Paramount don’t look quite as scary. Maybe some Star Trek fan productions even decide to risk a future lawsuit themselves figuring that, with enough crowd-funding, they can likely cover potential minor legal damages. Meanwhile, CBS and Paramount have just risked or even lost hundreds of thousands or millions of dollars of licensing revenue for a measly $26,000 judgment and the effective neutering of their new fan film guidelines.

Another thing that could come out in trial is that Prelude to Axanar was indeed fair use because it was transformative. In other words, a documentary-style fan film would be considered legally permissible because established Star Trek isn’t presented in documentary format. If that happens, expect nearly every major fan film to switch to a documentary style like Prelude to avoid lawsuits in the future. Imagine Tommy Kraft finally producing his Federation Rising sequel to Horizon as a two-hour long documentary about the end of the Romulan War…with no risk of getting sued successfully. If the judge rules fan film documentaries are fair use, then the door is now open to that and the genie is out of the bottle.

So even if CBS and Paramount win this trial, they could still lose. And even with a $26,000 judgment (or even $100,000 or more), Alec Peters could still win. How, you ask?

It’s been reported in a number of places that Alec Peters and Axanar director Rob Burnett are planning to produce a documentary about this whole saga, from making Prelude to Axanar to raising $1.2 million to getting sued. And no matter what happens in this lawsuit, there’s no way for the two studios to stop this ancillary project, as a documentary about the making of a Star Trek fan film is journalistic and does not violate any copyright. So yes, folks, even if we never see the final Axanar movie, Alec Peters could still have the last word.

Now, assuming Alec and Rob are still planning to make this documentary film, going to trial is actually the best possible outcome…regardless of the verdict. Trials make documentaries even more interesting and dramatic. Without the trial, the documentary ends, “And they settled the case quietly.” With a trial, either David beats Goliath or vice versa—happy ending or heartbreaking tragedy. Either way, there’s an emotional punch, and the distribution rights could be worth millions (or so I’m told by a few people in the entertainment business). So if Alec has to pay a judgment in the five- or even six-figure range, and he makes seven figures for his documentary…well, you do the math.

I suspect that, right now, CBS and Paramount can only imagine one outcome to this case: they win outright, the damages are significant, and Alec Peters and Axanar are totally ruined. (And I’m sure some of you folks reading this right now are fist-pumping a “hell, yeah!”) And that is certainly a possible outcome.

But as this editorial points out, even though there’s one way for the studios to win big, there’s a lot of ways where they win but still lose a little, and there’s a few where they potentially lose big. As discovery goes on, it becomes less about desiring the moral victory and seeing justice done and more about crunching the numbers and asking, “Is this really worth it?”

So before you start typing your comments, complaints, rebuttals, and epithets, please remember that I’m not predicting any specific outcome here, my friends…only possibilities. And as Spock said, “There are always possibilities.”
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Re: Star Trek: Axanar (indie film project)

Post by Scrattch » 09/08/16

He's right.

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Re: Star Trek: Axanar (indie film project)

Post by Psia » 10/31/16

In a nutshell, CBS/Paramount never turned over any of the their email correspondence, which they originally indicated were forthcoming. During this discovery legal process they now have to turn over financials as well as the belated emails. Whereas Axanar turned over literally everything. All of which would reveal how much $$$ damage - if any - the Axanar production actually cost the Trek franchise.

I read over the weekend and today that there is now a court-ordered settlement process. Sat to begin this afternoon. None of which is public. Should prove interesting.
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"Let me tell you something. Don't. Don't let them promote you. Don't let them transfer you, don't let them do anything that takes you off the bridge of that ship, because while you're there, you can make a difference." - Kirk to Picard, Star Trek Generations

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Re: Star Trek: Axanar (indie film project)

Post by Psia » 11/01/16

This afternoon via social media:
Alec Peters wrote:CBS/Paramount's ex parte motion was DENIED. The only things the judge gave them were things we had already agreed to!

1) They get to depose me again.
2) We agreed to reduce the financials status from Highly Confidential to confidential since our financials have now been reviewed and financial statements prepared by our accountant.
3) A privilege log (a simple log of communications with attorneys)
(Above is from my conversation with Erin while driving so paraphrasing)

So another big win for Axanar and a slap down for CBS/Paramount. The only things the judge ordered were things we had already agreed to.
Thanks again to Erin and her AWESOME team!
Tonight via social media:
Alec Peters wrote:OK all, just got home from the Court mandated settlement mediation. We did not reach a settlement, but we are close. We will know by week's end, as the attorneys have a call with Judge Eick Friday.

Everyone needs to manage their expectations. A settlement means neither side gets exactly what they want.
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"Let me tell you something. Don't. Don't let them promote you. Don't let them transfer you, don't let them do anything that takes you off the bridge of that ship, because while you're there, you can make a difference." - Kirk to Picard, Star Trek Generations

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Re: Star Trek: Axanar (indie film project)

Post by Psia » 11/05/16

https://fanfilmfactor.com/2016/11/04/br ... r-lawsuit/
Alec Peters wrote:Axanar Productions remains in negotiations to achieve a settlement with plaintiffs (CBS Studios and Paramount Pictures Corporation).

As we’ve stated from the beginning of this legal odyssey, we are willing to addresses the concerns plaintiffs raised with regard to the production of our Star Trek fan film as long as we are allowed to make sure the story of Garth of Izar, the Battle of Axanar and the Four Years’ War can be told in a way that meets the expectations set for thousands of fans and donors through our crowdfunding campaigns and award-winning, proof-of-concept production, PRELUDE TO AXANAR.

In the event we are not able to reach a negotiated accommodation with the plaintiffs, we are prepared to pursue our fair use argument through the courts in an attempt to clearly identify what we can and cannot do when we resume production of AXANAR.
"The food is good, the wine is excellent, the staff timely. All that is lacking is your company." - EQ2 Raven Mythic FAQ

"Let me tell you something. Don't. Don't let them promote you. Don't let them transfer you, don't let them do anything that takes you off the bridge of that ship, because while you're there, you can make a difference." - Kirk to Picard, Star Trek Generations

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