Real-Life Star Trek Battle of Axanar Is Heating Up

By Dan Bonilla
January 18, 2017

Alec Peters plays Captain Kelvar Garth in the fan film Battle of Axanar.

Alec Peters plays Captain Kelvar Garth in the fan film Battle of Axanar.

A copyright infringement battle of intergalactic proportions between Plaintiffs CBS and Paramount Pictures, and the company (along with its principal Alec Peters) looking to produce the crowdfunded Star Trek fan film Axanar (“Defendants”) is heating up.  The parties have filed numerous motions in the past month, and the Court’s recent ruling on the parties’ motions for summary judgment means the case is inching closer and closer to its January 31 trial date.

Brief Background

Plaintiffs filed the lawsuit in December 2015 and amended their complaint in March 2016, alleging copyright infringement, contributory copyright infringement, and vicarious copyright infringement, (17 U.S.C. §§ 101, et seq.), and seeking a declaratory judgment, (28 U.S.C. § 2201 & 28 U.S.C. § 2202).  CBS owns copyrights in the Star Trek television series, the first of which debuted in 1966 (“The Original Series”), while Paramount owns copyrights in Star Trek’s movies.  Both companies allege that the Defendants’ (a) 20-minute short film entitled Star Trek: Prelude to Axanar, (b) written script for a feature film, and (c) current production of the Axanar film (collectively, “Axanar Works”) are “substantially similar” to Plaintiffs’ copyrighted works and infringes on their copyrights by lifting protectable elements such as the United Federation of Planets, “beaming up,” Klingons, Vulcans, the Starship Enterprise, and spacedocks.  Overall, the Amended Complaint identifies over 50 instances of infringement.

In May 2016, fans of the Axanar film breathed a sigh of relief when J.J. Abrams, who directed Star Trek (2009) and produced Star Trek: Beyond (2016), stated at a fan event that at his and Justin Lin’s (Beyond’s director) urging the lawsuit would be dropped.  That didn’t happen.  Instead, CBS and Paramount ramped up the litigation.

While Star Trek fan films are by no means a recent phenomenon, this particular one is of a new breed.  Axanar is intended to serve as a prequel to events that transpired during The Original Series, focusing on Captain Kirk’s hero Garth of Izar and his victory in the Battle of Axanar.  Unlike prior fan films, Defendants have raised over $1 million through Kickstarter and Indiegogo to produce a “professional” quality film “with a fully professional crew, many of whom have worked on Star Trek itself.”  A dream come true for Trekkies, but a nightmare, I’m sure, for Plaintiffs, especially because Axanar doesn’t even come close to complying with Plaintiffs’ 10 guidelines for production of “amateur” Star Trek fan films (e.g., “creators, actors and all other participants must be amateurs, [and] cannot be compensated for their services”).

Litigation

Both parties are actively engaged in the fine art of zealous advocacy as they propel themselves closer to trial.  Earlier this month, the Court issued an opinion and order denying the parties’ cross-motions for summary judgment.  As a preliminary matter, the Court rejected Defendants’ argument that the lawsuit is premature because the film has not been completed, for the same reasons expressed in its prior decision denying Defendants’ motion to dismiss.  The Court then concluded that the “Axanar Works have objective substantial similarity to the Star Trek Copyrighted Works,” and therefore it “leaves the question of subjective substantial similarity to the jury.”  In so doing, the Court concluded that the character Garth of Izar and the species Klingons and Vulcans may be entitled to copyright protection.

Critically for purposes of trial, the Court evaluated the four factors that courts use to determine whether fair use may exist (17 U.S.C. § 107) and held that Defendants are not entitled to a fair use defense.  Generally speaking, the fair use (affirmative) defense allows a defendant to establish that although its use of a copyrighted work might technically be infringing, the infringement is excused under the circumstances because the defendant’s work is being used for a “transformative” purpose (e.g., research, scholarship, criticism, journalism).  The Court didn’t buy it.  According to the Court, all four factors weigh in Plaintiffs’ favor, from the purpose and character of the infringing use to the effect of the use upon the potential market.  The Court also found that the Axanar Works’ mockumentary style of production does not constitute a legally protectable form of parody because Defendants’ works do not adequately criticize Plaintiffs’ copyrighted works.

In wrapping up its opinion, the Court further held that it would be inappropriate to find on summary judgment that Mr. Peters’ conduct at issue was willful, but sufficient evidence exists to allow Plaintiffs’ claims of contributory and vicarious infringement against Mr. Peters to proceed to trial.

On January 9, 2017, the Court ordered the parties to submit a joint statement of the case by January 30, 2017, and issued its tentative rulings on the parties’ several motions in limine.

PLAINTIFFS:

  • MOTION IN LIMINE (#1) to Exclude Altered Financial Statement And Its Contents, Or Any Of The Post-Litigation Transactions Reflected Therein.  DENIED
  • MOTION IN LIMINE (#2) to Exclude Scripts Created After The Litigation Was Filed And Testimony Discussing Them.  GRANTED.
  • MOTION IN LIMINE (#3) to Exclude Testimony Or Documents By J.J. Abrams And Justin Lin And Their Public Statements, Or Anything Related To Their Public Statements Or Documents Regarding This Matter.  GRANTED.
  • MOTION IN LIMINE (#4) to Exclude Testimony Or Documents By Reece Watkins.  GRANTED.
  • MOTION IN LIMINE (#5) to Exclude Testimony And Documents Of Jonathan Lane.  GRANTED.
  • MOTION IN LIMINE (#6) to Exclude Testimony And Documents Regarding Star Trek Fan Films. UNDER SUBMISSION.
  • MOTION IN LIMINE (#7) to Exclude Testimony And Documents Discussing Peters Unrelated Work Regarding Star Trek Props.  GRANTED.
  • MOTION IN LIMINE (#8) to Exclude All Testimony, Documents Or Other Evidence Made Or Created After The Filing Of The Original Complaint In This Litigation.  GRANTED.
  • MOTION IN LIMINE (#9) to Exclude The Testimony Of Christian Tregillis.  DENIED
  • MOTION IN LIMINE (#10) to Exclude Testimony of Henry Jenkins.GRANTED.

DEFENDANTS:

  • MOTION IN LIMINE (#1) to Preclude Plaintiffs from Relying on Evidence Concerning Alleged Discovery Violation.  GRANTED.
  • MOTION IN LIMINE (#2) to Preclude Plaintiffs from Relying on Evidence That Was Not Timely Disclosed Under The Court’s Scheduling Order.  DENIED
  • MOTION IN LIMINE (#3) to Preclude Plaintiffs from Introducing Evidence Regarding Allegedly Infringed Works Not Identified in the First Amended Complaint.  GRANTED.
  • MOTION IN LIMINE (#4) to Preclude Plaintiffs From Relying on Evidence Regarding Items that are Unoriginal, In the Public Domain, or From Third Parties.  GRANTED.
  • MOTION IN LIMINE (#5) to Preclude Plaintiffs From Relying on Evidence Concerning Personal Drama, Smear Campaign, and Other Irrelevant Communications, Including Witnesses Christian Gossett, Terry McIntosh.  GRANTED.
  • MOTION IN LIMINE (#6) to Preclude Plaintiffs From Referring to Irrelevant Superseded Scripts. GRANTED.
  • MOTION IN LIMINE (#7) to Preclude Introduction or Mention of Certain of Defendants’ Financial Information and Inaccurate Reference To “Profits” Defendants Allegedly Earned.  DENIED
  • MOTION IN LIMINE (#8) to Exclude Any Evidence, Testimony, or Argument Regarding Defendants’ Use of the Name “Star Trek.”  DENIED
  • MOTION IN LIMINE (#9) to Preclude Plaintiffs From Referencing The Quality of Defendants’ Works.  GRANTED.

Interestingly, if the Court does not change its rulings, the Defendants will not be able to introduce Abrams’s or Lin’s public comments about Axanar and Plaintiffs will be allowed to introduce evidence and testimony of Defendants’ use of the name “Star Trek.”  The Court hasn’t decided whether testimony and documents regarding fan films will be exclude from trial.

Conclusion

While it looks like the case will be tried at the end of this month, there is no guarantee that it will be.  The vast majority of civil cases settle before trial.  The court docket shows that the parties attended a settlement conference before the Court’s Magistrate Judge in October 2016, and appeared for two or three telephonic settlement conferences in November 2016.  Although it is not uncommon for parties to stoke the fires of litigation by filing motions and prolonging settlement negotiations before settling on the eve of trial, this one feels a little different given the weight of the Trekkie fan base wishing to see the Defendants achieve victory in what has become the real-life Battle of Axanar.

The Author

Dan Bonilla

Dan Bonilla is a NJ-based attorney at Stone & Magnanini LLP (& proud father of infant twins) handling patent, trademark, copyright, whistleblower, financial & securities fraud litigation. He’s also a proud member of the Hanover Twp. Economic Development Advisory Committee, Morris County Life Sciences Committee, the Executive Committee of WRWAC, and Morris Tech MeetUp.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 34 Comments comments.

  1. Inventor Woes January 18, 2017 9:01 am

    You can’t stop fan films. Or song sampling for that matter. This is a futile effort by CBS and Paramount. It will only hurt them in the long run. Music companies tried this with Napster and while they had a quick victory against Napster, they got crushed by everything else that popped up in Napster’s wake. Eventually they learned to get with the times and make their music available legitimately. I suspect the same will happen with fan films.

  2. Robert E. Humphries January 18, 2017 10:41 am

    Axanar is not a fan film. They said so repeatedly, in their annual report, crowdfuding pages, and elsewhere, right up until they got sued. They repeatedly presented themselves as a professional, independent production bringing back real Star Trek to the fans, and some Axanar supporters are still pushing that line, seeing the recent movies as not the real thing.

    Axanar, being a professional independent production and not a fan film, licenced some tie-in merchandise (spaceship models, Axanar-branded coffee) for sale through its donor store (in other words, these were not crowdfunding campaign perks, they were merchandise for sale) and had plans to produce tie-in books written by professional authors, until those authors discovered Axanar had no licence or legal right to publish Star Trek fiction, at which point they ran in the opposite direction.

    Axanar, being a professional independent production and not a fan film, paid salaries, built a for-profit film studio, and sought to trademark the name Axanar, which was created by and used in official Star Trek TV episodes and licenced products.

    Axanar, being a professional independent production and not a fan film, reached out to Amazon and Netflix about streaming deals.

    Axanar is not a fan film by any reasonable definition. That’s why it’s being sued and not the fan films that have been playing by the unwritten rules. (The guidelines for fan films didn’t exist until after the lawsuit was filed, and CBS has said they don’t apply to anything that was already in production when the guidelines were issued.)

  3. Gene Quinn January 18, 2017 11:25 am

    Robert-

    It was certainly a fan film with respect to the crowdfunding. It is certainly a fan film in that it is not being produced by the studio. It is certainly a fan film in that those behind the project are fans that want to bring by the real Star Trek (by your own admission).

    I’m just not convinced that you get to choose how “fan film” is defined. I’m also not convinced that the studio gets to define what a fan film is.

    Of course, there are many protectable aspects to Star Trek and whether it is a fan film or not does not change the copyright analysis. Similarly, whether one makes money or does not make money does not change the analysis.

    -Gene

  4. Robert E. Humphries January 18, 2017 1:36 pm

    Axanar itself declared it was not a fan film, repeatedly. I’m not defining anything, neither is CBS/Paramount. Alec Peters did that.

  5. Laurie January 18, 2017 4:17 pm

    Can you cite that Robert? I have never seen that in print from Alec Peters, as I recall that is how Axanar was and always has been referred to; a fan film. A really well done fan film.

  6. Jonathan Shulfer January 18, 2017 4:51 pm

    It hardly seems fair to criticize Axanar Studios for failing to comply with rules that did not exist at the time.

    The author states, [that Axanar is] “A dream come true for Trekkies, but a nightmare, I’m sure, for Plaintiffs, especially because Axanar doesn’t even come close to complying with Plaintiffs’ 10 guidelines for production of “amateur” Star Trek fan films …”

    Axanar Studios began and “Prelude to Axanar” was posted on Youtube in 2014. The Star Trek Fan Film guidelines were established in 2016 and were the first such rules ever established in the 50 years of Star Trek fandom.

    If one were to do a search for Star Trek Fan Films, practically all of them fail to comply with the new 2016 Fan Film guidelines. Clearly, the point of creating such new and restrictive guidelines is to prevent existing Star Trek Fan Films from continuing.

  7. ED STRAKER January 18, 2017 6:34 pm

    Gene,

    Axanar was certainly a COMMERCIAL VENTURE and a competitor to CBS, as the Judge ruled in Summary Judgement. Therefore, your contrary opinion has to be heard in the 9th Circuit now—it’s a commercial venture, already decided by a court of law.

    As for crowdfunding (for all to pay) and YouTube distribution (for all to see), maybe those services should be banned since button pushing is not a fan service as God provides it like air and water—sorry, it’s Kickstarter and Google are not privileges for life.

  8. Michael Hinman January 18, 2017 7:01 pm

    I find some of this report to be, well, in need of serious research. I mean, it’s definitely well written – but accurately written? Not so much.

    It is somewhat informative until you get to the limine motions, and then it’s just a laundry list without context. What’s even more interesting is that this writer presents this information without acknowledging the fact that while the “granted” rulings are pretty cut-and-dry, the “denied” motions are not – without knowing specifically if the full motion was denied, or just part, we cannot know exactly what that ruling is.

    But let’s explore where I find factual issues.

    • J.J. Abrams nor Justin Lin stated that the lawsuit “would be dropped.” Instead, they specifically said it was “going away” (which could mean a number of things, including settlement). A dropped lawsuit is a very specific term, as I’m sure the author – a noted attorney in his bio – should be well aware of.

    • Immediately following that statement in May, CBS released a statement to the media that it was pursuing settlement talks – but this was actually no change from before. Both sides had been in settlement talks from the very beginning, so the simple fact that settlement talks were continuing was not exactly news. From that information, it was not clear if CBS was going to just make the lawsuit “go away.”

    • Within days of the May statement from Abrams, the “ramp up” actually was caused by Axanar, not by CBS/Paramount. Axanar filed a countersuit. As an attorney, I’m sure the author knows that once a countersuit is filed, “dropping” a case is not as clear-cut. Outside of that, there was no “ramping up” … the lawsuit simply progressed as it would have if Abrams had spoke up or not. The only thing that didn’t change was the lawsuit “going away,” something Abrams had no authority (as CBS and Paramount have stated in a number of filings that Abrams is not an employee, nor a representative, of either studio).

    • The fan-film guidelines you cite came AFTER the lawsuit was filed. In fact, they came AFTER the J.J. Abrams statement the author cited earlier. Axanar was not sued because it violated these guidelines, because at the time of the lawsuit’s filing, these guidelines did not exist.

    • Further, the author has left out key components that differentiates Axanar from other fan-films. First, the studios allege that donation money raised by the defendants were used to pay personal salaries of the defendant and others close to him, as well as pay for personal expenses like car repairs, travel, meals, etc.

    The studios also allege that the money raised for this fan-film were used to seed a commercial studio, which Axanar’s principal opened just outside Los Angeles, with publicly announced plans to make this studio available for commercial rental.

    If the defendants had wanted to start a studio, and simply raised money just asking to do that, chances are they would not have received anywhere near the funds they did when they attached the Star Trek name to it.

    The studios also allege that the defendants tried to license out this derivative work to others, used for merchandise, and even to try and land a deal with Netflix that would have licensed streaming rights to “Star Trek: Axanar.”

    I have not found a single fan-film production that attempted to do any of these things that Axanar has done, and that is almost certainly why Axanar was differentiated from these other fan-films.

    • Can the author please show where the “Trekkie fan-base” is rooting for Axanar? There are some fans who are rooting for Axanar, that is correct. But they number in the hundreds (of those who are active). Most Star Trek fans are CASUAL fans, and most are not even aware fan-films exist, let alone there is a lawsuit involving one of them.

    Even if you go by the people who donated to this campaign, using the Axanar estimate of about 10,000 … how does that compare to the 33 million who purchased tickets to see “Star Trek: Into Darkness” at the theater? Even if we gave it a 5x multiplier (which would be VERY generous), that would still account for just 0.15 percent of fandom that purchased tickets to see “Into Darkness.”

    There also are a number of members of the “Trekkie fandom” who are quite familiar with this case, and are actually on the side of CBS and Paramount. And many of these people are actually active members of the Star Trek fan-film community. They do not see this lawsuit as CBS/Paramount vs. Fan-Films, but more CBS/Paramount vs. Axanar (a single fan-film). Just like when highway patrol hits the Interstate, it’s not CHiPs vs. All Drivers – it’s CHiPs vs. Speeders/Law-Breakers.

    I know there is a lot of material involved in this case, and it might be hard to come into this a year after-the-fact, just before trial, to try and learn about it and create a summary. So I hope this additional (and corrected) information will help the author correct his piece.

  9. Alec Peters January 18, 2017 7:18 pm

    There’s no part of copyright law that gives a “fan film exception” to exclusive use rights.

    All fan films, except parodies, violate copyright. Trek and Star Wars are really the only two companies that choose not to sue everyone who makes a fan film. But then, under the law, they don’t have to.

    Axanar doesn’t have a legal leg to stand on.

  10. Gene Quinn January 18, 2017 7:24 pm

    Michael-

    Thanks for your lengthy comment. Care to explain how you seem to have such in depth background knowledge?

    Since you took the author to task and didn’t hold back I’m sure you will agree it is fair for me to take you to task and similarly not hold back. So here goes…

    You seem to want (or expect) that this summary article, which is intended to be an article, is written as a full length expose or treatise on this litigation. I get this type of ridiculous comment occasionally. It seems that since you didn’t read what you wanted to read the problem lies with the author. Of course, that is idiotic. As I’ve said over and over again, an article is not a treatise. The fact that such an absurdly obvious statement needs to be made is laughable.

    You also take issue with the author saying that Star Trek fans are rooting for Axanar. And your next sentence says: “There are some fans who are rooting for Axanar…” Really? Talk about being intellectually dishonest. So take issue with the author and then agree with the author. Funny.

    You also say: “Most Star Trek fans are CASUAL fans…” I find that statement rather ridiculous myself, particularly when it is shouted as if by shouting it gives it some additional authority. I guess you aren’t very familiar with Star Trek fans. Of course, it is impossible to comprehend what you are trying to say since the statement on its face is factually untrue and there is no context provided to explain the nuance you may be trying to convey.

    You also rather ignorantly want to compare those willing to donate in a crowdfunding campaign to those willing to buy a ticket to see a movie, as if that is somehow evidence that supports you. There is no probative connection between the two and to suggest otherwise is really pretty stupid. Someone who is a fan is not always called to action to donate money. Someone who is a fan isn’t even called into action to do things that are free, like comment on a blog for example. We have a great many articles that are read many tens of thousands of times every year and the total number of comments is fewer than several dozen. We also have articles that are not read very much that have comments that number into the many hundreds. Your attempt to compare apples and elephants is cute, but ignorant.

    You also say that this case is not about CBS/Paramount v. Fan-Films, but rather CBS/Paramount v. a single fan film. That statement is asinine. Any ruling that comes out of this case will create precedent that will have implications for fan films, using characters and story lines, etc. Whether “they” see it as only being against one particular fan film doesn’t change the reality that it will broadly apply to fan films in general, particularly if the decision is appealed by either party.

    -Gene

  11. Gene Quinn January 18, 2017 7:26 pm

    Ed Straker-

    Care to explain why you think I said Axanar was not a commercial venture?

    What I said is that it is irrelevant whether any money was made. One can be liable for copyright infringement even if no money was made on a project. So not sure why or how you managed to misinterpret my comments.

    -Gene

  12. Michael Hinman January 18, 2017 8:13 pm

    Gene:

    Please, feel free to take me to task. I don’t discuss things with a closed mind, and in fact, always want to hear anything that might challenge what I believe. However, factual things are indeed factual.

    I am a journalist who has covered the Axanar case from the beginning, first from my Star Trek news site 1701News, and later with an entertainment news site called GeekNation. While the GeekNation coverage isn’t as specialized in Star Trek as 1701News was, I still follow the case very closely, and monitor ALL filings. I also take part in community discussions where this case (and other copyright cases) are discussed at length.

    I also have dealt with intellectual property issues for many, many years – both as a reporter, and personally. In 2009, I sold the SyFy brand I created to NBCUniversal in a somewhat high-profile trademark transfer.

    <>

    No, I expect even a summary article to present all pertinent information, and to be accurate when doing so. This summary went out of its way to cover specific aspects, and did so in a few cases either incorrectly or incompletely. I don’t think anyone has asked the author to provide every single nuance that is involved in this case – but major issues like the fan-film guidelines not existing before the lawsuit, and all of the commercial and licensing enterprises that are the core of this case (and conveniently left out of this summary) – leaves much to be desired.

    <>

    I see someone has not read the line under “post a comment” that says to “respectfully add to this discussion.” Trust me, I can jump into my entertaining comment mode, and really light fires. Instead, I have followed what is stated in this blog, and that is to “respectfully add to the discussion.” I hope you would endeavor to do the same.

    At the same time, it’s not about what I want to see – it’s about providing an accurate account of what has happened. I spent nearly 25 years as a reporter, and have literally written thousands upon thousands of stories for newspapers, online outlets, radio and more.

    Many times I have to take reams of information and condense it into an 800-word story, which is about as difficult as it sounds. And it can be frustrating when people point out that certain aspects were let out. But one thing that should NOT be left out are directly relevant facts.

    If I can introduce facts into a story that CHANGE whatever conclusions are being presented, then that means the writer has missed their mark. The writer here made statements that he claimed provided reasoning behind CBS and Paramount suing – yet, when you introduce the commercial aspect of this operation, that changes the whole reason, don’t you think?

    It goes from one argument to a completely different one – because pertinent facts were introduced.

    Maybe you think providing an accurate and properly contextual story is “idiotic.” I do not.

    <>

    I’m sorry, but are you able to read with depth? Or are you just a surface reader?

    The author intimates that ALL (or a vast majority of Star Trek fans) are rooting for Axanar. Let me quote the pertinent sentence for you again: “… this one feels a little different given the weight of the Trekkie fan base wishing to see the defendants achieve victory …”

    My statement made it clear that I disagreed that all or the vast majority of the Star Trek fanbase is rooting for it. However, that doesn’t mean no one is … this isn’t a discussion of absolutes. If you say I have a lot of money, and I say I don’t, I have a little – that doesn’t mean I’m contradicting myself. The story intimates a large number of fans, I make it very clear that it’s NOT a large number of fans (really on either side), and that a vast majority of Trek fans have no idea what this is all about, compared to those who are aware of it, and have taken whatever side.

    <>

    I don’t appreciate your assumption. I am quite aware of Star Trek fandom, and the Star Trek franchise itself.

    The basis for the casual fan statement comes from the fact that you can sell 33 million tickets to see a single Star Trek movie … but how many of them go to conventions? Look up Star Trek news online? Bought a Star Trek book?

    The majority of any fanbase is casual. We talk a lot about the more serious fans, because they are the ones that are usually talking about what they are fans of, and are the ones that are more noteworthy. But even in my circle of friends – and many of my friends not only are Star Trek fans, but have WORKED in Star Trek – I can find many who like Star Trek when they see it in the movie, or might stop to watch it if they are flipping through channels and not much else is on. But that is the extent of it.

    Can you demonstrate 33 million people attending conventions every year? How about 3 million? How many of just that 33 million buy merchandise? Books? Costumes? Can even do the Vulcan salute?

    This isn’t rocket science. I also provided a very detailed discussion of even the Axanar fanbase – and even with the most generous multiplier, that fanbase makes up just 0.15 percent of the fanbase that went and saw “Into Darkness.” That’s not 15 percent … that is 15/100ths of 1 percent. You would have to grow that base eight times just to reach 1 percent of the “Into Darkness” audience, and it means that 99.85 percent of the “Into Darkness” fanbase did not participate in Axanar’s fundraising.

    And that’s assuming both fanbases are shared.

    <>

    Once again, you are throwing around attacks. When that happens, it usually means that you don’t have an argument. So that’s OK. Just say you don’t have an argument so I don’t have to waste my time talking to someone who apparently already has his mind made up, and no fact is going to get in the way of whatever he believes.

    And by the way, the comparison of the two fanbases is just a comparative, and can indeed demonstrate the size of one fan base to another. These are two samples that represent people willing to spend money on something named Star Trek.

    The vast difference in the numbers mean only two things, really: Either the knowledge of Axanar does not reach the same mass audience as the Star Trek films to those interested in Star Trek (which then supports my point), or 99.85 percent of the audience that bought tickets to see a movie didn’t feel Axanar was worth their time.

    I’m going with the former over the latter.

    <>

    Create precedent? You mean, create legal precedent? How?

    Only if something goes to the appellate level, and there is some major change in existing case law that would establish this new precedent. I am not sure of your background, so I am not sure if you’re an attorney or not – but I would hope an attorney would know that.

    The courts have been making rulings very much in-line with what my lawsuit discussion group has been predicting. We are not legal geniuses or psychics – we just seem to understand the law, and when we don’t, we ask lawyers and others with knowledge in intellectual property to help fill in gaps, or correct us where we might be wrong, or help us understand something we do not understand.

    I am not a lawyer, nor have I ever claimed to be one (not even by training, as the defendant has done). But I have dealt with enough intellectual property in my career (and personally) to understand it well enough to know what kind of impacts this would have on the very communities I have helped cover for years.

    A little over a year ago, I wrote a commentary for 1701News discussing this case, and taking an early stance against Axanar. My hope was that the case would remain isolated and focused to just Axanar, and not spill over to other fan-films. And for the most part, it didn’t.

    When the guidelines were issued last summer, it did bring a large number of fan-films – including all the major ones – out of compliance. But at the same time, it could have been much worse. My greatest fear was that CBS and Paramount would say no more fan-films (outside of what would be protected by Fair Use, of course), or at the very least, no more crowdfunding.

    But while the guidelines are more restrictive than the freedoms fan-films had in the past, it’s still nowhere near as strict as those guidelines could have been.

    The only prayer Axanar really has at this point is trying to convince someone somewhere that by CBS and Paramount allowing other fan-films in the past, they provided a de facto license for Axanar to do the same.

    The problems Axanar will have with that argument, however, is that they are NOT the same as the other fan-films. Yes, they raised money and brought in some actors and crew and such to make something of their own Star Trek to share with others.

    But Axanar went beyond that, to the point that any IP holder could reasonably single them out. The alleged commercialization aspect of it is really key. The studio, the “donor store,” the product licensing, the public statements that made it clear they were competing with CBS and Paramount, the attempts for commercial distribution on platforms like Netflix … that clearly differentiates Axanar from other fan-films.

    The court already has ruled extensively against Axanar at this level, and there isn’t much left for the jury to decide. It’s basically going to come down to whether a jury feels there is substantial similarity between Star Trek and Axanar, and if so, whether Mr. Peters willfully infringed (which would then only affect damages at that point).

    Neither I nor you can say what will happen at the appellate level, because we have no idea what case would be brought to that level, so we can’t predict at all what kind of precedents would be set.

    But I hope this helps you understand my comments better. And have a great day!

  13. Janet Gershen-Siegel January 18, 2017 8:17 pm

    To Laurie (and anyone else who wonders where/when Peters referred to Axanar as independent, here ya go:
    https://www.indiegogo.com/projects/axanar#/

    In the Indiegogo information, written by the project owner, it says,

    “Axanar is the first fully-professional, independent Star Trek film. While some may call it a “fan film” as we are not licensed by CBS, Axanar has professionals working in front and behind the camera, with a fully-professional crew–many of whom have worked on Star Trek itself–who ensure Axanar will be the quality of Star Trek that all fans want to see.”

  14. Sam Karas January 18, 2017 8:43 pm

    Laurie, Alec has said “Axanar” was not a fan film in *literally* hundreds of social media posts and podcasts. Also, he spent 1.4 MILLION dollars of fan money on a for-profit movie studio, vacations for himself and his girlfriend, extravagant dining, his personal health insurance, gas and cell phone $$$ for himself and others, his SAG dues…(all in publicly available court docs). What it really comes down to is that he used donor money as risk-free seed money for his for-profit studio. That’s what really happened.

  15. Trekfanproductions January 18, 2017 8:49 pm

    Go look at TrekFanProductions . Com ull see a list of all the current fan films that are complying

  16. jaime Osbourn January 18, 2017 9:53 pm

    Someone should tell the author of this piece that those ten guidelines he says Axanar is in violation of. Weren’t even issued until after the litigation was started. Kind of hard to be in violation of guidelines that didn’t exist when you started.

  17. Gene Quinn January 18, 2017 10:03 pm

    Jaime Osbourn-

    The author wrote: “Axanar doesn’t even come close to complying with Plaintiffs’ 10 guidelines for production of “amateur” Star Trek fan films…”

    Saying that Axanar does not comply with the guidelines seems to be a perfectly accurate statement. Whether the guidelines existed only after doesn’t change the fact that Axanar doesn’t comply with the guidelines.

    Please try and keep up!

    -Gene

  18. Michael Hinman January 18, 2017 10:13 pm

    Actually, Gene, maybe you should consider keeping up …

    You just lectured me on how “idiotic” it was of me to ask that relevant information to the case be included. But now you’re defending what you admit is extraneous to the case and not even part of the case (the guidelines).

    So there isn’t enough room for aspects of the case that are relevant to the discussion, but room for those things that are not relevant to the case.

    The guidelines aren’t even part of this discussion. CBS and Paramount could not even sue over them, because that would then force the guidelines even more into de facto license territory than it already is.

    At the very least, if the writer did not intend to imply that part of the reason for the litigation was violation of guidelines that, at the time the suit was filed, did not even exist, then maybe he should go and clarify it.

    I have no idea, Gene, why you are bending over backward to defend every word of what is written. I don’t think the author of this post claims to be perfect, and I’m betting if he is worth his salt, he would want to ensure that readers understood what he was saying, and the factual points he is making.

    So I will wait for the author to respond to any of this, if he chooses to. Maybe he has a more mature way of dealing with readers.

  19. ED STRAKER January 18, 2017 10:23 pm

    Gene wrote “It was certainly a fan film with respect to the crowdfunding.”

    Wrong. Those are investors wanting a return on their money; i.e, a profit in any form that they feel fits. Not a fan film.

    “It is certainly a fan film in that it is not being produced by the studio.”

    Wrong. It is a competitor to CBS and Paramount. Not a fan film.

    To me, Gene wrote “Care to explain why you think I said Axanar was not a commercial venture?”

    ‘Cuz you said it was a fan film, the Judge ruled the summary judgement to be a commercial venture. Oh yeah, and [wacko] Alec Peters stated it was not a fan film on his social[ist] media accounts. CBS Guidelines are immaterial for others. What is material is CBS and Paramount can sue for infringement on any fan film, read the briefs, the decisions, and the agreed upon case law.

    The point is YouTube (owned by Google) have been raking in the dollars, disguising themselves as a fan-film distributor, when in fact they are content counterfeiters of pirated material. Thanks.

  20. Chris January 18, 2017 10:24 pm

    CBS/Paramount should be careful not to alienate the fans. Alienation of the fans who want “more” fan films could kill the franchise. The fan films, if anything, have added a larger fan-base to Star Trek. Not taken away from their profits.

  21. Robert E. Humphries January 18, 2017 10:29 pm

    Laurie, a couple of examples: “Please note that we are a professional production and thus RUN like a professional production.” (http://www.axanarproductions.com/axanar-annual-report/) “The ground-breaking independent Star Trek film…. Axanar is the first fully-professional, independent Star Trek film. While some may call it a ‘fan film’ as we are not licensed by CBS, Axanar has professionals working in front and behind the camera, with a fully-professional crew–many of whom have worked on Star Trek itself–who ensure Axanar will be the quality of Star Trek that all fans want to see.” (https://www.indiegogo.com/projects/axanar#/)

  22. A Wright January 19, 2017 3:57 am

    What if they’re doing this because “Star Trek, Discovery” has something to do with Axanar and CBS doesn’t want a fan made movie to steal their thunder? Honestly, the Axanar fan film footage looked magnitudes better than CBS’s sorry excuse for test footage. They should hire them instead of taking them to court.

  23. Laven Pillay January 19, 2017 4:31 am

    @Michael Hinman
    Thanks a lot for your in-depth and informative responses, as well as for your great attitude while having such a polarising discussion.
    This type of information is very useful to have added to the huge amount already floating around.
    And thank you for pointing out that many things are not absolutes – this is a significant factor in many peoples misunderstanding and interpretation of facts and emotions.

  24. Robert E. Humphries January 19, 2017 10:28 am

    A Wright, CBS owns the story of Garth of Izar, they own Axanar, they own the Klingons and the Federation, they own the role playing game that invented the idea (never seen on TV) that there was a four years war. All of that belongs to CBS, not Alec Peters. I think it would make a lousy idea for a series and I don’t think it’s likely that Discovery is going to have anything to do with it, but if they do, it’s theirs to do with as they please.

  25. Dan Bonilla January 19, 2017 11:16 am

    I think it’s great that we’re having this exchange on here – I appreciate you guys reading the article. I wasn’t planning on responding to any of the comments. That being said, some of the criticism is “asinine” and while Gene has done a fine job of addressing same, I want to clarify certain info.

    For starters, I know that the CBS/Paramount guidelines were created after the litigation commenced. I never said that a cause of action exists against the Axanar Defendants for breaching those guidelines. I simply stated, as Gene pointed out in his comment, that Axanar is a “nightmare” to CBS/Paramount b/c it doesn’t comply with the guidelines. I hope we can all agree that Axanar does not comply with the guidelines. IMO, CBS/Paramount execs. would be annoyed with (or even angered by) fan films that violate their guidelines irrespective of when the films were created (pre- or post-guidelines).

    My use of “dropped” was not meant to be a “legally technical” term – it was simply a shorthand for saying the lawsuit would be no more. And, other sources have also used “dropped” when referring to Abrams’s comments. (See http://www.latimes.com/entertainment/movies/la-et-mn-star-trek-axanar-lawsuit-update-20160617-snap-story.html; http://arstechnica.com/tech-policy/2016/05/in-off-the-cuff-anecdote-j-j-abrams-reveals-axanar-suit-will-be-dropped/). The point of my comment was to convey that a Star Trek insider, so to speak, felt the lawsuit would be ending but that did not happen.

    The “countersuit” noted in the comments above refers to Defendants’ Answer to the Amended Complaint, wherein Defendants included a counterclaim for declaratory relief.

    Gene’s comments about my article not being a full length expose or treatise covers many of the criticisms above. My initial draft of this article was longer and had more detailed information about things such as the “commercial enterprise” of the Axanar Works, Mr. Peters’s statements about the film, the motions in limine but it was too lengthy so I made cuts. I was planning on writing a second article with more detailed information about the motions in limine but my firm just picked up a couple big cases that will likely take up enough time in coming days to make such an article no longer timely.

    I made it clear in the article that Axanar is “of a new breed,” having raised over $1 million and intending to create a “professional” quality film. You can counter as you please, but those are the facts I presented, and it’s up to the jury to decide whether such facts, in addition to other salient facts, renders the Axanar Works an unlawfully infringing “fan film” or not.

    To the commentator who refers to me as a “noted attorney,” and who admittedly is not an attorney, sometimes filing a counterclaim can, in fact, make “dropping” a case more appealing to the plaintiff. I’m not saying that’s the case here, but b/c I feel that your comments to me (and Gene, who is also an attorney) come off as though you know everything, I had to share.

    I doubt that the number of fans out there supporting Axanar number in only “the hundreds.” The same comment noted, “Most Star Trek fans are CASUAL fans and most are not even aware fan-films exist.” The short film has 2.7 mil. views on YouTube. (See https://www.youtube.com/watch?v=1W1_8IV8uhA&t=144s). The Axanar Twitter account has 109k followers. (See https://twitter.com/StarTrekAxanar?lang=en). I don’t know the specifics of the crowdfunding contributions Axanar received, but I know that their indiegogo page specifies that they had 10,000 donors for what appears to have been the prior Kickstarter funding. (See https://www.indiegogo.com/projects/axanar#/). Those aren’t de minimis numbers, and the 10,000 the commentator used for his arithmetic might actually be a higher number now (correct me if I’m wrong). Also, Gene’s comment squarely addresses the commentator’s critique: “You also rather ignorantly want to compare those willing to donate in a crowdfunding campaign to those willing to buy a ticket to see a movie, as if that is somehow evidence that supports you. . . . [C]ompar[ing] apples and elephants.”

    With respect to precedent, I agree with Gene that a verdict / summary judgment ruling, etc. (as opposed to a settlement) in this case will have a precedent-like effect in the industry. One commentator pointed out his views on what precedent means. U.S. District Courts, while not binding on appellate courts, district courts, or sister courts, can create law that is highly persuasive and followed by other courts. And, more importantly, can be affirmed by the appellate courts and thereafter become precedent.

    As an aside, I agree with Chris’s comment: “The fan films, if anything, have added a larger fan-base to Star Trek.”

  26. Robert E. Humphries January 19, 2017 12:10 pm

    The Star Trek fanbase consists of two kinds of people: millions of people who watch the show on TV and see the movies, and hundreds of thousands, maybe, of people who care enough to go beyond that, doing other things that make them obviously active fans.

    In my offline circles, I know a lot of the first group and only two of the second, other than myself, and one of those two is my wife. I know exactly one person around here with any interest in fan films and believe me, my wife isn’t the one.

    Most of the active fans I know, I know online, through TrekBBS.com, Facebook, and other places, some going back many years. I used to talk Trek on CompuServe and usenet way back when. The majority of the active fans I know online are aware of fan films but don’t have much interest in actually watching most of them.

    As for the fans I know who’ve actually seen Axanar, most agree that Prelude looked pretty good. Also, most agree that CBS/Paramount were perfectly justified in suing Axanar and that Axanar should have folded long ago.

    Fan films like Star Trek Phase II have occasionally been given “we don’t mind that you’re doing this, but we don’t want you to do that” messages from CBS. They’ve complied. They haven’t been sued. Axanar was warned months before the lawsuit was filed that CBS/Paramount did not want them to do what they were doing. Axanar did not comply. And that, boys and girls, is the simple story of why Axanar was sued and actual fan films like Star Trek Continues, Star Trek New Voyages, and so many others weren’t.

  27. Robert E. Humphries January 19, 2017 12:15 pm

    Forgot the point to most of the above. I doubt fan films are bringing many new people to Star Trek. If they are, and those new fans are being drawn to the fan films instead of to the current movies or the TV series on DVD and streaming or the forthcoming Discovery, they’re part of the problem.

  28. Michael Hinman January 19, 2017 12:27 pm

    Mr. Bonnila, your response disappoints me. I really felt that in your piece here, you made a true effort to try and present the case as it is. But I am starting to doubt that was your true intent.

    I’ve always said that lawyers should leave writing to people who know how to do it. And to be honest, writers should leave lawyering to the lawyers. Many of the points that I have shared here comes from multiple background consultations with IP attorneys, and I check facts so that it is appropriate. I also have talked to people inside this case, on both sides (believe it or not), and things I share also are a reflection of those conversations.

    You never stated that the guidelines were the case of the litigation. But at the same time, you didn’t make it clear that they were not. This is known as an attempt at clarification – where your intention was not to convey a certain idea, but your writing betrayed you. It happens even to the best of writers, and usually after the fact that we publish something. The nice part about modern society is that such publication is digital, and we can actually clarify it better.

    Sometimes, our fingers don’t convey what our minds want it to, and that’s fine. When someone reads something I wrote different from intended, I don’t make excuses and defend it for dear life. I look, I see where people could get a mistaken impression of what information I am trying to convey, and then will make adjustments where necessary to make sure my original intention is the one that shines through.

    Communication is not just a one-way process. It’s not about the broadcaster, it’s also about the receiver. And when we write and publish, we have to be aware that not every receiver is made the same, and some will not pick up our “broadcast” as clearly as we sent it. And if it seems more likely than not that the received signal is different from the sent signal – then we should recalibrate the signal.

    Just to note to you, nearly ALL existing Star Trek fan-films violate the guidelines in some way or another. Even the biggest ones like “Star Trek Continues” and the former “Star Trek: New Voyages” would be in violation of major aspects of these guidelines. And you’re right, CBS and Paramount would be annoyed (and have been annoyed) if a fan-film has gone too far.

    And the studios have reached out and expressed that to those fan-films when that has indeed happened. “New Voyages” could talk about a few instances where they were contacted by the studios and told they crossed a line – including a very public interaction involving an unfilmed “Star Trek” script. I’m sure “Continues” also could share times they were contacted by the studios for one thing or another, and how they quickly brought what was out of line back.

    There is even direct evidence that the studios tried these regular private channels with Axanar, meeting with them in August before the lawsuit was filed. We don’t know the details of that meeting, but a week afterward, the Hollywood trade publication The Wrap published a story about Axanar, and when it sought comment from CBS and Paramount, CBS issued a statement that made it VERY clear it was unhappy with Axanar, and the commercial aspect of their operation. In fact, it was quite explicit.

    Also, the word play you’re doing with “dropped” is a bit … disconcerting. You are on a legal blog, talking in legalese, except where it’s pointed out that the word is inaccurate. Then, instead of saying that maybe you should have used a different word or phrase, suddenly you’re not speaking in legalese anymore. That’s rather convenient.

    And while it’s nice that you refer to multiple media outlets on how they reported something, those are stories written by reporters who also are not lawyers. So you dismiss what I am saying, because I am not a lawyer. But you depend on what other reporters say, who also are not lawyers.

    You are an attorney. You should know your own business, and know your own lingo (especially words that are misused by the non-legal media all the time). All you had to do was read the stories and read the quotes. And then read the statement CBS issued immediately following that. It doesn’t matter what a reporter says … you’re the attorney. You know the difference between “going away” and “dropped,” especially from a legal standpoint. So why use a word that has a very specific meaning in your industry?

    Also, I can concede that the counterclaims filed mere days after J.J. Abrams fan-festival comments were part of the answer to the complaint. But that also returns us to the initial point that I made … that saying CBS and Paramount “ramped up” the suit rather than “drop” it is misleading, if not inaccurate. The case simply went on as scheduled. CBS didn’t say, “Screw you, J.J.!” and then put the pedal to the medal – they simply continued with the lawsuit. Both sides.

    I do understand there is an editing process involved, and hey, I feel for you. I like to write a lot, so it pains me sometimes to have to edit pieces down, and major things get lost. But the laundry list of limines? I don’t know … considering they don’t really convey any real information (I mean, will a casual reader of this blog not familiar with this case even know what any of those limines are about? There is no context provided, and we don’t even know the extent of the individual denials).

    But it’s your piece, and to each their own. You chose to keep the limines and cut contextual information like the commercial aspect of the case – a core aspect of the case presented by the plaintiffs. Without that commercial core, it just looks like CBS and Paramount are picking on one fan-film, while ignoring everyone else doing the “same thing.” Except they aren’t … there are major differences, beyond the $1 million and professional quality.

    “Star Trek: Horizon” was a feature-length fan-film that was released after the lawsuit was filed. It was made for $50,000, and is quite stunning for a fan-film. Yet, CBS didn’t shut it down. Nor did they sue Tommy Kraft, the man who almost single-handedly created it. CBS and Paramount did not shut down “New Voyages.” In fact, CBS signed a licensing agreement with New Voyages that allow them to provide tours of their sets, which are EXACT replicas of the original series Star Trek sets.

    There is a reason why this has been singled out, and it is only my opinion, but I am in the comments only expressing my opinion.

    Finally, the little slap about me “knowing it all” … I didn’t just look at this case last month for the first time, do some research, and then write a blog about it. I’ve been covering it from the very beginning, and have either reported or been exposed to hundreds of different aspects of the case.

    I don’t go for sexy headlines or misleading stories about the case. I do have an opinion of the case – I feel Axanar went way too far, and that CBS and Paramount have every right to sue, and will almost certainly win. Which leaves a bad taste in my mouth, because I’m not one to normally defend major companies, let alone TWO.

    If the case was different, or if it progressed differently than I and others have anticipated, then I very much would report that aspect as well. I don’t write stories to promote agendas – I write them to ensure that anyone interested in such stories have ALL the PERTINENT facts that would help them arrive at an accurate and honest conclusion.

    I treat Axanar in stories like they were my own mother – working to be completely fair, and giving them a chance to present their case, as I do for the studios as well.

    If a jury finds in favor of Axanar in the small aspects that are left, I will be surprised, but also fascinated. But that’s the journalist in me, someone who is intrigued by something new, unique and unexpected.

    And I will say, if I had an agenda, it would be pushing for an Axanar win. Because if CBS and Paramount win, it’s expected. So what. The sun sets every day, and then rises again the next day – we don’t write stories about it.

    But an Axanar win? That would create a number of stories that would keep me busy for a long time, writing about some fascinating explorations of copyright law.

    My goal outside of my own writing is to work to ensure that information is accurately presented, whether it be by reporters, lawyers, or whomever. It’s not a knock on you or anyone else – if I hadn’t been so engrossed in this case over the past year, and I just started to write about it, I’d probably get some things wrong, too. Or miss something that was key.

    I can be a total jerk when responding (usually for entertainment purposes, but also because editors are direct and don’t waste time, and that can come off as jerky, and rightfully so). But I went out of my way to be quite respectful.

    I’m sad that you could not respond in kind. So while I appreciate the spirited discussion, I have shared my thoughts, and interacted with you. And unless there is something else more pressing, have a good day.

  29. Michael Hinman January 19, 2017 12:33 pm

    Oh, and my apologies for the misspelling of your name. It really was a typo. I don’t have the ability to edit it, so I will just apologize here.

    I do know how to spell “Bonilla,” as I was a huge Bobby Bonilla fan as a kid. 😀

  30. Gene Quinn January 19, 2017 12:38 pm

    Michael Hinman-

    You wrote: “I went out of my way to be quite respectful.”

    I don’t know what kind of game you are playing, but your arrogant tone from the beginning is hard to miss. You have not been respectful, and frankly you really haven’t forwarded the discussion in any meaningful way. In fact, I can’t remember seeing anyone write so much and say so little.

    You wrote: “I treat Axanar in stories like they were my own mother – working to be completely fair…”

    That is ridiculous. Your comment shows clear bias against Axanar.

    You wrote: “I can be a total jerk when responding…”

    Agreed.

  31. Michael Hinman January 19, 2017 12:47 pm

    Hey, Gene … at least I can admit it. Let me know when you do.

    And have you ever READ lawyer talk? It’s a lot of words to say quite a little. In fact, I find legal reporting to be the easiest, because the real work is trying to find the point, not condense a lot of information.

    Thanks for letting me stop by your blog! And have fun reading patents (I mean that genuinely, I do think patents are fascinating).

  32. Gene Quinn January 19, 2017 1:24 pm

    Michael-

    You say: “Hey, Gene … at least I can admit it. Let me know when you do.”

    Not sure what you are referring to here. I recall that you complained that the author wasn’t clear in his writing and allowed multiple interpretations, which was comical. But here you make a statement that no one could possibly understand. No meaning whatsoever. Pot meet kettle.

    You say: “have you ever READ lawyer talk?”

    Since I am a lawyer… yes. LOL. Are you some kind of comedian, or just completely uninformed?

    You say: “I find legal reporting to be the easiest…”

    If that is the case then you are getting a lot wrong, which would explain why it takes you so many words to say nothing. Not to mention writing one thing and then contradicting yourself in the next statement or paragraph. Perhaps you should think things through more.

  33. ThatOneMeanGuy January 19, 2017 9:10 pm

    Hinman has an Axe to grind with Peters it appears for some reason to which I am not privy, and I admit I may be coming to the game late, and missed some earlier comments on other stories that explain this. Having become curious, and researched many of Hinman’s claims. I honestly do not find much validity in them.

    I agree that the likelihood of Peters and Axanar Productions wining this case is extremely Low, but stranger things in Copyright law have happened. I also agree that it is far more likely that both sides settle, as that is usually what happens.

    It appears to me (from what I have seen, that the subject matter CBS plans to use in their new show, was too similar to what Peters was doing, and In my opinion that is the most likely the reason they went after Axanar. Does this hurt fan films in the long run, yes I believe so, as well as erode the trust between fans and CBS/Paramount, but am old enough to remember what happened in the 90’s, and we all recovered.

  34. starbase63 January 20, 2017 1:27 pm

    Glad to see Gene finally saw Michael Hinman for what he is. Michael is considered one if the lead players of the Axanar “hater” crowd, who has a personal vendetta against Alec Peters and will let his anti-Axanar bias show at any opportunity. Really class of him to start taking shots at Mr. Bonilla once he didn’t feel the article supported the side against Axanar.