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Fact Check

Axanar Assures Donors Lawyers Will Stay for Appeal

Spokesman minimizes legal travails, Peters claims multimillion-dollar film ‘just a hobby’

Main story: Judge Denies Axanar Its Fair Use Defense
See also: Axanar's Chances on Appeal

Axanar told its donors it not only plans to to pursue its copyright infringement case to the Ninth Circuit Court of Appeals but that its pro bono law firm, Winston & Strawn, would stand by the beleaguered project.

FACT CHECK is an AxaMonitor series examining claims made with regard to the Axanar case, chiefly Alec Peters’ blog posts, interviews and public announcements. Read the series »

Reassuring Donors

In a January 4, 2017, statement to the Axanar Donors Group on Facebook, spokesman Mike Bawden lauded the “resourceful and experienced legal team from Winston,” and related the firm’s continuing commitment to the case:

In our conference with counsel today, we were reassured they would continue preparing our case for all options — from a negotiated solution with CBS and Paramount to a formal appeal to the Ninth Circuit Court of Appeals.1)

Bawden sought to reassure donors concerned about Axanar’s chances in court after months of failed settlement talks and a string of court decisions eating away at its case, culminating in federal Judge R. Gary Klausner‘s ruling denying Winston its fair use defense on behalf of defendants Alec Peters and Axanar Productions.

Axanar spokesman Mike Bawden with producer Alec Peters.

ONE MORE STEP Bawden described Klausner’s decision, characterized by most legal observers as a heavy blow to the defense, as “just one more step in the legal process leading to a jury trial later this month.”2)

LEFT TO THE JURY Bawden also described the coming trial as the forum in which a jury will determine whether Axanar is “substantially similar” to the Star Trek works owned by CBS. That elided the fact the judge actually found from a purely legal (“extrinsic”) analysis that Axanar had in fact used significant Star Trek copyright elements for commercial purposes with the likelihood of harming the market for the studios’ own works.

What the judge left for the jury to determine was whether a subjective, “intrinsic” analysis — the judgment by reasonable lay people — would find that the “total concept and feel of [the Axanar and Star Trek works] were substantially similar” — something the law states a judge cannot decide; only a jury can.3)

Peters: Axanar 'Just a Hobby'

Meanwhile, through his surrogate blogger at Fan Film Factor, Peters reportedly attempted to minimize the importance of the case to him:

Alec told me earlier today, it’s just a lawsuit. It’s just business. It was essentially a hobby for him. He didn’t work in the film business before Axanar, and if he loses this case, he likely won’t work in the film business afterward. That’s not a sinking ship; it’s just status quo.4)

Finding a reasonable resolution remained more difficult than ever, with the judge finding Axanar was a commercial endeavor likely to harm Star Trek’s owners.

Boilerplate Assurance

Bawden ended the statement by repeating the assurance he had made in almost every previous press statement Axanar released:

Axanar Productions remains committed to finding a reasonable resolution of this matter that respects the concerns of CBS and Paramount while allowing us to tell the story of Axanar in a way that will meet the reasonable expectations of the over 10,000 Star Trek fans who helped back our project from the beginning.5)

Uphill Battle

Unfortunately, this latest court ruling made finding a reasonable resolution that respects CBS and Paramount’s concerns more difficult than ever, with:

  • Axanar’s fair use defense gutted;
  • The judge’s finding Axanar was a commercial endeavor likely to have harmed Star Trek’s owners, and
  • Peters’ admission he spent all $1.4 million that was to have gone to produce Axanar.

Keywords

1)
Mike Bawden post, Facebook Axanar Donors Group, 1/4/17.
2)
Mike Bawden post, Facebook Axanar Donors Group, 1/4/17.
3)
Judge R. Gary Klausner, Order Re: Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment, Docket 163, p. 9, 1/4/16.
5)
Mike Bawden post, Facebook Axanar Donors Group, 1/4/17.