For the Love of Spock: Let This be Their Last Battlefield

Commentary

By Bjorn Munson
AxaMonitor contributor
January 8, 2017

LET’S START with the pleasant updates, shall we? I finally had a chance to see Star Trek Beyond and enjoyed it immensely. Okay, maybe I didn’t quite like it as much as these folks did, but I see where they’re coming from. It was delightful Star Trek, balancing plenty of action with some Trek-style thematic underpinnings and full of references to the overall franchise (including surprising –yet not unwelcome– love for Enterprise, the last series).

It finished 15th overall in the 2016 domestic box office and made $343 million worldwide, but in today’s rarefied standards, that is evidently a flop. I kind of understand. Given that most modern blockbusters spend the same amount of prints and advertising (P&A) as they do on the production budget –reportedly $185 million in this case– Star Trek Beyond therefore cost $370 million to get from idea to local cinema. But just like Waterworld and many other films that fall short of the mark in theaters, the question is how soon the film is profitable, not if. Still, Paramount executives are probably bummed they can’t start their own space program based off the profits of this film alone — like Disney is currently able to do with Rogue One. In fact, Disney has made so much money on its collective movies alone for the past few years, I wouldn’t be surprised if they suddenly announced they had built a heretofore secret moon base and were currently colonizing the outer solar system. But I digress…

ABOUT THE AUTHOR Bjorn Munson is an actor, voiceover artist, writer and producer. This commentary was originally published on his blog, bjornmunson.com.

As with so many modern feature films, I feel there were perhaps 20 minutes of enriching backstory in Star Trek Beyond that was cut from the film that would have helped it immeasurably. If this had been a modern TV series, with naught but 10-13 episodes in its exquisitely produced season, I think we would have been all agog. Every character’s storyline could have expanded to satisfying arcs and Krall’s origin could have been a fantastic reveal in the penultimate episode.

Spaceflights of fancy such as these are what makes me all the more excited for the new Star Trek TV series due in May of this year. While it’s apparently experienced some turmoil as original showrunner Byran Fuller is stepping aside and executives discovered that (gasp) sci-fi/fantasy can cost some serious ducats, there’s plenty of tidbits that indicate this could be the kind of serialized, ensemble show both modern audiences –and Deep Space Nine fans– will love. And who doesn’t love the idea of Michelle Yeoh as a Starfleet captain? Make it so.

Ah, but we can’t stay in this pleasant nexus of Star Trek thoughts, can we?

« I’m also not holding out hope that Axanar and their defense team will settle. … Their hubris has helped decimate an entire ecosystem of fan productions. »

Firmly in the column of unpleasant news, is the Axanar lawsuit, which has moved from the “tediously-long-story-told-by-coworker” stage to the full-blown “insane-drunken-uncle-at-holiday-gathering” stage. AxaMonitor has recently released a synopsis of the legal battle in comic book form in case you want to get caught up.

The short version of it all is that the drunken uncle still refuses to admit he’s not entitled to use other people’s property — even when they tell him not to use their property in the form of a lawsuit in federal court.

Even shorter: the case isn’t settled.

It isn’t settled, despite some embarrassing facts coming to light this past Fall. Remember the pre-trial discovery phase? Well, various people have now been deposed including the original Prelude to Axanar director, Christian Gossett, and Axanar producer Alec Peters. There were already questions about Axanar’s finances and what it was being spent on, but now from the depositions, it appears Mr. Peters spent money raised through crowdfunding on all sorts of personal expenses for himself and friends including:

GARTH VS. GARTH Axanar producer Alec Peters as Garth (left), and the original appearance of the character, portrayed by Steve Ihnat.
  • Restaurant bills
  • Phone bills
  • Gas, insurance, and maintenance of his car

Oh, and that whole question of using the funds to lease and renovate a building for use as a commercial studio space? That was confirmed in the depositions as well. And lest one forget what a deposition is: this is evidence. Legal evidence. Testimony given under oath. Testimony given under oath, in part, by Alec Peters.

Axanar’s reaction? We shouldn’t have seen the unpleasant things in the depositions, therefore, there’s no problem. But, should you want to comb through these pesky legal documents, the pie-loving CBS/Paramount vs. Axanar Facebook page has ’em. If there’s a particular tidbit you’re looking for, just ask on the forum.

In addition to all the official documents of the case, we have all the social media and PR pronouncements from the Axanar team, most memorably from Alec Peters (and frankly, many of those are now evidence in the case). These pronouncements have… changed somewhat over the past year of the lawsuit. And of course there’s never an official retraction to these statements. All of Alec Peters and Axanar’s assertions are apparently still valid.

So, if you are to take Alec Peters at his word, working on Axanar has been:

  1. A full-time job which is just a hobby, for which he
  2. required a completely reasonable salary which is not a salary because he paid it back
  3. to produce a professional feature film that is simultaneously a fan film
  4. to be shot in a studio which is a commercial studio except when it’s not and is just a warehouse
  5. and they were all ready to begin shooting in the beginning of 2016 yet the studio/warehouse still isn’t ready for shooting in 2017
  6. and they have been working meticulously to get every detail adhere exactly to Star Trek canon because they’re doing this for the true Star Trek fans,
  7. but this is in no way a Star Trek film

Got it?

For “Whom Gods Destroy,” indeed.

Oh, and just like the asylum denizens in that episode, Axanar still has its supporters. More on them and their cognitive dissonance below.

First, let’s talk about what should be top on the mind of anyone who liked Prelude to Axanar and supported any of the crowdfunding campaigns: the Axanar feature film.

The Axanar crew was given $1.4 million to make this fan film. I’ve done multiple crowdfunding campaigns for films and supported colleagues’ crowdfunding campaigns for films and web series and so on — all of them for less than one tenth of the money Axanar received. Not a single one escaped setbacks or unexpected cost overruns, but they were made.

And this is such the important point. Even with the ridiculous game-playing by the Axanar team, I know many, many people would forgive all the ridiculousness and all the delays if there was a Star Trek: Axanar feature to show for it.

Instead, Alec Peters says that the money was spent “as promised.”


Image/Dayton Ward

Even expensive rock creatures won’t save things at this point: we’re not seeing Axanar.

But wait, there’s more!
Just this past week, U.S. District Court Judge R. Gary Klausner ruled that Axanar has “objective substantial similarity to the Star Trek Copyrighted Works.” (you can read the full decision here). I suppose one might find solace that Judge Klausner did not grant CBS/Paramount its desired summary judgement, but the ruling does eliminate using Fair Use as part of the defense.

« The Axanar Works are not transformative. … The Axanar Works are commercial. »Judge R. Gary Klausner

A jury trial still awaits (barring settlement) not because there’s a question of whether CBS/Paramount has been wronged, but because a jury gets to weigh in on the degree to which CBS/Paramount is wronged as well as the type and amount of damages.

(Okay, that’s my layperson take on it, you can check out Eriq Gardner’s article and the ruling to learn more about intrinsic and extrinsic tests and other details).

So at this point, the Axanar has decided to… claim victory of sorts?!?

Yes, CBS/Paramount has fallen right into Axanar’s legal trap: in a jury trial the case may simply be dismissed with no damages awarded. Evidently, some of this hope is borne out of the fact that, since this is a matter of multiple copyrights versus one, clear-cut trademark, technically Judge Klausner didn’t say CBS/Paramount was wronged in his ruling. That determination is entirely up to the jury. So the jury needs to have sufficient cognitive dissonance to ignore all the similarities CBS/Paramount has already pointed out and will certainly point out in a trial.

There’s also the matter that we wouldn’t be talking about this if Axanar was some space adventure that talked about “warp drive” which somehow got CBS/Paramount worked up over petty word usage. It’s a film project that specifically invoked Star Trek and the Star Trek universe in order to raise funds. Even a reverse tachyon pulse beamed directly at the jury won’t stop them from concluding there was willful infringement.

« For the love of Spock, this cognitive dissonance is so overwhelming I’m surprised there haven’t been any head explosions. »

No matter. Axanar will win on appeal! Pay no attention to the implausibility of this scenario. As one person quipped on the Facebook forum, if the appeal fails, it’s constitutional amendment time!

Half a year ago, I mused that “[Axanar will] settle. It’s just a question of when.”

Boy, did I misjudge how crazypants this case would be.

The original narrative most all of us were presented with was a familiar one: wherein a big, bad corporation was picking on a little guy for the sake of flexing their control-freak muscles to squelch a little fun fan film.

That turns out not to be true. $1.4 million is not a little fun fan film — and not producing the film at all certainly isn’t. (remember: early last year, the judge stated the lawsuit did not prevent Axanar from making their film: no injunction was in place).

I suppose someone could ignore the dizzying story-changing from the Axanar camp I mentioned above (the fan film which is a professional Star Trek film that isn’t a Star Trek film, etc.). I’ve backed scores of crowdfunded projects before and a couple have crashed and burned — but I’ve never been treated to an ever-morphing story like Axanar. In fact, the creators usually go out of their way to make sure they do right by their backers — and they certainly don’t insult their backers nor the professional actors that helped them bring their vision to life (btw, that’s evidently a response to this – who insults Candyman?!?).

Someone might also ignore the very unusual web of anonymous shell corporations involved on the Axanar side, which appear to be set up to shroud how Axanar and Alec Peters personally may have profited. This latter part is part of court documents and so hopefully the truth of the matter will eventually come out.

But seriously, you can honor the principle of “innocent until proven guilty” and still guard your wallet. And for any of us who actually backed the Axanar, you have to be suspicious — someone might have swiped some quatloos from said wallet!

But let’s say someone, for some reason, buys all the reasons that the production is delayed and there is no movie (despite $1.4 million being spent). And let’s say they don’t fear they are the victim of a lying, cheating grifter because that has not been unequivocally confirmed.

That leaves the legal arguments: specifically the arguments to be presented at the jury trial, which may begin as soon as January 31st.

Well, one can’t argue Fair Use. That defense has been neatly and completely dismissed by Judge Klausner in his ruling. Axanar may want to bring it back on appeal, but they don’t get to argue it to the jury (unless I’ve missed a central reason for the ruling).

So what’s left? It really appears to be two points:

  1. That all the elements that seem like Star Trek are really not Star Trek intellectual property.
  2. That Axanar is entitled to use Star Trek intellectual property.

Now here’s where we get to the heart of the cognitive dissonance on the part of Alec Peters, the Axanar crew, and the others who are strangely still supporting Axanar.

The defense team, the actual lawyers, are trying desperately to argue point #1. Somehow, this is not a Star Trek fan film or Star Trek. Good luck with that one.

However, if you go on the Axanar discussion boards or have followed their blogs for the past few years, Axanar and its supporters are fully behind point #2.

A year ago, six months ago, and even this week, I read comment after comment about how Alec Peters and company are entitled to make this film because it’s what Star Trek fans really want. In fact, he is the one person who can help lead a path out of the current morass of feature films that make hundreds of millions of dollars at the box office. Pshaw. Those films are Denebian slime devil pus and CBS/Paramount are fools. They should feel lucky to settle in the face of Axanar’s righteousness.

If there is any acknowledgement of defense point #1, it’s with a wink and a nod, as if “we know it’s Star Trek, but if it helps us get Star Trek Axanar made to say otherwise, then it’s not Star Trek. Oh, and did we mention we’re huge Star Trek fans? The best fans, really.”

For the love of Spock, this cognitive dissonance is so overwhelming I’m surprised there haven’t been any head explosions.

Author and audio dramatist Jay Smith sums up many of my feelings quite well in a post from this past November about the legal battle of Axanar. We all love Star Trek and we’ve loved Star Trek fan films, but no amount of fan love will ever equal ownership. No matter how fervent the fan, they do not get some bizarre “eminent domain” of someone else’s intellectual property.

The law doesn’t work like that. The law has never worked like that, and it never will. The legal case for Axanar is ultimately untenable because copyright and intellectual property matters.

There has been much discussion about why the dwindling number of Axanar supporters do support Axanar with such grim prospects of winning and such disturbing revelations of financial tomfoolery. There’s the obvious “sunk cost fallacy” that they have gone this far and this long supporting Axanar, they feel compelled to maintain this support.

But why do they support Axanar? Based on the comments in the aforementioned social media and after articles, many people have gone beyond simply wanting to see the Axanar feature to seeing “true” Star Trek. They went beyond simply disliking the new Star Trek movies to finding them a betrayal against this “true” Trek. And in Alec Peters and company, they have found someone who validates these feelings: there is such a thing as true Star Trek. You have been wronged by the blind corporate overlords. Your fandom does entitle you in a say to what the corporation does.

Now, I would be the last one to say things can’t have a Star Trek feel. I mentioned that as a big part of my enjoyment of fan films. But if the people who own Star Trek decide to make something else entirely and slap the name “Star Trek” on it, well, I may be disgusted, but the only thing I can legally or morally do is not give them my attention, financial or otherwise. That’s certainly been the case with Transformers, something I enjoyed growing up. I just don’t watch the Michael Bay movies.

I know it’s hard, especially as corporations have clued into the immense potential of energizing fans, making fandom seem more commercial and transactional, but them’s the breaks. Joss Whedon fans appear to be among the most rabid fans out there (yeah, I’m talking about you, browncoats), but they’re not about to try and profit off of that ‘verse at the expense of its creator. Heck, a lot more people love what Joss Whedon did for the Marvel Universe — and I suppose if some bizarro version of Joss Whedon declared he was going to make his own version of an Avengers movie because Marvel lost its way and even if millions of his fans supported this endeavor, Marvel parent company Disney would be laughing all the way from here to their aforementioned moon base.

It’s not legally tenable and it’s not morally right.

And here’s the kicker on the moral front. Star Trek is not the huge fictional universe we love because of Gene Roddenberry. It is that vast universe because of the team that Roddenberry assembled. Hundreds of actors, writers, designers, and other crew during and after Gene Roddenberry’s tenure have helped bring the strange, new worlds of Star Trek to life. Just like the Federation, this isn’t the work of one person alone. To my mind, this doesn’t diminish Gene Roddenberry, it exemplifies his vision of a positive future.

If you’ve watched and loved episodes and movies of Star Trek, you’ve sensed that love was put into facets here and there. If you’ve read the interviews from so many of these people, you know this wasn’t simply a paycheck. Star Trek was something to have pride in and to love.

Quite simply, we have had official Star Trek made by Star Trek fans for decades now.

Alec Peters is not one of them.

If he were, he might understand that CBS and Paramount –and any owner of intellectual property– doesn’t give jobs based on fan fervor, but on how someone can deliver a story. And Alec Peters has failed to deliver on the story so many of us wanted him to deliver. In fact, many of the key people who helped deliver Prelude to Axanar have abandoned him and Axanar because of the attitudes referenced above.

Perhaps I and others who have become disillusioned by this lawsuit will be proven wrong in our suspicions. Perhaps this isn’t some bizarre quixotic attempt to use someone else’s IP to fund a certain lifestyle and Hollywood dreams. But I’m not holding my breath.

I’m also not holding out hope that Axanar and their defense team will settle. Either because they sincerely believe some faulty legal logic that they can use Star Trek IP, or they’re hoping some long con bears fruit, they see no profit in calling it quits. Their hubris has helped decimate an entire ecosystem of fan productions — and I can guarantee you those people will not forget or forgive Axanar. The only solace is the larger federation of Star Trek fans is by and large unaware of its existence and while Axanar claims thousands of supporters for its “real” Trek, millions of fans will likely watch the new Star Trek series and other offerings and feel free to enjoy it regardless of what these self-appointed gatekeepers think.

Nevertheless, Axanar is pursuing a legally untenable and morally indefensible course — and it doesn’t benefit Star Trek fandom one bit. I look at my posts from last year and the hope and optimism that there could be a solution that would be a win for all. Who would have thought the big corporation would be the relative good guys?I am so sorry to say this, but I am heartily sick of Axanar’s presumption to speak for all fans and hubris in not listening to anyone else (including many who helped them make Prelude to Axanar). Whatever the coming trial can do to end their folly, I wish it.


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