Peters: Settlement Depends on Being Able to Satisfy ‘Axanar’ Fans

While negotiations haven’t completely failed, producer Alec Peters said November 4, 2016, that not much progress had been made after court-mandated settlement talks and a conference call between a federal magistrate and attorneys for Axanar and the studios suing infringing Star Trek copyrights.

Earlier in the week, Federal magistrate Judge Charles Eick led a meeting between plaintiffs CBS and Paramount, defendants Alec Peters, and their respective attorneys on October 31.¹⁾

Eick’s conference call included only the attorneys for both sides.

In his statement after the conference call, Peters said negotiations would continue but had appeared to make little headway on his non-negotiable point, and that he’s prepared to go to trial:

Axanar producer Alec Peters.

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.²⁾

If the two sides proved unable to reach a resolution, observers aren’t likely to know about it until some other court filing. The next deadline in the case is November 16, by which motions, particularly for summary judgment, are due. Such a motion would have the judge rule on the case shot of going to trial.

Peters reported after the first meeting that the two sides “are close” to a settlement but cautioned Axanar fans to “manage their expectations.”. He posted the following on Facebook:

Eick issued the order October 17. This settlement conference was the means of alternative dispute resolution elected by all the parties to the suit in response to a court order in March.

Federal district Judge R. Gary Klausner directed both sides to work with Eick to explore a settlement in order to avoid the time and expense of moving to trial. The conference is meant to create space for informal discussions between the attorneys, parties, applicable insurance companies and the settlement judge, about any aspect of the lawsuit bearing on its settlement value.

Eick had earlier ruled on two discovery-related motions: one which granted the defense some but not all the documents they sought from the studios, and another which granted the plaintiffs new depositions and broader access to Axanar’s financials after a trove of Peters’ undisclosed emails were uncovered.

Since the lawsuit was filed 10 months prior, CBS and Paramount representatives had met repeatedly with Peters and his attorneys to discuss possible settlement but those efforts appeared to prove fruitless. The October 31 conference would mark the first time they met with a judge facilitating the meeting.

Eick’s order for the conference required:

• Both sides to have representatives with the legal authority to agree to a settlement without having to consult with a superior.
• Both sides to have the authority to agree to a monetary settlement to be proposed by the magistrate judge.
• Authorized representatives for the plaintiffs and defendants to accompany their attorneys to the conference.
• Attorneys for both sides to have explored the parameters of settlement with their clients well in advance of the settlement conference.

Interestingly, the settlement order gives notice that the magistrate judge has the discretion to privately converse off the record with each of the plaintiffs, defendants or their attorneys.

Eick also directed the parties to submit five-page settlement conference statements by October 24; they were not obligated to share their statements with opposing counsel. The statements are supposed to recite the two sides’ positions on issues about the facts of the case, applicable law and possible damages.

The statements also had to include the history of the parties’ settlement negotiations to date, including:

• Details about specific demands and offers.
• Fully itemized damages.

The studios have so far not specified the basis on which they want to calculate damages against Axanar. Under copyright law, plaintiffs can opt for either actual damages caused by the alleged infringement or statutory damages of $150,000 per instance of infringement.

The issue of calculating damages was a central part of the defense’s discovery motion, and the reason behind Axanar attorney Erin Ranahan‘s request for a half-century’s worth of the studios’ financial records regarding Star Trek. Eick narrowed that request to only the past seven years.

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