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— | summary_replies [2018/07/02 17:47] – [Axanar's Money is Gone] adds 'see also' link to financials Carlos Pedraza | ||
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+ | ====== Defense, Plaintiffs Rebut Opposition to Summary Judgment ====== | ||
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+ | **//Heavily redacted documents confirm Axanar is broke, plus a new angle on creative consultant David Gerrold//** | ||
+ | {{TOC}} | ||
+ | < | ||
+ | //**__ __**// <wrap lo>**By [[user> | ||
+ | </ | ||
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+ | <wrap lo>// | ||
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+ | In the last filing before their upcoming hearing in a federal copyright infringement case, attorneys for Axanar and its opponents, CBS and Paramount Pictures, replied to the opposition [[summary_motions_filed|each]] had submitted, asking [[judge_r._gary_klausner|Judge R. Gary Klausner]] to deny the [[defense_summary-filing|other' | ||
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+ | The replies, plus hundreds of pages of exhibits, were filed December 5, 2016, in U.S. District Court in Los Angeles. They made several notable [[# | ||
+ | |||
+ | ===== Hitting Back Hard ===== | ||
+ | |||
+ | Each side hit back hard at the other' | ||
+ | |||
+ | {{page> | ||
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+ | [{{ :: | ||
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+ | For the defendants' | ||
+ | |||
+ | ==== Plaintiffs' | ||
+ | |||
+ | The studios' | ||
+ | |||
+ | === Substantially Similar to Star Trek === | ||
+ | |||
+ | Lawyers for [[CBS]] and [[paramount_pictures|Paramount]] forcefully rebutted the argument made by defendants [[Alec Peters]] and his [[axanar_productions|Axanar Productions]] that his films, the short //Prelude to Axanar//, and the planned feature, //Axanar//, were not substantially similar to the Star Trek owned by the studios: | ||
+ | |||
+ | > Defendants’ claim in this case is that they are entitled to create a full-length film featuring copyrighted characters such as Klingons, Vulcans, and Federation officers, along with Star Trek weapons, spaceships, settings, and dialogue – so long as they do not include Captain Kirk and Mr. Spock. This is not the law.((Plaintiffs' | ||
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+ | Under that theory, however, no work derivative of the original Star Trek series would be entitled to copyright protection, upending well established rights by copyright holders to exclusively create derivate works, Grossman wrote: | ||
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+ | <WRAP right round info 50%> | ||
+ | {{ :: | ||
+ | <wrap lo> | ||
+ | <wrap indent> | ||
+ | \\ | ||
+ | {{ :: | ||
+ | <wrap indent> | ||
+ | Moreover, the audience test "asks whether the defendant wrongly copied enough of the plaintiff’s protected expression to cause a reasonable lay observer to immediately detect the similarities between the plaintiff’s expression and the defendant’s work, without any aid or suggestion from others." | ||
+ | </ | ||
+ | |||
+ | > //Star Trek: The Next Generation//, | ||
+ | |||
+ | === No Fair Use === | ||
+ | |||
+ | Grossman disputed the defense theory that, even if Peters had infringed on the studios' | ||
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+ | In her opposition to the plaintiff' | ||
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+ | > The Axanar Works are not satire, commentary or parody and, by Defendants’ own admission, were never meant to be anything other than a “professional” and “independent” Star Trek work. Further, no case has ever held that the creation of a non-satirical sequel or prequel is “transformative” and there is no basis for doing so here.((From plaintiffs' | ||
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+ | [{{ :: | ||
+ | |||
+ | === Financial Harm === | ||
+ | |||
+ | Central to the plaintiffs' | ||
+ | |||
+ | > Competing studios [could] create “professional, | ||
+ | |||
+ | === Attempt to Dispute Facts === | ||
+ | |||
+ | Attorney David Grossman, writing for the studios, pushed back against the defense' | ||
+ | |||
+ | In its opposition brief, the defense argued, " | ||
+ | |||
+ | However, Grossman pointed out in his reply, the plaintiffs were seeking only a partial summary judgment that would allow the case to move to trial for a jury to determine damages. Whether Peters willfully infringed on Star Trek copyrights related only to damages, not whether any infringement had occurred. Grossman wrote: | ||
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+ | > In an effort to create “disputed issues of fact” Defendants’ Opposition brief raises a number of issues that are not relevant to Plaintiffs’ motion such as whether Peters’ conduct was willful. … These issues, at best, relate to the amount of damages to be awarded after a ruling on liability.((Plaintiffs' | ||
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+ | [{{ : | ||
+ | |||
+ | ==== Defendants' | ||
+ | |||
+ | The defendants' | ||
+ | * The //Axanar// script had been superseded since the lawsuit was filed and therefore not actionable for infringement. | ||
+ | * No evidence from the plaintiffs disputed the defense claim the Axanar works were substantially similar to Star Trek. | ||
+ | * Axanar' | ||
+ | |||
+ | === Premature Adjudication === | ||
+ | |||
+ | Central to Ranahan' | ||
+ | |||
+ | > While this Court found an allegedly “locked script” sufficient to proceed at the motion to dismiss stage, the undisputed evidence shows that Defendants do not intend to proceed on that script. … There have been several new scripts since then, and other considerations about the style Defendants intend to pursue.((Defendants' | ||
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+ | [{{ :: | ||
+ | |||
+ | All those script alterations, | ||
+ | |||
+ | === Not Substantially Similar to Star Trek === | ||
+ | |||
+ | Since the Axanar works are not a strict copy of Star Trek, determining whether they infringe on its copyright requires an analysis of whether the two are substantially similar. Under such an analysis, Ranahan wrote: | ||
+ | |||
+ | > Plaintiffs fail to provide sufficient evidence to show that the works at issue “taken as a whole” are substantially similar. Instead, Plaintiffs argue that Defendants copied disparate “elements” of their alleged works. … Not only is this insufficient as a matter of law to show infringement, | ||
+ | |||
+ | Ranahan went on to observe, for example, that Star Trek's Vulcan species is not sufficiently delineated to qualify as a copyrightable character once unprotectable elements are filtered out, such as pointed ears, men's bowl-cut hairstyles and their serious and contemplative nature. "None of these characteristics, | ||
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+ | [{{ :: | ||
+ | |||
+ | Filtering out such supposedly unprotectable elements in order to prevent a finding of substantial similarity has been a feature of defense arguments since its rejected [[motion_to_dismiss|motion to dismiss]]. At that time, Judge Klausner found: | ||
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+ | > When viewed in a vacuum, each of these elements may not individually be protectable by copyright. Plaintiffs, however, do not seek to enforce their copyright in each of these elements individually. … The Court finds it unnecessary to analyze whether the allegedly non-protectable elements of the Star Trek Copyrighted Works are eligible for copyright protection because Plaintiff describes these elements in the Complaint solely in an effort to demonstrate how the Axanar Works are substantially similar to the Star Trek Copyrighted Works.((Civil Minutes, Judge R. Gary Klausner’s Order to Deny Motion to Dismiss, p. 6 §C, “Non-copyrightable elements, | ||
+ | |||
+ | === Fair Use === | ||
+ | |||
+ | Peters' | ||
+ | |||
+ | Ranahan wrote it's clear that Axanar provides such new meaning to the " | ||
+ | |||
+ | [{{ : | ||
+ | |||
+ | The notion that // | ||
+ | |||
+ | Months before, in her motion to dismiss the case, Ranahan used a different definition from an actual dictionary, dictionary.reference.com, | ||
+ | |||
+ | == Intent is Irrelevant == | ||
+ | |||
+ | The defense theory of the case requires it to find any possible example of commentary it can in Axanar' | ||
+ | |||
+ | <WRAP right round box 50%> | ||
+ | // | ||
+ | </ | ||
+ | |||
+ | > It is irrelevant that Defendants may not have explicitly claimed fair use as “parody” or “satire” before Plaintiffs brought suit. What is critical [in assessing transformativeness] is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece.((Defendants' | ||
+ | |||
+ | == The Woman is Comic Relief == | ||
+ | |||
+ | In the reply brief Ranahan attempted to point to the character in // | ||
+ | |||
+ | > Captain Sonya Alexander (an original character) serves as the comedic relief, presenting a powerful character who provides her commentary about the battle, infused with salty language rarely used by female characters.((Defendants' | ||
+ | |||
+ | == No Harm == | ||
+ | |||
+ | Ranahan goes on to support her claim that Axanar had posed no harm to the market for Star Trek products, and even contributed to its market success: | ||
+ | |||
+ | > Plaintiffs fail to show that there exists any “market” for non-commercial fan works like Defendants’; | ||
+ | |||
+ | == Accuracy, Not Infringement == | ||
+ | |||
+ | Finally, Ranahan took aim at the plaintiffs' | ||
+ | |||
+ | Ranahan justified Axanar' | ||
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+ | <WRAP right round tip 50%> | ||
+ | <wrap lo> | ||
+ | </ | ||
+ | ===== Revelations ===== | ||
+ | |||
+ | The documents produced to accompany the reply briefs revealed more evidence from both sides in the suit, and gave a preview of arguments likely to play out in court. | ||
+ | |||
+ | The biggest may have been a report from Axanar' | ||
+ | |||
+ | Other revelations from the court documents included: | ||
+ | * **Mockumentary Format** A refutation of a key part of the defense' | ||
+ | * **Netflix, Trademarking ' | ||
+ | * **Non-Trek Inspiration** The defense' | ||
+ | * **Misleading Financials** The plaintiffs condemned Peters for trying to mislead the public about his personal expenditures using money raised from Star Trek fans for production of the //Axanar// feature. | ||
+ | |||
+ | [{{ :: | ||
+ | |||
+ | ==== Axanar' | ||
+ | |||
+ | In a report prepared by its expert financial witness, certified public accountant Christian Tregillis, the defense disclosed Axanar had earned $1, | ||
+ | |||
+ | <wrap lo> | ||
+ | |||
+ | |||
+ | ==== Mockumentary Isn't New ==== | ||
+ | |||
+ | The defense had claimed that a documentary-style presentation had never been previously featured in Star Trek, but the plaintiffs disputed that, pointing to the //Star Trek: Deep Space Nine// episode, " | ||
+ | [{{ : | ||
+ | |||
+ | ==== Netflix and Trademarking ' | ||
+ | |||
+ | Email exchanges between Peters and //Prelude// director [[gossett-subpoena|Christian Gossett]] and former chief technologist [[Terry McIntosh]] showed Peters had business and marketing plans that included trademarking the name Axanar and approaching Netflix to pay for Axanar to appear on the video streaming giant' | ||
+ | |||
+ | " | ||
+ | [{{ :: | ||
+ | |||
+ | ==== Inspirations for ' | ||
+ | |||
+ | In an attempt to distance //Axanar// from its Star Trek sources, Peters declared in one defense exhibit that //Prelude// "was inspired by works such as //M*A*S*H, Band of Brothers, Babylon 5, The Pacific// and //The Civil War//, all of which were viewed online, and are all publicly available." | ||
+ | |||
+ | However, the plaintiffs noted, Peters made no reference to such inspirations among the materials he provided earlier in response to the studios' | ||
+ | |||
+ | > Plaintiffs specifically asked in discovery for Defendants’ source documents used to create the Axanar Works (other than the Star Trek films and television episodes which the parties agreed did not need to be exchanged) and Defendants did not turn over any of these claimed sources.((Grossman Decl., ¶ 99 Docket 88.1, 12/5/16.)) | ||
+ | |||
+ | [{{ : | ||
+ | |||
+ | Peters' | ||
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+ | > The memories and experiences of those shows and movies are not something that is tangible [that could be provided according to the subpoena demand], as I rely on my experience and memory when creating fiction works.((Supplemental Declaration of Alec Peters in Support of Defendants' | ||
+ | |||
+ | Peters further disclaimed his reliance on the sourcebook, "The Four Years War," part of the copyrighted Star Trek Role-Playing Game produced by FASA under license by Paramount Pictures, stating that he made minimal use of it. The plaintiffs discounted that new claim, stating: | ||
+ | |||
+ | > Defendants’ argument that The Four Years War was not used as source material ignores, and fails to refute, the testimony of Prelude’s director, Christian Gossett, that Peters used The Four Years War supplement as a “bible, | ||
+ | |||
+ | ==== Misleading Financial Information ==== | ||
+ | |||
+ | In addressing Peters' | ||
+ | |||
+ | <wrap lo>//See also: [[summary_motions_filed|Plaintiffs Cite Peters' | ||
+ | |||
+ | Though defendants' | ||
+ | |||
+ | > Peters’ sworn testimony, and the original financial ledger produced in this case, establish the stated fact and Defendants’ cited evidence does not contradict that fact. <wrap hi>The evidence shows that [//several lines redacted//] is irrelevant and an attempt to mislead the court and the public</ | ||
+ | |||
+ | In earlier court documents, Axanar attorney Ranahan said she would seek to exclude Axanar' | ||
+ | |||
+ | [{{ :: | ||
+ | |||
+ | ===== Redactions ===== | ||
+ | |||
+ | Many of the exhibits included in the court filings featured redactions — blacked out portions of the text — based on the [[protective_order|protective order]] that had been granted for [[discovery]] in the case. | ||
+ | |||
+ | However, it became increasingly clear the defense' | ||
+ | |||
+ | ==== Judge' | ||
+ | |||
+ | Under terms of the protective order governing public release of certain materials deemed confidential by either or both sides, a great deal of the documents filed in support of each summary judgment motion were filed under seal, meaning unredacted versions were filed for consideration by the judge but not fully visible to the public. | ||
+ | |||
+ | <WRAP right round box 50%> | ||
+ | //**__« The evidence shows that [//several lines redacted//] is irrelevant and an attempt [by Peters] to mislead the court and the public. »__**// — // | ||
+ | </ | ||
+ | |||
+ | In approving a recent request to submit documents under seal Judge Klausner warned attorneys that simply relying on the protective order to justify hiding information from the public was insufficient; | ||
+ | |||
+ | > Regarding defendant’s application … the parties are reminded that pursuant to Court’s Revised Standing Order 16, “if a party submits an application to file under seal pursuant to a protective order only, (i.e., no other reason is given), the Court will automatically deny the application if the party designating the material as confidential does not file a declaration.((Order Granting Defendants' | ||
+ | |||
+ | ==== Examples of Redaction ==== | ||
+ | |||
+ | * Repeated citations regarding redacted facts to documents already in the public domain.((Docket 102.1 ¶97, pp. 77-78, 12/5/16.)) | ||
+ | * Request by defense to file material under seal.((Docket 105.0, 12/5/16.)) | ||
+ | * Axanar business plan (// | ||
+ | |||
+ | ---- | ||
+ | **Keywords** {{tag> |