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summary_replies [2016/12/09 13:41] – [Inspirations for 'Axanar'] adds band of bros. graphic Carlos Pedrazasummary_replies [2018/07/03 18:53] (current) – [Misleading Financial Information] Carlos Pedraza
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 ====== Defense, Plaintiffs Rebut Opposition to Summary Judgment ====== ====== Defense, Plaintiffs Rebut Opposition to Summary Judgment ======
  
-**//New documents confirm Axanar is broke, plus other revelations despite extensive redaction//**+**//Heavily redacted documents confirm Axanar is broke, plus a new angle on creative consultant David Gerrold//**
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 Each side hit back hard at the other's recently filed briefs opposing summary judgment as requested by opposing counsel, while shoring up their own call for [[summary judgment]]. The plaintiffs' objective was to demonstrate by evidence that Axanar's actions constituted copyright infringement, and that the case should be sent to a jury to determine damages. Each side hit back hard at the other's recently filed briefs opposing summary judgment as requested by opposing counsel, while shoring up their own call for [[summary judgment]]. The plaintiffs' objective was to demonstrate by evidence that Axanar's actions constituted copyright infringement, and that the case should be sent to a jury to determine damages.
  
-[{{ ::summary-timeline.png?direct&300|**THIS TIMELINE** lays out events for each side's motion for summary judgment scheduled for a hearing December 19 before Judge R. Gary Klausner. //Click the image to view full size.//}}]+{{page>summary judgment box}} 
 + 
 +[{{ ::summary-timeline-2.png?direct&300|**THIS TIMELINE** lays out events for each side's motion for summary judgment to be decided by federal Judge R. Gary Klausner. //Click the image to view full size.//}}]
  
 For the defendants' part, their goal — in addition to successfully arguing Axanar's depiction of Star Trek constitutes fair use — was to derail the studios' attempt to get a partial summary judgment by proving the material facts they alleged remain in dispute and should be decided by a jury. For the defendants' part, their goal — in addition to successfully arguing Axanar's depiction of Star Trek constitutes fair use — was to derail the studios' attempt to get a partial summary judgment by proving the material facts they alleged remain in dispute and should be decided by a jury.
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 > 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' Reply in Support of Motion for Summary Judgment, Introduction, footnote 1, p. 1, 12/5/16.)) > 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' Reply in Support of Motion for Summary Judgment, Introduction, footnote 1, p. 1, 12/5/16.))
 +
 +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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 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."(([[http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/part_2_elements_of_a_copyright.html|An Overview of the Elements of a Copyright Infringement Cause of Action, — Part II: Improper Appropriation]], by Jason Sloane, retrieved 12/8/16.))</wrap></wrap> 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."(([[http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/part_2_elements_of_a_copyright.html|An Overview of the Elements of a Copyright Infringement Cause of Action, — Part II: Improper Appropriation]], by Jason Sloane, retrieved 12/8/16.))</wrap></wrap>
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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: 
  
 > //Star Trek: The Next Generation//, the second Star Trek television series, takes place in a different time period from The Original Series, and includes different fictional characters. However, there is no question that this series was a derivative work, incorporating the very same elements copied by Defendants (Klingons, Vulcans, spaceships, weapons, language, etc.). Under Defendants’ theory, //they// (or any other commercial television studio) could have produced that series, and there would be no substantial similarity, and thus no infringement.((Plaintiffs' Reply in Support of Motion for Summary Judgment, Introduction, footnote 1, p. 1, 12/5/16.)) > //Star Trek: The Next Generation//, the second Star Trek television series, takes place in a different time period from The Original Series, and includes different fictional characters. However, there is no question that this series was a derivative work, incorporating the very same elements copied by Defendants (Klingons, Vulcans, spaceships, weapons, language, etc.). Under Defendants’ theory, //they// (or any other commercial television studio) could have produced that series, and there would be no substantial similarity, and thus no infringement.((Plaintiffs' Reply in Support of Motion for Summary Judgment, Introduction, footnote 1, p. 1, 12/5/16.))
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 > 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' Opposition to Plaintiffs' Motion for Partial Summary Judgment, Section II, p. 2, footnote 3, 12/5/16.)) > 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' Opposition to Plaintiffs' Motion for Partial Summary Judgment, Section II, p. 2, footnote 3, 12/5/16.))
 +
 +[{{ ::mashinterviewss.jpg?300|**INSPIRATION** Alec Peters claims he drew inspiration for //Prelude to Axanar// from the classic //M*A*S*H// episode, "The Interview," a simulated contemporary news report from the front lines of the Korean War. <wrap lo>//Image/Archive of American Television//</wrap>}}]
  
 All those script alterations, of course, have occurred since the lawsuit was filed in December 2015, and since Peters raised (and spent) $1.4 million on the premise of that "locked" script. All those script alterations, of course, have occurred since the lawsuit was filed in December 2015, and since Peters raised (and spent) $1.4 million on the premise of that "locked" script.
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 == The Woman is Comic Relief == == The Woman is Comic Relief ==
  
-In the reply brief Ranahan attempted to point to the character in //Prelude//, where Captain Sonya Alexander (portrayed by actor Kate Vernon) is referred to as "Queen Bitch Whore of the Federation" as an example of Axanar's "commentary":+In the reply brief Ranahan attempted to point to the character in //Prelude//, where Captain Sonya Alexander (portrayed by actor Kate Vernon) is referred to by Klingons as "Queen Bitch Whore of the Federation" as an example of Axanar's "commentary":
  
 > 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' Opposition to Plaintiffs' Motion for Partial Summary Judgment, Section IV, p. 8, 12/5/16.)) > 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' Opposition to Plaintiffs' Motion for Partial Summary Judgment, Section IV, p. 8, 12/5/16.))
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 ==== Axanar's Money is Gone ==== ==== Axanar's Money is Gone ====
  
-In a report prepared by its expert financial witness, certified public accountant Christian Tregellis, the defense disclosed Axanar had earned $1,428,902.43 from January 2014-October 2016. The same document showed Peters had spent $1,433,003.67 in that same period, incurring a $4,131.24 deficit((Expert Report of Christian Tregellis, CPA, ABV, CFF, CLP, Hemming Morse, LLP, p. 15, 12/5/16.)) — consistent with [[annual_report#deficits|overspending previously documented]] by AxaMonitor's analysis of Axanar's 2015 financial report.+In a report prepared by its expert financial witness, certified public accountant Christian Tregillis, the defense disclosed Axanar had earned $1,428,902.43 from January 2014-October 2016. The same document showed Peters had spent $1,433,003.67 in that same period, incurring a $4,131.24 deficit((Expert Report of Christian Tregillis, CPA, ABV, CFF, CLP, Hemming Morse, LLP, p. 15, 12/5/16.)) — consistent with [[annual_report#deficits|overspending previously documented]] by AxaMonitor's analysis of Axanar's 2015 financial report. 
 + 
 +<wrap lo>**//See also: [[studio-financials|Axanar's Thin Financial Report and a New Crowdfund Campaign]]//**</wrap> 
  
 ==== Mockumentary Isn't New ==== ==== Mockumentary Isn't New ====
  
-  * Mockumentary isn't new style for Star Trek — David Gerrold's Trials and Tribble-ations. doc 102.1-103 ¶64. "Furthermore, the narrative structure of Prelude has previously been used in Star Trek. In the Star Trek: Deep Space Nine episode “Trials and Tribble-ations,” the primary narrative is exposed through an interview of the main protagonist, interspersed with scenes of the events described."+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, "[[mema>Trials_and_Tribble-ations_(episode)|Trials and Tribble-ations]]," a re-telling of Axanar creative consultant [[David Gerrold]]'s original series episode, "[[mema>The_Trouble_with_Tribbles_(episode)|The Trouble with Tribbles]]." In the re-telling, the plaintiffs argued, " the primary narrative is exposed through an interview of the main protagonist, interspersed with scenes of the events described."((Docket 102.1 ¶64, p. 103, 12/5/16.)) 
 +[{{ :peters-gerrold.jpg?200|**David Gerrold** (right) on the unfinished //Axanar// set, with Alec Peters. <wrap lo>//Photo/Robert Meyer Burnett//</wrap>}}]
  
 ==== Netflix and Trademarking 'Axanar' ==== ==== Netflix and Trademarking 'Axanar' ====
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 ==== Inspirations for 'Axanar' ==== ==== Inspirations for 'Axanar' ====
  
-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."((Supplemental Declaration of Alec Peters in Support of Defendants' Reply in Support of Defendants' Motion for Summary Judgment [redacted], docket 105.8, p. 1, 12/5/16.))+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."((Supplemental Declaration of Alec Peters in Support of Defendants' Reply in Support of Defendants' Motion for Summary Judgment [redacted], docket 105.8, p. 1, 12/5/16.))
  
 However, the plaintiffs noted, Peters made no reference to such inspirations among the materials he provided earlier in response to the studios' subpoena: However, the plaintiffs noted, Peters made no reference to such inspirations among the materials he provided earlier in response to the studios' subpoena:
  
 > 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.)) > 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.))
 +
 +[{{ :4-years-war.jpg|**THE BIBLE** In his deposition, //Prelude// director Christian Gossett produced emails in which Alec Peters called this copyrighted Star Trek role-playing game supplement his "bible" for producing //Axanar//.}}]
  
 Peters' declaration to the court seemed to address this complaint, noting: Peters' declaration to the court seemed to address this complaint, noting:
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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' Reply in Support of Defendants' Motion for Summary Judgment [redacted], docket 105.8, p. 1, 12/5/16.)) > 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' Reply in Support of Defendants' Motion for Summary Judgment [redacted], docket 105.8, p. 1, 12/5/16.))
  
-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 claims, stating:+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,” or the email describing it as such.((Plaintiffs' Response to Defendants' Opposition to Statement of Uncontroverted Facts, docket 102.1 ¶34, pp. 22-23, 12/5/16.)) > 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,” or the email describing it as such.((Plaintiffs' Response to Defendants' Opposition to Statement of Uncontroverted Facts, docket 102.1 ¶34, pp. 22-23, 12/5/16.))
 +
 ==== Misleading Financial Information ==== ==== Misleading Financial Information ====
  
-  * Peters' Second Financial summary ¶85 doc 102.1-59 "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. The evidence shows that [several lines redacted] is irrelevant and an attempt to mislead the court and the public."+In addressing Peters' spending of donors' money, the plaintiffs pointed to two different financial summaries he produced in [[discovery]] — one of which divulged extensive personal spending from donor money raised to produce //Axanar//, and a later version in which those expenses were excluded. 
 + 
 +**<wrap lo>//See also: [[summary_motions_filed|Plaintiffs Cite Peters' Shocking Personal Spending in Asking Judge for Summary Judgment]]//</wrap>** 
 + 
 +Though defendants' precise reaction to the two financial summaries was redacted, the remaining text made clear what the plaintiffs thought of Peters' action: 
 + 
 +> 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</wrap>.((Docket 102.1 ¶85, p. 59, 12/5/16.)) 
 + 
 +In earlier court documents, Axanar attorney Ranahan said she would seek to exclude Axanar's financials from evidence that would be seen by the jury.((Defendants’ Opposition to Plaintiffs’ Ex Parte Application for Order, p. 7, 10/28/16.))
  
 [{{ ::netlix-redaction.jpg?direct&300|**NOT FOR PUBLIC VIEW** This redacted passage from a plaintiffs' brief is typical of the type of information the defense had removed from public view under terms of a protective order issued by the court for discovery.}}] [{{ ::netlix-redaction.jpg?direct&300|**NOT FOR PUBLIC VIEW** This redacted passage from a plaintiffs' brief is typical of the type of information the defense had removed from public view under terms of a protective order issued by the court for discovery.}}]
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 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. 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.
 +
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 +//**__« The evidence shows that [//several lines redacted//] is irrelevant and an attempt [by Peters] to mislead the court and the public. »__**// — //Studios' attorney David Grossman//
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 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; sufficient explanations detailing why a given document might be redacted must be included in requests to file under seal: 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; sufficient explanations detailing why a given document might be redacted must be included in requests to file under seal:
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 ==== Examples of Redaction ==== ==== Examples of Redaction ====
  
-  * Repeated citations regarding redacted facts to documents already in the public domain ¶97 102.1-77-78 +  * 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. doc 105.0. Check factual background and contrast with Klausner's admonition. +  * Request by defense to file material under seal.((Docket 105.0, 12/5/16.)) 
-  * Axanar business plan (redacted). doc 102.1-85-86  ¶108-109 +  * Axanar business plan (//redacted//).((Docket 102.1 ¶108-109, pp. 85-86, 12/5/16.))
  
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-**Keywords** {{tag>lawsuit discovery plaintiffs defendants players}}+**Keywords** {{tag>lawsuit discovery plaintiffs defendants players summary_judgment}}