Axanar Motion to Compel Discovery

Axanar Motion to Compel Discovery

The G & T Show

The G & T Show – it’s all about story, characters, and Star Trek

What does it mean to compel discovery? Why, I’m so glad you asked that!

Because you’re about to find out.

The Axanar Motion to Compel Discovery was the first public information from the courts in a long time. However, this did not mean everybody was taking an extended summer vacation. Far from it! Rather, they were busy with behind the scenes discovery. So when it’s going well, nobody makes a motion. Hence we can reasonably infer that something went a little off-kilter.

(there are three accompanying declarations which will be posted in a separate blog post so you and I can both get a break)

Let’s start with the motion itself, which is rather short.

Notice of Motion and Motion to Compel Discovery from Plaintiffs

Motion page 1

First of all, the first page is just another cover, and is similar to the covers we have seen before in this matter. These pages are typical for legal practice.

Compel Discovery

Motion to Compel Discovery, Page 1

 

Motion page 2

And then on the second page, the defense calls for in-person arguments on October 21, 2016. Happy birthday, Kim Kardashian.

Compel Discovery

Motion to Compel Discovery, Page 2

Joint Stipulation Regarding Defendants’ Motion to Compel Discovery from Plaintiffs

First of all, a stipulation is generally a kind of condition or a requirement demanded prior to making an agreement.

Page 1

As before, we have a cover to the document. But this one also includes three helpful dates:

  • Discovery Cutoff: November 2, 2016
  • Pre-Trial Conference: January 9, 2017
  • Trial: January 31, 2017

Most of all, I caution all readers that probably a good 95% or so of all legal cases never make it to trial. Furthermore, sometimes something comes up (a sick child, a lawyer leaves the firm, a judge is tapped for a greater purpose such as the US Supreme Court, a witness is dying, etc.) which can move dates around. Yet the closer we get to the dates, the less the judge will be interested in granting extensions unless real need can be shown. So assume the dates are more or less set in concrete. But granting the Motion to Compel Discovery could maybe result in some short time extensions.

Compel Discovery

Joint Stipulation Regarding Defendants’ Motion to Compel Discovery, Page 1

Page 2

And we have nothing that exciting here; it’s just a table of contents for the Motion to Compel Discovery.

Compel Discovery

Joint Stipulation Regarding Defendants’ Motion to Compel Discovery, Page 2

Page 3

Finally, this page contains the remainder of the table of contents for the Motion to Compel Discovery.

Compel Discovery

Joint Stipulation Regarding Defendants’ Motion to Compel Discovery, Page 3

Page 4

And now we’re off to the races.

First of all, the Motion to Compel Discovery begins with a restatement of the case. Or, if you will, “our story so far.” And both sides get to tell their versions of it. Though the defense is going first (after a coin flip and then an end zone celebration).

New information

However, this page offers some new information, e. g.:

First, Defendants seek to
compel production of documents and testimony regarding financial information that is
key to both Defendants’ fair use defense, and to Defendants’ investigation into
Plaintiffs’ alleged damages. Second, Defendants seek information necessary to allow
Defendants to investigate Plaintiffs’ allegation of willful infringement, the
consequence of which carries a substantial enhancement of the maximum statutory
damages available. Third, Defendants seek chain of title information relating to
Plaintiffs’ allegations of ownership, which is basic discovery in copyright cases that is
routinely compelled so that the rebuttable presumption of ownership afforded by a
copyright certificate does not become irrebuttable.

Three Demands

So here’s what that all means.

The first demand is just plain weird. Because the defense is fair use, right? Hence I looked for some scholarly information on the defense, and I found a great 2010 article from legal scholar Rich Stim, writing for Stanford University Law School. And Stim, in his article, has nothing whatsoever on the financials of the party being infringed. Here’s what Stim says:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.

Furthermore, I urge you to read the remainder of the Stim article as it’s a well-written rundown on what fair use truly is.

Hint: a film like Axanar doesn’t fall under any of his examples.

Second and Third Demands

Then we get to the second demand. However, this is another pretty vague one and presumably the remainder of the Motion to Compel Discovery will offer the specifics. So let’s let it pass for now.

Finally, we get to the third demand, for a chain of title to Star Trek. Essentially, Ranahan is discarding the rebuttable presumption that plaintiffs own Trek. Instead, she wants to see the documents of title. Which is kind of silly, because having a valid copyright (which CBS and Paramount have already provided and the derivatives of same exist online) presumes a company owns the thing they are copyrighting. While she does not have to believe everything the US Copyright Office tells her, at some point, Judge Klausner (and Magistrate Judge Charles F. Eick, who will rule on this motion) will start to feel this is a fishing expedition. And I’ll explain what that is, infra.

Compel Discovery

Joint Stipulation Regarding Defendants’ Motion to Compel Discovery, Page 4

Page 5

This page contains this statement:

Despite the
fact that Plaintiffs have tolerated, and even encouraged, a community of fandom and
fan fiction for over 50 years, Plaintiffs allege that the Axanar Works infringe over 70
allegedly copyrightable elements…

And, what does this have to do with the price of tea on Draylax?

Nothing.

Copyright can be selectively enforced by copyright holders. That is the law. It doesn’t matter why Axanar was sued in the first place if they are infringing. It doesn’t matter if Continues, etc. were never sued. Because even if Axanar was originally sued because plaintiffs didn’t like defendant Peters’s taste in clothing or the length of his fingernails or any such nonsense it does not matter. Is there a viable claim? There such is, as the motions to dismiss failed. So this statement is meaningless, about allowing fan fiction, etc.

The next paragraph of interest continues on the following page so I’ll cover it there.

Compel Discovery

Joint Stipulation Regarding Defendants’ Motion to Compel Discovery, Page 5

Page 6

In addition, this page (continuing from the previous) contains the following statement:

Specifically, Plaintiffs represented that they would produce chain of title of the
copyrights, which obviously should include any chain of title transferring the rights
from Star Trek creator Gene Roddenberry and ultimately to Plaintiffs, but Plaintiffs
have failed to do so, electing instead to make an extremely limited ownership
production that consists of predominantly just the copyright registrations.

And here we already have a fundamental misunderstanding of the ownership of the IP, for Gene Roddenberry created it as a ‘work for hire’ for Desilu. Let’s see what our friends at the US Copyright Office have to say about works for hire:

If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual.

Guess who first owned Star Trek? Lucille Ball and Desi Arnaz and their company, Desilu Studios. And it was purchased by Paramount Television in the 1960s.

Compel Discovery

Joint Stipulation Regarding Defendants’ Motion to Compel Discovery, Page 6

Page 7

By the time we get to the plaintiffs’ preliminary statement (starting on this page), the Motion to Compel Discovery becomes a big of a mud pile. Or mud wrestling. Choose your metaphor.

But either way, plaintiffs’ attorneys start with a slam. To wit:

Defendants’ preliminary statement is argumentative, self-serving and
deliberately misleading.

Finally, we get to the heart of the matter.

It’s Not a Fan Film

Defendant Alec Peters and his company, Axanar
Productions, raised money from Star Trek fans to create infringing derivative works –
including a motion picture “prequel” to Star Trek’s original television series.
Defendants acknowledged, while they were engaging in their pre-litigation activities,
that they were knowingly infringing Plaintiffs’ copyrights. Defendants also
repeatedly pronounced that they were creating a “professional” and “independent”
Star Trek film, starring actors (that were paid for their services) that have portrayed
roles on Star Trek television series, and produced with professional crew members.

And more:

Indeed, in spite of defense counsel’s recent statements to the contrary, prior to the
filing of this suit, Defendant Peters and his colleagues expressly stated that they were
not creating a “fan film.” This case is about a commercial enterprise designed to take
money from Star Trek fans, which funds were used to pay Defendant Peters along
with his friends and colleagues, to create, as Defendants’ describe it, “an independent
Star Trek film.”

Emphasis mine.

And Again

Let’s repeat that one for the cheap seats:

This case is about a commercial enterprise designed to take
money from Star Trek fans, which funds were used to pay Defendant Peters along
with his friends and colleagues, to create, as Defendants’ describe it, “an independent
Star Trek film.”

Plaintiffs Add

In addition, the plaintiffs state:

Defendants raised approximately $1.5 million from Star Trek fans, and created
and released a short film entitled “Prelude to Axanar,” and one scene from their “Star
Trek: Axanar” Motion Picture called the “Vulcan Scene.” The works created by
Defendants are infringing derivative works, and use the characters, plot, scenery, and
dialogue, along with other elements from the Star Trek Copyrighted Works.

And more:

Defendants also built a set, created multiple Star Trek: Axanar scripts, and used
donations to build out a “studio” that is being rented out for other non-Star Trek
projects. Additionally, in return for donations, Defendants provided “perks” to the
Star Trek fans, including infringing “Star Trek” branded merchandise. Further
evidencing the commercial nature of this endeavor, Defendant Peters paid himself and
his girlfriend tens of thousands of dollars, and used the funds obtained from Star Trek
fans’ donations on travel expenses, tires, car insurance, and gas.

Emphasis mine.

Tires?

Yep, they said tires. And car insurance. Because nothing says fan film like car insurance.

Compel Discovery

Joint Stipulation Regarding Defendants’ Motion to Compel Discovery, Page 7

Follow Me

Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too.

She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show.

We understand that she can be bribed with pie.
Follow Me

Latest posts by Janet Gershen-Siegel (see all)

Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too. She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show. We understand that she can be bribed with pie.

Leave a Reply