Axanar Plaintiff Response to Defense Counterclaim

Axanar Plaintiff Response to Defense Counterclaim

We have the Axanar Plaintiff Response to Defense Counterclaim. The intellectual property case continues. As always, I will break it down as I can. My credentials are here. Please feel free to ask questions or correct any misunderstandings in the comments section.

This pleading was filed in response to the defendants’ counterclaim, which was filed as a part of their answer to the amended complaint, on May 23, 2016.

As before, if you want a better or larger copy of any of the images herein, send a note and ask. These documents are a matter of public record and I have paid for them. You are a member of the general public and you have the right to know.

Page 1

As we have seen many times before, this is a standard cover page for these sorts of documents. This one is signed by attorney David Grossman. According to his lawyer page at Loeb & Loeb, some of Mr. Grossman’s key experience was in litigating two cases for DreamWorks Animation regarding the Kung Fu Panda film.

And you thought the law was boring.

Axanar Plaintiff Response to Defense Counterclaim

Axanar Plaintiff Response to Defense Counterclaim, Page 1

Page 2

As we saw with the defense answer, responses are separated by numbered paragraph. They generally fall into one of three categories:

  1. Admission
  2. Denial
  3. Insufficient information to be able to admit or deny

However, there are three other types of response. One is to both admit and deny (that’s not as nutty as it sounds; there is an example of it, infra) or admit and claim insufficient information, and another is to admit or deny but with something of an explanation. A third is to not respond because a paragraph is a legal conclusion.
Paragraphs 1 – 3 are denials, responding to statements about Axanar which the plaintiffs believe to be legal conclusions not needing a direct response. Those paragraphs cited sections of the Federal Rules of Civil Procedure or commented on venue (where the case is properly heard). These are necessary pieces of information but are not in contention. Paragraph 4 is about Axanar being a California corporation and defendant Peters being a California resident; plaintiffs responded as they had insufficient information to respond. Even though these are pretty well-known, the court may require some basic proof. Proof of such things could involve corporate filing information for Axanar and possibly something like a current driver’s license or signed lease or mortgage for defendant Peters. That of issue is very quickly disposed of. Paragraph 5 is an admission that the plaintiffs are Delaware corporations, with CBS’s main office being in New York and Paramount’s in California. So far, nothing surprising or exciting.

For the next two paragraphs, we begin to get into the nature of the counterclaim itself. Paragraph 6 admits Star Trek debuted 50 years ago but states insufficient information to admit or deny whether the fictional characters and stories promote certain ideals. While Gene Roddenberry may have originally had some ideas, he was not even the sole writer back in the day. Furthermore, the IP is rather large and sprawling. Do Jem’Hadar story lines promote peace? As for paragraph 7, which quotes Gene Roddenberry’s forward to the Star Trek: New Voyages book in (I believe) its entirety, the plaintiffs admit that’s the forward. Plaintiffs claim insufficient information on whether Roddenberry celebrated or encouraged fan fiction.

Page 3

In paragraph 8, plaintiffs admit that Star Trek is celebrated through conventions but claim insufficient information regarding other celebrating, e. g. via fan fiction. In paragraph 9, as I had found, plaintiffs deny they never sued for infringement of Star Trek copyright previously. As before, see Paramount Pictures Corp. v. Carol Publishing Group, 11 F. Supp. 2d 329 (1998). In that case, a book, The Joy of Trek, was published. The case ended with an injunction against the defense. Guess who the lawyer was representing Paramount in that case?

Paragraph 10 (where counterclaimants say the suit is in contravention of the ideals of Star Trek) is denied by plaintiffs. For paragraphs 11 – 13 (The Ballad of Alec Peters), plaintiffs cite insufficient information as their response. Sorry, I have no information on whether the attorneys at Loeb and Loeb engaged in a dramatic reading of their own (thank you to Trek Geeks for the ballad). Paragraph 14 is one of those hybrid responses. Plaintiffs admit defendant Peters was indeed hired by them and worked for them at one time. However, the remainder of the paragraph, which deals with why defendant Peters was hired, and what he did, is cited as another insufficient information situation. Truth is, any statements about defendant Peters’s work or expertise or why he was hired at the time are irrelevant to the matter at hand. If Judge Klausner or anyone else feels it is important to delve into this (or if it suddenly turns relevant at a later date), a deposition of the defendant’s supervisor should clear any of this up. Otherwise, these are basically irrelevant statements, and they are self-serving to boot.

Page 4

Moving onto paragraph 15, plaintiffs admit where the character of Garth of Izar appeared in canon but cannot comment on whether Peters purchased an authentic screen-used costume. However, instead of using the insufficient information response for the balance of that paragraph, plaintiffs deny the remainder. Why deny? After all, plaintiffs are in a position to inform the court of Garth’s appearance in some of the licensed Trek novels. In this instance, a denial is an invitation (and requirement) for the counterclaimants to prove what they are saying is true. For paragraph 16, plaintiffs admit the defense used Kickstarter to raise money, and that Prelude is on YouTube. The remainder of that paragraph (about awards and who wrote the script) is denied. Again, this is to require the defense to prove what they are saying. In paragraph 17, plaintiffs cite insufficient information – that paragraph is about the filming of the Vulcan scene.

Paragraph 18

Paragraph 18 is the big one. Let’s look at the counterclaimants’ statement, in its entirety:

Mr. Peters believed he was operating within the tolerated realm of Star
Trek fan fiction, but nevertheless, reached out to CBS on multiple occasions in an
effort to seek guidelines about the production. Given his extensive history with CBS,
including volunteering his time and expertise on the Star Trek archive, Mr. Peters
contacted CBS in July 2015 with the goal of participating in a dialogue regarding fan
films. Since his initial work with Star Trek: New Voyages in 2010, Mr. Peters has
spoken with CBS Star Trek brand manager and licensing director John Van Citters,
whom Mr. Peters knew from working on the CBS Star Trek archive as a volunteer
expert. In 2012, Mr. Peters met with CBS Consumer Products EVP Liz Kalodner on
the Paramount Studio lot. In 2013, Mr. Peters met with Consumer Products VP Bill
Burke at the Las Vegas Star Trek Convention. Mr. Peters also spoke with CBS Home
Video EVP Ken Ross, who attended the 2014 premier of Prelude to Axanar at the San
Diego Comic-Con. Though CBS would not provide specific guidelines, Mr. Peters
understood from these discussions that as long as his works stayed non-commercial
they would be tolerated, and that CBS would let him know if he had “gone too far.”

Here is the plaintiffs’ response, in its entirety:

Counterdefendants deny that Defendant Alec Peters “reached out to
CBS” on multiple occasions, admit that Defendant Alec Peters spoke to Bill Burke
and to John Van Citters, but state that Mr. Peters was never given permission to use
Star Trek Copyrighted Works, nor was he provided with “guidelines” regarding
ways in which he could use Plaintiffs’ intellectual property for his Star Trek film
projects, for either commercial or non-commercial use, nor was he told that his use
of such Star Trek Copyrighted Works would be tolerated. Counterdefendants admit
that Peters met with Liz Kalodner on the Paramount Studios lot and spoke with Ken
Ross, who attended a portion of the Prelude to Axanar showing at the 2014 Comic-
Con. Counterdefendants lack knowledge or information sufficient to form a belief as
to the truth of Counterclaimants’ remaining allegations in Paragraph 18 and, on that
basis, deny the allegations.

Well …

This is one of those paragraphs where a portion is subject to admission while, at the same time, another part is denied. While that may seem like a contradiction in terms, the idea here is that the meetings are admitted (including circumstances, locations, and ballpark dates, it would appear), whereas the sum and substance of said conversations is denied. Again, a denial here is a push to defendants Peters and Axanar to prove what they are claiming. How would they prove this (or the corollary, how would their allegations be disproven?)? Why, through discovery, of course. The persons attending these meetings may very well be on the depositions list. If there were any notes taken, those would be subpoenaed.

Then we get to paragraph 19, another cornerstone of the counterclaim. Here is the counterclaimants’ statement, presented in its entirety:

Without any warning, and despite years of Mr. Peters’ contributions in
support of both CBS and Paramount, Mr. Peters first learned that Plaintiffs believed
he had “gone too far” when he read in a news article that Plaintiffs had sued him.
Neither CBS nor Paramount expressed any concerns to Mr. Peters, through a cease
and desist letter or otherwise, before they filed this lawsuit.

To which plaintiffs respond, entirely (this response continues on the following page):

Counterdefendants deny that they did not “express any concerns” to
Alec Peters prior to filing this lawsuit. Counterdefendants lack knowledge or
information sufficient to form a belief as to the truth of Counterclaimants’ remaining
allegations in Paragraph 19 and, on that basis, deny the allegations.

Again, this is a challenge for counterclaimants to prove this particular allegation. Remember, a cease and desist letter is not required! Will plaintiffs have something else to show they did not approve? I don’t know, although service of process should come with a receipt. As for anything else, that remains to quite literally be discovered.

Page 5

In paragraph 20, plaintiffs admit entering into an agreement with defendants which required them to suspend filming operations until the initial complaint could be answered. As for any added information about settlement efforts, plaintiffs cite insufficient information. For paragraphs 21 and 22, which are about the Justin Lin and JJ Abrams statements, the plaintiffs admit certain individuals made public statements, and said statements speak for themselves. But I remind readers that the Abrams and Lin statements are hearsay and would probably not be admissible anyway.

Paragraph 23

Counterclaimants’ paragraph 23 states, in its entirety:

Thus, even Plaintiffs’ own producers and directors have recognized the
importance of fans to Star Trek, and have publicly renounced and called for the end of
the lawsuit against Defendants.

Plaintiffs deny this. Paragraph 24 is about an admission of settlement negotiations. Plaintiffs respond with an admission that public statements were made and they speak for themselves. Statements about settlement negotiations, by the way, don’t really have a place in pleadings. Why not? Because almost every case is settled, and virtually all of them go into settlement negotiations. Mentioning ongoing settlement negotiations kinda doesn’t matter.

Paragraph 25 is about the action being pending (plaintiffs admit this) and about the defense’s uncertainty as to how to proceed. Of course anything about the defense’s state of mind vis a vis settlement negotiations is denied, which invites the counterclaimants to prove it. But it does not matter.

Spoiler alert: defense’s uncertainty does not matter.

Page 6

Here we move on the counterclaimants’ fair use argument. Paragraphs 26 and 27 include case citations and don’t need to be addressed by the plaintiffs as they are considered to be legal conclusions. Without repeating myself, paragraphs 28 – 32 are all about fair use allegations by the defense, including a claim that the now you see, now you don’t script (is it locked? It is open? Is it ajar? You make the call, sushi fans) is being retooled in order to add a PTSD storyline which is nowhere to be found in Prelude and was not in any version of the script seen by anyone who has ever made any portion of it at all public.

As before, I suggest readers go to the source.

Unlike defendant Peters, Mr. Smallwood is a real-life Vietnam veteran with real-life PTSD. It will take a lot more than just a few viewings of Band of Brothers to help anyone effectively write about the experience.

Now, even a poorly-written script and a poorly-executed story or film could potentially be considered ‘fair use’. With denials across the board, the plaintiffs are pushing for the defense to prove themselves.

Then we move onto paragraphs about a second counterclaim for declaratory relief due to an alleged violation of counterclaimants’ rights. Paragraph 33 is incorporated by reference. Paragraph 34 and 35 are considered to be legal conclusions, although paragraph 35 is also responded to as a slight admission of the extant claim impacting all parties. Paragraph 36, which is about defendant Peters’s apprehension, is responded to as there being insufficient information. In paragraph 37, plaintiffs admit to suing Peters and Axanar but the remainder is another insufficient information response.

Page 7

Plaintiffs issue a denial in response to paragraph 38, which is where counterclaimants request a declaratory judgment that their works are not infringing. Plaintiffs then issue a general denial as well, e. g. that anything which they might possibly have not clearly enough, they are denying.

Huh?

Assume, for a for-instance, that one of my pets bit you, and let us further assume I have sixty pets (hey, why not?). If your specific complaint paragraphs only account for twenty of my pets, I’ve got to account for the other forty when I deny that any critter I live with has ever mistaken you for a tasty snack. Hence a general denial would cover the other forty.

Back to the pleading

Going back to the pleading, plaintiffs then deny the prayer for relief. They then take no position on the demand for a jury trial because it’s not an allegation (but they have already requested a jury trial; it is not being withdrawn herein).

Then we move onto plaintiffs’ own three affirmative defenses. They allege:

  • The counterclaim fails to state a cause of action – and it kind of doesn’t. Defendant Peters feeling stressed or confused about plaintiffs’ position on infringement is not a cause of action upon which a claim for relief can be granted.
  • Counterclaimants have unclean hands – does nobody wash around here? Just kidding. Let’s look at Law.com’s definition:

    n. a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had “unclean hands,” the plaintiff’s complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common “affirmative defense” pleaded by defendants and must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough.

  • Finally, because things are still in an early stage, plaintiffs state they might have future defenses but are unsure what to allege at this time. This one might or might not fly, as the judge might not want to see yet another amended pleading.

Page 8

Plaintiffs’ own prayers for relief are to ask for a full dismissal of the counterclaim and for costs and legal fees appertaining thereto. Then of course the document is signed and it is dated June 15th, 2016.

What’s next?

The defense gets a chance to respond, and so I imagine we will see a little more of the same. Their response is supposed to be limited to countering the plaintiffs’ reply. Hence we should not expect an enormous document although you never know with this firm.

After that, we are talking discovery, which is already in motion. The parties will schedule depositions and exchange documents, all while engaging in settlement negotiations. How much of this will we see or know about in the months to come? The truth is, not much. If any motions are made, either to dismiss or for summary judgment or to object to some forms of discovery, we will see those filed with the court. We will also see if there is a settlement as that would be filed with the court and placed upon the record. Otherwise, though, we may not see much. Our best source for information could very well turn out to, at this stage of the proceedings, be defendant Peters himself.

I will continue to monitor this matter as I can and we will talk about it on the G & T Show if there is news. This is a newsworthy event, after all.

As always, thank you for reading, and for your kind support herein

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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.
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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.

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