So sorry for not getting back to you in a timely fashion. Real life events took priority.
Yes, in reply to your first post I said you were "Wrong on almost every level." I was giving you credit for your opinion that the reboot movies were "TERRIBLE". I wouldn't call them that, but I must agree they were not my favorites of the series.
No, I'm not a CBS lawyer, nor a lawyer of any type. But I have been following the case closely for months and have discussed it in some detail with real-life lawyers. I'll take their word for things any day of the week.
I find it incredible that a busy corporate exec such as yourself could find the time to compose such a lengthy memorandum. I do wish you had spent a little more time researching it better.
So, your lawyers advised you to "litigate against the infringers!" ... good advice when you're talking about trademarks and patents. If you DON'T defend them you can lose them. But this is a copyright case. You can pick and choose when infringers to sue and which to ignore. For years, decades even, CBS / Paramount have pretty much followed your Pearl of Wisdom. They have rarely sued or even sent Cease & Desist letters to fan-film / fan-fiction producers.
You are correct, simple phrases and even titles cannot be copyright (but may be trademarked!!). However, when you say "So much for your statement about making money off the Star Trek name!" that is splitting hairs as only a lawyer would do and is completely disingenuous. When I said Axanar was making money off the "name", it's pretty obvious I meant they were using the entire body of Star Trek works as a basis of their project.
You talk of Fair Use and the "wiggle room" for transformative works. How exactly is Axanar "transformative"? It's not a parody, poking fun or using humor to ridicule Star Trek. It's not a commentary or critical review of the original works, nor is it designed to be educational in nature. Some have tried to claim that Prelude is a "mockunetary", with the look and feel of a documentary, but that stance is laughable. It's still a fictional script with the actors being in-character talking about in-universe events. It may be scripted in a documentary-style format, but it is in no way a real documentary. To claim that it is one would be like trying to claim that the War Of The Worlds radio drama was a news alert.
You state that Fair Use tests ask "was the work done for a profit?" That's not one of the tests. Something may fall under Fair Use and still make a profit. However, making a profit off someone else's work would be a strong motive for them to sue you to stop. And actually, it's not even making a profit but rather receiving a financial gain from the work. Axanar likes to tout a narrow definition of "profit", saying they do not intend to charge people admission to see the final product. That ignores the salaries the project execs paid themselves, not to mention the future earnings capabilities of the film studio they built with donated funds, money people gave intending for it to be used to shoot the blinking movie.
The Fair Use test, rather, is whether or not the work in question causes a negative impact on the original IP owner's ability to continue to make a profit off the original work. You ask, what damage does this new work do to CBS? Well, Axanar has for a long time made public statements that they didn't want to be just another fan-film, but rather an independent film company that could produce feature-length movies "better than" anything CBS / Paramount could do for less money. As a business exec, would you sit ideally by and watch someone steal your property to go into direct competition against you? I think not.
You say "fan fiction and movies just help maintain the franchise, to keep Star Trek in people's minds". That may or may not be true. Indeed, CBS may actually feel the same way, for they have allowed it to occur (for the most part). In reality, though, I don't think it's as big of a factor as some claim. The vast majority of casual fans don't bother reading / watching fan-fiction / fan-films. I suspect most don't even know of such things. Many hard-core Trek fans don't bother with fan-projects. I just checked YouTube and found most view-counts of fan-films are measured in the thousands or tens of thousands. Only a few, the very best, exceed a hundred thousand. I found two that broke a million views (there may be others, of course). The trailer for the last movie had over two-million hits in less than a month. Sorry, but CBS doesn't "need" fan-films to keep Star Trek alive.
No, the Kickstarter campaign was not the catalyst for this lawsuit. It was a factor, I presume. Four years ago, several fan-film producers were comparing notes about what "unwritten rules" they lived under to avoid CBS's wrath. One of them was "Don't use Kickstarter" because of the way Kickstarter rules are. Instead, they use other crowd-funding sites. And by the way, the Axanar crew were in that conversation. They bloody well knew the "unwritten rules" before they got started.
"OK, so some guy may have made a few dollars off the Kickstarter campaign." You call a $38,000 salary plus expenses (including attending every major Trek/sci-fi convention in the USA) just a few dollars? Not to mention building a movie studio sound-stage completely for free, using donated money.
"CBS will lose this fight, in Court and in the court of public opinion" ... no, they won't. Unless Axanar comes to their senses and accept all of CBS's terms in a settlement, this case will go to trial and CBS will win. The chances of CBS to lose the case are less than you and I both winning the PowerBall and MegaMillion lotteries at the same time. I will say that I don't understand why, and I'm ticked about the fact, that CBS has not done anything to offset Axanar's full reign in the public opinion arena. It used to be just Facebook and a few bloggers, but now even Newsweek has written about the case, and it doesn't seem as if CBS had any real input to express their side of the events. Personally, I feel this is a huge mistake. Once the case is done, CBS absolutely needs to do a full-court press (no pun intended) to explain their actions and why they had to do what they did. They also need to make it clear, which they have done to a small degree, that they are NOT waging war against fan-created project.
Your idea of CBS hosting fan-films on their CBS All Access system is not new. It may not be a bad idea in the long run, but I've read elsewhere that there are some issues that would have to be resolved before it could happen.
