CBS/Paramount sues to stop Axanar

[JD]

I've been away from the thread for a while, but I just saw the post about CBS not accepting any of the Axanar team's "money making solutions" and I have to laugh. After everything that has happened I doubt very much that CBS would accept anything but a completely end to the entire Axanar production. With Axanar having been so hostile towards CBS from the beginning, I can understand them not wanting to deal with them.

 

[muCephi]

I've been away from the thread for a while, but I just saw the post about CBS not accepting any of the Axanar team's "money making solutions" and I have to laugh. After everything that has happened I doubt very much that CBS would accept anything but a completely end to the entire Axanar production. With Axanar having been so hostile towards CBS from the beginning, I can understand them not wanting to deal with them.

Yes, in their public statements Axanar continues to argue that the studios should join forces with Axanar Productions to make more money than either could on their own.

IMO at this point this could just be PR propaganda for the donors. W&S may be bound to represent their clients' proposals to C/P, but would they really waste their time trying to win a partnership from the studios?

Seems like that would already be such a nonstarter that they would have moved on to some other formulation more likely to lead to settlement and more reasonable to put forward as terms and conditions of Axanar. For example, agreement to set Axanar-the-movie and unlicensed sales aside and abide by guidelines 'no foul' in exchange for a nominal settlement that preserves the studio asset and donor money.

All the public talk could just be a way to buy time where donors continue to contemplate their win-win navels and thereby are distracted from organizing a donor lawsuit. If a settlement can be announced that preserves some of the donor assets, an ambiguous situation arises where people who might want to sue would have a harder time showing intentional fraud. After all, the defense against C/P in this case would have preserved at least a fraction of the donations.

It could be a way to stall the press in an eddy of long-dead ideas, keep them from digging into things like the broader implications for crowdfunding, and the specifics of the Chicago-in-the-30s money trail appearance. Hey, Trekkies making arguments everyone secretly knows are ridiculous... studios oppressing fans... lone hero visionary and his renegade new media empire... lets talk about that!

It could also be a way to keep the head of steam carried by Axanar Marines aimed somewhere far away from the real issues being negotiated.

 

[dmac]

It is... its also a TV channel, a range of Land Rover cars as well as being a good name for a ship sent out to discover things (both real world and fictional).

Good points
Gold mine in Alaska... for another
Just figured I'd mention the obvious for the benefit of any team Peters lurkers that come by for today's lesson.

 

[oswriter]

IMO at this point this could just be PR propaganda for the donors. W&S may be bound to represent their clients' proposals to C/P, but would they really waste their time trying to win a partnership from the studios?

In my experience there are two types of lawyers: Those who value maintaining professional collegiality over the interests of a particular client, and those who enjoy fighting for the sake of fighting. I won't speculate as to which category W&S might fall into.

 

[Professor Zoom]

In my experience there are two types of lawyers: Those who value maintaining professional collegiality over the interests of a particular client, and those who enjoy fighting for the sake of fighting. I won't speculate as to which category W&S might fall into.

Keep in mind their client.

 

[MikeH92467]

Keep in mind their client.

Keep in mind they're working pro bono.

 

[TheSubCommander]

Early TNG: We haven't seen the Romulans in 50 years!
Slightly later TNG: The Enterprise-C was destroyed fighting the Romulans 22 years ago!

Just sayin'

Yeah, the way I interpreted that was that its been 50 years since any ship survived to tell the tale, and 50 years since the Romulans dared to enter federation space. Since Narendra III was in Klingon space, and the Enterprise-C was destroyed and all the federation had were rumors and possibly Klingon accounts of the battle, that technically doesn't violate the 50 year silence between the federation and romulans.

 

[carlosp]

On AxaMonitor, a detailed analysis of Project Small Access' Focus Group Report, in which they call on CBS/Paramount to revise their fan film guidelines. The article provides both a summary of the 38-page report and digs down into what the Axanar faithful seek from each guideline — with analysis of how realistic those desires are. Also, we explore the connection between Project Small Access and Axanar, which they claim are fully independent of one another — except, not. Read more »

 

[urbandefault]

Monetizing Fan Films
The report concludes with the often-heard proposal that CBS should allow fan films to earn revenue they would share with the studio: “Fan productions could, relatively easily, be turned into a source of millions of dollars of positive revenue … at a cost of the fraction of a single employee’s salary.”26)

The report, however, included no evidence to back up this kind of business plan. Even so, it went on to cite as an example Pocket Books’ “Strange New Worlds” project, which has published fan-submitted work as a book under the publisher’s banner, even though that effort isn’t a direct parallel to fan films. Pocket Books’ Star Trek titles are licensed, and therefore subject to the studios’ stringent restrictions regarding what can and cannot be published, which also apply to fan-submitted fiction.

Moreover, according to Axanar producer Alec Peters, CBS and Paramount exhibited no desire to accept such “money-making solutions” in their lawsuit‘s ongoing settlement talks.

Spoiler: Hint and a half

 

[OpenMaw]

I really wish they'd stop. They're going to really ruin it for everyone when CBS says "Fine. You can't do ****!"

 

[oswriter]

On AxaMonitor, a detailed analysis of Project Small Access' Focus Group Report, in which they call on CBS/Paramount to revise their fan film guidelines. The article provides both a summary of the 38-page report and digs down into what the Axanar faithful seek from each guideline — with analysis of how realistic those desires are. Also, we explore the connection between Project Small Access and Axanar, which they are fully independent of one another — except, not. Read more »

Okay, this made me laugh:

The hope is that dozens or potentially hundreds of these reports will be mailed so that maybe, just maybe, the executives don’t throw them all in the trash and instead actually read a copy.

Back in my antitrust days I used to file a ton of "public comments" with agencies. At first I deluded myself into thinking these would have some impact. They never did.

Moving on to more substantive issues, I take slight issue with our friend @carlosp on this point:

Respondents concluded this guideline is unenforceable under Section 16600 of the California Business and Professions Code, which states: “Every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

[...]

ANALYSIS The report argues the guidelines are a contract, but cites no case law to support its conclusion that this term in the guidelines is a restrictive covenant subject to being ruled unenforceable. The guidelines are not like a traditional agreement not to compete, solicit customers or hire specific employees, because if the fan film violated this guideline, CBS would not sue on the grounds that such a covenant had been breached. Instead, the studio would sue on an entirely different claim of copyright infringement. Also, that California statute does not likely extend to activities that violate the law — in this case, copyright.

The ban on "professionalism" strikes me as the weakest part of the guidelines. There is nothing in copyright law that equates "fair use" with amateurism. I understand why CBS does not want guild professionals in unlicensed productions--as I've noted in a number of posts here, it raises a number of potential conflicts with existing union contracts--but there is no reason to believe that a work otherwise protected by fair use would be in violation of copyright merely for using guild professionals. Incidentally, this is why I've said before that SAG-AFTRA and the WGA should develop policy regarding their members' participation in these types of productions.

Now, as to the "enforceability" of the no-professionals rule, while I won't offer an opinion at this time on California labor law, I do think the studio's guideline could violate the Federal Trade Commission Act. I recall a number of FTC cases where the agency struck down informal rules adopted by private bodies based on the perception that they discouraged "competition" in some area. I could easily see a similar case used against CBS if the government was inclined to bring one (not that I expect it will).

 

[OtherGene]

I love Mr Lanes' comment "what we lack in quantity, we can make up for in dedication and passion" because it shows he's been well trained in the ways of Axanar as it's very similar to some of the things Mr Peters is often quoted as saying. It makes the on-side Axanar supporter feel like they have some worth because it's saying that even if only a handful of "our" people send their letters in because of their dedication and passion it will have more value then if thousands did.

I question whether Lane actually believes there is any point to his latest project or whether he's simply trying to shore up support with all this reaffirming nonsense.

 

[drt]

Moving on to more substantive issues, I take slight issue with our friend @carlosp on this point:



The ban on "professionalism" strikes me as the weakest part of the guidelines. There is nothing in copyright law that equates "fair use" with amateurism. I understand why CBS does not want guild professionals in unlicensed productions--as I've noted in a number of posts here, it raises a number of potential conflicts with existing union contracts--but there is no reason to believe that a work otherwise protected by fair use would be in violation of copyright merely for using guild professionals. Incidentally, this is why I've said before that SAG-AFTRA and the WGA should develop policy regarding their members' participation in these types of productions.

Now, as to the "enforceability" of the no-professionals rule, while I won't offer an opinion at this time on California labor law, I do think the studio's guideline could violate the Federal Trade Commission Act. I recall a number of FTC cases where the agency struck down informal rules adopted by private bodies based on the perception that they discouraged "competition" in some area. I could easily see a similar case used against CBS if the government was inclined to bring one (not that I expect it will).

I think that guideline is more of a shot across the bow of those actors - even if the legality is struck down later, it's been put out there that CBS isn't in favor of them performing in fan films, and I think it's pretty well known that actors get blackballed all of the time in Hollywood.

 

[Professor Zoom]

Okay, this made me laugh:



Back in my antitrust days I used to file a ton of "public comments" with agencies. At first I deluded myself into thinking these would have some impact. They never did.

Moving on to more substantive issues, I take slight issue with our friend @carlosp on this point:



The ban on "professionalism" strikes me as the weakest part of the guidelines. There is nothing in copyright law that equates "fair use" with amateurism. I understand why CBS does not want guild professionals in unlicensed productions--as I've noted in a number of posts here, it raises a number of potential conflicts with existing union contracts--but there is no reason to believe that a work otherwise protected by fair use would be in violation of copyright merely for using guild professionals. Incidentally, this is why I've said before that SAG-AFTRA and the WGA should develop policy regarding their members' participation in these types of productions.

Now, as to the "enforceability" of the no-professionals rule, while I won't offer an opinion at this time on California labor law, I do think the studio's guideline could violate the Federal Trade Commission Act. I recall a number of FTC cases where the agency struck down informal rules adopted by private bodies based on the perception that they discouraged "competition" in some area. I could easily see a similar case used against CBS if the government was inclined to bring one (not that I expect it will).

I think CBS is just using the threat of a copyright violation suit to keep professionals away. After all, all fan films are in violation already.

Regarding the FTC, is there wiggle room for CBS in that these are guidelines rather than rules? It's splitting hairs, but isn't sometimes that the law?

 

[oswriter]

I think CBS is just using the threat of a copyright violation suit to keep professionals away. After all, all fan films are in violation already.

I tend to agree. But it it is a weak point if anyone ever tried to challenge the guidelines in court.

Regarding the FTC, is there wiggle room for CBS in that these are guidelines rather than rules? It's splitting hairs, but isn't sometimes that the law?

Well, I know of cases where "advisory" guidelines have been declared illegal. One thing to keep in mind about the FTC Act is that it's unnecessary to demonstrate actual harm. A hypothetical harm to "competition" is sufficient for agency action.

 

[Professor Zoom]

I tend to agree. But it it is a weak point if anyone ever tried to challenge the guidelines in court.

What ground could they be challenged on? Would it be in defense of a copyright case?

Well, I know of cases where "advisory" guidelines have been declared illegal. One thing to keep in mind about the FTC Act is that it's unnecessary to demonstrate actual harm. A hypothetical harm to "competition" is sufficient for agency action.

How can there be an issue of competition when one of the "competing" products is illegal?

 

[oswriter]

What ground could they be challenged on? Would it be in defense of a copyright case?

How can there be an issue of competition when one of the "competing" products is illegal?

There's something of a chicken-and-egg problem here. It's not a given that a "fan film" is illegal. There may be cases where it is fair use under copyright law. Axanar almost certainly is not, but other cases are much closer. And if CBS argued, "This isn't fair use because it includes professional actors," I don't think that would fly with a lot of judges. The guidelines are a preemptive effort by CBS to state their terms of "fair use," but a court does not have to accept them.

 

[trynda1701]

I have a question about a comment made by the author of this article that was linked to in the Star Trek Continues: Episode 7 speculation thread a few weeks back.

http://fff.trekbloggers.com/2016/08...ns-to-make-four-more-full-episodes-hopefully/

I meant to ask about it a few days after it was posted. Anyway, the relevant part of the comment in question (number 7) is pasted below from the article comments...

"Jonathan Lane says:
August 10, 2016 at 10:14 am


Not on my end. There’s a lot going on that many fans aren’t aware of. I chatted extensively with a number of people during the past week and learned a lot about the Axanar case that I didn’t previously know. Unfortunately, I wasn’t given permission to publicly share anything I was told. But this really will be a very interesting next five months."

Do any of our legal and jounalistic trained posters have thoughts on what he may be talking about here? Who he might have talked to (surely not W&S)?

 

[Earthrise]

I tend to agree. But it it is a weak point if anyone ever tried to challenge the guidelines in court.

Well, I know of cases where "advisory" guidelines have been declared illegal. One thing to keep in mind about the FTC Act is that it's unnecessary to demonstrate actual harm. A hypothetical harm to "competition" is sufficient for agency action.

I genuinely hope that should any fan film creator ever consider challenging the guidelines in court, the fan film community would swiftly and unequivocally condemn the action and withhold all support from the filmmaker. I can guarantee you that as soon as the guidelines become more trouble than they're worth a revised version will be issued: no fan films.

 

[Potemkin_Prod]

On AxaMonitor, a detailed analysis of Project Small Access' Focus Group Report, in which they call on CBS/Paramount to revise their fan film guidelines. The article provides both a summary of the 38-page report and digs down into what the Axanar faithful seek from each guideline — with analysis of how realistic those desires are. Also, we explore the connection between Project Small Access and Axanar, which they claim are fully independent of one another — except, not. Read more »

Carlos, did any non-Axanar fan film producers collaborate on these "revised" fan film guidelines?