CBS/Paramount sues to stop Axanar

[Professor Zoom]

So, they are saying, CBS/Paramount CAN'T sue them because they haven't made anything....

...Does that mean they aren't GOING to make a movie then?
...Or they are going to suddenly turn it into a Parody?

With that defense, what does that mean for the movie? For the donors?

 

[Karzak]

Great post. Couple things, though... "Locking" a script means something different for an indie film. A locked script, if you're trying to hold costs down, is needed in order properly do your preproduction (budget, schedules, set and costumes, etc.) so that everything is ready come principal photography.

So there is definitely some fibbing here, either by Peters first saying the script is locked then telling his lawyer that it's not because Hollywood, or by Burnett claiming he's still doing ongoing rewrites but that the Vulcan scene required a ton of preproduction to get ready (storyboards, previz CGI, final CGI) designing specific visual evidence (e.g., Mt. Seleya and the city of ShiKahr), all in advance. You can't do that without a script. And you can't change that script in any substantial way without having to redo those other elements.

Burnett is an actual director. He knows you have to have extensive preproduction complete before cameras roll, and the lawsuit was filed only just before shooting was due to begin. It's insane to claim that your "fully professional" independent feature hasn't completed this work so close to its expected shooting date.

Great post here as well, Carlos. I stand corrected re: indie film. My chief experience has been in hour-long television drama, so I was going based on what i know there. Thanks for the elaboration

 

[Indysolo]

(e.g., Mt. Seleya and the city of ShiKahr)

Was it ever established that the scene was set in ShiKahr?

...Or they are going to suddenly turn it into a Parody?

They have his phone number!

Neil

 

[carlosp]

THANK YOU. Could you please come over to the Facebook page and explain that to people? I've been saying this all day over there ...

Webster's disagrees with you:

Definition of mockumentary
plural mock·u·men·ta·ries

1. : a facetious or satirical work (as a film) presented in the style of a documentary

So does Oxford. So does Wikipedia. So does MacMillan. And Collins. And the Free Dictionary. The elements of parody, facetiousness, wit, humor, irony or satire are core elements of the word, even if applied to works not overtly ha-ha hi-larious.

You could split hairs over whether mockumentary covers what Prelude is, or whether "docufiction" or "fictional documentary" is a better term for the film, but the fact remains that Winston & Strawn chose its term very deliberately. They wanted to divorce what CBS calls the combined "Axanar Works" into two separate parts — one, a short parody covered under fair use, and the other not yet created so covered under prior restraint, enabling producers to get it made and only then be subject to assessment of its copyright infringement.

 

[carlosp]

Was it ever established that the scene was set in ShiKahr?

Robert Burnett specified it in a recent Facebook post in which he described the detailed preparation, including VFX shots, etc. that had to be constructed weeks or months in advance. IMHO, the VFX that has already been done (e.g., the ext. starship battles) is ripe for assessing copyright infringement in the case. Same with costumes, sets, etc., all of which are far less fungible than the words on the pages of a script.

 

[carlosp]

So, they are saying, CBS/Paramount CAN'T sue them because they haven't made anything....

...Does that mean they aren't GOING to make a movie then?
...Or they are going to suddenly turn it into a Parody?

With that defense, what does that mean for the movie? For the donors?

To quote my favorite new show, Crazy Ex-Girlfriend, "It's really a lot more nuanced than that."

The essence of the defense argument is that until the film is complete, it cannot be assessed as having infringed copyright, and that any attempt to keep it from proceeding is a First Amendment-busting illegal prior restraint.

Under the first part of that argument, the defense is arguing that it has plenty of time (if CBS will just them what they're doing that's sooooooo wrong) to fix any potential infringement and that nothing should impede the production from moving forward.

The trouble with the prior restraint argument is that copyright is enshrined in the Constitution, too, and First Amendment rights are not absolute.

As far as parody, it appears they're only trying to get Prelude designated as one by calling it a "mockumentary" (its use in the motion is a mockery of the term), so that it falls under fair use. The full Axanar film they want to buy time to file off the serial numbers so production can move forward.

 

[Franklin]

Let me try to get my head around something. In the response, are they really trying to say that "Prelude to Axanar", as a mockumentary, is to "Star Trek" what "The Rutles" is to "The Beatles"? Is that at all accurate?

Also, how can it be a mockumentary when its purpose was obviously to tease the upcoming "Axanar" feature film? It has "prelude" in the title, after all. Which means although it was told in a documentary style after the fact (or "fictional-fact"), it was still an introduction to something bigger yet to come, "Axanar" itself. Unless they now want to claim "Axanar" itself is a mockumentary?

 

[drt]

Webster's disagrees with you:

Definition of mockumentary
plural mock·u·men·ta·ries

1. : a facetious or satirical work (as a film) presented in the style of a documentary

So does Oxford. So does Wikipedia. So does MacMillan. And Collins. And the Free Dictionary. The elements of parody, facetiousness, wit, humor, irony or satire are core elements of the word, even if applied to works not overtly funny.

You could split hairs over whether mockumentary covers what Prelude is, or whether "docufiction" or "fictional documentary" is a better term for the film, but the fact remains that Winston & Strawn chose its term very deliberately. They wanted to divorce what CBS calls the combined "Axanar Works" into two separate parts — one, a short parody covered under fair use, and the other not yet created so covered under prior restraint, enabling producers to get it made and only then be subject to assessment of its copyright infringement.

Yeah, pretty smart move by the defense attorneys. Their goal is to not let CBS take Peters to the cleaners, they don't actually care if the movie is never made. If they get Prelude discounted as fair use, and Axanar is never made, then it becomes harder for CBS to claim that numerous copyrights were violated for something that doesn't exist (they'd just be on the hook for what was in the Vulcan scene).

 

[muCephi]

The essence of the defense argument is that until the film is complete, it cannot be assessed as having infringed copyright, and that any attempt to keep it from proceeding is a First Amendment-busting illegal prior restraint.

Isn't there a notion of preparatory offenses in copyright law, like there is in criminal law with conspiracy to commit a crime? in the latter as I have read you dont have to actually commit the crime, only take a concrete step to set it in motion. this could be a verbal agreement. even this offense excludes merely contemplating a crime.

Wouldn't the discovery establish plenty of concrete steps already taken? And haven't lots of concrete steps been publicised already, even up to stating the purpose unambiguously in contracts for benefits of the fundraising, eg get listed on the credits of the film?

 

[Amaris]

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This movie never gets old for me.

 

[jespah]

The Certificate of Interested Parties appears to be a pro forma filing that spells out all the possible parties who may have a direct financial interest in the outcome of the case. In this case, for the defendants, it is just the so-far named defendants, Alec Peters and Axanar Production Inc.

The Certificate could also list other interested parties like an insurance carrier who might be liable to pay all or part of any judgment.

The idea behind the Certificate is that it's full disclosure for the judge to assess whether he may have any conflict of interest with any of the listed parties, and if so, disqualify or recuse himself.

Exactly; my reading bears that out. It's to check for conflicts - for the judge, for counsel, etc. (e. g. if Zavin suddenly realized, hey, I know Peters personally!). It's also, in case there are other parties, e. g. if AP had a co-owner in Axanar, and I'm quite sure he does not - if I am wrong, then of course I own up to that.

I'll be reading plenty more tomorrow, etc. This is also the week when professors decided, oh, you're not doing anything else. Here, read a few more articles ....

 

[Mudd]

Okay, I'm really ignorant here, but...

...If they successfully got the case dismissed on these grounds, wouldn't that in essence relieve them of the burden of having broken the law up to this point, while effectively preventing them from ever moving forward with the movie as described?

IOW, they get to keep everything they've acquired because there are no damages, no finding of violations, etc - as long as they never actually produce something more than they already have using CBS IP.

 

[BillJ]

I just have this suspicion that Robert Meyer Burnett has been paid a lot more than was listed in the Axanar report. There's no other reason for him to still be around.

 

[carlosp]

No, what you're seeing is the aspect of the infringement that the motion to dismiss completely elides: Namely, that copyright infringement was itself used to raise money for the production of the film and the establishment of Ares Studios, a for-profit venture.

Prelude wasn't merely a "teaser" or a "trailer," and it certainly wasn't a parody/mockumentary. It was specifically created as advertising for a film called Star Trek: Axanar, and to get people to give them money in exchange for merchandise, including DVDs and Blu-rays of both Prelude and the feature film. While Peters has filed off the "Star Trek" prospectively, the fact remains that at the time, the term and its associated copyrights were being used to raise money for a commercial venture.

Consequently, the proceeds from that initial infringement themselves shouldn't belong to Axanar; they were raised on the back of intellectual property it doesn't own.

 

[Campe]

I just have this suspicion that Robert Meyer Burnett has been paid a lot more than was listed in the Axanar report. There's no other reason for him to still be around.

Well, except for the idea of directing a Star Trek movie.

 

[carlosp]

I just have this suspicion that Robert Meyer Burnett has been paid a lot more than was listed in the Axanar report. There's no other reason for him to still be around.

Robert Burnett's salary in the Axanar report doesn't include activity since its reporting period, including preproduction, shooting and post-production for the Vulcan Scene.

 

[BillJ]

Well, except for the idea of directing a Star Trek movie.

But the reality that Axanar wasn't happening should've set in long ago.

 

[MikeH92467]

If a judge granted a dismissal, I would think he would also have to order C/P to issue a set of formal guidelines. I don't see it happening, but I'm just guessing.

 

[BillJ]

If a judge granted a dismissal, I would think he would also have to order C/P to issue a set of formal guidelines. I don't see it happening, but I'm just guessing.

Can he do that? That would be telling a business how to operate. Seems like he would be exceeding his authority there.

 

[#1RealTrekFan]

Not even Judge Dredd would go THAT far.

Can he do that? That would be telling a business how to operate. Seems like he would be exceeding his authority there.