Set up a stand selling Axanar Coffee and see if they try to shut you down for copyright infringement. Remove the CBS IP and substitute any of the plentiful derivative work in Axanar. Lord Garth Blend, Profitable to the last Drop.
CBS/Paramount sues to stop Axanar
- Thread starter Richard Baker
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Set up a stand selling Axanar Coffee and see if they try to shut you down for copyright infringement. Remove the CBS IP and substitute any of the plentiful derivative work in Axanar. Lord Garth Blend, Profitable to the last Drop.
Hey all, I'm not trying to complicate things too much, but I don't want to mislead or confuse anyone by broad statements.
Ultimately, plaintiff is entitled to the profits attributable to the infringement. That's the fair result - whatever you made in profit as a result of infringing my IP, you get. All plaintiff has to introduce into evidence is the gross revenue number and defendant has to try to chisel that number down to get to the "profits attributable to the infringement". I know we're all on the same page.
But let's take a hypo. I write an app. Apple copies it, and sells 10 copies for a buck each. It costs Apple ten cents per copy to make and sell their infringing app. As plaintiff, I introduce Apple's gross revenues of $300 billion into evidence. Do I get $300 billion, less the $1.00 total expenses they spent spent to sell the $10 worth of infringing software? No - but our focus on what rent Axanar may be able to deduct or not deduct might have given you that idea.
Apple could deduct from that $300 million, in addition to their $1.00 total expenses they spent spent to sell the $10 worth of infringing software, all other expenses and profits that had nothing to do with the infringement - because, as a plaintiff, I'm only entitled to the profits attributable to the infringement - about $9.00 in this case. Apple could deduct:
- $1.00 total expenses they spent spent to sell the $10 worth of infringing software; and
- all profits attributable to non-infringing activities (sales of computers, iPhones, iPad, etc.) and
- all expenses attributable to non-infringing activities (cost of producing and selling computers, iPhones, iPad, etc.) and
Now, in Axanar's case, most of what we have been saying is actually still on point- unlike Apple, Axanar doesn't really have much, if any, "unrelated business expense and profit" that isn't tied to the Axanar movie and related products. I just didn't want anyone to read my earlier stuff and think defendant can only deduct expenses incurred in infringing, and all other expenses would be treated as "profit". Axanar could well argue that the rents during shutdown are deductible not because they were an expense of infringing but, instead, the opposite - they were an expense incurred that has nothing to do with the infringement. (And C/P would argue "but having the studio in the first place was a "profit" of infringing, so no you can't deduct that" . . and then we go down a messy rabbit-hole so I'll stop there. But I hope you get my drift.)
M
Ultimately, plaintiff is entitled to the profits attributable to the infringement. That's the fair result - whatever you made in profit as a result of infringing my IP, you get. All plaintiff has to introduce into evidence is the gross revenue number and defendant has to try to chisel that number down to get to the "profits attributable to the infringement". I know we're all on the same page.
But let's take a hypo. I write an app. Apple copies it, and sells 10 copies for a buck each. It costs Apple ten cents per copy to make and sell their infringing app. As plaintiff, I introduce Apple's gross revenues of $300 billion into evidence. Do I get $300 billion, less the $1.00 total expenses they spent spent to sell the $10 worth of infringing software? No - but our focus on what rent Axanar may be able to deduct or not deduct might have given you that idea.
Apple could deduct from that $300 million, in addition to their $1.00 total expenses they spent spent to sell the $10 worth of infringing software, all other expenses and profits that had nothing to do with the infringement - because, as a plaintiff, I'm only entitled to the profits attributable to the infringement - about $9.00 in this case. Apple could deduct:
- $1.00 total expenses they spent spent to sell the $10 worth of infringing software; and
- all profits attributable to non-infringing activities (sales of computers, iPhones, iPad, etc.) and
- all expenses attributable to non-infringing activities (cost of producing and selling computers, iPhones, iPad, etc.) and
Now, in Axanar's case, most of what we have been saying is actually still on point- unlike Apple, Axanar doesn't really have much, if any, "unrelated business expense and profit" that isn't tied to the Axanar movie and related products. I just didn't want anyone to read my earlier stuff and think defendant can only deduct expenses incurred in infringing, and all other expenses would be treated as "profit". Axanar could well argue that the rents during shutdown are deductible not because they were an expense of infringing but, instead, the opposite - they were an expense incurred that has nothing to do with the infringement. (And C/P would argue "but having the studio in the first place was a "profit" of infringing, so no you can't deduct that" . . and then we go down a messy rabbit-hole so I'll stop there. But I hope you get my drift.)
M
Follow - up: of course, it's the defendant's burden to itemize deductions. So, in my hypo, if I put in a $300 billion number and Apple fell asleep at the wheel and didn't offer any deductions, they wouldn't carry their legal burden and I maybe technically could get a judgment for $300 billion. But a court would toss that judgment in a heartbeat, as it's factually impossible for Apple to have $300 billion in profits on $10 in infringing sales.
Yes, I sometimes find my drive to be "comprehensive" exhausting as well. Why do you ask?
M
Yes, I sometimes find my drive to be "comprehensive" exhausting as well. Why do you ask?
M
Thanks, its interesting. I think that expenses during shutdown ARE related to infringement, since the firm is staying open with the apparent hope of continuing the infringing activity if at all possible.
According to the rules of discovery, if they have reason to believe the products being sold were also derivative works, they can seek out that information, particularly since it goes not only to infringement but also to damages. Here's a summary of how discovery works.
Another intellectual property attorney weighs in on Axanar's new "we are not a studio" stance, in a blog post on Nova Southeastern University's Copyright website, "The Growing Problem of Phony “Fair Use” Claims: From Michelle Shocked to Axanar":
Typical of the double-speak engaged in by the Axanar Producers, here is the denial on their official webpage:
Which is contradicted by this direct quote:
And if you need further proof of the true intentions of these so-called “fair use” and “free speech” crusaders is that persons who are critical of Axanar’s ethics and legal positions have their posts on Axanar’s Facebook page deleted and their ability to post on the Axanar page revoked.
“Ares Studio is the term we use to describe the warehouse we have built our sound stage to make Axanar. There is no profit being made… Axanar Productions has been paying for the building while we build sets and prepare the make the movie. Would we like to make movies after Axanar? Sure would, but that is all speculative. We don’t have any revenue from the studio and so such talk is nonsense.”
Which is contradicted by this direct quote:
“Ares Studios – We funded and created a film studio. While not yet finished, Ares Studio will have everything needed to make movies for years to come.”
And if you need further proof of the true intentions of these so-called “fair use” and “free speech” crusaders is that persons who are critical of Axanar’s ethics and legal positions have their posts on Axanar’s Facebook page deleted and their ability to post on the Axanar page revoked.
I did a rough count of possible people from IMDb and other sources, and it hovers right around 20. A number of people listed on IMDb may fall off once their actual job description is clarified. http://axamonitor.com/doku.php?id=does
In the article, I also have a quote from Star Trek author Dave Galanter, who asked his name be taken off IMDb after Alec Peters overstated his participation in writing the script for Axanar:
I didn't get to edit any story and neither asked for nor wanted any credit for giving [Alec Peters] comments and notes on his first draft. … Peters was trying to “thank me” for giving him some comments early on, but had this been a professional endeavor of mine, the script would have had to have been licensed and approved by CBS or Paramount, and I'd have needed to be paid. The input I gave was the same I give to beginning writers at writing workshops I take part in for free.
This is why my family rarely asks me legal questions anymore.
PS Plenty of other infringements are going on, even sans film.
- Ship Model sales
- Tee shirt sales
- Retroactive 'donations' for DVDs that don't exist yet
- Convention attendance, possibly with showings of Prelude as a pitch for donations
- Poster sales
Does anybody happen to be going to this convention they plan to attend?
I hope so be if you can record what is said, that would be great to hear
I hope so be if you can record what is said, that would be great to hear
D'oh, thanks!
We're building a catalog of Axanar's merchandise catalog on AxaMonitor, if you want to see it summed up.
I wonder if Richter would be named as a Doe? I'm not sure if it's standard language, but I noted the phrase "participating or assisting in any such activity whether or not it occurs in the United States" occurs a couple of times in the original complaint. And it seems like 75% of Prelude is just his CGI.
I did a rough count of possible people from IMDb and other sources, and it hovers right around 20. A number of people listed on IMDb may fall off once their actual job description is clarified. http://axamonitor.com/doku.php?id=does
In the article, I also have a quote from Star Trek author Dave Galanter, who asked his name be taken off IMDb after Alec Peters overstated his participation in writing the script for Axanar:
I didn't get to edit any story and neither asked for nor wanted any credit for giving [Alec Peters] comments and notes on his first draft. … Peters was trying to “thank me” for giving him some comments early on, but had this been a professional endeavor of mine, the script would have had to have been licensed and approved by CBS or Paramount, and I'd have needed to be paid. The input I gave was the same I give to beginning writers at writing workshops I take part in for free.
We're building a catalog of Axanar's merchandise catalog on AxaMonitor, if you want to see it summed up.
See? This is why I don't understand why C/P - even in their perfunctory "maybe they'll fold" original complaint to Axanar - didn't include such easy-to-spot, easy-to-prove, easy-to-win slam-dunk claims such as trademark infringement. It's so much less a gray area than copyright and not subject to a "fair use" defense (fair use under trademark is a whole different ballgame, and not applicable to cases like these.)
FYI, trademark infringement lets you seek damages from someone who uses a similar mark on goods that are similar or related to the goods on which you use your own mark. The "wiggle room" that wins or loses cases is the parties arguing over "how similar is too similar such that consumers might be confused." Similarity is often in the eye of the beholder.
But look up above - the mark "klingon" on a toy spaceship or model kit for building toy spaceships.
Guess what - CBS has a U.S. federal trademark registration for "Klingon" for toy spaceships and model kits for building toy spaceships. The registration has been in effect for 21 years and is still in effect.
Exact same mark. Exact same goods. No wiggle room. No defense. Slam dunk for C/P.
Damages? Same measure as copyright- defendant's profits plus plaintiff's actual damages OR statutory damages. However, because the mark is exactly the same (not just "similar") to the registered mark and is being used on the exact same goods as (not just "similar or related to") the goods identified in the registration, this also - in addition to trademark infringement - constitutes use of a "counterfeit mark" under the U.S. Lanham Act, which means
- Triple Profits and Damages plus Attorneys' Fees- in cases of intentional and knowing use of a counterfeit mark or designation "the court shall . . . enter judgment for three times such profits or damages, whichever is greater, together with a reasonable attorney's fee . . . ."
or statutory damages up to $1,000,000 per counterfeit mark.
Sigh. I just do not frigging get why C/P didn't raise any of this in the original complaint when it's right there.
M
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