I guess the provenance fight would go towards getting a deal cut with C/P, or getting the immediate case dismissed, even if in the long term it doesn't resolve the right to film.
From what Alec is saying, W&S sounds like they also want to introduce technical arguments against the validity of the copyright in general.
They have a perfect client for this, one who is driven by ego more than business interests. He won't ever stop based on striking a balance. They probably do all they can to juice this.
Fair use would be another line of attack.
I really don't know about the potential technical vulnerabilities of long term copyright law. I should think though that W&S probably look here for certainty that they have something to argue. Provenance might be too subject to surprise information to be clear about in advance. Fair use and provenance might just be distractions in a set up of a Supreme Court case.
Just imagine, Alec gets his "divert fan money for a private studio" act and his bankruptcies put under a global press microscope. Bat'leth cuts many directions.
But you have to understand Judge's thinking. They don't make new law nor feel they should. They interpret, and adjudicate on EXISTING laws that are on the books; and when they do a 'novel' interpretation, in the long run, an Appeals court usually overturns it.
You also have to understand what the Appeals court does - when you appeal, it's NOT a second trial per se. You have to have a REASON for the appeal, and it's usually something along the lines of:
"We don't think the Judge/Jury interpreted and ruled on the laws pertaining to this case correctly..."
or
"The Judge violated court rule X/standing trial procedure Y and as a result my client did not have a fair/proper trial..."
At that point what the Appeals court does is go over the transcript of the original trial and to see IF a law/court rule, etc. was (in their opinion) improperly interpreted or applied; and based on what they find and decide - can say the ruling stands, vacate the ruling entirely (meaning the petitioner who brought the case would need to re-file and start from scratch with a new trial if they intend to continue their pursuit of legal action); or declare a mistrial (meaning the case will be re-tried in another trial court; but there's no need to refile a case from scratch.)
In the appeal each side can further argue why they feel a particular ruling was unfair/properly applied to their client; or why they believe a court rule was improperly applied, etc; but overall the appeals court will base their ruling on the transcript of what happened when the case was tried in the lower court.
That's why Judges are so meticulous when conducting a trial. They don't want to do anything that would allow an Appeals court to overturn a final ruling they've made. It's a matter of honor or pride with a Judge that his record reflect he/she conducts fair trials according to law and that in the end - an Appeals court cannot find fault with his rulings.
Politics become involved when you find an Appeals Judge (or group) with an agenda (IE they don't like certain court rules or a law) - so they start overturning rulings in certain areas to cause backlog in the courts, which garners the attention of politicians who make the laws -and they hope by doing what they are doing the Appeals Judge(s) hope the Lawmakers will change a law to their liking.
Honestly, I don't see how Axanar, Alec Peters , or W&S expect to set any precedent, because honestly, the copyright law in this area is pretty cut and dried. Also note that this issue (IE that CBS/Paramount failed to fully demonstrate their copyright with regard to Star Trek) WAS put forth by W&S in their Motion to Dismiss; and after looking at everything submitted, the Judge denied that MTD in it's entirety - effectively ruling that CBS/Paramount HAVE properly demonstrated to the Court that they DO (jointly) hold all copyrights on the Star Trek IP,
^^^
Down the road - If Axanar 'loses' the civil trial and appeals on that basis (IE they argue the Judge shouldn't have denied the MTD because C/P failed to prove copyright of the Star Trek IP); unless there's some sort of 'smoking gun' gap over the decades where CBS/Paramount failed to copyright something related to Star Trek - Axanar is DOA.I honestly think it'll be a short appeal; which won't end in Axanar's favor, but, time will tell.
