Axanar Proposed Jury Instructions

Janet Gershen-Siegel

Jespah (Janet Gershen-Siegel) has been a fan of Star Trek since probably the first set of reruns of The Original Series. She has an eclectic background, including an undergraduate degree in Philosophy, a JD (she practiced insurance defense law for a few years in New York and is a lot happier since she retired from that in 1990), and a MS in Interactive Media, which is a real-live social media degree.

Along the way, she has about a decade and a half of data analysis work under her belt and currently works as a blog coordinator for a high-end wedding blog and also as a blogger for hire (topics include diverse subjects like ad retargeting but also the nursing job market), and has a shingle out to work on social media presence, with a focus on independent authors as she is also a published science fiction author. Plus, she has been a community manager for a large Q & A website since 2002, which is before that existed as a job title.

She was raised on Long Island so, when she is riled up, the accent gallops back out and she can sound like Fran Drescher with a law degree. She lives in Boston with her husband of over 20 years and more computers than they need.

She can always be bribed with pie.

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Axanar Proposed Jury Instructions

Jury instructions, also known as the judge’s charge to the jury, consist of information about relevant laws to guide deliberations. In addition, the judge will define terms and define the standard of proof. Because the Axanar case is a civil matter, the standard of proof is a preponderance of the evidence. Hence it is the least challenging standard for a plaintiff to prove.

Axanar Jury Instructions

Axanar Jury Instructions and More

As usual, I will provide the documents and point out the highlights. Also, please feel free to hit me up on the Contact page if anything is unclear.

Orders Granting Defense Motions to File Documents Under Seal

First Order Granting Defense Motion to File Documents Under Seal

Second Order Granting Defense Motion to File Documents Under Seal

First of all, defense won a pair of motions to file certain documents under seal. The first one concerns some of the defense motions in limine, including #5 and #7, which were both denied. Also, the second one concerns motions in limine #1 and #3, which were both granted. However, that was an appetizer. Now onto the main courses.

Plaintiffs’ Video Compilation for Trial

Plaintiffs’ Summary of Video Compilation for Trial

So the next document summarizes the videos which plaintiffs have put together in preparation for this case. And the jury will have a lot of viewing material. Furthermore, in addition to Prelude and the Vulcan Scene, plaintiffs will also show excerpts from these films:

  • Star Trek: The Motion Picture (1979)
  • Star Trek: The Wrath of Khan Motion Picture (1982)
  • and Star Trek III: The Search for Spock Motion Picture (1984)
  • Star Trek VI: The Undiscovered Country Motion Picture (1991)
  • also Star Trek Nemesis Motion Picture (2002)
  • Star Trek Motion Picture (2009)

In addition, they will show excerpts from these TOS episodes:

  • “And the Children Shall Lead”
  • “Court Martial”
  • and “Day of the Dove”
  • “Elaan of Troyius”
  • “Space Seed”
  • also “The Cage”
  • “The Lights of Zetar”
  • “The Menagerie, Pt. 1”
  • in addition, “Where No Man Has Gone Before
  • “Whom the Gods Destroy”

Also, they will show one minute’s worth of footage from the TNG episode, “Conspiracy”.

Finally, they will show excerpts from these ENT episodes:

  • “Kir’shara”
  • “The Awakening”
  • “The Expanse”
  • “These are The Voyages”
  • “Unexpected”

They expect total running time of 85 minutes, however, this does not take into account testimony or some possible final editing.

Plaintiffs’ Disputed Proposed Jury Instructions

Since these are really long, I will just cherry pick some highlights (and of course please feel free to download the document if you like. I paid for it and offer it, a piece of the public record, to you, for free).

Plaintiffs’ Disputed Proposed Jury Instructions

Names Dispute

First of all, on Page 5, defense offers an objection:

Defendants object to referring to Defendants’ works as Star Trek: Prelude to
Axanar and Star Trek: Axanar as it is factually incorrect and prejudicial. The
correct titles of the works are Prelude to Axanar and Axanar. While at one point
Defendants used the title Star Trek: Prelude to Axanar, the title was changed.

And while you and I might see that as minutiae, it goes to an attempt to plant one idea in the jury’s minds, or another.

Preliminary Instruction on Copyright

And then on Page 11, the jury instructions reference a lot of Judge Klausner’s recent ruling on the summary judgment motions and fair use. Even though the term ‘fair use’ does not appear on the document, this section references the judge’s ruling, including statements that he has already determined:

  • Plaintiffs own the copyrights in question
  • The Axanar Works are substantially similar to plaintiffs’ works
  • Defendants copied original elements of the plaintiffs’ works

Defense objects, stating that ownership was not at issue in the summary judgment motions. However, actually, the plaintiffs did mention ownership in their summary judgment motion, although defense also states the judge said he wanted proof of ownership when the parties met for a pretrial conference on January 9, 2017. Furthermore, defense feels references to summary judgment motions should not go to the jury (they are probably right that references to motion practice are out; however, that does not necessarily mean all of the verbiage in those motions is off the table) and that vicarious and contributory infringement should also be mentioned.

Profit and Damages

In addition, on Page 41, plaintiffs state:

In addition to actual damages, the copyright owner is entitled to any profits of
the Defendants attributable to the infringement. You may not include in an award of
profits any amount that you took into account in determining actual damages.

You may make an award of the Defendants’ profits only if you find that the
Plaintiffs showed a causal nexus between the infringement and the profits generated
indirectly from the infringement.

The Defendants’ profit is determined by subtracting all expenses from
Defendants’ gross revenue.

Plaintiffs go on to state the gross revenue consists of “all of the Defendants’ receipts from the use, or sale, of the products and works using the copyrighted work associated with the infringement.” Hence they are seeking to include, I believe, the take from the donor store.

Also, this instruction adds:

Expenses are all operating costs, overhead costs, and production costs
incurred in producing the Defendants’ gross revenue, so long as the operating costs,
overhead costs, and production costs actually assisted in production, distribution or
sale of the infringing product. The Defendants have the burden of proving their
expenses by a preponderance of the evidence.

Therefore, I believe this will include electricity and rent, but no convention travel and the like.

Willful Infringement is on the Table

Furthermore, on Page 44, plaintiffs say:

The amount you may award as statutory damages is not less than $750, nor
more than $30,000.00 for each work you conclude was infringed.

However, if you find the infringement was willful, you may award as much as
$150,000 for each work willfully infringed.

And defense objects, stating that (among other things) ‘innocent infringement’ should be taken into consideration.

Joint Proposed Jury Instructions

Joint Proposed Jury Instructions

Because some jury instructions are kind of generic, the parties could agree on a number of them. So these include, e. g., statements regarding jurors’ notes.

Defense Disputed Proposed Jury Instructions

Defense Disputed Proposed Jury Instructions

The last set of jury instructions is rather long. Here are some highlights.

Substantiality Test and Burden of Proof

First of all, on Page 12, defense states:

Plaintiffs must also prove that Defendants’ use of the copyrighted work was
substantial. In determining whether Defendants’ use of the copyrighted work was
substantial, you may consider how important the copied portion was to the
copyrighted work as a whole.

And then defense gets into vicarious and contributory infringement. However, they do not get into willful infringement until more than halfway through the over-100-page document.

Ideas Can’t Be Copyrighted, But Garth of Izar Can

Defense states, on Page 20:

Copyright protection for an original work of authorship does not extend to any idea,
regardless of the form in which it is described, explained, illustrated, or embodied.

Plaintiffs don’t dispute that sentence. However, among other things, they add:

In addition to the overall protection afforded to literary and audiovisual works, the
law provides that individual characters in comic books, television or motion
pictures, including inanimate objects, can be afforded copyright protection when the
character:

(a) must generally have physical as well as conceptual qualities;

(b) is sufficiently delineated to be recognizable as the same character
whenever it appears by displaying consistent, identifiable character traits and
attributes, although it need not have a consistent appearance; and

(c) is especially distinctive and contains some unique elements of expression.
The Court has held that the character, Garth of Izar, is owned by Plaintiffs, is
protected by copyright and was copied by Defendants.

Who Owns Star Trek?

Yet again, defense slips in questions about the ownership of the IP into their jury instructions. However, the matter of the chain of title was settled. When? In October. Furthermore, plaintiffs point out:

Defendants’
jury instruction fails to take into account that the Court has already determined that
Plaintiffs are the owners of the Star Trek Copyrighted Works. Also, Defendants’
Exhibit A fails to identify Star Trek: The Role Playing Game – The Four Years War
(Registration No. TX0008260896), a copyrighted work owned by Paramount.

Now, because defense’s motion in limine #2 was denied, it appears the FASA book can be put in front of the jury. However, because defense’s motion in limine #3 was granted, that appears to contradict the finding for #2. Hence this area will come down to however Judge Klausner makes his final (e. g. no longer tentative) rulings on the various and sundry motions in limine.

Copying as a Whole Versus in Part

In addition, on Page 43, defense says:

Only if works are substantially similar when taken as a whole is a finding of
copyright infringement proper. If Plaintiffs show only that Defendants copied
certain elements of the Star Trek works, you must return a verdict for Defendants.

However, as would be expected, plaintiffs object, as the model jury instructions concern both the intrinsic and extrinsic tests. Yet the judge already ruled on extrinsic, so the proposed instruction is improper. Plaintiffs counter with:

On the contrary, copying of Plaintiffs’ original
expression would require a verdict for Plaintiffs.

The Willful and the Innocent

And yet again, defense slips in the concept of ‘innocent’ infringement on Page 62. However, given the judge’s summary judgment/fair use rulings, this needs to go. Defense says:

An infringement is considered innocent when Defendants have proved both of
the following elements by a preponderance of the evidence:

1. Defendants were not aware that their acts constituted infringement of
the copyright; and

2. Defendants had no reason to believe that their acts constituted an
infringement of the copyright.

Plaintiffs’ Counter

Plaintiffs state:

Under 17 U.S.C. § 401(d), “[i]f a notice of copyright in the form and position
specified by this section appears on the published copy or copies to which a
defendant in a copyright Infringement suit had access, then no weight shall be given
to such a defendant’s interposition of a defense based on innocent infringement in
mitigation of actual or statutory damages, except as provided in the last sentence of
section 504(c)(2).” Therefore, because each of the works Plaintiffs claim were
infringed, to which the Court has decided Defendants had access, featured a
copyright notice, and because Defendants are not nonprofit educational institutions,
libraries, or archives (or employees/agents thereof), innocent infringement is
irrelevant to this case. See 17 U.S.C. § 504(c)(2). Instructing the jury regarding
innocent infringement would be irrelevant and misleading in their calculation of
damages.

Given that defense does not fit any of the listed criteria, supra (e. g. they admit access to plaintiffs’ works in their answer, see Page 19 therein), innocent infringement really needs to go.

Want more? Then feel free to download the document and ask if anything confuses you.

Defense Proposed Jury Verdict

Defense Proposed Jury Verdict

Finally, defense proposed a jury verdict. And they essentially ask five questions, and each one builds on the previous questions. Therefore, if the jury says no to the first question, everything else is automatically considered a no and defense prevails:

  1. Did either plaintiff own any of the works in question? The document goes on for several pages, and they provide a list of not only the episodes and films plaintiffs include in their video presentation, but also extras (why?) like the TOS episode “Amok Time”.
  2. Did defendants copy protected elements such that Prelude and Axanar are substantially similar? Also, defense throws in more Star Trek, such as the “Generations” film. Why? Helfino.
  3. Did defense prove any of their affirmative defenses (consent, authorized use, waiver, estoppel, unclean hands, or misuse)? Yet again, extra Star Trek is larded on, such as episodes from TAS. Why? Surely this will be a headache for jurors just to fill out the form – and that may very well be the defensive strategy. Is that just? You make the call, gentle reader.

More Questions

  1. Are the defendants liable for their infringement? And then the form breaks down into direct, contributory, and vicarious infringement, oh so conveniently omitting willful infringement. Gee, I wonder why they did that.
  2. And then the final question concerns damages. The form asks about any instance of plaintiffs failing to mitigate their damages and then gets into statutory, innocent, and, finally, willful damage amounts. Interestingly enough, while all of the questions add extra Star Trek episodes and the like, certainly a move to annoy a jury if nothing else, the FASA game and book are never mentioned anywhere in defense’s proposed verdict form. There’s a real head-scratcher there, eh?

However, there is no doubt we are getting down to the wire. Of course the parties can settle during trial and even after verdict or during any appeals. But the ball is most certainly rolling.

Things just got real.

What’s Next?

The following dates are coming up:

  • January 24, 2017 parties must file their proposed jury instructions (this seems to be done, but there might be more objections before this date)
  • also, January 30, 2017 parties must file a Joint Statement of the case, no more than 3 pages in length
  • January 31, 2017 Trial

And of course the matter can still settle at any time. Therefore I thank you, as always, for your kind support.

Janet Gershen-Siegel

Jespah (Janet Gershen-Siegel) has been a fan of Star Trek since probably the first set of reruns of The Original Series. She has an eclectic background, including an undergraduate degree in Philosophy, a JD (she practiced insurance defense law for a few years in New York and is a lot happier since she retired from that in 1990), and a MS in Interactive Media, which is a real-live social media degree.

Along the way, she has about a decade and a half of data analysis work under her belt and currently works as a blog coordinator for a high-end wedding blog and also as a blogger for hire (topics include diverse subjects like ad retargeting but also the nursing job market), and has a shingle out to work on social media presence, with a focus on independent authors as she is also a published science fiction author. Plus, she has been a community manager for a large Q & A website since 2002, which is before that existed as a job title.

She was raised on Long Island so, when she is riled up, the accent gallops back out and she can sound like Fran Drescher with a law degree. She lives in Boston with her husband of over 20 years and more computers than they need.

She can always be bribed with pie.

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