Various Axanar Pretrial Filings

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.

Various Axanar Pretrial Filings

So, various Axanar Pretrial Filings are in my hot little hands and now they’ll be in yours.

First of all, yeah, I realize how generic this title is, but the fact of the matter is that there’s really no better way to put it. Because we have a hodgepodge of memoranda and the like. I’ve cherry picked only a few so I don’t repeat myself. And, as always, if you feel I have missed anything, please feel free to head on over to the Contact page and whisper sweet nothings in my ear ask me to get on the stick and blog about ’em.

Furthermore, as with all of the other bits and bobs of this case, these documents exist as a matter of public record. I have paid for them and you are certainly entitled to download them. So if you have any trouble with that, of course give me a shout and I’ll see what I can do.

In addition, I really hope this is it for the bigger documents before the holidays. But hey, you never know. Try not to spill any eggnog on your copies, okay?

And now, onto the … stuff!

Exhibit MMM

Various Axanar Pretrial Filings – the elusive Exhibit MMM

You may remember this one. Or not (helfino). However, you will definitely want to read it. Furthermore, I would advise downloading it, as you should get a larger print copy.

In any event, the document consists of the casting announcement and breakdown for Axanar. And you can instantly see why the defense wanted it to be filed under seal, redacted, thrown off a cliff, burned in a ritual cleansing fire, or, perhaps, shot off into space.

Because for all of the rhetoric about the work being a fan film and no profit being intended, the casting announcement sure as hell looks like it’s intended for a professional production. We are far, far away from a few people with a camcorder, a few bucks, and a YouTube dream, folks.

Page 2

Consider this from the document (page 2):

FORMAT: HD Video, SAG New Media

Yes, they meant the Screen Actors’ Guild.

This page also refers to the following Star Trek-centric items:

  • Kirk, Spock, and McCoy
  • Garth of Izar
  • Battle of Axanar
  • Antoisian (sic, should be Antosian)
  • Klingon
  • Shelby
  • and TNG’s “Best of Both World’s (sic, should be Worlds)”
Various Axanar Pretrial Filings - Exhibit MMM, Page 2

Various Axanar Pretrial Filings – Exhibit MMM, Page 2

Page 3

And then we have this from page 3 (all misspellings, etc. come from the original document):

TEAM PITCH

Axanar is a ground breaking film, meant to show that web features can be the equal of their TV/cinema counter-parts. The crew is lead by professionals with a large contingent of non-union amateurs who have worked together for years on similar projects. Established talent anchor the cast.

Hey, I didn’t write this – they did. So riddle me this, Batman. Because plaintiffs allege that the defense looked to compete directly in the marketplace with the plaintiffs’ authentic product. Furthermore, elements of Star Trek infuse this casting announcement, as do references to professionalism. Therefore, how can this be considered to be a fan film?

So let’s move on while you give it a think, okay?

Various Axanar Pretrial Filings - Exhibit MMM, Page 3

Various Axanar Pretrial Filings – Exhibit MMM, Page 3

Exhibit List

Various Axanar Pretrial Filings – Joint Exhibit List

So next up, we have the joint exhibit list, which comes from all of the parties.

Exhibit #45

First of all, check out Exhibit #45, listed on page 7, and plaintiffs’ objections thereto:

Plaintiffs have not presented any authority to support their position that the quality of the work, or the careers or experience of the people who work on them, have any impact on whether a work is infringing or improper under copyright law.

Basically, plaintiffs say that the probative value is outweighed by prejudice. This does not mean prejudice the way we use it in common ordinary parlance (e. g. racism). Rather, the objection means the information doesn’t really advance the case in any fashion. Furthermore, we can prove the point in other, less inflammatory (e. g. prejudicial) fashions.

Hence I’ll give you a fer-instance. In a criminal kidnapping case, the victim’s picture often ends up somewhere in evidence. Therefore, which photograph should the jury see: the one of the victim at her high school graduation, or the one of her in a miniskirt and too much makeup, or the one where she looks like she’s been beaten? Because if the photograph only exists to identify her, then the former image holds the least prejudicial value, yes?

Exhibit #201

And let’s not forget this financials exhibit, on pages 45 – 46, where plaintiffs say:

In response to Plaintiffs’ document requests, Defendants produced a financial statement. Then, after Mr. Peters’ first deposition, he altered the financial statement Peters “reversed” out certain expenses by attempting to offset them with the lease payments he was required to make on the studio he rented. Defendants’ post-lawsuit financial transactions relating to Axanar Productions, including their manipulation of the financial statement, are irrelevant because they do not eliminate the fact that prior to the filing of this lawsuit, Defendants profited from the business that they created. Also, this financial statement was created by Defendants during this litigation, has no probative weight and is prejudicial.

So consider whether altering something you’ve presented as true and complete represents, you know, a good or a bad idea, okay?

Witness List

Various Axanar Pretrial Filings – Joint Witness List

So next we move onto the witness list filed jointly by the parties.

Plaintiffs Witnesses

First of all, plaintiffs intend to call the following witnesses:

  • Alec Peters (6 hours direct examination)
  • Diana Kingsbury (1 hour)
  • Terry McIntosh (30 minutes)
  • Christian Gossett (2 hours)
  • Bill Burke (1 hour)
  • John Van Citters (5 hours)
  • and Dan O’Rourke (1 hour direct examination; 1 hour cross-examination)

Defense Witnesses

In addition, defense intends to call:

  • Alec Peters (2 hours direct examination; 3 hours cross-examination)
  • Robert Meyer Burnett (2 hours direct; 1.5 hours cross)
  • Bill Hunt (2 hours direct; 1 hour cross)
  • Reece Watkins (45 minutes direct; 30 minutes cross)
  • Chris Tregellis (1 hour direct; 1 hour cross)
  • Dr. Henry Jenkins (1 hour direct; 1 hour cross)
  • Jonathan Lane (2 hours direct; 1 hour cross)
  • John Van Citters (2 hours direct; 1 hour cross)
  • Liz Kalodner (1 hour direct; 30 minutes cross)
  • Bill Burke (1 hour direct; 30 minutes cross)
  • Justin Lin (40 minutes direct; 30 minutes cross)
  • and JJ Abrams (40 minutes direct; 30 minutes cross)

Defense Memorandum of Contentions of Fact and Law

Various Axanar Pretrial Filings – Defense Memo of Contentions of Fact and Law

Because this document mainly repeats older arguments (as it should! That way, nobody springs anything on the other party), I won’t repeat myself except to note this statement on the last page:

VI. ABANDONMENT OF ISSUES
Defendants do not intend to pursue certain of their pleaded affirmative
defenses: Invalidity and Unenforceability of Copyright; and Forfeiture or
Abandonment.

So, what does this mean? Since one of the defense theories centered around failure to register copyrights or invalidity thereof. Hence clearly, based upon this section, those issues were proven and are now off the table.

Plaintiffs’ Memorandum of Contentions of Fact and Law

Various Axanar Pretrial Filings – Plaintiffs’ Memo of Contentions of Fact and Law

First of all, this document ended up partially redacted (see pages 5, etc.). Plaintiffs address copyright and chain of title issues on page 10. Furthermore, on page 11, they indicate they will use defense’s own deposition transcripts, emails, and other memoranda to prove essential elements of their case. And then starting on page 20, they address the fair use defense. Finally, plaintiffs state they are not abandoning any issues herein.

What’s Next?

Finally, we still await the judge’s ruling on the Motions for Summary Judgment. Furthermore, we await rulings on the various defense and plaintiff Motions in Limine. And of course the matter could conceivably settle at any time (including during trial). However, if trial ends up as inevitable, then it will happen at the end of January.

Happy holidays and pass the eggnog!

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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