Axanar Lawsuit: The Counterclaim and the Road Ahead

This is the 22nd entry in a surprisingly long series of posts about Star Trek’s future and its fandom called Crisis of Infinite Star Treks.

So, with the last post all about fan film guidelines, I know many of you were probably thinking, “What about Axanar’s counterclaim and that stuff?”

As I hoped, Janet Gershen-Siegel over at the G and T Show did a detailed overview of Axanar’s counterclaim which, if you want to want to really get into legal details, is well worth your time.

Here are some my takeaways as a non-lawyer/non-legal journalist:

Axanar’s lawyers (aka The Defense) are defending their client — as they should
The counterclaim, occasionally referred to as a countersuit, is what in legal terms is called a compulsory counterclaim. In game terms, it’s a card that, if you don’t play in your defense at a certain point, you can’t play. So why not play it? Lawyers, as a rule, need to provide the best defense (or offense) they can for their clients. Even as settlement talks are continuing, you may continue to play the game.

The Defense is not entirely successful in addressing the complaint
In other words, part of the Defense’s response is to admit as little wrongdoing as possible (in this case copyright infringement). There’s a lot of little maneuvers they use that are really quite interesting and remind me why lawyers are the wacky subject matter experts of law that they are. At the same time, you can only defend that which is defensible, and the fact is Axanar has been trying to make a Star Trek film. For example, when you claim that the title of the work is not Star Trek: Axanar and your Kickstarter for Axanar is called “Star Trek: Axanar,” there’s not much to your claim it’s not Star Trek. Not only that, many details of the complaint are statements by the defendant on social media, so the defense has to say, “Um, yes, that is publicly available” evidently hoping by not saying that the detail of the complaint is proof of copyright infringement, that somehow it won’t be.

The Defense’s attempts at affirmative defense will almost certainly not land a hit
These ripostes (c’mon, I got use my fencing terminology somewhere) appear to be a legal way to say “okay, whatever wrongdoing we might have done –which we don’t admit to anyway– the plantiffs are totally off base and/or not as wrong a doing because of X, Y, Z. Also, take THAT.”

If I counted correctly, there are 14 different affirmative defenses — and for those of us playing the “learn more about the legal arts” home game, almost every one is a new legal term, though some like “Fair Use” are ones with which I’m reasonably familiar. Again, I applaud the ingenuity of The Defense in trying a variety of ripostes. It sounds like they’re doing what they can.

Nevertheless, of those 14 ripostes, it looks like only one or two might merit some consideration before being rejected. Most can and will be rejected outright.

Now, having all read this, you may notice that Janet Gershen-Siegel does not appear to be siding with Axanar. If true, I don’t think that means her analysis is inaccurate, but I’d welcome any additional legal analysis of the counterclaim that comes to different conclusions.  I’d especially like that as, hey, I wanted to see Star Trek: Axanar get made, which seems increasingly unlikely even with a settlement. Unfortunately, the analysis appears to validate my conclusion that goes back to the Ides of March: Axanar can’t win this lawsuit.

That’s the bottom line. I do not think one needs to have any animus against Alec Peters or Axanar to reasonably conclude that the Court will side with the IP owners in this case. I haven’t seen legal precedents cited where IP owners losing cases like this.

In fact, one legal precedent from 1998 has been raised down in the rabbit hole. It involves a publishing company wanting to publish a book relating to a corporation’s IP. The corporation had not bothered to enforce their copyright for decades, but was being enforced in this case. Here, read about it in the New York Times.

Notice anything about the case of Paramount Pictures Corp. v. Carol Pub Group that sounds even slightly similar? A long-time Star Trek fan pointing to non-enforcement of copyright in something like 100 instances over decades?

And what did the court say? They sided with Paramount.

So in other words, in a case that’s not only similar to Axanar, but actually deals with Star Trek IP itself, the court sided with the corporation that owns the IP.

The defense that bears a striking resemblance to Axanar lost their case.

There’s next to no chance the judge isn’t aware of this legal precedent and absolutely zero chance CBS/Paramount won’t bring it up, which leaves The Defense to explain how this legal precedent doesn’t apply.

And I have no doubt The Defense knows too. Axanar can’t win the lawsuit.

Which leaves us back with the best option being to settle — and probably settle on CBS/Paramount’s terms.

How long The Defense waits to settle (and how strongly CBS/Paramount insists on their own terms) depends greatly on the court schedule. Luckily, some of the folks over at the CBS/Paramount vs. Axanar forum came up with some graphics.

You’ll see we’re coming up to June 8th where additional defendants, known as “Does” will have to be named or be dropped from the lawsuit (this amounts to a card the Plaintiffs have to play or lose).

There is much speculation about which Does will be named and what their defense lawyers will do. We’ll also know what CBS/Paramount thinks of the counterclaim above by Monday, June 13th.

I’ll save further speculation and observations for others or when I get more information. For now, I mainly wanted to write this post for friends and fellow filmmakers who wanted to know the Axanar lawsuit timeline and how nigh impossible it will be for Axanar to win the case should it go to trial.

I know they’re not going to admit that. That’s playing a card they don’t have to. But they’re going to settle. It’s just a question of when.

(Thanks to Jody Wheeler and Janet Gershen-Siegel for pointing out some of the legal links)

UPDATE, 2016-06-09: It looks like there will not be a Day of the Does as many Axa-watchers thought there would be (okay, I’ll speak for myself, but I don’t think I’m alone). I expect there might be more to look into by the end of next week and Monday’s expected response from CBS/Paramount to Axanar’s counterclaim.