Earlier this year producer JJ "lens flare" Abrams shocked everyone when he announced that the infringement lawsuit Paramount had filed against a Star Trek fan film was "going away". (Even the defendants were shocked; that was the first they had heard of a settlement.)
Alas, the report was soon revealed to be little more than wishful thinking when Paramount filed a new motion about a month later, and now it is clear that both Paramount and the defendant, Axanar, are in this for the long haul.
On Thursday, the defendant brought a motion to compel discovery.
Among what's being demanded are all communications between Paramount/CBS and Abrams and Lin about fan films and this very lawsuit.
Axanar explains the basis for the request to the judge.
"Statements that Star Trek belongs to all of us and that the lawsuit is ridiculous and was going to be 'dropped' is relevant to the impact on the market prong of the fair use analysis, and Plaintiffs utter lack of damages," write defendants' lawyers. "Though these documents and deposition testimony are directly relevant to demonstrating the impact of the Axanar Works on the market for the Star Trek Copyrighted Works, and Plaintiffs’ allegations of willful infringement, Plaintiffs have either refused to produce, or produced insufficient documents."
Paramount is objecting that the document request is overly broad, unduly burdensome and irrelevant.
"First, statements made in May of 2016, six months after the filing of this suit, could not possibly have any bearing on Defendants’ ‘state of mind’ when they created the infringing works," responds Paramount's lawyers. "Second, Defendants have provided no authority for the proposition that their subjective 'belief' has any bearing on whether or not they committed copyright infringement, or on whether or not Plaintiffs’ were damaged by that infringing conduct."
During a Star Trek fan event in May Abrams had told the audience that the case would be over soon, citing discussions with Star Trek Beyond director Justin Lin. “We started talking about this realizing that this is not an appropriate way to deal with the fans. The fans should be celebrating this thing,” Abrams said. “So Justin went to the studio and pushed them to stop this lawsuit and now, within the next few weeks, it will be announced this is going away.”
Obviously that hasn't happened, and now Axanar is using Abrams' statement against Paramount. He is hardly an official spokesperson or copyright agent for Paramount, but Axanar's lawyers are characterizing Abrams and director Justin Lin as Star Trek "ambassadors" in their filings, and are using the statement to rebut the charge of "willful infringement" with the argument that Axanar's filmmakers had a reasonable basis for believing that their fan-funded film would be fine by the studios.
And they did have a reasonable expectation; Paramount has green-lighted or at least turned a blind eye to past fan projects, and reportedly
approved had turned a bind eye on the Star Trek Axanar movie (right up until they didn't).
The only major difference between Axanar and past Star Trek fan films was the scale of the work, and how many people were getting paid. Axanar had raised over a million dollars and was planning to produce a cinema quality work.
The level of funding may have been what lead Paramount to lay down ground rules for fan films which effectively killed any future work like Axanar. Paramount is within their right do do so, but -
Objecting to one work (after allowing a similar work) because it is better funded is an artificial distinction which may or may not have any relevance in court.
Paramount's past decisions could come back to haunt them, and of course there's still the open question of fair use.
Yes, Axanar is based on and uses elements from Star Trek canon, but is that infringement or fair use?
I wouldn't make any firm declarations one way or the other until judges weigh in, because this case could go either way and it will likely end up before the Supreme Court.
This case could set new precedents for fair use, and it bears watching.