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Be Careful What You Wish For …

Settlement talks always are good, but what does it mean?

When I stepped out of my semi-retirement from news reporting at the beginning of the year, believe it or not, it had nothing to do with the fan-film “Star Trek: Axanar.”

If anyone looked at how many fan-film stories on this site, or even our sister site Airlock Alpha, you likely would never see my name. That’s because outside of making some friends through the fan-film community, I myself was never much of a consumer of fan-films, or even really fan-fiction.

Not that I didn’t support them, but I also don’t read comic books, or watch the Real Housewives reality shows. I mean, we all have our different interests, and although I know many people in fan-fiction and fan-films, I never would really consider myself a huge fan.

However, on Jan. 2 — when I was still convinced this case would be settled in a matter of days — I took a very public position in a commentary, not necessarily against “Axanar,” but against how this lawsuit could negatively affect the fan-film community.

“I sincerely hope that what ‘Axanar’ has done doesn’t hurt the future of Star Trek fan-films,” I said in that commentary. “Some of my favorite people active in the film industry got their start in fan productions, and they told wonderful stories on limited budgets, never making a dime for their work.”

At the time I wrote that, just about everything that had been written in the few days since the lawsuit was filed had been focused on the mean old studios going after a small group of fans. I didn’t see it that way. While I was not fully versed in the fan-film community, I did know that “Axanar” was different from the other fan-films, especially in its approach. To me, it was a commercialized venture, complete with merchandising, plans to release books, the construction of a studio that would be rented out to other productions, and even some talk of providing a subscription-based streaming service like Netflix. All funded through a campaign that told donors that in return for their money, they would get Star Trek.

The lawsuit went on far longer than I expected. Because I have a natural curiosity in copyright law (I’ve been a journalist for a long time, running entertainment news sites defended by the Fair Use aspects of copyright law) and was concerned about how this project could ruin it for everyone else, I joined in the overall fan discussions.

As a print journalist, especially when I’m covering government, I go out of my way to not only never express an opinion, but to not even form one. Well beyond what is required of me. If I am covering a government, I won’t even live in the taxing jurisdiction of that government so there is no perceived conflict — even the smallest one.

Entertainment journalism is different. Because there’s a big difference between covering taxpayer fleecing and trying to find out what the name of the next Star Trek series is going to be. Entertainment reporting is much looser, to the point where sometimes you can have a little fun in stories, although 1701News might still be a little stiff. But I’m also not afraid to put my name on my opinion — I stand by it. I don’t use a fake name, I don’t use an alias, I don’t use a message board handle — even when I am on message boards or even Reddit. It’s me. I own up to what I say.

In terms of the Axanar lawsuit, I have felt this would be settled almost from the beginning. Anyone who frequented our Facebook group that was designed simply to talk about the case (but then became a bit of a haven for those who were part of an “I Stand With CBS” group that seemed to keep falling apart, who I still welcome) know that settlement is how I expected this to end. It’s how even our our legal-minded friends there also felt it would end — because that’s how a vast majority of these cases end.

I’ve seen studios go after “fans” before, like for websites and such. Heck, back in the day, I’ve even received a few cease and desists I’ve ignored. If they go as far as filing a lawsuit, almost always, they are settled within days. Mostly because fans don’t have the financial resources the studios do to fight such lawsuits, even if the studio is wrong. And trust me — I’ve seen many times where studios were indeed wrong.

The “Axanar” lawsuit? I don’t believe they were. It’s not because of who was involved, despite what its principal will tell you (someone had to remind me who he was when I first saw him named in the lawsuit). Even if this was Vic Mignogna sued — and I really personally like Vic, someone I got to know thanks to this lawsuit — I still would’ve had the same position. I don’t care about who is involved in what. I care about the actions.

One of my broken record statements, especially in social media, was that there are two key times I expect this to be settled — either right after the lawsuit was filed, or right after the technical motions are disposed of. Those technical motions, by the way, is the motion to dismiss in this case. While settlement talks could continue during the filing of those motions, the real lines aren’t drawn until the judge rules on the motion to dismiss. How he rules determines who goes into those settlement talks with strength, and who doesn’t.

Like if the judge had thrown out parts of the lawsuit, Axanar could’ve walked to the negotiating table in a superior position, especially if some of what was thrown out were key elements. If the judge denied the entire motion — which he ultimately did — then CBS and Paramount go to the negotiating table in a superior position. Especially with discovery looming — a very expensive process that even with pro bono attorneys, Axanar would have to shell out money for. And a lot of it.

CBS and Paramount basically had Axanar’s back to the wall here. They lost the entire motion to dismiss, including a couple parts even I thought they might be successful with. Discovery was next, and once a defendant sees the estimated costs to do that, let’s just say, they become even more interested in settling just to get it over with.

What saved them in the end is the court of public opinion. Not rallying the fans, or even the fan-film community. The fact is if you stop 10 random fans coming out of opening night of “Star Trek: Beyond,” maybe one of them have heard something of a lawsuit or something of even fan-films, and the other nine will be clueless. This really isn’t an issue dominating the fandom community, despite what our coverage of it might make it appear.

It doesn’t matter the number of people you get on your side. Just the right people. And Axanar did good, whether it was deliberate or just a lucky result, they got the right people on their side — J.J. Abrams and Justin Lin. And that’s good for them. Because while they still have to negotiate a settlement, they are no longer in a position of begging for mercy. In fact, with Abrams making that pressure public Friday night, he actually weakened CBS’ and Paramount’s negotiating position, because now not only would CBS and Paramount be more receptive to a settlement more positive to Axanar, Axanar actually knows it.

Imagine if you were buying a car with a listed price of $25,000, but you know the seller will take $19,000 — how do you think that would end up for the seller? I mean, you might have negotiated it down to $23,500 … or if you’re really good, $22,000. But now you know he’ll take $19,000, so you’re going to get it much closer than that.

The other thing that I think is getting lost in all this talk, even in my hasty commentary overnight where I addressed the direct copyright aspects of the case, are the fan-film guidelines. When I wrote that “Lost” commentary, I had not yet received the statement from CBS and Paramount responding to what Abrams said in Los Angeles Friday night.

If you missed it, here’s what was said:

“We’re pleased to confirm we are in settlement discussions, and are also working on a set of fan-film guidelines.”

I got that at 1:13 a.m. my time Saturday, and updated our news story instantly. But the fan-film guidelines are something I really think we have to look at closely. Because even if Axanar has indeed won the battle (we still don’t know that for sure, because settlement details have not been finalized), have they won the war? Will they be heroes in the fan-film community, or will they be something different?

Before “Star Trek: Axanar,” fan-films worked on unwritten rules which were basically to not commercialize their ventures, and if CBS or Paramount slyly suggests you not do something, then don’t do it. In return, fan-films could fundraise, pay crew and cast, distribute even on DVD, and give perks and other things in return for donations. They could make feature films, or full-fledged television series. And they could be as long or as short as they want.

However, I have a sneaking suspicion that these fan-film guidelines are going to be much more restrictive than that. Sure, we might be happy that at least fan-films will be allowed to continue — CBS and Paramount could shut them down at any time — but they still have copyright laws and how to protect their ownership of intellectual property to deal with. And sadly, great productions like “Star Trek Continues” and “Star Trek: New Voyages” aren’t exactly in line with that.

Especially if CBS and Paramount simply adopt Lucasfilm’s approach to Star Wars fan-films. Where they can only be made to participate in a competition once a year, can only use specific special effects and material, cannot raise any money, follow specific story guidelines (similar to what Pocket Books requires of its authors), and the biggest thing — be just five minutes long.

Even the “Vulcan Scene” short from “Axanar” wouldn’t qualify for any of that. Nor would any of the existing fan-films. And sure, the existing material online would be allowed, and maybe the settlement will offer “Axanar” a chance to do a stripped down version of what they had planned. But the future for fan-films would be bleak.

And I’m sorry, I can’t blame CBS and Paramount for that. They were happy to leave things the way they were. It was someone else outside of their control who decided to change the rules, on a football field where they don’t have a say in what the rules are.

I said it back on Jan. 2, and I’ll say it again: “Don’t blame CBS/Paramount — they never had to allow it in the first place. Blame those who couldn’t just leave well enough alone.”

Need to catch up on the “Star Trek: Axanar” copyright infringement lawsuit? Visit our easy-reference guide to all of 1701News’ coverage and commentaries by clicking here.

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