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 +{{::axanar-answer.jpg?direct|}}
 +{{TOC}}
  
 +====== Defendants' Answer ======
 +{{page>understanding}}
 +
 +Following two unsuccessful motions to dismiss the [[copyright infringement]] lawsuit against them, [[Axanar Productions]] and producer [[Alec Peters]] on May 23, 2016, filed a formal **Answer** to the [[lawsuit|legal complaint]] filed against them by CBS and Paramount Pictures.
 +
 +The Answer included a counterclaim by the defendants, seeking further relief for harm caused to Axanar by the plaintiff's lawsuit.
 +
 +{{page>draft}}
 +
 +===== Legal Reprieve? =====
 +
 +<WRAP center round right download 50%>
 +<wrap lo>**DOWNLOAD** Winston & Strawn defense attorney Erin Ranahan's Answer to the legal complaint for copyright infringement against Axanar Productions and Alec Peters ([[https://www.dropbox.com/s/0at6y0fjrfhapgq/Paramount_Pictures_Corporation_v_Axanar_Productions_Inc_et_al__cacdce-15-09938__0047.0.pdf?dl=0|244K PDF]]).</wrap>
 +</WRAP>
 +
 +The Answer was filed just three days after Star Trek producer J.J. Abrams and //Star Trek Beyond// director Justin Lin announced at a fan event in Los Angeles that they had interceded with the plaintiffs on Axanar's behalf, and the lawsuit was "going away within the next few weeks."
 +
 +The May 20 statement was widely construed by the media as [[CBS]] and [[paramount_pictures|Paramount]] dropping or withdrawing the suit, although a followup statement by Paramount clarified the two sides were negotiating a settlement, and drafting a set of [[copyright infringement#rules for the future|guidelines for fan productions]].
 +
 +==== Counterclaim ====
 +
 +Had the studios planned on withdrawing their suit, that possibility was foreclosed on May 23 by the Answer's including a counterclaim by the defendants against the studios, asking for additional relief based on harm inflicted on the defendants by the suit.
 +
 +By asserting their own claims against the plaintiffs, the defendants now "put the plaintiffs into a defensive posture regarding these counterclaims, and the defendant acts in an offensive posture. Thus, for example, the defendant bears the burden of proof on counterclaims."(([[https://www.law.cornell.edu/wex/counterclaim|"Counterclaims," Legal Information Institute, Cornell University Law School]], retrieved 5/24/16.))
 +
 +=== The Suit Must Go On ===
 +
 +Under the Federal Rules of Civil Procedure, the plaintiffs must defend against the counterclaims, starting with a 21-day deadline to file their own Answer.(([[https://www.law.cornell.edu/rules/frcp/rule_12|"Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing,"]] Legal Information Institute, Cornell School of Law, retrieved 5/24/16.)) The defendants' move had the effect of preventing the plaintiffs from simply withdrawing the suit.
 +
 +A prepared statement on behalf of Axanar Productions stated the defendants had to proceed with filing their Answer, including the counterclaims, irrespective of Abrams' and Lin's May 20 announcement in support of the film:
 +
 +> This filing was necessary because, despite J.J. Abrams’ assurance that the lawsuit would be “going away,” and confirmation that CBS is in settlement talks and finally working on fan film guidelines, Paramount and CBS have not yet dismissed the lawsuit. Axanar Productions must therefore meet deadlines set by the court and proceed as if the lawsuit will continue until the situation is resolved.(([[face>groups/CBSvsAxanar/permalink/1223499827661385/|Mike Bawden post, CBS/Paramount vs. Axanar Facebook group]], 5/24/16.))
 +
 +Ironically, if the defendants had wanted the plaintiffs to simply withdraw the suit, the counterclaim made it impossible for them to do so. That meant the way to resolve the suit was now only through protracted settlement negotiations.
 +
 +=== What Axanar Wants ===
 +
 +Meanwhile, Axanar attorney Ranahan told the Axanar-supporter blog, Fan Film Factor, the defense sought only "a single claim for declaratory relief [and that] this claim is not ‘upping the ante’ given that we are not seeking any monetary damages, but simply a declaration of fair use or non-infringement."(([[http://fanfilmfactor.com/2016/05/24/why-axanar-just-filed-a-response-and-counterclaim-to-the-cbsparamount-lawsuit/|Jonathan Lane, "Why Axanar just filed a Response and Counterclaim to the CBS/Paramount Lawsuit," Fan Film Factor blog]], 5/24/16.))
 +
 +The actual Answer, however, asks for two other things Ranahan did not include in her interview with Fan Film Factor, both of which may involve money:
 +  * Defendants' Attorneys’ fees and costs.
 +  * Additional relief the court finds "just, proper, and equitable."((Answer of Defendants … to Plaintiffs' First Amended Complaint; Counterclaim for Declaratory Relief; Demand for Jury Trial, p.  26, "Prayer for Relief," 2 & 3, 5/23/16.))
 +
 +===== Responses to the Nature of the Lawsuit =====
 +
 +For almost half the pleading's 28 pages, attorney [[Erin Ranahan]] of the [[Winston & Strawn]] law firm representing the defendants, issued straightforward denials of the [[summary_of_the_lawsuit#causes of action|claims made]] in the legal complaint.
 +
 +Throughout the Answer, Ranahan supports the her position with the phrase, "Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations, and on that basis deny them." The phrase sounds worse than it is. It's legalese for "prove it, plaintiffs," which is what happens during [[discovery]] and ultimately at trial.
 +
 +==== What Axanar Admits ====
 +
 +In the pleading, the defendants admit about the nature of the suit only that they:
 +
 +  * Produced the short film, //Prelude to Axanar//.
 +  * Intended to produce the feature, //Axanar//.
 +  * Created, and continued to develop, a script for //Axanar//.
 +  * Raised more than $1 million in fan donations to produce //Prelude to Axanar// and //Axanar//.
 +
 +==== What Axanar Denies ====
 +
 +In the pleading, the defendants denied that:
 +
 +  * //Prelude// and //Axanar// (together referred to by the plaintiffs as the “Axanar Works”) infringe, are substantially similar to, or are derivative of Star Trek.
 +  * The Axanar Works are intended to be professional quality productions.
 +  * The defendants, by their own admission, unabashedly took Paramount’s and CBS’s intellectual property to make a "true Star Trek movie.”
 +  * The $1 million in fan donations included paying for building out a studio.
 +
 +In denying these claims, the defense argued they were legal conclusions to which no response is required, other than to deny the allegations.
 +
 +===== Jurisdiction and Venue =====
 +
 +Apart from the defense's straightforward denial of these claims, one stood out. While acknowledging only that defendants Alec Peters and Axanar Productions were California residents. The Answer denied the plaintiffs' claims that they "conduct continuous, systematic, and routine business within this state and this District."((First Amended Complaint, p. 2 ¶4, 3/11/16.))
 +
 +===== The Parties to the Suit =====
 +
 +Apart from the defense's straightforward denial of these claims, one stood out. Of the plaintiffs' description that "Axanar Productions is a corporation organized under the laws of the State of California … a motion picture, television, and/or video production company,"((First Amended Complaint, p. 2 ¶8, 3/11/16.)) the Answer only admitted to the company being "a California corporation that produces fan films."((Answer of Defendants … to Plaintiffs' First Amended Complaint; Counterclaim for Declaratory Relief; Demand for Jury Trial, p.  2 ¶8, 5/23/16.))
 +
 +==== The Doe Defendants ====
 +
 +The Answer issued a blanket denial of claims related to the unnamed [[does|'Doe' defendants]] (up to 20 yet to be identified by plaintiffs), particularly noting defendants' belief plaintiffs "suffered any injury as a result of any of the [Does'] actions described in the [lawsuit]."((Answer of Defendants … to Plaintiffs' First Amended Complaint; Counterclaim for Declaratory Relief; Demand for Jury Trial, p.  2 ¶11, 5/23/16.))
 +
 +===== Plaintiffs' Copyrighted Star Trek Works =====
 +
 +The Answer issued a blanket denial of the plaintiffs' assertion of ownership of the copyrights to Star Trek by CBS and Paramount Pictures, leaving it to them to prove that through discovery and at trial.
 +
 +==== Prelude to Axanar ====
 +The pleading states the following about the the plaintiffs' claims regarding the short film, //Prelude to Axanar//. While the defendants generally deny the claims made by plaintiffs in their legal complaint, the Answer does offer a number of specific admissions and denials.
 +
 +=== What Defendants Admit ===
 +
 +In the Answer, the defendants admit that:
 +
 +  * Received donations via [[prelude_kickstarter_details|Kickstarter]] to produce the short film.
 +  * Peters was involved in writing //Prelude to Axanar//, though any involvement by as-yet-unnamed defendants, as cited in the complaint, must be proved by the plaintiffs.
 +  * Axanar Productions produced //Prelude to Axanar//.
 +  * //Prelude to Axanar// was posted on Youtube in 2014.
 +  * //Prelude// was inspired by Star Trek, and tells an as-yet-untold story about Garth of Izar.
 +  * A statement describing the Star Trek elements featured in //Prelude// was part of that film's Kickstarter campaign.((The statement from Kickstarter, as cited in the legal complaint read: //Prelude to Axanar// is a short film that will give viewers a historical look at the events leading up to the Battle of Axanar, the central event of the film //Axanar//, to be filmed later this year. Shot like a History Channel special, //Prelude to Axanar// will be <wrap hi>Star Trek like you have never seen it before,</wrap> showing the central characters of //Axanar// giving both a historical and personal account of the war. How did Starfleet build its fleet? How did they hold off a Klingon fleet that had been conquering star systems for centuries? What role did the various founding planets play in Starfleet? Why were the Constitution class ships so important to Starfleet? How did Garth of Izar come to be regarded as the greatest Starfleet Captain of his time? <wrap lo>[emphasis added by plaintiffs in First Amended complaint, p. 7 ¶29]</wrap>))
 +
 +=== What Defendants Deny ===
 +
 +In the Answer, the defendants deny that:
 +
 +  * //Prelude to Axanar// is an infringing work.
 +  * //Prelude// is or was intended to be a derivative work, or that it infringes Plaintiffs’ works.
 +  * The full title of //Prelude to Axanar// is //Star Trek: Prelude to Axanar//.
 +
 +==== Axanar ====
 +
 +The pleading states the following about the the plaintiffs' claims regarding the planned feature film, //Axanar//. While the defendants generally deny the claims made by plaintiffs in their legal complaint, the Answer does offer a number of specific admissions and denials.
 +
 +=== What the Defendants Admit ===
 +
 +In the Answer, the defendants admit they:
 +
 +  * Received donations via Kickstarter and Indiegogo to fund //Axanar//'s production.
 +  * Have created multiple versions of the //Axanar// script.
 +  * Released the “[[Vulcan Scene]]” in 2015.
 +  * Peters was involved in writing //Axanar//, though any involvement by as-yet-unnamed defendants, as cited in the complaint, must be proved by the plaintiffs.
 +  * Began production on //Axanar// but halted after the lawsuit was filed.
 +
 +=== What the Defendants Deny ===
 +
 +In the Answer, the defendants deny:
 +
 +  * That all the versions of //Axanar//'s script are “fixed works” for copyright purposes.
 +  * They filmed any other scene from //Axanar// apart from the “Vulcan Scene.”
 +  * Production activities by unnamed 'Doe' defendants as factual without proof from the plaintiffs.
 +  * What Star Trek elements they intend to incorporate into //Axanar// since the lawsuit has "stalled and impacted the planned production."((Answer of Defendants … to Plaintiffs' First Amended Complaint; Counterclaim for Declaratory Relief; Demand for Jury Trial, p.  7 ¶41, 5/23/16.))
 +  * They have completed one-third of the visual effects //Axanar//. As recently as April 2, 2016, however, the production's website stated 25 percent of the feature's visual effects had been completed.(([[http://www.axanarproductions.com/our-shiny-new-faq/|"Our Shiny New FAQ," Axanar production website]], 4/6/16.)) In a Facebook post, director Burnett claimed the visual effects production was on track to be 50 percent complete by the time principal photography was planned to begin in late January or February 2016, before the lawsuit cut short that timeline by one to two months.(([[face>groups/CBSvsAxanar/permalink/1178230432188325/?comment_id=1178240622187306&reply_comment_id=1178338512177517&comment_tracking=%7B%22tn%22%3A%22R%22%7D&hc_location=ufi|Robert Meyer Burnett post, CBS/Paramount vs. Axanar Facebook group]], 3/22/16.))
 +  * That Peters "admitted" violating plaintiffs’ copyrights in a [[http://1701news.com/node/1001/peters-axanar-quality-spurred-lawsuit.html.|1701News interview]] published on February 1, 2016.
 +
 +===== Substantial Similarity =====
 +
 +[[motion_to_dismiss#dismissal_motion_judge_s_denial|Substantial similarity]] is a legal analysis made in copyright infringement cases to determine whether the works at issue copy, or are derived, from earlier copyrighted works. In addition to the defense's straightforward denial of these claims, the defendants referred to the pleadings surrounding their motion to dismiss to repeat arguments about "allegedly copyrighted Star Trek elements" in //Prelude to Axanar// that [[judge_r._gary_klausner|Judge R. Gary Klausner]] had found unavailing in denying the motion on May 9, 2016.
 +
 +===== Copyright Infringement =====
 +
 +{{section>summary_of_the_lawsuit#side-by-side_comparisons}}
 +
 +In the Answer, the defense offers straightforward denials to the 28 pages of examples
 +
 +==== Contributory Copyright Infringement ====
 +{!stub:incomplete section requiring author's attention}}
 +
 +==== Vicarious Copyright Infringement ====
 +{!stub:incomplete section requiring author's attention}}
 +
 +=== Direct Financial Benefit ===
 +"The allegations in paragraph 62 constitute legal conclusions to which no required. To the extent a response is required, Defendants deny the allegations."
 +
 +{!stub:incomplete section requiring author's attention}}
 +
 +==== Declaratory Judgment ====
 +{!stub:incomplete section requiring author's attention}}
 +
 +===== Affirmative Defenses =====
 +{!stub:incomplete section requiring author's attention}}
 +
 +  - (Fair Use)
 +  - (Waiver)
 +  - (Unclean Hands)
 +  - (First Amendment)
 +  - (Estoppel)
 +  - (Failure to Mitigate Damages)
 +  - (Acknowledgment, Ratification, Consent and Acquiescence)
 +  - (Failure to Register)
 +  - (Invalidity of Unenforceability of Copyright)
 +  - (Authorized Use)
 +  - (Forfeiture or Abandonment)
 +  - (Misuse of Copyright)
 +  - (Constitutionally Excessive Damages)
 +  - (Lack of Standing)
 +
 +==== Additional Defenses ====
 +{!stub:incomplete section requiring author's attention}}
 +
 +===== Nature of Counterclaim =====
 +{!stub:incomplete section requiring author's attention}}
 +
 +=== The Story of Alec Peters ===
 +{!stub:incomplete section requiring author's attention}}
 +
 +=== Abrams'-Lin's Intercession ===
 +{!stub:incomplete section requiring author's attention}}
 +
 +==== Fair Use Protection ====
 +{!stub:incomplete section requiring author's attention}}
 +
 +==== Non-Violation of Plaintiffs' Rights ====
 +{!stub:incomplete section requiring author's attention}}
 +
 +==== Demand for Jury Trial ====
 +{!stub:incomplete section requiring author's attention}}
 +
 +
 +
 +
 +----
 +**Keywords** {{tag>lawsuit players plaintiffs defendants stub}}