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cbs_settlement [2020/11/03 21:51] – [5. Completion of Axanar] adds explanatory footnote Carlos Pedrazacbs_settlement [2021/07/20 15:40] (current) – [Execution] Carlos Pedraza
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 <wrap lo>AxaMonitor has digitized and annotated this document for easy reference via hyperlinks and footnotes. \\ <wrap indent>This document comprises the [[axanar_settles|settlement terms]] that ended the CBS/Paramount [[copyright infringement]] [[lawsuit]] in January 2017. While the exact provenance of this confidential document is unknown, it was included in the [[http://us20.campaign-archive.com/?u=2d0411ecf0787fd9d4dc8dc5c&id=c7a51a0ea8|Answer and Counterclaim]] by ex-[[Axanar]] director [[Paul Jenkins]] in response to the defamation lawsuit filed by producer [[Alec Peters]] in September 2020. </wrap> \\ <wrap lo>AxaMonitor has digitized and annotated this document for easy reference via hyperlinks and footnotes. \\ <wrap indent>This document comprises the [[axanar_settles|settlement terms]] that ended the CBS/Paramount [[copyright infringement]] [[lawsuit]] in January 2017. While the exact provenance of this confidential document is unknown, it was included in the [[http://us20.campaign-archive.com/?u=2d0411ecf0787fd9d4dc8dc5c&id=c7a51a0ea8|Answer and Counterclaim]] by ex-[[Axanar]] director [[Paul Jenkins]] in response to the defamation lawsuit filed by producer [[Alec Peters]] in September 2020. </wrap> \\
 <wrap indent>This is a word-for-word copy of the {{ ::cbs_settlement.pdf |original text}}, edited only for layout, and annotated with hyperlinks and footnotes. Images below are annotations; they do not appear in the original document.</wrap></wrap> <wrap indent>This is a word-for-word copy of the {{ ::cbs_settlement.pdf |original text}}, edited only for layout, and annotated with hyperlinks and footnotes. Images below are annotations; they do not appear in the original document.</wrap></wrap>
 +</WRAP>
 +<WRAP center round important 100%>
 +<wrap em>**Work in Progress**</wrap> \\
 +<wrap lo>This page is in the process of being annotated with graphics and explanatory citations. This notice will remain in place until that process is substantially complete.</wrap>
 </WRAP> </WRAP>
  
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 This <wrap lo>CONFIDENTIAL SETTLEMENT AND RELEASE AGREEMENT</wrap> (the  This <wrap lo>CONFIDENTIAL SETTLEMENT AND RELEASE AGREEMENT</wrap> (the 
-“Settlement Agreement”) is made and entered into by and between PARAMOUNT PICTURES CORPORATION (“[[Paramount Pictures|Paramount]]”), and CBS STUDIOS INC. (“[[cbs|CBS]]”) (individually and collectively the “Plaintiffs”), on the one hand and ALEC PETERS (“[[alec_peters|Peters]]”) and AXANAR PRODUCTIONS, INC. (“[[axanar_productions|Axanar Productions]]”) (individually and collectively the “Defendants”) on the other hand.  Each may be referred to herein individually as a “Party,” and collectively as the “Parties.” +“Settlement Agreement”) is made and entered into by and between <wrap lo>PARAMOUNT PICTURES CORPORATION</wrap> (“[[Paramount Pictures|Paramount]]”), and <wrap lo>CBS STUDIOS INC.</wrap> (“[[cbs|CBS]]”) (individually and collectively the “Plaintiffs”), on the one hand and <wrap lo>ALEC PETERS</wrap> (“[[alec_peters|Peters]]”) and <wrap lo>AXANAR PRODUCTIONS, INC.</wrap> (“[[axanar_productions|Axanar Productions]]”) (individually and collectively the “Defendants”) on the other hand.  Each may be referred to herein individually as a “Party,” and collectively as the “Parties.” 
  
 <wrap lo>WHEREAS</wrap>, on December 29, 2015, Plaintiffs filed an [[lawsuit|action]] against Defendants for [[copyright infringement]] and declaratory relief in the United States District Court for the Central District of California, Case No. 2:15-cv-09938-RGK-E (the “[[http://axamonitor.com/doku.php?id=primers#tab__lawsuit|Lawsuit]]”);  <wrap lo>WHEREAS</wrap>, on December 29, 2015, Plaintiffs filed an [[lawsuit|action]] against Defendants for [[copyright infringement]] and declaratory relief in the United States District Court for the Central District of California, Case No. 2:15-cv-09938-RGK-E (the “[[http://axamonitor.com/doku.php?id=primers#tab__lawsuit|Lawsuit]]”); 
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 > “Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fanmade film intended for recreational use.  No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.”((This is the same disclaimer required of other fan productions operating under the guidelines.)) > “Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fanmade film intended for recreational use.  No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.”((This is the same disclaimer required of other fan productions operating under the guidelines.))
  
-[{{ :axanar.gif?direct|The Axanar Star Logo uses a recognized Star Trek font, the stylized star associated with Star Trek and the word Axanar, a planet name in the copyrighted Star Trek universe.}}]+[{{ :axanar.gif?direct|**THE AXANAR STAR LOGO** uses a recognized Star Trek font, the stylized star associated with Star Trek and the word Axanar, a planet name in the copyrighted Star Trek universe.}}]
  
 === 5.3 Denied Use of Star Trek Marks, Designs, Axanar Logo === === 5.3 Denied Use of Star Trek Marks, Designs, Axanar Logo ===
  
-Defendants may not use “Star Trek” or any <wrap hi>confusingly similar mark</wrap>((This phrase has a specific legal meaning in trademark law: <wrap lo>"What is a 'confusingly similar' trademark? … With trademark law, you gain the rights to a particular trademark by using it in commerce. A confusingly similar mark infringes upon those rights.  This is a mark that is so related that consumers are likely to mistake it with the first mark. Trademark law exists to secure rights to a mark and prevent this type of confusion. … There are several factors considered in such an analysis.  However, there are two factors that are typically weighted most-heavily: (1) the similarity of the marks; and (2) the relatedness of the goods and/or services described in the application and registration(s).</wrap> — [[https://www.iregistertrademarks.com/confusingly-similar/|Kevin Hayne]], trademark attorney.)) on or in connection with any promotions, marketing, banners, post cards, blogs, panels or festivals involving “Axanar” in any medium.  Defendants may not use confusingly similar Star Trek stylized font, lettering, logos, or designs in connection with any title, subtitle, or promotional material in any medium.((These are examples of Star Trek stylized fonts, some of which have been and continue to be used in promoting Axanar. \\ {{::trek_fonts.jpg?direct&350|}} \\ //Source: [[https://www.st-minutiae.com/resources/fonts/index.html|st-minutae.com]]//)) Defendants may continue to  use the current Axanar star logo on //Prelude to Axanar//, and may use this same logo on the Permitted Axanar Segments but other than that shall cease all use of this logo.+Defendants may not use “Star Trek” or any <wrap hi>confusingly similar mark</wrap>((This phrase has a specific legal meaning in trademark law: <wrap lo>"What is a 'confusingly similar' trademark? … With trademark law, you gain the rights to a particular trademark by using it in commerce. A confusingly similar mark infringes upon those rights.  This is a mark that is so related that consumers are likely to mistake it with the first mark. Trademark law exists to secure rights to a mark and prevent this type of confusion. … There are several factors considered in such an analysis.  However, there are two factors that are typically weighted most-heavily: (1) the similarity of the marks; and (2) the relatedness of the goods and/or services described in the application and registration(s).</wrap> — [[https://www.iregistertrademarks.com/confusingly-similar/|Kevin Hayne]], trademark attorney.)) on or in connection with any promotions, marketing, banners, post cards, blogs, panels or festivals involving “Axanar” in any medium.  Defendants may not use confusingly similar Star Trek stylized font, lettering, logos, or designs in connection with any title, subtitle, or promotional material in any medium.((These are examples of Star Trek stylized fonts, some of which have been and continue to be used in promoting Axanar. <wrap lo>//Source: [[https://www.st-minutiae.com/resources/fonts/index.html|st-minutae.com]]//</wrap> \\ {{::trek_fonts.jpg?direct&350|}})) Defendants may continue to  use the current Axanar star logo on //Prelude to Axanar//, and may use this same logo on the Permitted Axanar Segments but other than that shall <wrap hi>cease all use of this logo</wrap>.(([//Emphasis added//] Axanar has continued to use that logo on a wide variety of promotion material in a variety of media.)) 
 + 
 +[{{::star_logo_use.jpg|**PROHIBITED USE** This image from Facebook and YouTube show how Axanar continues to use designs, fonts and the Axanar star logo more than three years after prohibited the Alec Peters' settlement agreement with CBS/Paramount. <wrap lo>//Image/Axanar Facebook page//</wrap>}}] \\
  
 === 5.4 Denied Use of "Star Trek" in Domain Names === === 5.4 Denied Use of "Star Trek" in Domain Names ===
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 === 5.9 Denied Merchandising === === 5.9 Denied Merchandising ===
  
-Defendants may not themselves, or authorize, induce or license others (directly or indirectly) to, create, manufacture or distribute, any merchandise that is tied to Star Trek, or based on, related to, confusingly similar, or derivative of Star Trek or the elements therein to exploit or raise money for, //Prelude to Axanar//, the Permitted Axanar Segments, or the Documentary described in Paragraph 6 hereinafter, or for any other purpose.  To the extent that Defendants sell existing props or costumes used in the production of the Axanar Works, the items themselves, packaging and/or promotion thereof must be prominently identified as +Defendants may not themselves, or authorize, induce or license others (directly or indirectly) to, create, manufacture or distribute, any merchandise that is tied to Star Trek, or based on, related to, confusingly similar, or derivative of Star Trek or the elements therein to exploit or raise money for, //Prelude to Axanar//, the Permitted Axanar Segments, or the Documentary described in [[#documentary|Paragraph 6]] hereinafter, or for any other purpose.  To the extent that Defendants sell existing props or costumes used in the production of the Axanar Works, the items themselves, packaging and/or promotion thereof must be prominently identified as 
 “Axanar Fan Production” and may not include the terms Star Trek or the term “official.” “Axanar Fan Production” and may not include the terms Star Trek or the term “official.”
  
 === 5.10 Permitted Distribution, Exhibitions of Axanar === === 5.10 Permitted Distribution, Exhibitions of Axanar ===
  
-Defendants will only distribute, exhibit or perform the Permitted Axanar Segments by:  (a) streaming or exhibiting them on YouTube; (b) by the distribution of recorded copies in accordance with this [[#5.10 Permitted Distribution, Exhibitions of Axanar|Paragraph 5.10]] and Paragraph 5.11 and (c) at film festivals and conventions, provided that Defendants are not permitted to exhibit, market, or promote Permitted Axanar Segments at any official Star Trek events or conventions; provided that any such method of distribution as set forth in (a), (b) or (c) of this Paragraph 5.10  shall be on a completely noncommercial basis.  For this purpose, non-commercial means that absolutely no money is paid to or made by Defendants or anyone else from such distribution, including but not limited to placement of any ads in connection with its distribution, or the collection of any ad revenue, revenue from ticket sales, or compensation or reimbursement of expenses.    Defendants agree that the methods of distribution described in this Paragraph 5.10 and Paragraph 5.11 shall be the only means of distribution of the Permitted Axanar Segments, and that any other form of distribution by Defendants shall constitute copyright infringement of Plaintiffs’ copyrights.+Defendants will only distribute, exhibit or perform the Permitted Axanar Segments by:  (a) streaming or exhibiting them on YouTube; (b) by the distribution of recorded copies in accordance with this [[#Permitted Distribution, Exhibitions of Axanar|Paragraph 5.10]] and [[#limited_distribution_of_dvds_blu-rays|Paragraph 5.11]] and %%(c)%% at film festivals and conventions, provided that Defendants are not permitted to exhibit, market, or promote Permitted Axanar Segments at any official Star Trek events or conventions; provided that any such method of distribution as set forth in (a), (b) or %%(c)%% of this [[#Permitted Distribution, Exhibitions of Axanar|Paragraph 5.10]]  shall be on a completely noncommercial basis.  For this purpose, non-commercial means that absolutely no money is paid to or made by Defendants or anyone else from such distribution, including but not limited to placement of any ads in connection with its distribution, or the collection of any ad revenue, revenue from ticket sales, or compensation or reimbursement of expenses.    Defendants agree that the methods of distribution described in this [[#Permitted Distribution, Exhibitions of Axanar|Paragraph 5.10]] and [[#limited_distribution_of_dvds_blu-rays|Paragraph 5.11]] shall be the only means of distribution of the Permitted Axanar Segments, and that any other form of distribution by Defendants shall constitute copyright infringement of Plaintiffs’ copyrights.
  
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 Defendants agree that they will, jointly with Plaintiffs, release to the press and other media a joint statement in the form annexed hereto as Exhibit B. Defendants agree that they will, jointly with Plaintiffs, release to the press and other media a joint statement in the form annexed hereto as Exhibit B.
  
-=== 5.14 Required Adherence to Guidelines ===+=== 5.14 Required Adherence to Guidelines in Future Films ===
  
-For any of Defendants’ future fan film production that uses original or distinctive elements from the Star Trek universe (that are not a legally protected parody, satire, or documentary that complies with Paragraph 6 below), Defendants will honor any fan film guidelines that are released by Plaintiffs, including but not limited to the Guidelines.+For any of Defendants’ future fan film production that uses original or distinctive elements from the Star Trek universe (that are not a legally protected parody, satire, or documentary that complies with [[#documentary|Paragraph 6]] below), Defendants will honor any fan film guidelines that are released by Plaintiffs, including but not limited to the Guidelines.
  
 === 5.15 Denied Use of 'Star Trek,' 'Axanar' in Ares Studios === === 5.15 Denied Use of 'Star Trek,' 'Axanar' in Ares Studios ===
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 Peters represents that the URLs, domain names and/or social media  Peters represents that the URLs, domain names and/or social media 
-accounts listed I Paragraph 5.4 above, are the only URLs, domain names and/or social media accounts that he or Axanar Productions own or control which contain the name Star Trek, or any variant thereof. +accounts listed [in] [[#denied_use_of_star_trek_in_domain_names|Paragraph 5.4]] above, are the only URLs, domain names and/or social media accounts that he or Axanar Productions own or control which contain the name Star Trek, or any variant thereof. 
  
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 Settlement Agreement; and</wrap> Settlement Agreement; and</wrap>
  
-<wrap indent>b.  to those donors or possible donors for the Permitted Axanar Segments who are contacted in accordance with the methods that are acceptable under Paragraph 5.16 of  this Settlement Agreement, that Defendants are prohibited from any public fundraising, from accepting any publically-raised funds from others and that no one may publicly fundraise on their behalf.</wrap>+<wrap indent>b.  to those donors or possible donors for the Permitted Axanar Segments who are contacted in accordance with the methods that are acceptable under [[#denied_public_fundraising|Paragraph 5.16]] of  this Settlement Agreement, that Defendants are prohibited from any public fundraising, from accepting any publically-raised funds from others and that no one may publicly fundraise on their behalf.</wrap>
  
 === 8.3 Allowable Disclosure === === 8.3 Allowable Disclosure ===
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 <wrap indent>a. As required to enforce its terms; </wrap> \\ <wrap indent>a. As required to enforce its terms; </wrap> \\
-<wrap indent>b. As necessary to inform legal counsel, financial advisors, tax preparers, and taxing authorities of the Parties’ legal and financial affairs, but only on a strict “need to know” basis and provided they comply with the obligations set forth in this Paragraph 8; or </wrap> \\+<wrap indent>b. As necessary to inform legal counsel, financial advisors, tax preparers, and taxing authorities of the Parties’ legal and financial affairs, but only on a strict “need to know” basis and provided they comply with the obligations set forth in this [[#confidentiality|Paragraph 8]]; or </wrap> \\
 <wrap indent>c. If compelled to do so by legal process, including without limitation a subpoena duces tecum, or other court order or proceeding required by law. </wrap> <wrap indent>c. If compelled to do so by legal process, including without limitation a subpoena duces tecum, or other court order or proceeding required by law. </wrap>
  
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 === Arbitration === === Arbitration ===
  
-The Parties agree that except as set forth herein, any controversy or claim arising out of or relating to this Settlement Agreement, or any breach thereof, including, without limitation, any controversy relating to the arbitrability of any dispute, shall be submitted to Arbitration with JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.  Any such arbitration shall be governed by California law, shall take place before a single arbitrator and will take place in Los Angeles, California.   The arbitrator shall be selected in the following manner:  JAMS will provide a list of ten (10) potential arbitrators to the Parties.  Each Party may strike up to four (4) names from this list.  With respect to the names not stricken by a Party, the +The Parties agree that except as set forth herein, any controversy or claim arising out of or relating to this Settlement Agreement, or any breach thereof, including, without limitation, any controversy relating to the arbitrability of any dispute, shall be submitted to Arbitration with JAMS((The **Judicial Arbitration and Mediation Services** is a for-profit company that provides alternate dispute resolution for parties unwilling to go to court. ("Nonparty Discovery in California: How to Get What You Want," [[https://www.jdsupra.com/legalnews/nonparty-discovery-in-california-27076/|JDSupra.com]], 1/10/19.) )) pursuant to its Comprehensive Arbitration Rules and Procedures.  Any such arbitration shall be governed by California law, shall take place before a single arbitrator and will take place in Los Angeles, California.   The arbitrator shall be selected in the following manner:  JAMS will provide a list of ten (10) potential arbitrators to the Parties.  Each Party may strike up to four (4) names from this list.  With respect to the names not stricken by a Party, the 
 Party shall rank the remaining potential arbitrators in order of preference, and return the list to JAMS.  From the lists furnished by the Parties, JAMS shall select the arbitrator that was not stricken by any Party, and whose cumulative rank is highest among the Parties. Party shall rank the remaining potential arbitrators in order of preference, and return the list to JAMS.  From the lists furnished by the Parties, JAMS shall select the arbitrator that was not stricken by any Party, and whose cumulative rank is highest among the Parties.
  
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 ==== 12. Return or Destruction of Materials ==== ==== 12. Return or Destruction of Materials ====
  
-Within thirty (30) days of the execution of this Settlement Agreement, the Parties and their counsel shall return all documents received in this action that were designated as “CONFIDENTIAL INFORMATION” or as “HIGHLY CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” pursuant to the parties’ stipulated [[Protective Order]]. In lieu of returning all such material, counsel for the Parties may certify that all such documents have been destroyed.  This paragraph shall not apply to work product of counsel, or to counsel’s copies of pleadings, briefs or declarations.+Within thirty (30) days of the execution of this Settlement Agreement, the Parties and their counsel shall return all documents received in this action that were designated as <wrap lo>“CONFIDENTIAL INFORMATION”</wrap> or as <wrap lo>“HIGHLY CONFIDENTIAL”</wrap> or <wrap lo>“ATTORNEYS’ EYES ONLY”</wrap> pursuant to the parties’ stipulated [[Protective Order]]. In lieu of returning all such material, counsel for the Parties may certify that all such documents have been destroyed. This paragraph shall not apply to work product of counsel, or to counsel’s copies of pleadings, briefs or declarations.
  
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 ACCEPTED AND AGREED: [Signatures of Parties] ACCEPTED AND AGREED: [Signatures of Parties]
  
 +----