Yesterday Paramount and CBS received some good news as the Axanar fan film case turned a corner. The California judge wrote "Under the extrinsic test, the Axanar Works are substantially similar to the Star Trek Copyrighted Works. This conclusion finds strong support in Defendants’ intent for the Axanar Works. 'Defendants expressly set out to create an authentic and independent Star Trek film that [stayed] true to Star Trek canon down to excruciating details.'". Basically this decides for Paramount and CBS that they have "broad copyright protections" for all elements of Star Trek and that Axanar's case of fair use is not a valid defense.
While this seems to pretty much end the case, in reality there is a second issue that was pushed to a jury trial for end of January. The trial will be to decide if Axanar Productions and its owner Alec Peters "willfully" infringed on the Star Trek copyright. This will heavily rely on the "so-called intrinsic test that asks whether an ordinary, reasonable person would find the total concept and feel of the works to be substantially similar." In effect the trial is so the jury can decide if Axanar Productions may pay damages or not to Paramount and CBS and if so how much.
Considering fan films, but especially Axanar, are intentionally written, designed and filmed to fit into known continuity of Star Trek by recreating locations, characters, costumes, ships, over all look and feel, it seems the "intrinsic test" portion of the case is already decided. The only real decision is how much damages Axanar will have to pay. The defense that CBS and Paramount didn't use the courts to stop previous fan videos of anything Star Trek related seems like a very weak defense and sadly has been mitigated by new rules caused by the Axanar lawsuit that effectively banned fan films and shorts. It seems if Peters doesn't settle, he is rolling the dice on hoping that a demonstrated love of the franchise might be enough to win jury sympathy so the amount of damages is low enough to end the trial mostly unscathed.
At this point it seems settlement is a no-brainer. Up to now the impression I have had is Paramount and CBS would have settled if Axanar made certain unknown concessions but Alec Peters was determined to push forward. Even now, he has posted a statement indicating that "depending on the outcome of the trial, Axanar may choose to appeal the verdict to the Ninth Circuit." Proving willful intent can be tricky and if this film, like other fan films, showed zero profit motive, there might be a solid argument to be made. However part of the reason Paramount and CBS sued (outside of starting their own new TV series) is in this case the money raised from Star Trek fans to make Axanar was used to buy (not rent) a studio for use not just Axanar but future non-Trek endeavors indicating a profit motive which has long been an understood line in the sand for fan productions. I am not a lawyer but this case is a slam dunk. Even a first month law student could win this case for Paramount and CBS. You can find more detailed legal analysis here.