Axanar Defense Reply in Support of Motion to Dismiss

Axanar Defense Reply in Support of Motion to Dismiss

Recently, on PACER, we pulled from the public record the Axanar Defense Reply in support of their motion to dismiss. As always, we will go through it page by page but this is a busy time for me at school so please do not expect a long and involved treatment of these documents. As I have mentioned before, my credentials are here.

Most of this case has been followed by me via the Fan Dance blog; click on my name and you’ll be taken to a list of my posts about the myriad semantic shenanigans that has accompanied this case. I always, always, always welcome comments and questions.

Feel free to ask for a copy of any of these documents. They are a matter of public record, and I paid for them with my own money. You have the right to know.

Axanar Defense Reply to the Plaintiffs’ Response to their Second Motion to Dismiss

Page 1

The documents start off with a standard cover page as is required by the court. No surprises here.

Axanar Defense Reply

Axanar Defense Reply, Page 1

Page 2

As we have seen before, the document starts with a table of contents. This has not changed since the defense motion itself was filed.

Page 3

Here we see the standard table of authorities. Many of these have already been discussed in our coverage of this motion so I will not repeat that.

Page 4

This is the second page of the table of authorities.

Page 5

Here is the third page of the defense’s table of authorities.

Page 6

The argument begins with an introduction, wherein the defense states:

In a misguided effort to squash Defendants’ creativity in telling an original
story about an obscure character that appeared in only one 1969 Star Trek episode,
Plaintiffs’ Opposition shows that their strategy is to avoid properly framing this
copyright action by alleging numerous unprotected elements and irrelevant works,
refusing to identify the specific infringed works at issue, and prematurely claiming
infringement against a work that is not complete. But Plaintiffs cannot simply rely on
their boundless claims to an amorphous, extended Star Trek universe when pursuing
claims against Defendants in a narrow dispute. For all the reasons set forth here and in
Defendants’ Motion, the Court should dismiss or strike Plaintiffs’ claims.

To get into some small semantic shenanigans of my own, the word quash would probably have worked better than squash. I admit that is nitpicking (which is, in some ways, a common thread in these motions).

What is more interesting is that the statement disparaging “numerous unprotected elements” should be set against the defense’s continual demands for specificity, and their own tossing of all manner of science fiction-related arcana into the mix (Nosferatu, The War of the Words, and Masonic medals, anyone?) was a call for those very “numerous” “elements” mentioned herein.

You can’t exactly ask for the kitchen sink and then complain that it’s got a bunch of sponges and dishes in it.

Then the defense launches into essentially the same argument they were making before, that the plaintiffs must “Filter Out the Unprotectable Elements”. This is the argument from before, where they said there is so much Star Trek-related stuff out there, that the plaintiffs cannot simply back up a truck full of copyrighted material and invite the defense to sift through it in order to see if they can locate their infringements.

I gotta say, I’m with them on that.

Except that’s not what the plaintiffs did. Instead, in their Amended Complaint, and in their response to this motion, the plaintiffs got specific but not overly so. E. g. they discussed the allegedly infringing uniforms and did not get into cowl necks, per se, as being copyright infringements (a cowl neck on a sweater is in the public domain, as a part of a useful article). Per the United States Copyright Office:

A “useful article” is an object having an intrinsic utilitar¡an function that is not merely to portray the appearance of the article or to convey information. Examples are clothing, furniture, machinery, dinnerware, and lighting fixtures. An article that is normally part of a useful article may itself be a useful article, for example, an ornamental wheel cover on a vehicle.

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. It may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus, a useful article may have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware could be protected by copyright, but the design of the chair or flatware itself could not.

Hence, at the risk of repeating myself, the defense wanted to know why the uniforms, etc. were alleged to be copyrighted, and they were told as much, in both the Amended Complaint and in the plaintiffs’ response to the Second Motion to Dismiss (which the documents being analyzed herein are in reply thereto). The defense was told the uniforms were not infringements because of their color, but because of their decorations and the inferences which appertain thereto when a person wearing a recognizable Starfleetesque uniform is acting in a production which refers to itself as “the ground-breaking independent Star Trek film“.

I’m really not so sure what else the defense expects to be told about the alleged infringements. In particular, if they are seeking answers to questions of fact, then that more or less defeats the purpose of a motion such as this.

Page 7

This page continues the argument begun on the previous page. However, a Motion to Dismiss is intended to either state that a case cannot be brought at all (e. g. there are no questions of fact and it’s a done deal), or that swaths of a complaint can be redacted as being improperly pled or otherwise not permitted.

Plaintiffs’ task is to show the court that the case has enough of a question of fact to go forward. All the posturing about specificity in the world doesn’t really matter, as those are questions of fact, best answered during the discovery process.

According to Rule 26(b) of the Federal Rules of Civil Procedure, discovery is generally governed as follows –

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable..

(2) Limitations on Frequency and Extent.

(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.

(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

Beyond pointing out a “massive, single-spaced block quote”, there really isn’t much here. By the way the page just has a twelve-line (hardly massive) block quote.

Oh, and pages 14 and 19 of the defendants’ Second Motion to Dismiss also have several single-spaced lines.

Look, here’s more on page 25 of that document!

I guess it’s only a problem when the plaintiffs do it.

Welcome to Nitpick City, USA.

Page 8

This page continues the argument, supra, and further notes Garth of Izar was a minor character.

I think we can all concede this character was not major, but that is not what the defense was alleging the last time around. Instead, they claimed, on page 21 of the Second Motion to Dismiss:

Here, Plaintiffs have not plausibly alleged that
any of the characters they claim have been infringed—Garth of Izar, Soval, Richard
Robau, John Gill, Captain Robert April, Chang, or Sarek (FAC at 11-12, ¶ 66)—meet
the requirements for copyright protection because they have not set forth “especially
distinctive” and “widely identifiable traits” of these characters that Defendants have

In the reply, the defense states:

Defendants’ works here are not alleged to, and do not, center around any
main characters from Star Trek. Instead, they provide new insight about Garth of
Izar7—an obscure character that appeared in just one Star Trek episode from nearly 50
years ago, and never in a movie.

Except the plaintiffs showed the character was in three books in the Star Trek universe (this does not even get into the FASA game, which the Four Years’ War is taken from, anyway).

Spoiler alert: defendant Peters, Ares Studios, Diana Kingsbury, Terry McIntosh, Robert Meyer Burnett, and Axanar Productions don’t own FASA, either.

Page 9

The defense repeats its arguments that the individual words are not copyrightable.

That is still not what the plaintiffs are alleging.

The allegations in the Amended Complaint are not about the word Vulcan but about a copyrighted species and planet, both created for Star Trek. It is not the word Andorian, but the species, not the word Nausicaa, but the species, and so on and so forth.

Semantic shenanigans, indeed.

Page 10

This page introduces the question of a copyright in the Klingon language (I’ll try to get into that when looking at the KLI amicus curiae brief. Stay tuned!).

Page 11

This page repeats arguments about scènes à faire and characters, and again alleges the claims are not specific enough to survive a Motion to Dismiss. However, if a question of fact can be raised (and I believe there have been several such questions raised) in the pleadings and motion replies, then a Motion to Dismiss should be denied, as questions of fact are best answered in discovery and, if it goes far enough, by a trier of fact (in this case, it would be a jury and not a judge, as the plaintiffs have demanded a jury trial).

Page 12

This page makes an interesting claim in a footnote:

episodes, contain any original
expression that Defendants have allegedly infringed. If the only protected, original
elements were from the television episodes allegedly owned by CBS as opposed to the
films allegedly owned by Paramount, then Paramount (which claims to own only
films) has no standing in this action. Further, without the infringing works identified,
Defendants are prevented from establishing that the Short Mockumentary is not
infringing through a comparison.

I really wish I knew what all of those side by side comparison images, some from films and some from television, mean to the defense, if they are not, you know, comparisons.

Perhaps they are seen as being used in a decorative capacity. This is yet another defense head-scratcher.

Page 13

Here’s an interesting statement:

However, to the extent Plaintiffs’ allegations are based on Defendants’ public
statements made online or through social media, unlike the testing data and consumer
complaints in the Keegan case cited by Plaintiffs, such facts obviously are not
exclusively within Defendants’ control.

Is someone claiming a hacking of the accounts of the defense? Because otherwise, you know, you’re actually responsible for everything you write and post on social media.

Page 14

This page repeats the ripeness argument we have already seen.

Page 15

And then this page concludes the ripeness argument and contains counsel’s signature.

Reply in Support of Motion to Dismiss

Page 1

As always, the documents begin with a standard cover page. Nothing big here.

Page 2

This page begins an argument wherein the defense insists the documents and definitions within their Request for Judicial Notice were properly appended and utilized therein. More specifically, they argue in favor of the use of dictionary definitions, rather conveniently ignoring the plaintiffs’ true objection, which was to the cherry-picking of only certain definitions, including dictionary-shopping for as favorable a definition as possible, even if a dictionary had been previously used for some other purpose.

Page 3

This page contains the argument that websites are proper subjects of Requests for Judicial Notice. However, according to the Federal Rules of Evidence, Rule 201, that is not so:

Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

As anyone who has ever read the history of a Wikipedia page knows, websites change constantly. Can they be relied upon? Perhaps. But in a court of law (e. g. not my reliance in this blog post on the work of the fine folks at Cornell Law, for example), I would put it to you, gentle reader, that the accuracy of most websites could reasonably be questioned.

And questions of fact, as have been stated, supra, are properly answered in discovery. They are also properly answered by the trier of fact, and are not a subject of Motions to Dismiss, nor are they proper subjects of Requests for Judicial Notice.

Page 4

This page begins an argument allowing for judicial notice of works that are in the public domain.

Also, this one I think I have to give to the defense. However, I still don’t think the works they cited are relevant to this matter.

Page 5

This page concludes the public domain argument and goes beyond it to take one last shot at claiming that pointed ears and triangular medals are not unique to Star Trek.

That’s right; they aren’t.

But this lawsuit is not about geometric shapes; it’s about an aggregate IP that was so closely copied by the defense that they even went so far as to, in CGI, replicate a shadow seen in the original work, a shadow that likely was a naturally occurring effect of light on a constructed model.

This page also includes counsel’s signature.

What’s Next?

May 9th will be a day of reckoning in a number of ways. The parties were originally required to present a discovery plan by then. That requirement does not appear to have been superceded. However, the plan will not necessarily be filed as a public document. There will be oral arguments heard, or at least counsel is required to appear in person, on the ninth. This meeting/hearing will likely not be open to the public.

Will Doe defendants be named on the 9th? Maybe; I admit I am unsure, but the requirement for the parties to get a discovery schedule together also required that anyone who could end up involved would have to be notified of the May 9th gathering. Take from that what you will.

A Little More

There is also an amicus curiae brief filed by the Klingon Language Institute. I will do my best to get to it but my coverage could turn out to not be timely. School comes first, of course.

We will, as always, do our best to cover this matter in a timely fashion, but it has collided with my graduation and final project, so time is hard to come by. Many thanks for your patience and your continuing kind support. You are why we do this.

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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too.

She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show.

We understand that she can be bribed with pie.
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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too. She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show. We understand that she can be bribed with pie.

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