Axanar: Motion to Dismiss or Strike Complaint

Strike Complaint The G & T Show Axanar: Motion to Dismiss or Strike Complaint

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Motion to Dismiss or Strike Complaint

Strike Complaint!  The Motion to Dismiss or Strike Complaint – and now for the heart of the matter. As before, ask me if you want to see the images. These documents are a matter of public record. You are entitled to read them.

This blog post will be long, and it will be somewhat technical in nature. Please feel free to ask me questions in the comments section, but please understand there may be a delay in my getting back to you if I need to really research something. Many thanks for your patience!

Note: the proposed order, and a responsive request for additional time to respond are listed here. My credentials and an earlier breakdown of the case are here. The request for added time was denied, and so the plaintiffs did not answer the motion. All this means is, they have to file an amended complaint. I believe the deadline for that is March 21 but I admit I am unsure if that date is correct.

TL; DR: With the motion unopposed, the plaintiffs will simply amend their complaint.

Page 1

Page 1 is the easy one. As we have seen several times before, the first page for the document is really just a cover which shows the court and all interested parties who is involved in the case and what the correct filing number is. This is a necessary clerical piece intended to keep things from getting confusing.

Motion to Dismiss or Strike Complaint

Defense Motion to Dismiss or Strike Complaint Page 1

Page 2

Page 2 repeats the listing of items the defense wants stricken from the complaint, as seen in my last blog post. Or, rather, the proposed order referenced in that post repeats the list in the motion. That, in part, is the purpose of a proposed order, e. g. it summarizes what the movant wants to have happen. The same is true of this kind of introductory language.

Page 3

Page 3 is mainly a signature page for the document.

Page 4

Page 4 is a Table of Contents for the document.

Page 5

Page 5 begins the document’s Table of Authorities, which lists the case law and statutes being relied on by the defense. For the most part (because I want to finish this blog post before you and I get significantly older!), I won’t go into depth on these cases unless the defense does within the context of the motion. Sometimes, these are just cited quickly in a footnote. Those cases are as follows (they are ordered alphabetically by the first party listed, which is usually the appellant):

Page 6

Page 6 continues the document’s Table of Authorities. The cases listed on this page are as follows:

Page 7

Page 7 continues the document’s Table of Authorities. The cases listed on this page are as follows:

Page 8

Page 8 continues the document’s Table of Authorities, getting to the list of applicable statutes and rules. The cases listed on that page are as follows:

The statutes listed on that page are as follows (these are intellectual property statutes. Fun Fact: § means ‘section’. Put two §§ together and it means ‘sections’.):

The rules listed on that page are as follows (these are the applicable Federal Rules of Civil Procedure):

Page 9

Page 9 concludes the document’s Table of Authorities. The remaining authorities are as follows (yes, most of them really cost over $1,000):

Page 10

Page 10 begins the arguments proper. The first part, the introduction, puts forth a novel idea that the completed Prelude to Axanar and the yet-to-be-completed full-length Axanar film should be considered as separate entities. It also refers to Prelude as a ‘mockumentary‘ (more on that later). However, even though it’s been made private, the full-length feature’s ‘Vulcan Scene‘ provided a clear look at what was planned. Even with the video made private, there are still numerous references to it online, including on Axanar’s own Facebook page. This does not account for any downloads of the video.

But even if no one, ever, had thought to download the file prior to it being (semi-)expunged from the Internet, this does not erase people’s memories of it. 1701 News, in fact, has screenshots of it if anyone needs their memory jogged – here, here, and here are three such stills. My thanks to Michael Hinman, Bryant L. Griffin, and John Kirk for their diligence in retaining the stills. If testimony is necessary, then Judge Klausner would order it. But even if he doesn’t, the existence of the Vulcan scene is mentioned on Page 14 of the Motion to Dismiss or Strike Complaint. The defense is not denying it was made. The judge may require them to enter it as an exhibit – and he will be interested if anyone says it has been at all altered since the video was made private, even if an alteration was a relatively minor one, such as an enhancement to remove background noise or the introduction of subtitles or the like.

The thrust of the defense’s arguments are that there are so many Star Trek copyrights, they can’t possibly know which ones have been violated (a quick check of the Library of Congress reveals over 6900 pages, at 100 listings/page, see my previous blog post for more information). Essentially, it’s a request for a laundry list of violations, one which the plaintiffs should be able to provide with little trouble and add to any amended pleadings.

A second argument is that the defense can’t figure out who owns which work. However, except for the character of T’Lera, who is from the TOS novel, Strangers from the Sky, and the character may be at least partially owned by publisher Simon & Shuster (and Simon & Shuster is owned by CBS anyway); CBS and Paramount pretty clearly own the remainder of the alleged infringing elements. Even if the judge buys this argument, the bottom line is, it’s a technical ‘confusion’ at best, easily remedied with a more specific amended complaint. And, even giving the absolute 100% benefit of the doubt here, the allegedly infringing elements certainly do not belong to Mr. Peters, Axanar Productions, Ares Digital, any of the Doe defendants, or the like.

The third argument is that the complaint is based upon information and belief and is premature as the longer film is not yet complete. The defense asserts this would be an improper prior restraint on speech.

On this page, the defense then begins to lay out the facts of the matter.

Page 11

Page 11 continues a basic statement about the facts of the matter and then launches into a discussion of the Star Trek copyrighted works, complaining, in part, that there is no explanation in the complaint of how title in the intellectual property was transferred. The defense further notes the plaintiffs only list the copyright in one episode of each of the series (copyright for television shows rests in the pilot or first episode, with the remainder episodes being listed as derivative works. See: the United States’ Copyright Office’s publication, Copyright in Derivative Works and Compilations. That document says, in part:

Right to Prepare Derivative Works Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. The owner of a copyright is generally the author or someone who has obtained the exclusive rights from the author. In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any part of the work in which such material has been used unlawfully. The unauthorized adaption of a work may constitute copyright infringement.

Page 12

Page 12 continues the statements made on Page 11, indicating there are different characters and plots in the different television series, even citing CBS’s own statements about the plots of the various television series. This is, of course, how television series and spin-offs work.

One need not be an industry insider in order to understand that a spin-off, sequel, or prequel series will have dissimilar scenes, characters, etc. However, a common thread tying them together, whether it be the name of a hero ship (e. g. Enterprise), a specific organization (Starfleet Command, Section 31, and the like), or a family of characters (Spock, Sarek, et al, or Sulu and his daughter) provides a connection between works, thereby establishing they come from the same fictional universe.

This is also true of a ‘mockumentary‘ about an infringing work, one which offers a prequel-style look at an as-yet unfinished work improperly taking place in another’s fictional universe.

You know, just like Prelude to Axanar does.

Page 13

Page 13 is where the defense lays out its claim that Prelude is a mockumentary. The defense defines the terms as follows in footnote #6:

See http://dictionary.reference.com/browse/mockumentary (a “mockumentary” is “a movie or television show depicting fictional events but presented as a documentary”).

Despite our own understanding of common, ordinary parlance defining a mockumentary as being a form of parody or satire, that is not how the defense is defining it. Will this definition stand? Not necessarily; it really only matters whether Klausner would accept it. As for whether the general public accepts the definition or just thinks ‘parody or satire’ anyway, even though the term has been rather specifically denoted as being different from that, only matters to the defense (I imagine) if it spurs more, or fewer, donations. Or maybe it’s doesn’t matter to them at all. But the so-called Court of Public Opinion (yes, even mine, even yours) is immaterial here.

The person deciding on the motion’s merits is, of course, just Klausner. Even if the decision is appealed, it’s only his decision which will matter. Getting hung up on the term ‘mockumentary’ is to fall prey to what is more a distraction than anything else, I feel. So let’s move on, okay?

This page is also interesting because the defense says this:

Defendants have never sold tickets, DVDs, charged to view or otherwise commercialized the Short Mockumentary, and there is no allegation to the contrary.

Maybe an amended complaint (if required by Klausner) will go into the issues with the Donor Store, the Axanar coffee, the retroactive donor packages and perhaps other as-yet undisclosed issues?

Or not, because it does not, truly, matter.

Profit is not an element of this cause of action. Defense is not going to be able to redefine a cause of action which has been around since 1790 in the United States alone. Yeah, adding profit as an element, I suspect, is not going to fly.

Page 14

Page 14 contains a mentioning of the Vulcan scene from the as-yet-unfinished full-length Axanar feature. It continues the statements about the plaintiffs’ allegations that defense had created a script and had announced filming was to commence in January of 2016 (and then, as a condition of permitting additional time to answer the initial complaint, all filming was halted until the filing of this motion). 

Page 15

Page 15 adds a statement about the plaintiffs’ allegations:

Plaintiffs allege four claims against Defendants: (1) direct copyright infringement; (2) contributory copyright infringement; (3) vicarious copyright infringement; and (4) declaratory relief. 

Defense reiterates that the complaint is unclear. Again, as stated above, the remedy for an unclear complaint  is a dismissal, in whole or in part, allowing plaintiffs to amend their complaint, and refile and re-serve. It is hardly a ‘win’ by any stretch of the imagination.

Page 16

Page 16 adds:

Plaintiffs’ Claims Are Not Sufficiently Detailed To Survive
Courts have routinely found conclusory allegations of copyright infringement to be insufficient to survive a motion to dismiss. 

Yet again, the dismissal is hardly the issue here. A dismissal merely delays the inevitable.

Page 17

Page 17 continues and elaborates on the issue of ‘thousands’ of copyrights, and no notice of what is being infringed.

Except there is plenty of notice of what is being infringed, at least the following terms, which are in the same complaint both Ms. Ranahan and I read. To wit:

  1. The Starship Enterprise
  2. The Klingon race
  3. The Vulcan race
  4. The United Federation of Planets
  5. Garth of Izar
  6. The battle of Axanar

And I didn’t even mention Soval. Perhaps there are more such violations, and an amended complaint would lay them out more granularly (or, at least, it should). But these quick half dozen, which I found with a cursory reading of the complaint, should be sufficient to put anyone on notice of what the plaintiffs mean when they allege copyright infringements.

Page 18

Page 18 continues the elaboration on Page 17, noting that Garth of Izar is mentioned, but not the episode he comes from.

Hint, sushi fans, it’s Whom Gods Destroy

Can the defense demand more specificity? I suppose they can in this area. But this is, again, something quickly and easily remedied. Klausner may or may not require it be a part of any amended complaint (he may not even require an amendment, and instead rule for the plaintiffs; we do not know this yet), but as it stands, this is about the easiest amendment in the list of often minor issues the defense has raised.

Page 19

Page 19 further develops the argument that the plaintiffs’ claims are insufficiently detailed. To repeat, ad nauseum, this can be fixed with an amended complaint. 

Page 20

Page 20 goes into the cross-ownership issuing, stating that ownership is crucial to the defense.

Except it’s not, unless the defense is alleging some sort of permission to infringe, either express or implied. Are they? If they are, then they’re being as obscure and coy as they claim the plaintiffs are in their allegations.

As for express or implied permission, here’s what CBS said to The Wrap in August of 2015:

“CBS has not authorized, sanctioned or licensed this project in any way, and this has been communicated to those involved,” a representative from the network told TheWrap. “We continue to object to professional commercial ventures trading off our property rights and are considering further options to protect these rights.”

Does this mean Paramount was cool with it?

Hardly. By not commenting, that does not imply consent. Silence does not equal consent.

Page 21

Page 21 gets into the somewhat nonspecific allegation that there are infringements based upon ‘information and belief’.

Even if Klausner agrees to this, that might turn out to be a case of ‘careful what you wish for’ when it comes to the defense.

Why?

Because, in order to gather enough data to get over the ‘information and belief’ hump, the plaintiffs might, let’s see:

  • Subpoena Mr. Peters and depose him
  • Start naming Doe defendants and subpoenaing them
  • Call for an accounting into the production’s finances
  • Subpoena other supporting proof, such as script drafts, story boards, costume designs, contracts with ancillary personnel (e. g. makeup artists, carpenters, electricians and the like), that pesky Vulcan scene and any related video which did not make it to what was placed on YouTube, etc.

Is a pre-suit deposition or other discovery possible? It is if you need to preserve evidence.

The plaintiffs may very well get over this hurdle if they can show Klausner how various statements from the production have changed over time. If Klausner believes there is a danger that certain items will be destroyed or altered, either deliberately or accidentally, then he will be more inclined to allow this.

Doesn’t the defense have a right to not incriminate itself?

That does not apply here. This is a civil matter. 

Page 22

Page 22 continues the arguments made on the previous page and also notes the plaintiffs do not specify how the defense ‘materially benefited’. Yet again, this is for an amended complaint, if so ordered. How did the defense materially benefit?

Axanar itself put out an unverified, unaudited, unchecked statement (‘Annual Report‘) about their expenditures. From that page, it says:

Here is a ROUGH budget for the first Axanar Kickstarter:

$ 182,000      Sound Stage building rental (12 months & deposit 1/15 – 2/16)
$ 12,000        Warehouse rental (9/14-1/15)
$ 37,200        Construction Dept. Salaries
$ 32,000        Stage Floor
$ 12,000        Sound proofing Doors
$ 20,700        Set Construction Supplies
$ 5,000          Equipment Rental
$ 22,000        Office Renovation
$ 15,000         Make Up (Pre-Production)
$ 8,200           Vulcan Shoot
$ 59,000        Production Team salaries
$ 54,000        Construction Team salaries
$ 6,000          Insurance
$ 5,000          Crew meals
$ 18,000        Camera/editing equipment
$ 22,000        Perks (60,000 patches)
$ 2,000          Perks (CD)
$ 2,500           Legal Expenses
$ 1,500           Phone
$ 1,800           Internet
$ 2,000          Music
$ 1,500           Backerkit Fees
$ 32,000        Kickstarter Fees
$ 35,000        Amazon Payment Processing

$ 9,500          Prelude deficit (Overage costs absorbed by Axanar from Prelude Kickstarter).

$ 597,900 TOTAL

$ 40,100 BALANCE

I have bolded some of the items, which may or may not be considered to be ‘material benefits’. Perhaps there are more. With few details, the document is not terribly useful. Plaintiffs can call for a formal accounting, and they just might.

This page also begins the defense’s elaboration of their argument that the claims in the complaint are unripe, as the main feature has not yet been completed.

Page 23

Page 23 starts off by mentioning that the script is still being revised. This is used to attempt to bolster the defense’s argument that the claim is ‘unripe’ and cannot be brought until the film is completed.

Yet such is the nature of pretty much any type of fiction, including broadcast drama. Scripts and screenplays are edited and adapted all the time, a situation which does not convert them from ready/completed to somehow becoming unready and incomplete.

Page 24

Page 24 continues the ‘unripeness’ argument, noting that “the allegedly infringing work does not yet exist.”

Perhaps it is not at 100%, and I suspect most people would concede that. Yet a determination, surely, can be made based upon what currently exists. Further, some of the infringing constituent elements, such as costumes, makeup and prosthetics, models, props, sets, and minutes of special effects backgrounds and footage, are complete.

Page 25

Page 25 adds that a potential infringement can be salvaged if an allegedly infringing work is altered. Is that what is being proposed here, that the script is incomplete, but its completeness would change things so much that it would suddenly no longer be infringing?

Even if that were the case, what about the extant costumes, etc.? As Mr. Peters is a prop dealer, what happens if props and costumes are substantially altered so as to satisfy this condition? Then, I would imagine (I am not in the prop business and am happy to defer to others’ expertise), the props and costumes would lose much of their intrinsic value. After all, the costume worn by actor Richard Hatch as the Klingon, Kharn, closely resembles that worn by actor Christopher Plummer in the film Star Trek: The Undiscovered Country. If it is the same garment (perhaps it is not. If not, then it is an awfully close facsimile thereto), then any material alterations will destroy the value of the piece.

Page 26

Page 26 contains this statement by the defense: “Plaintiffs are instead focused on visual depictions like clothing, hairstyles, weapons and a bridge.”

Yet this matter seems to have been dropped almost as fast as it was raised. Instead, the defense goes back to talking about the incompleteness of the script, yet these ancillary items are a part of what makes Star Trek, Star Trek. I’m sure we can all agree that the words we all long to hear, “I’m in love with you”, are far from original or specific. Yet when Nurse Christine Chapel says them to Mr. Spock during The Naked Time, it’s a part of Star Trek. It’s not the words, per se, of course. Rather, I would put to you that it is the ancillaries. Her uniform. His hairstyle and makeup. The set. The incidental music in the background. Take those away and you have actress Majel Barrett speaking those lines to actor Leonard Nimoy but they could just as well be in a western or a horror film. Or maybe even a television commercial.

Page 27

Page 27 contains the Disney case (Walt Disney Productions v. Filmation Associates, 628 F. Supp. 871, 874 (C.D. Cal. 1986); see my last blog post for the specifics). The defense alleges that Disney does not apply because Axanar is not as far along as the infringing works were in Disney (e. g. storyboards, etc.). However, the Vulcan scene, it can be argued, is analogous to a promotional trailer or proof of concept. The models also already exist, as do a substantial number of the ancillary elements mentioned, above (e. g. costumes).

Furthermore, the making of a film has changed in the past thirty years. Some elements which existed or were required back during the Reagan Administration just plain aren’t necessary anymore (e. g. painted backdrops and the like). In the Axanar Kickstarter project page, storyboards are mentioned.

At some point, we’re just splitting hairs here, folks.

Further, as donors have been told repeatedly that progress was being made, and then to have this document allege very little progress has indeed been made – that has got to catch the attention of donors, I feel.

Is the feature a shambles of ideas with few concrete artifacts, unready for filming? Or is it on schedule for release in 2016 or 2017? That seems to be dependent on who you talk to, and what you read.

Which one is it?

Page 28

Page 28 begins the argument about a prior restraint on free speech. Here is where the defense cites the New York Times case (New
York Times Co. v. United States, 403 U.S. 713, 714 (1971); see my last blog post for the specifics). For those unfamiliar with that case, it’s about the Pentagon Papers.  While a prior restraint on free speech is troublesome, we are talking here about an injunction against an infringing work of fiction, not a means of the government trying to quash a free and open press to prevent the public from learning what they were doing within the context of a war on foreign soil. The two are so far apart factually that the relationship, if any, seems to be exceptionally tenuous. Will Klausner see the relationship the defense wants him to see? That is not outside the realm of possibility, although to my mind the odds feel rather remote.

Page 29

Page 29 concludes the document, stating that, with the exception of the Vulcan scene (what about Prelude?), the plaintiffs have failed to allege any violation of their rights. This, again, is easily remedied with an amended complaint. This page also contains Ms. Ranahan’s signature.

And there you have it. I await the amended complaint and will blog about it when I see it and as my work and school schedules permit.

As always, I thank you for reading and for your kind support and attention. Please feel free to ask questions in the comments section, and I will do what I can to answer them.

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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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