Axanar: Plaintiffs File an Amended Complaint

Axanar: Plaintiffs File an Amended Complaint

We all expected this. The plaintiffs have filed an amended complaint in the Axanar litigation. It is long. Bear with me; we will go through it together, page by page. As before, my credentials are here. The defense’s motion to dismiss is covered here and the attendant documents that went along with it are covered here. The order setting a scheduling conference is covered here.

Bigger versions of the document images are on Photobucket. Just click through and you can see larger, more readable copies. Want to right-click and take copies? Be my guest. I paid for these public documents, and I offer them to you freely. Got questions, it’s easier for me to find your questions if you post them as comments to this blog post. I will do my best to answer you in a timely fashion. Thank you for reading!

What follows are, as always, my opinions regarding this matter.

Page 1

Page 1, as is true of all documents filed with Judge Gary Klausner‘s court (The United States District Court, Central District of California), has a basic cover page showing the names of the parties and their legal representatives. Plaintiffs’ attorneys at Loeb & Loeb include two locally-admitted lawyers, David Grossman and Jennifer Jason. Lead counsel, admitted pro hac vice (this means he is admitted to California Federal practice for the purposes of this case), is Jonathan Zavin.

The cover makes it clear this is an amended complaint and it reiterates the plaintiffs’ demand for a jury trial, should the matter go that far.

I remind our readers that this matter is under federal jurisdiction because it is a copyright case. It is also a civil matter, meaning no one can go to jail for this. Furthermore, the donors are not parties to this case, either individually or as a class. More on that later.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 01

Page 2

Getting to page 2, the statements are very similar to those made in the initial complaint. The first paragraph seems to have been lifted directly from the predecessor document. In the second paragraph, the amended complaint references the Axanar script directly. Otherwise, the two paragraphs appear to be identical.

Note, in their Motion to Dismiss, the defense cited Simonyan v. Ally Fin. Inc. (A hard case to find online), No. CV 12-8495-JFW (FMOx), 2012 WL 45453, at *2 (C.D. Cal. Jan. 3, 2013); Solis v. City of Fresno, No. 1:11-CV-00053 AWI GSA, 2012 WL 868681, at *8 (E.D. Cal. Mar. 13, 2012); and Richtek Tech. Corp. v. Semiconductor Corp., No C 09-05659 WHA, 2011 WL 166198, at *3 (N.D. Cal. Jan. 18, 2011). All of these cases state that a complaint only based upon ‘information and belief’ cannot stand. However, based upon the subsequent information in this document, I suspect Judge Klausner will rule that this cause of action is not solely based upon ‘information and belief’ and, instead, has more concrete underpinnings. But this does not discount the possibility that the defendants would not, maybe, make the same argument.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 02

Page 3

Moving onto page 3, paragraphs 3, 4, and 5 are lifted directly from the original complaint and establish proper venue (where the case is going to be heard, which is in California Federal Court, Central District). Paragraphs 6, 7, 8, and 9 are also copied directly from the original complaint (no, that’s neither plagiarism, nor is it infringement – the plaintiffs are just repeating what they wrote before as this part has not changed) and are about the parties to this case.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 03

Page 4

On page 4, paragraphs 10, 11, and 12 are about the Doe defendants. Again, these statements have not been altered since the complaint was initially filed. Then we get to the allegations common to all claims. Paragraph 13 also appears to have been lifted directly from the original complaint.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 04

Page 5

Page 5 continues the allegations common to all claims. Paragraphs 14, 15, and 16 do not appear to have been altered in any manner.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 05

Page 6

On page 6, paragraph 17 is the same as in the original complaint. Note: the pagination between the original complaint and the amendment thereto differs slightly up until now as there is an additional statement in the amended complaint, see page 2, above.

At paragraph 18, the original and amended complaints diverge. In the amended complaint (and in response to the Motion to Dismiss’s point that ownership of the individual elements had not been clearly stated), this paragraph sets forth what CBS and Paramount each own. The amended complaint states:

CBS owns United States copyrights in the Star Trek Television Series
and Paramount owns the United States copyrights in the Star Trek Motion Pictures.
Plaintiffs have duly registered copyrights in and to the Star Trek Television Series
and Star Trek Motion Pictures with the United States Copyright Office and have
complied with all applicable statutory registration and renewal requirements.

In paragraph 19, clearer information is provided about other places where Garth of Izar and various starships appear. The amended complaint states as follows:

Plaintiffs also own the United States copyrights in numerous other Star
Trek works, including works in which Garth of Izar appears, including but not
limited to the following novels: Garth of Izar (Registration No. TX0005745716,
owned by Paramount), Strangers from the Sky (Registration No. TX0006429184,
owned by CBS), and Infinity’s Prism (Registration No. TX0006872810, owned by
CBS), as well as works in which starships appear, including but not limited to Star
Trek Titan: Sword of Damocles (Registration No. TX0007050792, owned by CBS)
(collectively, the “Star Trek Books”) (the “Star Trek Books,” together, with the
“Star Trek Television Series” and the “Star Trek Motion Pictures,” are referred to
collectively as the “Star Trek Copyrighted Works”).

It should be noted, these cited works are dated as such:

  • Garth of Izar (2002)
  • Strangers from the Sky (1987)
  • Infinity’s Prism (2008)
  • Star Trek Titan: Sword of Damocles (2012)

Dates are important in copyright as these rights cannot be asserted forever (although they can be renewed). Damocles in particular is very recent and many years from being in the public domain.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 06

Page 7

This page circles back to the original complaint (although the paragraph numbering scheme is now off slightly). Paragraphs 20 and 21 correspond to paragraphs 19 and 20 in the initial complaint and do not appear to have been at all altered. Getting into the section entitled Defendants’ Axanar Works, paragraphs 22 and 23 in the amended complaint are evidently a direct copy of paragraphs 21 and 22 in the original complaint.

The difference between the new paragraphs 24, 25, 26, and 27 and the original paragraphs 23, 24, 25, and 26 is that the newer document has jettisoned the phrase ‘on information and belief‘. This is apparently in a direct response to defense’s Motion to Dismiss. The newer paragraph 27 and the older paragraph 28 appear to be identical.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 07

Page 8

On page 8, paragraph 29 of the new document seems to be the same as paragraph 28 of the older one. The next paragraphs diverge again, with the newer complaint affording more specifics. Paragraph 30 of the newer document states:

Defendants incorporated numerous elements of the Star Trek
Copyrighted Works into Prelude to Axanar, including but not limited to the
elements of the Battle of Axanar itself, the Federation, the Klingons, Vulcans,
Starfleet, and Starfleet officers and commanders, including Garth of Izar.

In the newer version, Vulcan is named directly, and Starfleet officers and commanders are separated from the entity Starfleet itself.

The difference between the newer paragraph 31 and the older paragraph 30 is that, in the newer paragraph, the Indiegogo campaign is referenced in the past tense. Comparing the newer paragraph 32 and the older paragraph 31, in the newer version, a reference to a second scene in the full-length work (in addition to the Vulcan scene) has been added:

On information and belief, Defendants have filmed at least one
other scene from the Axanar Motion Picture.

In the newer paragraph 33, the term ‘script‘ is used, replacing the word ‘screenplay‘ as used in paragraph 32 of the initial version of the complaint.  The new paragraph 34 and the older paragraph 33 appear to be identical.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 08

Page 9

The first image is on page 9, but let’s start with the paragraphs. Paragraph 35 of the newer version of the complaint appears to be the same as paragraph 34 in the original version. At paragraph 36 of the newer pleading, there is another divergence. Paragraph 36 states, in total:

According to Axanar Productions’ Facebook page, as of August 15,
2015, there was a “fully revised and locked script” which is referred to as “the best
Star Trek movie script ever!”

Immediately below is the image, a screenshot taken from Facebook. The verbiage says as follows:

(the status portion) A fully revised and locked script! Congrats to my writing partner Bill Hunt. Together we were able to produce what director Rob Burnett calls the best Star Trek movie script ever!

 

(the typed portion, most likely the cover page for the script) AXANAR Written by Alec Peters and Bill Hunt. Directed by Robert Meyer Burnett. August 10, 2015.

I caution all readers – Facebook, Twitter, etc. statements are likely to be regarded as hearsay. After all, these statements are not made under oath and may instead be regarded as being what is called in the law ‘advertising puffery‘ (you know, when three different toothpaste manufacturers all say their brand is the best? At least two are wrong, but this kind of controlled exaggeration is still permissible. Consumers expect a certain degree of hyperbole within an advertising context). However, under the Federal Rules of Civil Procedure, an unsworn statement is hearsay if it’s offered to assert the truth of a statement. As the commentary to the hearsay rule says:

The definition follows along familiar lines in including only statements offered to prove the truth of the matter asserted. McCormick §225; 5 Wigmore §1361, 6 id. §1766. If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay. (Emphasis mine)

Saying that a script did not exist (see the Motion to Dismiss), and then uncovering a Facebook post showing there is (or at least was at one time) a script is not a perfect refutation. But it does raise difficult questions. Further, this statement can be used to open up discovery and find the document in the image. Maybe it’s a French phrase book under there, and not a script at all. This would not be known without finding and reading the document. And if it’s no script at all, yet the image and the statements appertaining thereto were used for fundraising purposes, the donors might have something to say about that. More on the donors later.

Paragraph 37 of the new complaint corresponds to paragraph 35 of the old and appears to copy it verbatim.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 09

Page 10

On page 10, paragraph 38 of the altered complaint slightly differs from paragraph 36 of the older version in that the newer version of the complaint specifies that the script is the Axanar script. The difference between the new paragraph 39 and the old paragraph 37 is that the dissemination of the Vulcan scene on YouTube and Axanar‘s own website is now referred to in the present perfect tense. Paragraph 40 of the new complaint and paragraph 38 of the original complaint appear to be identical. The main differentiation between paragraph 41 of the new version and paragraph 39 of the old is the excision of the phrase ‘on information and belief’.

In the newer version, there are new paragraphs 42 and 43. They are as follows:

42. Defendants have stated that they have completed one third of the visual
effects of the Axanar Motion Picture.

43. Defendant Peters has admitted that the Axanar Works violate Plaintiffs’
copyrights. In an interview published on February 1, 2016, Mr. Peters stated “We
violate CBS copyright less than any other fan film.” See
http://1701news.com/node/1001/peters-axanar-quality-spurred-lawsuit.html.

The 1701 News link references an interview conducted by John Kirk. We thank him and Michael Hinman for the interview and the article. Does this link mean Messrs. Kirk and Hinman could be deposed in this matter? Possibly, although it is more likely such would be in order to introduce and authenticate any recordings or notes made during the course of the aforementioned interview.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 10

Page 11

Moving on to page 11, the newer version of the complaint moves straight to the allegation that, “the Axanar works are substantially similar to the Star Trek copyrighted works”. Plaintiffs accomplish this by showing what are likely to be two columns from a spreadsheet, often accompanied by imagery. First, the new paragraph 44 is identical to the old paragraph 40. Then there are new paragraphs 45 and 46, as are quoted here in their entirety:

45. The feel and the mood of the Axanar Works are the same as that of the
Star Trek Copyrighted Works.

46. Prelude to Axanar copies many elements from the Star Trek
Copyrighted Works, including the United Federation of Planets, “beaming up,”
Klingons, Vulcans, the Starship Enterprise, spacedocks, the interrelationship
between species, planets and alliances. Defendants have intentionally sought to
replicate the Star Trek Copyrighted Works (down to copying costumes, makeup and
jewelry) and, in doing so, they have sought to create a “Star Trek” film. The copied
copyrighted Star Trek elements include, but are not limited to, those listed below:

At this point, the original complaint and the amended form thereof diverge quite a bit. The two documents don’t really converge again until the first claim for relief, which does not show up until the 39th page of the amended pleading (this same part of the original complaint shows up on the original page 11).

The first alleged infringing element is the character of Garth of Izar, described by both Axanar and Star Trek as:

Captain Kirk’s hero who prevailed in
the Battle of Axanar

Plaintiffs then clarify where the character comes from, stating:

In the episode “Whom Gods Destroy” in
The Original Series (Reg. No. RE-769-427,
LP-44-729) as well as in the Axanar Works,
Garth is Captain Kirk’s hero and prevailed
in the Battle of Axanar. Garth of Izar
appeared in the following copyrighted
novels: Garth of Izar, Strangers from the
Sky, and Infinity’s Prism.

It is rather difficult to become more specific than that.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 11

Page 12

Page 12 continues with the side-by-side comparisons. To wit:

Soval – described by both Axanar and Star Trek as: 

Vulcan ambassador

Plaintiffs add:

Soval was first seen in the Enterprise pilot
episode “Broken Bow” in 2001 (Reg. No.
PA-1-072-515), and many times throughout
the Enterprise series such as in the episode
The Expanse” from 2003 (Reg. No. PA-1-
205-604).

Richard Robau described by both Axanar and Star Trek as:

Starfleet captain

Plaintiffs add:

Robau appeared in Star Trek (the 2009
film).

John Gill  described by both Axanar as a narrator and Star Trek as a historian (these two designations are not mutually exclusive).

Plaintiffs add:

John Gill is a character from The Original
Series episode “Patterns of Force” in 1968
(Reg. No. RE-740-926, LP-44-375).

Klingons – described by plaintiffs as follows:

Klingons are a warrior race from the planet
Qo’noS. Klingons first appeared on The
Original Series episode “Errand of Mercy
in 1967 (Reg. No. PA-58-283). They have
made many appearances on Star Trek
Television Series and Star Trek Motion
Pictures.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 12

Page 13

Page 13 adds pictures to the side-by-side comparisons. The top two photographs compare ridge patterning. The bottom two compare a costume. As was noted on the TrekBBS and in at least one prior blog post, the Kharn costume in particular seems to be problematic for the defense. If it is not the actual screen-worn costume donned by actor Christopher Plummer in Star Trek VI: The Undiscovered Country, then it is an awfully close replica. And if it is the actual screen-worn costume, then the alteration and the repurposing could potentially speak to a significant loss of value in the piece. While I am no expert in props or costumes, the question of lost value might be an issue for those interested in such items.

About the Klingon ridges and the costume, plaintiffs wrote:

The Klingon species first appeared in The
Original Series episode “Errand of Mercy
in 1967 (Reg. No. PA-58-283). Defendants’
style of Klingon makeup is strikingly
similar to the Klingon makeup used in Star
Trek–The Motion Picture in 1979, pictured
above (top).
In Prelude to Axanar, the Klingon
commander is wearing an altered costume
that was worn in Star Trek VI–The
Undiscovered Country (bottom image).

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 13

Page 14

Page 14 continues the plaintiffs’ discussion of Klingons, and says:

The Klingon makeup design in Prelude to
Axanar, including the facial hair and thick
eyebrows mimics the later Klingon makeup
that began with Star Trek– The Motion
Picture in 1979 and continued through all
the later series – The Next Generation, Deep
Space Nine, Voyager, and Enterprise, as
well as Star Trek III The Search for Spock,
Star Trek IV: The Voyage Home, Star Trek
V: The Final Frontier, Star Trek VI – The
Undiscovered Country, Star Trek
Generations, Star Trek: First Contact, Star
Trek: Insurrection, and Star Trek Nemesis.

As readers may realize, it is not just ridges that maketh the Klingon. It is attitude, wardrobe, possibly names (although the K- naming convention was broken with names like Worf, Lursa, and Duras), makeup shading (this is more of a spectrum than a particular shade such as is seen with Orions), warlike tendencies, and pretensions to honor.

Similarly, it is not just pointed ears that maketh the Vulcan. Page 14 moves on to discuss Vulcans, saying:

Vulcans are a humanoid race with pointy
ears from the planet Vulcan that are
responsible in a large part for the founding
of the Federation. Vulcans first appeared in
The Original Series episode “The Cage
(Reg. No. PA 314-430) and have appeared
in many other Star Trek Television Series as
well as Star Trek Motion Pictures.

Much like Klingons, the Vulcan canon species changed over time. Spock’s eyebrows became more groomed, the makeup shade settled on nearly no green unless a character was injured, and the S- and T’- naming conventions were broken with Koss and V’Lar.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 14

Page 15

Page 15 gets into a side-by-side comparison of Vulcans, showing Gary Graham’s Soval versus Leonard Nimoy’s Spock. While pointed ears nothing new in fiction (JRR Tolkein’s elves have them, for example), Vulcans are more than just their ears. An aggregate of characteristics makes up a Vulcan, including slanted eyebrows (some more pronounced than others), green blood if injured, a generalized lack of emotional displays (with exceptions), Pon Farr, IDIC symbolism, bowl haircuts (again, there are exceptions), and a high level of intelligence, often manifested by a sophisticated vocabulary. Of course, as with any other set of characters played by a number of actors, there can be some variations in interpretation.

Here’s what the plaintiffs had to say about it:

The first Vulcan appearances were the first
and second pilot episodes of The Original
Series “The Cage” (Reg. No. PA 314-430)
and “Where No Man Has Gone Before” in
1966 (Reg. No. PA-58-303). Vulcans also
appeared in The Original Series episodes
The Man Trap” in 1966 (Reg. No. PA-58-
307) and “Amok Time” in 1967 (Reg. No.
PA-58-289). They appear in many Star
Trek Television Series and Star Trek
Motion Pictures. The image above is Spock
from The Original Series episode “Space
Seed” in 1967 (Reg. No. PA-58-280). In
both Prelude to Axanar and the Star Trek
Copyrighted Works, Vulcans have pointy
ears and distinctive eyebrows.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 15

Page 16

Page 16 covers Andorians, Tellarites, and Romulans, although there are no images. Regarding Andorians, the plaintiffs said:

Andorians are humanoid Federation
members from the planet Andoria.
Andorians first appeared in the episodes
Journey to Babel” (Reg. No. RE-714-288,
LP-50-341) and “Whom Gods Destroy
from The Original Series (Reg. No. RE-
769-427, LP-44-729). They also appeared
in several Star Trek Motion Pictures and
were featured extensively in Enterprise.

As with Vulcans and Klingons, the look of Andorians was altered over time. In this instance, the change was likely due to advancements in technology. The look and feel of Andorians is somewhat different in Enterprise versus The Original Series. However, either way, the species name and the concept remain copyrighted intellectual property.

Tellarites are perhaps the least explored of the species mentioned in the new version of the complaint, but they, too, were changed over time. This may have been due to improved makeup techniques. The plaintiffs, in the newer version of the complaint, wrote:

Tellarites are a humanoid species
distinguished by a porcine-like snout, stout
build, deep set eyes and a characteristically
irascible disposition. The first appearance of
Tellarites was in The Original Series
episode “Journey to Babel” in 1967 (Reg.
No. RE-714-288, LP-50-341). They also
appeared in several Enterprise episodes,
such as “Bounty” in 2003 (Reg. No. PA-1-
205-603) and “United” in 2005 (Reg. No.
PA-1-257-201).

Don’t forget, the dates on these could be key. By mentioning the appearances on Enterprise, the plaintiffs are clarifying that the copyright term is far from over.

In the case of Romulans, the plaintiffs briefly wrote:

Romulans are a species from the planets
Romulus and Remus. The Romulan Empire
and Romulans first appeared in The
Original Series episode “Balance of Terror
in 1966 (Reg. No. PA-58-310).

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 16

Page 17

Page 17 returns to imagery as the pleading turns to a discussion of costumes. First up in the gold shirt costume, which is close albeit not identical to the older TOS costumes. The newer version of the complaint references the second TOS pilot, “Where No Man Has Gone Before“, and points out the distinct color. In all fairness, it should be noted that the insignia differ.

The last two images are a side-by-side comparison of the garb for Vulcan Ambassador Soval. Even though this is the same actor, reprising his earlier canon role, that is never mentioned. In fact, Graham is not mentioned at all by name. Neither are Hatch, Vernon, Hertzler, or Todd.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 17

Page 18

Page 18 continues the side-by-side comparison of Vulcan Ambassador Soval’s costume. The newer version of the complaint emphasizes the use of decorative Vulcan-style script over a green drape, as is seen in both images.

The lower two images compare, side-by-side, actress Kate Vernon and Majel Barrett Roddenberry. Particular attention is paid with reference to the cowl neck on both garments and the Starfleet command insignia.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 18

Page 19

Page 19 continues the discussion of the women’s uniform costumes from the preceding page. This includes a second canon still shot, showing the insignia.

Next, there is a side-by-side comparison of triangular medals as modeled by J. G. Hertzler and William Shatner.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 19

Page 20

Page 20 continues the discussion of the triangular medals, as begun on the preceding page, and notes their original appearance within the copyrighted works.

Then the discussion turns to settings. The first two places mentioned are Axanar itself (no image) and planet Archanis IV. Both planet images are of mainly blue spheres with some white clouds and green accents, probably intended to be land masses. Neither the planets’ appearances, nor the simulation of JJ Abrams-like lens flare in the allegedly infringing image, are mentioned and are likely not intended as supporting the infringement claim. Rather, I believe the infringement claim with reference to planet Archanis IV is more due to the wholesale copying of its somewhat unique name.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 20

Page 21

On page 21, the discussion of places continues with the Klingon home word, Q’onoS. The amended complaint then mentions, “Planets Nausicaa, Rigel, Andoria, Tellar Prime, Vulcan, Terra (Earth), Q’onoS”. Truthfully, I am unsure as to why Q’onoS is mentioned again, although this may be more of a reference to the name versus the look and feel of the location. The original mentionings of all of these places is listed and that lists spills over into the subsequent page.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 21

Page 22

Page 22 continues the locale provenance listings. It then discusses (with accompanying imagery) the look and feel of space docks. While the space vessels are not mentioned in this section, these images seem to have been selected less to show space dock similarities (although there are similarities, these side-by-side images are nowhere near as close as the costume and makeup images, supra) than to show starship similarities. The accompanying information about dry docks in the copyrighted materials spills over to the following page.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 22

Page 23

Page 23 completes the discussion of dry docks from the previous page. Otherwise, page 23 is devoted to a discussion of the starship Enterprise (NCC-1701) and alleged infringements on the design thereof. It is hard to argue with an intention to copy – and intent is not even an element of this cause of action. However, intent can certainly be used in determining damages and in considering a ‘fair use’ defense.

I am admittedly not very visually artistic but here are the similarities I can see, right off the bat, in the top two side-by-side images:

  • Single, central deflector
  • Wide and mostly flat saucer section
  • Two nacelles, toward the back
  • Mainly white in color, with black lettering and numbers in a sans-serif font on the right and left of the underside of the saucer section
  • Identical registry number
  • Identical name
  • The same pennant-shaped gray shadow on the left side, forward of where it says ‘NCC-1701

The bottom two side-by-side comparisons repeat the same ship plus dry dock observations mentioned in page 22. Again, in all fairness, I think the dry docks are sufficiently dissimilar, and the Axanar work on dry docks, in this rather limited instance, may even be transformative. However, it should be noted, the top two images are from television (CBS IP) and the bottom two are from the movie universe (Paramount IP). In one page, the plaintiffs both square off against the defense.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 23

Page 24

Page 24 is devoted to side-by-side comparisons of various angles and views of the Klingon D-7 ship. Again, I am not much of a visual artist but these are the similarities I can spot:

  • Two nacelles in the back, angled a bit and pointing a bit downward
  • Long necked-vessel
  • Front end almost looks like a flat hat
  • Two rows of white lights near the top of the ‘flat hat’
  • Central single line of white lights horizontally running across the ‘head’ on which the ‘flat hat’ sits
  • Weapons capability (single orange light) emerging from the center of the ‘head’ on which the ‘flat hat’ sits
Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 24

Page 25

The discussion of the provenance of the Klingon D-7 ship is finished on page 25. Two separate Starfleet ships are then compared side-by-side. At top, the Axanar offering is similar to an inverted USS Kelvin, a ship from the 2009 Star Trek film. The lower pair is a side-by-side comparison of an Axanar vessel and the Miranda class from Star Trek II-The Wrath of Khan.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 25

Page 26

Page 26 compares Axanar imagery to a licensed book cover showing the Titan. Sharp-eyed readers might notice the cover is of Sword of Damocles, supra.

This page concludes with a brief discussion of stardates. I think most people will readily concede that stardates can seem random. Checking a stardate calculator, the earliest stardate should take place on April 25, 2265. However, the original five-year mission, according to that same calculator site, began during October of 2265 (the date is uncertain as it depends on whether you count The Animated Series as being a part of the original five-year mission).  Per the amended complaint, Axanar shows stardates of 2241 yet it is supposed to take place twenty years prior to the original five-year mission.

Apart from the mentioning of the term ‘stardate’. the actual figures are moot. It does not matter that they don’t jibe with this particular calculator.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 26

Page 27

Page 27 discusses two version of the United Federation of Planets logo. The top two side-by-side images show the abbreviation, ‘UFP’ with a seemingly identical futuristic display font. Both logos show exactly thirteen stars.

The bottom side-by-side images both show the circle plus olive branches (they might be laurel leaf wreaths) bracketing either side. Within the circle, there is a graphic depiction of stars where the stars are not evenly distributed. Rather, they are heaviest near the center, and are distributed in a roughly 240° to 60° diagonal configuration. The copyrighted image has a few added decorative features as it is showed on a prop computer screen. This includes the verbiage, ‘ending transmission‘.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 27

Page 28

Page 28 compares the Federation logo side-by-side (to my eyes, it seems to be the same graphic shown in the bottom comparison on the previous page). Admittedly, the Axanar version is shown in the background of actor Tony Todd’s image and appears to be cut off a bit.

A side-by-side comparison of Memory Alpha logos is then shown. Both have twelve star graphics and both include the tagline, ‘Cultural & Scientific Archive‘. The backgrounds for both are bright blue with golden stars and a gold-colored outline. However, the similarities end there; the fonts appear to differ, the copyrighted image is a triangle whereas the alleged infringing image is a circle, and the copyrighted image shows a Greek alpha rather than the capital ‘A’ shown in the alleged infringement.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 28

 

Page 29

Page 29 begins with a side-by-side comparison of the Klingon logo. Both show a stylized equilateral triangle with a ‘V’ superimposed over the front of it and a ring behind it.

Then the discussion turns to similar plot point elements. First up is the United Federation of Planets. The amended complaint reveals the Federation’s provenance in copyrighted works; this element is mentioned numerous times in both the copyrighted work and is also mentioned in the allegedly infringing work.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 29

Page 30

On page 30, the plot point concept of a stardate is discussed. Dilithium is also discussed. In the pleading, the plaintiffs defined it as follows:

Dilithium is a crystalline substance used in
warp propulsion systems to regulate the
matter/antimatter reactions that provide the
energy necessary for faster-than-light speed.

Phasers are also discussed as a plot point similarity. Plaintiffs noted:

Phasers are Starfleet handheld or shipmounted
energy weapons.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 30

Page 31

On page 31, the sets of similar plot elements continue to be laid out. These include the Klingon High Council and the Klingon Empire (I recall the Klingon Empire is definitely mentioned in Enterprise). Then the newer version of the complaint moves onto the Federation Council, showing a side-by-side comparison between the allegedly infringing Axanar work and the copyrighted work. Images of two stadiums side-by-side is not intended to demonstrate visual copyright infringement and/or similarity, yet there it is anyway. In particular, the Federation logo and the large gangway with a straight red carpet on a blue field provides yet more of an impression of intentional (a reminder: intent is not an element of this cause of action) visual similarity.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 31

Page 32

Page 32 gets into dialogue, where basic phraseology associated with Star Trek is compared to its usage in Axanar. Specifically, the newer version of the complaint singles out the following terms:

  • Beaming Up/Transporters
  • Warp Drive
  • Klingon Language

What is of particular interest is that all three of these exist in both the television and movie work products. Again, both plaintiffs are affected.

Note: using any of these terms, in and of themselves, is generally not problematic. If your teacher says she’s going to beam knowledge directly into your brain, or a reporter asks the American President when Warp Drive is going to be developed, it’s fine. Neither of these are a big deal. Even a television program where a character quickly jokes, “Beam me up, Scotty!” is going to be fine (and don’t think the show runner didn’t contact Legal at CBS and/or Paramount as a courtesy). The same is true when Mike says, “Q’Plah!” on the show. Here is where context becomes important.

For the defense, the use of these terms and this developed language is a part of a much bigger and more detailed picture that the plaintiffs are painting.

I would not be surprised if a transcript of the scripts for Prelude, for the Vulcan scene, and for the entire planned full-length feature (see page 9, supra) will end up being requested as a part of discovery. But even if they are refused (these documents could be subpoenaed as well), it is really just a matter of a paralegal or law clerk (these are often law students or they are recent graduates studying for the Bar examination or awaiting results) spending a couple of afternoons and listening closely to the footage. Then it is a matter of counting instances of usage to determine whether the mentionings are one or two quickie throwaway lines, or if they are paramount (no pun intended) in the overarching plots.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 32

Page 33

On page 33, the side-by-side dialog examinations continue, with a look at various stardates and also the terms Starfleet, Federation, and Phasers. Of particular interest is what the plaintiffs said about the Federation:

The United Federation of Planets was first
mentioned by that name specifically in The
Original Series episode “A Taste of
Armageddon” in 1967 (Reg. No. PA-58-
302). Virtually every Star Trek episode,
game, book, and comic mentions the
Federation or the United Federation of
Planets.

In one paragraph, CBS and Paramount bring in other properties, namely, games, books, and comics. For arguments that the IP was somehow ‘abandoned’ because there has been nothing new on television since the “These are the Voyages” episode of Enterprise, the mere existence of these ancillary properties directly contradicts that assertion.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 33

Page 34

Page 34 gets into mood and theme. This is probably a lot harder to prove, as there are plenty of artistic properties which can be and are rightfully classified as “Science fiction action adventure“.  Here are a half a dozen off the top of my head, of varying quality and vintages, from both television and film:

  1. Battlestar Galactica
  2. Firefly
  3. Lost in Space
  4. The Terminator franchise
  5. The Alien franchise
  6. The Planet of the Apes franchise

However, much as we saw with pages 32 and 33, supra, these elements are a part of a greater whole. As I wrote when analyzing the Motion to Dismiss, there are plenty of instances when fictional characters say, “I’m in love with you.” But when Nurse Chapel says it Mr. Spock, it is Star Trek because of a number of other constituent elements to the scene, such as her hairstyle, his ears, their uniforms, possibly the background, his haircut, etc.

It is at this point where the amended complaint begins to come back and converge with the original complaint. Paragraph 47 in the new complaint corresponds to paragraph 48 in the old although, in the updated version, there is a chart referenced, which is yet another side-by-side photographic comparison. Both such paragraphs are about the Vulcan scene and, more particularly, about the look and feel of the planet and of Vulcans as a species. The amended complaint begins with the character of Soval and shows images of Gary Graham. However, as stated above, Graham is never mentioned in this pleading. Furthermore, it is never said that the actor is reprising his role. Would a jury be able to tell? I suspect they could, in particular when the time differential is taken into account (after all, the time between filming the two representative scenes is approximately one decade).

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 34

Page 35

Page 35 continues with information about the copyrighted character of Soval. It reiterates that the costuming is similar, and traces the character’s origins back to the Enterprise pilot episode, Broken Bow. Then there are discussions of the Vulcan and Klingon species. This is not quite the same as the earlier discussions of physical characteristics, language, garb, etc., although some of that information is reiterated.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 35

Page 36

Using, apparently, the same Vulcan scene screen capture as on page 34, page 36 opens with comparisons of ears, eyebrows, and robes with decorative script. Then the next set of images gets really interesting.

On this page, there is an image which looks a lot like Phase II/New Voyages. That’s because it is from a vignette, “Heroes“, shot in Ticonderoga, New York. See the Axanar Facebook page’s post about it here.

Essentially, this image is included in order to show the usage of the original costume (or a breathtakingly detailed likeness; in the amended complaint, the plaintiffs list it as being the exact garment) in Axanar-branded and Axanar-related productions. People have understandably asked whether this was an error. Probably not. They have also asked whether New Voyages is going to be sued next. Probably not, but putting their own counsel on notice and asking them to follow developments in this matter would be a prudent move on their part. I have also been asked whether this means Axanar can bring in New Voyages or sue them later. It would likely need to be a part of this matter (if it were to happen at all), as it would be too intimately related to the case at hand. But there really isn’t much of a claim by Axanar against them. All New Voyages did was provide actors and sets for a crossover feature which, to the best of my knowledge, has never been made (it was apparently intended as a bonus DVD featurette). Note, though, this might be what was intended when plaintiffs referred to a second completed scene from the full-length feature, see page 8, paragraph 32, supra.

The probable use of a screen-worn costume, and the use of the apparent screen-worn costume for the character of Klingon Commander Kharn (see page 13, supra), raises other questions. Defendant Peters is known as a prop dealer. Propworx, an earlier commercial venture of his, shares space with Ares Studios (more on that in a moment) in Valencia, California. Propworx is also emergent from a bankruptcy in 2012.   There has been a lot of online talk about this bankruptcy. Rather than get into the middle of that feud, all I want to make note of is there are public records of a bankruptcy. Its existence, so far as I am aware, has never been denied by Defendant Peters.

But the commingling of property, both real (the studio location) and personal (the costumes at issue), does raise questions with reference to the very personal ‘direct financial benefit’ listed in the 62nd paragraph of the amended complaint, listed on page 42, infra. There is also a question whether Propworx was paid for the rental of the original Garth costume. Without getting into any questions about responsible financial stewardship (questions which the donor population might legitimately have, see below), plaintiffs still would be justified in preparing a subpoena duces tecum for the financial records of Axanar.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 36

Page 37

Page 37 shows comparisons of two types of Vulcan scenery. One is the planet (it’s actually Mt. Seleya), and the other is Vulcan architecture. In fact, the reference to the copyrighted image of Mt. Seleya just references the movie universe. But the remastered version of The Original Series‘s “Amok Time” episode also has a view of this iconic scene, thereby placing it in both plaintiffs’ general purview and copyright ownership interests.

It has been further suggested that the pictured Vulcan architecture resembles Yazd, Iran. While this beautiful ancient city has sandstone buildings with Gothic-style columns, that seems to be where the similarity ends. What this suggestion fails to take into account are the following:

  • Ancient and medieval architectural styles are in the public domain by definition
  • The images are sufficiently different that the copyrighted items are transformative in character. By the same token, Borg cubes are transformative from basic, non-copyrightable shapes, and are not copies of Bauhaus-style architecture
  • Inspiration from one area of culture, art, or literature, so long as it is sufficiently altered, is considered transformative use. This is a far cry from an established pattern of seemingly out-and-out wholesale copying
Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 37

Page 38

Page 38 continues the focus on Vulcan by looking at images of ring ships side-by-side. More plot point similarities are offered, including those concerning the Teachings of Surak, the Vulcan Council, and the Federation (this information spills over to the subsequent page.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 38

Page 39

On page 39, the comparison referencing the Federation is completed from the prior page. Further, the concept of “Science fiction action adventure” is reiterated. Then the amended complaint returns to the paragraph format. The new paragraph 48 replaces the old paragraphs 48 – 50 and it says, it its entirety:

48. On information and belief, the Axanar Script contains the copyrighted
elements found in the Axanar Motion Picture, and many more copyrighted Star Trek
elements.

Paragraph 49 is a copy of the old paragraph 51. In its entirety, it says:

49. The Axanar Works are intended to be a prequel to the events chronicled
in The Original Series; in other words, an unauthorized derivative work.

In paragraph 50, plaintiffs state unequivocally that this is not a parody, and it isn’t a matter of ‘fair use’. And they aren’t the only ones saying this. So is Nova Southeastern University’s Copyright Officer, Stephen Carlisle. In his blog post, “The Growing Problem of PhonyFair Use” Claims: From Michelle Shocked to Axanar, Carlisle states:

Recall that previously on this blog, I discussed the copyright problems of “fan fiction” which relies heavily on the principles of fair use. 14 Highlighting this problem was the proposed film Axanar, which used multiple elements from the Star Trek TV and motion picture series, and claimed to be “fan fiction,” even though it had raised over $1 million in crowd funding contributions. The Producer even said that CBS had given its tacit approval, relating that “the network simply told him that they can’t make money off the project.” 15

 

It seems that the Producers have a very expansive idea of what “not making money” encompasses.

 

As it turns out, the main producer has drawn a salary of some $38,000, and his girlfriend/ secretary/ fulfilment manager was getting paid some amount as well, even though it is claimed that her salary is deferred. 16 Further, it has now been revealed that all of the actors and crew are getting paid as well, which sort of takes this film beyond the realm of a “labor of love” that fan fiction is supposed to be.

There is a lot more in Carlisle’s article. I urge you to read all of it as his very job is copyright and he absolutely knows his stuff.

Back to the document itself. Paragraph 51 is similar to the old paragraph 53 but trims some of the verbiage. In its current state, it says:

51. The Axanar Works are not licensed by CBS or Paramount.

Then the pleading begins its claims for relief. The first claim is close to identical to what it was before, except for some minor paragraph renumbering housekeeping details. However, in the new paragraph 55, four additional elements are added. These spill over into the next page and the one following it. I will put them under page 40 for sake of clarity in this document.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 39

Page 40

This page continues the first claim for relief begun on the previous page. Here is the entire paragraph 55 from the first claim for relief:

55. On information and belief, in direct violation of Plaintiffs’ exclusive
rights, Defendants have directly infringed, and unless enjoined by this Court, will
continue to infringe the copyrights in the Star Trek Copyrighted Works by, among
other things:
a. Preparing unauthorized derivative works of the Star Trek
Copyrighted Works in the form of the Axanar Works;

b. Reproducing copyrighted elements of the Star Trek Copyrighted
Works in the Axanar Works;

c. Distributing copies of the Axanar Works, which contain
copyrighted elements of the Star Trek Copyrighted Works;

d. Publicly performing the Axanar Works, which contain
copyrighted elements of the Star Trek Copyrighted Works;

e. Preparing unauthorized derivative works of the specific episodes
and motion pictures referenced in Paragraphs 46-47, above, in the form of the
Axanar Works;

f. Reproducing copyrighted elements of the specific episodes and
motion pictures referenced in Paragraphs 46-47, above, in the Axanar Works;

g. Distributing copies of the Axanar Works, which contain
copyrighted elements of the specific episodes and motion pictures referenced in
Paragraphs 46-47, above; and

h. Publicly performing the Axanar Works, which contain
copyrighted elements of the specific episodes and motion pictures referenced in
Paragraphs 46-47.

The four new sections are bolded, above. They reference pages 11 – 39, supra.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 40

Page 41

Page 41 has the last parts of he first claim for relief and then launches into the second cause of action, which is for Contributory Copyright Infringement. This cause of action, except for paragraph numbers and paragraph number references, appears to be identical to the second caue of action in the original complaint. Then the third cause of action begins and is completed on the next page.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 41

Page 42

The third cause of action is completed on this page. This is the cause of action alleging “a direct financial benefit”. See page 36, supra. Aside from the usual updated paragraph numbering and referencing, this cause of action seems to be the same as it was in the original form of the complaint.

When it comes to the fourth and final cause of action, the two versions of the complaint diverge again. More specifically, the new paragraph 66 offers specifics regarding infringing elements. Otherwise, though, except for paragraph enumeration changes, the original and the amended complaint’s fourth cause of action appear to be identical. In the new complaint, the fourth cause of action straddles pages 42 and 43. I will put it with the next page in order to make this document more readable.

 

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 42

Page 43

Page 43 has the continuation of the new paragraph 66. Hence, here is the new paragraph 66 in its entirety:

66. In addition to the infringing elements already copied into the Axanar
Works, Defendants have announced their intention to incorporate numerous other
copyrighted Star Trek elements into the Axanar Works, including but not limited to:
a. Captain Robert April, a character whose name came from the
very first Star Trek pitch and who appeared in the episode “The Counter-Clock
Incident” from The Animated Series.

b. Chang, a character who appeared in Star Trek VI—The
Undiscovered Country.

c. Sarek, a character who appeared in “Journey to Babel” from The
Original Series (Registration No. RE-714-288, LP-50-341), the episodes “Sarek
(Registration No. PA-501-117) and “Unification, Part I” (Registration No. PA-573-
177) from Star Trek: The Next Generation, Star Trek III The Search for Spock, and
Star Trek IV: The Voyage Home.

d. The Bridge, a starship operations center that appeared in many
Star Trek Copyrighted Works such The Original Series episode “The Cage
(Registration No. PA 314-430).

e. Mek’leths, which are Klingon warrior weapons that appeared in
Star Trek: Deep Space Nine.

Note: Sarek is also a character in the 2009 Star Trek film (JJ Abrams, director). Further, of course the term ‘bridge’ on a ship is not a copyrightable term. However, the look and feel of a Star Trek bridge, from its consoles to its displays, to its seating arrangement, to the stations present therein, is absolutely copyrightable intellectual property.

The prayer for relief starts on this page. Again, for readability’s sake (since the prayer continues on the next page), I  am going to discuss it with page 44, infra.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 43

Page 44

The prayer for relief continues here. Going through paragraph 4 of the prayer, it and the previous three paragraphs and their sub-paragraphs are identical to the same paragraphs in the original complaint.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 44

Page 45

Page 45 continues the prayer for relief at paragraph 5. It and paragraph 6 are identical to the comparable paragraphs in the original complaint. As before, the amended complaint is signed by attorney David Grossman.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 45

Page 46

Page 46 is solely the demand for a jury trial, as is according to Rule 38 of the Federal Rules of Civil Procedure. This was demanded before and is nothing new.

Note: the newer version of this pleading, with its many images and detailed side-by-side comparisons, is tailor-made for a jury. 

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 46

Page 47

Page 47 is identical to the counterpart page in the original complaint, and identifies the copyrights for each film and television series.

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 47

Page 48

Page 48 is identical to the counterpart page in the original complaint, and only contains the

Copyright Assignment from Paramount Pictures Corporation to CBS
Studios Inc. (V3542 D684- V3542 D690)

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 48

Whew! There’s the document. But there is more to talk about.

What Isn’t in the Document

Nowhere in this document are there mentions of coffee, patches, or ship models. Donors and donations aren’t mentioned, either. This is not their case. For donors seeking relief, their possible remedies were outlined here. As for the rest of it, much of that would come under trademark infringement (™) claims. This is a copyright case and not a trademark one.

Why not go after Axanar for trademark infringement?

The easy answer is that plaintiffs have plenty go on. They don’t need to take everything off the tree if they are satiated by the low-hanging fruit. Further, this provides clarity in the matter, to the court and to a possible future jury, should this case go all the way to a trial. Also, it kind of isn’t needed. The donor store and its offerings may very well end up as a part of any settlement, where either the merchandise would be turned over to the plaintiffs, or it would have to be destroyed (don’t worry if you bought any; you most likely would not be compelled to return it).

The other reason may be a desire to not open the door to any question of waiver, either in trademark or in copyright (waiver in copyright is a part of the defense’s theory). This would be a shrewd move on plaintiff’s part, to defend the trademark area, which might be a smidge vulnerable. It is also shrewd in terms of defining the narrative to the fandom. After all, not going after every little niggling atom of infringement does put the lie to the idea that the IP holders don’t care about the fans.

Then there’s the matter of the studio (many thanks to Carlos Pedraza and the AxaMonitor for the details).

Recently, on Twitter and elsewhere, representatives from Axanar downplayed the characterization of the property in Valencia and ‘Ares Studios’ as being a studio at all. Instead, the property was re-characterized as a ‘warehouse’.

That’s all well and good, but Ares Studio is mentioned here, here (as a comment by Terry McIntosh), here, here, and here. And I didn’t even have to look that hard.

But the truth is, these semantic shenanigans don’t matter. Truly, they do not. Why? Because, as in the instance of the image of Defendant Peters holding up a sheaf of papers which might or might not have been a script, the truth of whether the property in Valencia is a ‘studio’ is immaterial, per se.

All that matters, as in the matter of the now-you-see-it-now-you-don’t script (see page 9, supra), is that there have been contradictory statements made.

In both instances, the changes in messaging are wrought for the direct benefit of the defendants.

Or, to quote Chapter 6 of Through the Looking Glass

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”

Oh, and in case you were wondering, Lewis Carroll’s Through the Looking Glass is in the public domain.

As always, thank you for reading and for your kind support. I welcome questions in the comments section and I will do my best 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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