Axanar Plaintiffs Respond to Second Motion to Dismiss

Axanar Plaintiffs Respond to Second Motion to Dismiss and Request for Judicial Notice

As the Axanar plaintiffs respond to the defense’s Second Motion to Dismiss and the Request for Judicial Notice, we have all the details for you. As always, we will go through the documents step by step and page by page.

I am a retired attorney (admitted to practice in New York), but never practiced in the intellectual property field. This blog post is an expression of my opinion, based upon my knowledge and experience, not only as a lawyer, but also as a five-decade member of the Star Trek fandom. Why do I put forth such a disclaimer? I do so because the Code of Professional Responsibility compels me to. And because I think it’s the right thing to do. You know, to research my statements and present them with as much care as possible, instead of just spitballing and shooting my mouth (such as it is in a blog post) off.

My credentials are here. Got questions? Feel free to ask in the Comments section, below. Want copies of the documents? Just ask. They are free and are there for the asking. I paid for these documents, and they are a matter of public record. You are a fan and you are interested. Who cares if you’re a donor? You still have the right to know.

Let’s do this.

Response to Second Motion to Dismiss

Page 1

As we have seen all along, the court documents open with a standard outlined statement of who the parties and their representatives are in the case. No surprises here.

Axanar Plaintiffs Respond

Axanar Plaintiffs Respond to Second Defense Motion to Dismiss, Page 1

Page 2

This is the Table of Contents for the document. The plaintiffs lay out their response pretty clearly herein. They are, essentially, arguing as follows (the details will be expanded upon, infra):

  • The Complaint Plausibly Alleges Copyright Infringement
  • The Star Trek Works are Copyrightable
    • Costumes
    • Dialogue
    • Elements from the Public Domain and Nature
    • Language
    • Mood and Theme
    • Scènes A Faire (follow that link for a definition of the term, if you’re curious)
    • Characters
  • Plaintiffs Have Properly Pled Copyright Infringement
    • Plaintiffs’ Claims Are Sufficiently Detailed As to Which Works Are Infringed
    • Allegations on Information and Belief Are Proper, Especially When the Facts are In the Defendants’ Control
  • Plaintiffs’ Claims Are Not Premature
    • This Controversy is Ripe
    • Injunctions in the Copyright Context Are Not A Violation of the First Amendment

Page 3

Here we begin the Table of Authorities cited in the document. A lot of the cases are familiar, but there are some new ones in there which have not yet been mentioned in this controversy.

Page 4

This is the second page of the Table of Authorities.

Page 5

Here is the third page of the Table of Authorities.

Page 6

Here is the fourth, and concluding, page of the Table of Authorities.

Page 7

The argument begins with an introduction. Straight out of the gate, the plaintiffs assert:

CBS and Paramount are the copyright owners of the Star Trek Copyrighted
Works, which consist of six Star Trek television series, with more than 700 different
episodes, 12 motion pictures, various books, and other related products. …

Star Trek consists of many interlocking fictional characters, stories and worlds.
Defendants, an individual and a production company, who own absolutely no rights
in Star Trek, created a twenty-minute Star Trek film and are in the process of
producing a full-length Star Trek motion picture, for which they raised over $1
million. Defendants have attempted to recreate the entire look and feel of
Plaintiffs’ works and have stated that they are producing an authentic “Star
Trek film.” In order to create these infringing derivative works, Defendants have
used numerous Star Trek elements, including copyrighted characters, stories, sets,
costumes, etc., all without Plaintiffs’ consent.

Perhaps the most important word is interlocking. Whereas the defense has tried to portray Star Trek as a near-random collection of otherwise uncopyrightable elements such as pointy ears and cowl necks on tunics, the plaintiffs circle back and say, no, it’s not. The use of the term interlocking helps to make the point that this IP is not just some agglomeration of unrelated stuff, as if it were CBS and Paramount’s junk drawer. Instead, it is a well-oiled machine, all the parts of which mesh together perfectly. It is a product of care, planning, and forethought.

Another interesting argument the plaintiffs make is that the defense argument of an assertion of copyright on what are called useful articles (e. g. clothing) cannot be made. The plaintiffs concede that it’s true; you can’t copyright clothing unless it’s intended as a work of art. But then the plaintiffs go on to state (in a paragraph that spills over to page 8):

… that doctrine has no application here, as Defendants
are not selling clothing, but rather, are creating audio-visual works that
misappropriate Plaintiffs’ copyrighted characters, settings and plots.

Page 8

Continuing the argument from the previous page, the plaintiffs then take aim at the continuing indefiniteness claim by the defense (e. g. that the Amended Complaint is still too vague):

It is unclear what Defendants are referring to as the Complaint contains
specific detail regarding which works have been infringed, and which characters,
settings, and other elements from Plaintiffs’ works have been copied by Defendants.
Further, Defendants’ argument in this regard is disingenuous as they are admittedly
and intentionally copying Plaintiffs’ films and television shows and, prior to the
filing of this lawsuit, Defendants promoted their works as “Star Trek” films, and
even took pride in the level of copying that they engaged in – down to exact
costumes taken from Plaintiffs’ television shows. Defendants’ conduct constitutes
an unequivocal and wholesale misappropriation of Plaintiffs’ copyrights and the
Complaint sufficiently specifies the infringing acts.

This is something we talked about when we addressed the Second Motion to Dismiss. Essentially, the defense was claiming, at the same time:

  1. Great swathes of Trek are so vague and forgettable as to not be copyrightable (including, per the Second Motion to Dismiss, Sarek and Soval of Vulcan, and Garth of Izar himself) yet
  2. Their work was the one true Trek, following Gene Roddenberry’s grand vision, not like those peskily overly successful JJ Abrams films.

It’s either so special that it is carefully copied – and should also be deserving of full copyright protection – or it’s a bunch of generic junk that no one gives a damn about. So why lovingly and reverently copy it? Why bother hiring Gary Graham to reprise his role as Soval when any schmo with a SAG card could, according to the Second Motion to Dismiss? Why bother dressing Richard Hatch up in an appreciable percentage of the original Chang costume (or an exceptionally detailed facsimile thereof) if it did not matter? Hell, let the guy wear sweats and Chuck Taylors if it doesn’t matter, right?

Right?

Page 9

On this page, the plaintiffs reiterate much of what was said in the Amended Complaint and I will not repeat that here.

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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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