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.

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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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Page 10

This page begins with a reference to the Facebook post about the revised and locked script, referenced in the Amended Complaint, as being proof that the matter is ripe. Certainly, there is a question of fact if nothing else. Then the plaintiffs delve in their argument.

Now, understand that the plaintiffs don’t have to prove their case here. They only have to prove there is enough of a cause of action, and enough of a question of liability, that a lawsuit should go forward. That’s all. After all, they could still, conceivably, lose their case at this level (it happens). Hence the standard here is just to show – hey, Judge Klausner! This case deserves to be heard.

The plaintiffs, in an argument that spans into page 11, note that the defense has practically laid out the concept of substantial similarity for them. I’ll let them say it as the argument is cogent and I believe it’s easy to understand (be sure to ask me questions if any of it’s unclear, of course!):

A plaintiff bringing a claim for copyright infringement must show “(1)
ownership of a valid copyright, and (2) copying of constituent elements of the work
that are original.” Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
(1991). Typically, courts conduct a substantial-similarity test to determine whether
works are substantially similar, which “focuses on articulable similarities between
the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in
the two works.” Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072,
1077 (9th Cir. 2006) (internal citations and quotations omitted). While Defendants
have argued that certain elements of Plaintiffs’ works are not subject to copyright,
they have not asked the Court to conduct a “substantial similarity” analysis between
Plaintiffs’ and Defendants’ works, or to dismiss Plaintiffs’ claims for lack of
substantial similarity. Rather, Defendants are asking the Court to “filter out” certain
elements from the substantial similarity analysis, an analysis that the Defendants
have not even requested. Further, whether an element is copyrightable depends on
the actual element as used in the copyrighted work, not on an abstract description of
an element, and can only be done in an analysis of the work as a whole.
Defendants’ entire argument regarding the various elements they do not believe
should be considered by the Court in later analyzing similarity is irrelevant and
premature.

Moreover, even if substantial similarity were at issue, Defendants have
deliberately recreated the Star Trek universe in order to create a derivative work (a
“prequel”), which they claim is a “Star Trek” film. In a situation like this, when
there is literal copying pervading a work, courts have found it to be unnecessary to
conduct a substantial similarity analysis.

Emphasis mine.

Essentially, the doctrine which the plaintiffs are relying on says, that substantial similarity idea is all well and good, but it does not matter. A deliberate copying, and holding themselves out as creating a ‘Star Trek film’ is so substantial, and so similar, that a substantial similarity test is unnecessary.

After all, Soval, Enterprise, Sarek, Klingons, Andorians, Tellarites, and Garth of Izar, you can’t get any more similar than identical.

Page 11

This page continues the substantial similarity argument made on the previous page, and cites Anderson v. Stallone, 1989 U.S. Dist. LEXIS 11109, Copy. L. Rep. (CCH) P22665 (C.D. Cal. Apr. 25, 1989). Yes, they are really talking about Sly Stallone; this was a lawsuit about Rocky IV.

As the court in Stallone said:

This Court need not determine whether the characters in Anderson’s
treatment are substantially similar to Stallone’s characters, as it is
uncontroverted that the characters were lifted lock, stock, and barrel from
the prior Rocky movies.

Just substitute Roddenberry for Stallone in the above quote, and Axanar (or Peters) for Anderson, and you’ve got the current matter at hand.

Plaintiffs don’t have to prove similarity when it’s the same damned thing. They have showed what they had to, in order to demonstrate there is enough to let the case go forward. But it’s more than that, as they have shown this is very winnable.

Or, as Ivan Drago would say: 

I must break you.

Page 12

On page 12, plaintiffs further allege:

Defendants have bodily appropriated the Star Trek universe –
admittedly so in order to create an authentic prequel to The Original Series.

Remember the pennant-shaped shadow, which looked a bit like a reversed Nike swoosh, from page 23 of the Amended Complaint?

It’s a copy.

How do I know this?

Because the newer image of the Enterprise isn’t a to-scale model. It’s CGI.

And CGI doesn’t have shadows unless someone puts one onto an image.

That pennant-shaped shadow, that reverse swoosh, is so close to the real shadow in the copyrighted image that it is no mere coincidence.

This is no accident.

This is wholesale intentional copying.

The plaintiffs then talk about how Star Trek is copyrightable, citing Enter. Mgmt. Ltd. v. Warrick, 717 F.3d 1112, 1118-19 (10th Cir. 2013). Between this page and page 13, the document quotes Warrick, when talking about the copyrightability of a diagram:

Warrick’s view misses the forest for the trees. Any copyrightable work
can be sliced into elements unworthy of copyright protection. See
CMM Cable Rep, 97 F.3d at 1514. Books could be reduced to a
collection of non-copyrightable words. Music could be distilled into a
series of non-copyrightable rhythmic tones. A painting could be
viewed as a composition of unprotectable colors. Warrick’s impulse to
unpack Lippitt’s diagram into ever-smaller and less-protectable
elements is understandable, as copyright jurisprudence tends toward
dissection.

Similar to the defense’s attempt to reduce Vulcans to their ears, Starfleet uniforms to their collars, and Sarek to just being some guy, the court in Warrick rightfully noted that parsing everything down to the quark level does nothing to diminish or nullify the copyright which can attach to the whole.

Page 13

On this page, the plaintiffs continue their argument that the defense’s motion misses the forest for the trees. Then CBS and Paramount get into the question of individual elements, beginning with costumes. They state:

Costumes are considered by the court in their analysis of a character’s
appearance. See, e.g., Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co.,
900 F. Supp. 1287, 1298 (C.D. Cal. 1995)

Page 14

On this page, the plaintiffs elaborate on their argument against the defendants’ claim that the costumes are uncopyrightable useful articles (e. g. clothing), noting:

the costumes at issue are not “useful articles” – they are not being sold as
clothing. The costumes, hair and makeup that Defendants have depicted in order to
recreate the Star Trek Copyrighted Works are all part of the look and feel of the
characters that Defendants have misappropriated. …

Defendants have also argued that the medals and designs they have replicated
on the costumes of Star Trek characters are merely “shapes,” but this case is not
about infringing “shapes;” it is about Defendants’ copying of Plaintiffs’ works and
characters, down to intricate details, such as the original designs of Starfleet medals.
See FAC ¶46. Further, shapes on articles of clothing are copyrightable. See Star
Fabrics, Inc. v. DKJY, Inc., 2014 U.S. Dist. LEXIS 2775 (C.D. Cal. Jan. 9, 2014).
Thus, even under Defendants’ misguided analysis, Plaintiffs’ allegations as to
medals and insignia on costumes are proper.

Then the plaintiffs turn to dialogue (the paragraph spills onto the following page).

Key lines of dialogue, even short phrases, are copyrightable. Universal City
Studios, Inc. v. Kamar Industries, Inc., 1982 U.S. Dist. LEXIS 15942, 217 U.S.P.Q.
(BNA) 1162, 1982 WL 1278 (S.D. Tex. 1982) (“I love you, E.T.” and “E.T. phone
home!”). … Defendants’ motion argues that words and
short phrases are not protected. Motion at 7. However, Defendants are parsing the
issue too thinly – the issue is not whether various individual words are
copyrightable. Rather, Plaintiffs’ allegations show that: (1) Defendants have copied
and adopted dialogue from Plaintiffs’ Star Trek Copyrighted Works (such as
“beaming up”) and; (2) these words relate to and in some cases represent various
elements (such as characters). For example, Plaintiffs are not claiming that, by
itself, the name “Garth of Izar” is copyrightable. They instead have alleged that this
character is a copyrighted element in the Star Trek universe. See Motion at 7.
Likewise, Vulcans are copyrighted characters, and Plaintiffs have unabashedly
copied those characters, down to the dialogue that relates to them (such as
discussions regarding “logic” and references to Vulcan lore and philosophy –
including the “Teachings of Surak”).

As we have noted before, it’s not the ears alone that maketh the Vulcan. MKStewartEsq of the TrekBBS called it, saying that the defendants’ argument would fail, as it did not account for the fact that any ‘copyrightable expression’ is, at bottom, composed of any number of noncopyrightable elements. You and I are made of hydrogen, oxygen, nitrogen, and any number of other elements. Our overall compositions are rather close even if we are not related in any known sense.

Yet we are still considered unique. Why is that?

Could it be because my carbon molecules are put together in some sort of unique way whether it’s my look or my sound or my memories or my education or any number of other things, and yours are configured differently?

By the way, Mr. Stewart is an intellectual property attorney. Fer realz. See that Order of the Coif bit on his firm bio? It’s an honor society. Fun fact: in this instance, coif is pronounced where the oi is like in the word join.

Page 15

On this page, the plaintiffs get into the elements from public domain and nature. Continuing into page 16, they say:

Defendants argue that the word “Vulcan” can be traced to Roman mythology,
that the word “Federation” refers to a country “formed by separate states,” and that
the concept of a “phaser” is similar to weaponry mentioned in H.G. Wells’ War of
the Worlds. Motion at 7. Defendants’ arguments are frivolous. Plaintiffs do not
claim to own the copyright in these individual words. Moreover, this case does not,
and will not, involve issues relating to the “public domain.” Defendants have
infringed the Vulcan characters that were developed, and that are owned, by
Plaintiffs – not the Roman god of metalworking. Plaintiffs have also infringed the
specific expression of Plaintiffs’ United Federation of Planets (including the races in
that alliance) as well as Plaintiffs’ copyrighted ships and weaponry – such as
phasers, warp drives and dilithium crystals. Defendants, by their own admissions,
are seeking to replicate the entire fictional Star Trek universe, and they are
incorporating Star Trek planets, characters, ships and settings in order to produce a
“prequel” to The Original Series. Defendants have intentionally copied Plaintiffs’
fictional characters, settings and plots, as well as the dynamics and conflicts
between various Star Trek races and characters. None of these elements are in the
“public domain,” and no discussion of public domain elements is necessary to
address whether Plaintiffs have sufficiently alleged copyright infringement.

Again, Paramount and CBS eviscerate the defense argument that a copyright is alleged in mere words, or in the atomic level of a concept. Instead, the asserted copyrights are in an aggregate, a conglomeration of concepts. Together, as a whole, these are original and they are copyrighted.

Page 16

On this page, the plaintiffs tackle the concept of language. Demolishing the defendants’ claim of the Klingon language as being a useful article, the plaintiffs state:

Language is part of dialogue, which represents one aspect of the Star Trek
Copyrighted Works and may be considered (at a later point) in a substantial
similarity analysis. … Defendants argue that the Klingon language is not
copyrightable because it is a useful system. … this argument is absurd,
since a language is only useful if it can be used to communicate with people,
and there are no Klingons with whom to communicate. The Klingon language
is wholly fictitious, original, and copyrightable, and Defendants’ incorporation
of that language in their works will be part of the Court’s eventual substantial
similarity analysis. Defendants’ use of the Klingon language in their works is
simply further evidence of their infringement of Plaintiffs’ characters, since
speaking this fictitious language is an aspect of their characters.

Again, if the defendants were not intentionally copying Star Trek and all of its constituent elements – and if they didn’t think those elements were unique or significant enough to bother with – then why not have the Klingons speak Swedish?

This YouTube video is being presented for educational purposes only. I wish the happy couple only the best. 🙂

The plaintiffs then discuss mood and theme. This argument continues on page 17.

Page 17

Continuing the mood and theme argument, the plaintiffs say:

a plaintiff cannot seek protection for themes, but only for expressions of themes. Here,
Plaintiffs are not seeking copyright protection of the theme of “science fiction action
adventure.” They have instead alleged the existence of similar themes between the
works at issue in order to show that, in addition to the characters, settings and other
elements copied by Defendants, Defendants have also copied the theme and tone
from Plaintiffs’ works.

The next argument is regarding scènes a faire. These are the kinds of scenes we expect as standard tropes in certain types of literature and film, e. g. a first kiss or an argument scene in a romance, or a shoot-out in a western. In an argument continuing on page 18, the plaintiffs state:

Here, the Complaint is by no means general and, instead, alleges
numerous elements of creative expression that have been misappropriated by
Defendants. Plaintiffs have not alleged that Defendants have taken vague
elements that, in some way, resemble the Star Trek Copyrighted Works – instead,
Defendants have deliberately and painstakingly copied innumerable elements from
across the entire Star Trek universe. Indeed, far from a generalized assertion that
Defendant have copied “flying transports,” Plaintiffs have alleged that Defendants
have created a virtually-identical visual representation of the U.S.S. Enterprise.
As shown below, Defendants have copied this ship in its entirety. Defendants’
infringing work even copies the “NCC-1701” Starfleet registry number on the
underside of the vessel.

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Page 18

Need the image? Just ask.

CBS and Paramount go on to make one killer of an argument, as follows:

Even assuming that Defendants are properly dissecting the
elements of the Star Trek Copyrighted Works (and they are not),
courts have held that vehicles like the Batmobile are copyrightable as
characters, and therefore, specific Star Trek starships are also
copyrightable. DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015).

What is perhaps most remarkable about this argument is that the defense attempted to cite Towle, in their Second Motion to Dismiss, claiming that the Batmobile was somehow a more distinctive character than Garth of Izar, General Chang, Captain Robert April, Soval, or Sarek.

Yeah, about that …?

Page 19

Here is where the plaintiffs move onto characters. Plaintiffs rightfully acknowledge that only distinctive characters are copyrightable. Sorry, E. Hamboyan of Enterprise. As for Garth, etc., the plaintiffs say:

Plaintiffs’ characters are fully-formed, and their audio-visual
representations include their makeup, hair, costumes, mannerisms,
dialogue, language and actions – all of which Defendants have infringed.

Don’t forget; plaintiffs aren’t proving their case here. They are merely proving that it’s enough of a case to be heard and to go forward.

Page 20

This page gets into the defense’s specificity argument. CBS and Paramount note:

“Copyright claims need not be pled with particularity.” Perfect 10, Inc. v.
Cybernet Ventures, Inc., 167 F. Supp. 2d 1114, 1120 (C.D. Cal. 2001) …
See also 1 Nimmer on Copyright § 12.09 (“To avoid unwieldiness, courts have approved a
complaint that simply alleges representative acts of infringement, rather than a
comprehensive listing.”); Leadership Studies, Inc. v. Blanchard Training & Dev.,
Inc., 2016 U.S. Dist. LEXIS 28930 (S.D. Cal. Mar. 4, 2016)(plaintiffs not required
to plead with specificity every design, figure, and diagram at issue). This pleading
standard is consistent with the courts’ practice of analyzing infringement in the
aggregate when it comes to the analysis of several works in a group, such as to
analyze a television series with dozens of episodes as a single work. See, e.g.,
Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 138 (2d Cir.
1998)(analyzing in the aggregate the amount of expression copied from 84 Seinfeld
episodes).

As before, the plaintiffs directly address the defense’s stalling tactic of requesting every nugget and nuance of an infringement be added to the complaint.

Page 21

This page adds a particularly thought-provoking argument about the USS Enterprise in particular:

Defendants are on notice, for example, that each time the U.S.S. Enterprise appears
in their Axanar Works, they are infringing upon each and every Star Trek Copyrighted
Work in which the U.S.S. Enterprise appears. Plaintiffs should not be required to identify at the
pleading stage each and every television episode in which this copyrighted element
appears. The information that Defendants seek can be elicited during the discovery
stage, and a motion to dismiss should not be used as a substitute for discovery
requests. Moreover, courts consider the aggregate of large groups of works when
performing the substantial similarity analysis rather than considering each work at a
time.

Emphasis mine.

Could this mean the plaintiffs intend to allege an infringement on a per-episode basis? This would mean (let’s just use the NCC-1701 Enterprise although that is not what the plaintiffs are spelling out here) eighty television episodes (I am including The Cage) and two films.

But if the plaintiffs intend to allege an infringement for every iteration of the Enterprise, then we are talking about all of TOS, TAS (22 episodes), TNG (176 episodes), and ENT (98 episodes), along with at least some episodes of DS9 (Emissary) and VOY (Pathfinder), plus all dozen films.

That’s 390 episodes.

But even if it’s per-film and per-series (and it could even be per-season), then it is still six series plus a dozen theatrical releases.

And that’s just the ship, folks.

Will this fly? Probably not on an episode-to-episode basis, but it’s hard to say. Remember Metallica v. Napster?

Page 22

On this page, the plaintiffs wrap up their specificity argument and address the defense’s allegation that use of the rather common legalism information and belief is somehow improper. This argument continues on the following page.

Page 23

Here, the plaintiffs get into the arguments about the controversy not being ripe and about a proposed injunction to stop production somehow being a prior restraint on the defendants’ free speech rights. As the plaintiffs say:

The Complaint alleges that Defendants have created and released a film
entitled Prelude to Axanar, have prepared a script for the Axanar Motion Picture,
have released a scene from the Axanar Motion Picture, and have completed one
third of the visual effects from the Axanar Motion Picture. … [However,] Ripeness
prevents “theoretical” or “abstract” disputes.

Page 24

The ripeness claim is continued:

Defendants argue that this lawsuit is premature with respect to the Axanar
Motion Picture because the entire movie has not yet been completed. Motion at 16-
19. The Motion fails to acknowledge that the Complaint alleges that Defendants
have already engaged in infringing conduct by producing and releasing Prelude to
Axanar, have completed an infringing “fully revised and locked script” for the
Axanar Motion Picture, and have already completed and disseminated a scene from
the Axanar Motion Picture. FAC ¶¶ 32-42. Defendants’ completed acts of
infringement, as well as their transitory products, such as scripts, are actionable,
making this case ripe for review. See Walt Disney Prods., 628 F. Supp. at 875-76;
Danjaq, LLC, 2014 U.S. Dist. LEXIS 180264, Copy. L. Rep. (CCH) P30673.

Page 25

The ripeness argument is further deconstructed:

Defendants misleadingly argue that courts have held that intermediary works
are not relevant to the substantial similarity analysis. However, these cases stand for
the proposition that courts generally will not consider intermediary works as
evidence that a later version of a work is infringing.

And then:

Defendants’ statement that they do not intend to (further) infringe Plaintiffs’
copyrights in the future is irrelevant, given that good faith is not an excuse to
infringe a copyright. Pye v. Mitchell, 574 F.2d 476, 481 (9th Cir. 1978). Moreover,
such statements are contrary to the allegations of the Complaint – which alleges that
Defendants have already engaged in numerous acts of infringement.

Emphasis mine.

Yeah, about that claim that you’re not really going to infringe after all? You know, despite the fact that pretty much every frame of Prelude and the Vulcan scene is crammed full of infringements? Despite your assurances to the donors that Axanar was going to be the ‘best Star Trek film ever!’? Despite the fact that your own YouTube channel page says ‘Axanar is the independent production that proves a feature-quality Star Trek film ….‘?

Yeah, those things? You can’t just suddenly claim you had your fingers crossed behind your back all along and, while it all looked like infringement (particularly when donor cash was flowing in because of that), you didn’t really, really mean it and instead you’re going to make some generic science fiction action flick but you just so happened to try to get Gary Graham, Tony Todd, JG Hertzler, Kate Vernon, and Richard Hatch to be in it?

Nice try, defense.

Page 26

The concluding page also has one final thing to say about the prior restraint argument:

… the Ninth Circuit has held that: “First Amendment concerns in copyright cases are
subsumed within the fair use inquiry. In other words, if the use of the alleged infringer
is not fair use, there are no First Amendment prohibitions against granting a
preliminary injunction.” Elvis Presley Enterprises, Inc. v. Passport Video,
349 F.3d 622, 627 (9th Cir. 2003). Here, enough of the Plaintiffs’ works have
already been fixed in the Axanar Works for the Court to determine, at the
appropriate time, that there is no fair use.

Once again, I remind readers that this response to the Second Motion to Dismiss is really only intended to assure the case isn’t dismissed at this stage of the game. It’s not to prove the plaintiffs’ case. Would you say they’ve adequately deflected the Second Motion to Dismiss? Feel free to weigh in, in the Comments section, sushi fans.

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Response to Request for Judicial Notice

Now we move onto the plaintiffs’ Response to the defendants’ Request for Judicial Notice.

Page 1

As before, the first page is merely a cover for the remainder of the document.

Page 2

The introduction gets right out of the gate with the basic reasons the Request for Judicial Notice should be denied, namely:

The Request for Judicial Notice (the “RFJN”) filed by defendant Axanar
Productions, Inc. and defendant Alec Peters (together, “Defendants”) should be
denied for several reasons, including because it seeks judicial notice of: (1) legal
arguments; (2) documents that are not public records; (3) documents containing
hearsay; and (4) documents that are not properly authenticated.

While some of this may seem to be technicality arguments, the scope of judicial notice is rather strict. According to the Federal Rules of Evidence, Article II, Judicial Notice, Rule 201, Judicial Notice of Adjudicative Facts, the scope is as follows:

(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.

See how legal arguments are nowhere on this list? The second and fourth objections are actually a part of the third, where the objection is that the documents contain hearsay. Be aware that the hearsay rule has numerous exceptions. Be that as it may, the purpose of these notices is to put undisputed facts into evidence. If Defendant Peters’s date of birth, let’s say, was suddenly important in this case (spoiler alert: it’s not), then his birth certificate could be entered and if the parties agree, the court could take judicial notice of same. No biggie. The court could take judicial notice of the fact that the capital of California is Sacramento, if it mattered in this case. But when it comes to matters in dispute, they are not proper subjects for a Request for Judicial Notice.

Page 3

It may seem silly, but the plaintiffs have got to make the argument; the images of DVD covers which the defense added as exhibits to their Request for Judicial Notice are not the actual DVDs.

Why are the plaintiffs compelled to say something that seems so, you know, obvious?

One reason is to assure that the documents of record are as accurate, complete, and correct as possible. It is also to assure that, when this case is looked at years from now (and it might be. People still cite Marbury v. Madison5 U.S. 137 (1803)!), no one goes hunting through the documents to try to find something that isn’t there. This is also why, sometimes, you’ll see a lawyer say something like, “Let the record reflect, the witness is wearing eyeglasses.” The idea is to assure precision. Finally, this objection is being asserted here because, if it’s not made now, the plaintiffs may lose the opportunity to object to it later.

Page 4

Here is where the plaintiffs get into defense Exhibit D, the Nosferatu screenshot, from page 13 of the Request for Judicial Notice, reproduced herein:

Axanar Defense Request for Judicial Notice | Axanar Plaintiffs Respond

Axanar Defense Request for Judicial Notice Page 13

According to the plaintiffs:

Defendants do not lay any foundation as to where they obtained this screenshot.

Exhibit D is not the proper subject of judicial notice, as the alleged fact it
contains—that a specific fictional character has pointy ears—is not “generally
known within the trial court’s territorial jurisdiction.” Nor is that fact capable of
being “accurately and readily determined from sources whose accuracy cannot
reasonably be questioned,” since the authors of the document are unknown and not
stated by Defendants, and they have not authenticated the document. The proffered
exhibit lacks foundation and is hearsay.

Even if the contents of Exhibit D accurately reflect an image from the film,
Nosferatu, it cannot be judicially noticed for the disputed factual claim that “a
species with ‘pointy ears’ is not original to Star Trek, and has appeared in many
fictional fantasy works depicting imaginary humanoid species predating Star Trek,
including, but not limited to, vampires, elves, fairies, and werewolves.” Motion at
8:3-6. Lee, 655 F.3d at 999 (Court can take notice of existence of documents but
may not “draw inferences” based on those documents “or take notice of facts that
might reasonably be disputed”).

Again, some of this may seem like technicalities, but the plaintiffs are making this argument as they need to assert it. Furthermore, given that there is no foundation, it could conceivably be a facsimile. Don’t laugh! Photoshop is so good and so ubiquitous these days that photography and images in general have more of a need for authentication than ever before. As for the final paragraph cited supra, it is again circling the argument back to the true and clearly articulated purpose for Requests for Judicial Notice – they are not intended as a repository for every fact out there. Rather, they are a means of allowing the court to acknowledge that nobody needs to waste time proving stuff that everyone local knows (e. g. the capital of the state of California).

Page 5

Continuing the argument from the previous page, the plaintiffs note:

Finally, whether a certain fictional character—not copied by Defendants—has
been physically depicted with pointy ears, has no bearing on whether Plaintiffs have
stated a claim for copyright infringement based on Defendants’ wholesale copying
of Vulcan characters from the Star Trek Copyrighted Works.

It does not matter how many pointy-eared fictional characters the defense piles into its motions. A garbage scow full of pointy-eared characters does not somehow miraculously negate the plaintiffs’ rightful copyrights for Vulcans. Period.

Next, the document begins to get into the dictionary definitions.

Page 6

Continuing the discussion about the proffered dictionary definitions, the plaintiffs make the point that alternative definitions are meaningless:

… as a threshold matter, these dictionary terms have no bearing on this
case. Whether or not the Romans worshipped a god of blacksmithing named
“Vulcan” is irrelevant to the question of whether Plaintiffs have properly stated a
claim against Defendants for infringing the Vulcans depicted in the Star Trek
Copyrighted Works.

The plaintiffs further note that reliance on one source of definitions is unwise, and that there is no common knowledge (such as would be required in a Request for Judicial Notice) that any of the defined words has just one meaning in all contexts.

Vulcan, of course, is not just the name of a god or a Star Trek race; the term (with a lower-case v) is used when talking about a treatment for rubber.

The document then moves onto a discussion of the triangular medals vis a vis the Masonic medals discussed in the defendants’ motion. The plaintiffs’ argument is that the information supplied by the defense is not a proper request for judicial notice as it is not information commonly known within the jurisdiction.

Page 7

This page continues the medals discussion from the previous page. The plaintiffs state:

Defendants’ attempt to have the Court draw factual conclusions based on
unauthenticated hearsay should be rejected.

As for the defense argument about the invention of ‘warp drive’, the plaintiffs draw a similar conclusion, that the court cannot draw factual conclusions from information not generally known within the jurisdiction. The argument then moves on (continuing on the following page) to the excerpt from HG Wells’s War of the Worlds.

Page 8

Continuing the discussion of War of the Worlds, the plaintiffs make a two-fold argument:

  1. The concept of whether heat-ray weapons were invented by HG Wells is not well-known within the jurisdiction, so judicial notice may not be taken of it, and,
  2. An entire Dyson Sphere’s worth of heat-ray weapon literature does not negate the legitimate copyrights the plaintiffs have in phasers.

Page 9

The document ends with a conclusion requesting denial of the defense’s Request for Judicial Notice, plus there is a signature by attorney David Grossman.

[/nextpage][nextpage title=”What’s Next?” ]

What’s Next?

Now that the plaintiffs have responded to the Second defense Motion to Dismiss, the Federal Rules of Civil Procedure (Rule 12 (a)(4)(A)) don’t allow for any more responses. The complaint is not going to be amended again, most likely, as the first amendment is almost a gimme under Rule 15 of the FRCP, but a second amendment would be another matter entirely.

As for a surreply (a response by the defense to the plaintiffs’ response), that does not appear to be allowed in Federal practice, except for Administrative Law hearings (and even then, it’s rather limited), which this case is not. I don’t believe the defense will have an opportunity to sur-reply although this motion practice site implies otherwise. I am inclined to believe this is it for paperwork on the Second Motion to Dismiss. Hence the motion practice in this case is most likely going to be on hold until the hearing/conference on May 9th. On that date, the motion will be argued in person in Judge Klausner’s court room. That argument is most likely not going to be open to the general public. Also on tap for that date is a scheduling conference. But before that, the parties are required to hammer out the discovery schedule. They are also supposed to, if there are going to be any other parties involved, give those parties notice of the conference. Those would be the Doe defendants.

Hence the upcoming schedule, as it stands, is as follows:

April

  • 18 – Conference on a discovery plan must be done by this date.

May

  • 2 – Joint statement is due to the court (a report on the discovery plan).
  • 4 – Forms ADR-1 and ADR-12 are due to the court.
  • 9 – Defendants’ Second Motion to Dismiss is heard; scheduling conference is conducted.

June?

Presumably by this time, the court will have ruled on the Second Motion to Dismiss. If the plaintiffs prevail, the defense will have to answer the Amended Complaint or a Third Motion to Dismiss. There does not seem to be a limit to these, although at some point they will try the judge’s patience. Furthermore, frivolous motions will draw monetary sanctions.

If the defense prevails, then the plaintiffs will have to file a Third Amended Complaint. Those are a lot less likely to fly, and might even require an appeal to the Ninth Circuit Court of Appeals.

If any Doe defendants are added, they will be given time to get separate counsel and to respond; that would probably be due in late May or early June (the court will allow for a Memorial Day holiday on May 30th). They could conceivably make their own motions to dismiss, and might even cross-claim against Axanar and defendant Peters.

Once the dust settles on motions and impleader, if the matter is not settled and it is not referred over for ADR (Alternative Dispute Resolution), then the discovery phase will begin.

Stay tuned: I’ll do my best to report on what happens as soon as I hear about it.

In the meantime, if you have any questions or comments, please feel free to ask below in the Comments section.

Thank you, as always, for reading and for your kind support. I truly appreciate it.

[/nextpage]

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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.

7 Comments:

  1. Love that they cite the Castle Rock vs CAROL PUBLISHING thing, because the folks at Carol really came off like wholesale thiefs with their STAR WARS book from the 90s, EMPIRE BUILDING. They pilfered from many sources, often not crediting them either, and still managed to get a lot of details wrong (stuff I wrote for Cinefex turned up in the book, that much I do remember.)

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