Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss

Rather than answering the plaintiffs’ Amended Complaint, Axanar instead filed a Second Defense Motion to Dismiss.

The documents are long. I am going to split off the Request for Judicial Notice as it is about twice as long as the other two documents, combined.

As always, my credentials are here. This blog post is an expression of my opinion, based upon my training as an attorney and my decades in the fandom. Your opinion may differ, and I welcome it, along with any questions you might have, in the comments section of this post.

Furthermore, as always, I have purchased these documents. Click through any of them and you’ll be sent to Photobucket, where there is a larger image. Want to download any or all of these images? Feel free. They are a matter of public record. I offer them to you freely. You are a member of the public, and you have the right to know.

This is not a criminal matter. It is a civil one, and the donors are not a party to it. If donors wish redress for their own grievances, they should consider contacting the California Attorney General’s office. The Statute of Limitations for fraud matters is three years in the Golden State. But it won’t matter much if any of the parties, either individual or corporate, head into bankruptcy. The donors are not secured creditors, although the proposed secret consortium looking to take over the Ares Studios Valencia, California leasehold might get a chance to be. And secured creditors generally get priority in bankruptcy proceedings.

Now, on with the documents. We will start with the Motion and then the Proposed Order, okay? As before, we’ll go through everything page by page.

Second Defense Motion to Dismiss

Page 1

This is the standard front page we have seen many times. Of interest is the fact that the hearing date is the same as for the discovery scheduling conference. Which matter will prevail? It’s possible that both will be taken care of on that date. Some of that depends on court schedules. The conference could have taken under an hour, but the motion might take more than one. Either way, the parties will be there. There’s no phoning this one in.

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 1

Page 2

In addition to requesting that the provisions of the Amended Complaint relating to the ongoing production of the film be stricken (one of defense’s arguments is that the film has not been produced and, hence, the claim is unripe. This is contradicted by the existence of Prelude to Axanar and the so-called ‘Vulcan scene’), this page adds a claim that many of the specifics of the Amended Complaint are scènes à faire. Concurring Opinions.com gives a good definition of scènes à faire, quoting the Second Circuit, in Hoehling v. Universal Studios:

…incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic

Many thanks to Jody Wheeler for finding that one.

Essentially, scènes à faire are the kinds of trope-like scenes common to certain genres. If you are watching a noir fiction film (think Sam Spade), you expect to see an alcoholic detective, a femme fatale, and a lot of people smoking. In the horror genre, gore is expected.

Defense states (this paragraph spills over to page 3, infra):

The allegations contained in paragraphs 46 and 47 to the extent they include
elements not protected by copyright law, including, as addressed herein,
clothing, colors, shapes, words, short phrases, works derived from nature,
works in the public domain, works created by third parties, the Klingon
language, ideas—including the “mood and theme” of the “Science fiction action
adventure” genre—scènes à faire, and certain characters

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 2

Page 3

This page continues the final paragraph on page 2. It says (emphasis mine):

Plaintiff’s First Amended Complaint (“FAC”), at ¶ 46, pp. 11-12 (claiming copyright in the
names and characters of Garth of Izar, Soval, Richard Robau, Captain Robert
April, Chang, Sarek, and John Gill); 13 (claiming copyright in the word
Vulcan”); 17-18 (claiming copyright in “cowl neck” clothing, “green drapes,”
and “robes”); 18-19 (claiming copyright in the “Starfleet Command Insignia
and “triangular medals on uniforms”); 19-21, 26, 30, 33, 35, 38 (claiming
copyright in the words “Andoria,” “Archanis IV,” “Axanar,” “beaming up,”
Federation,” “Klingons,” “Nausicaa,” “Rigel,” “Romulans,” “Starship
Enterprise,” “Starfleet,” “Tellar Prime,” “Tellarites,” “Terra,” and “Qo’noS,”
27-29 (claiming copyright in the United Federation of Planets logo, the
Memory Alpha logo, and the Klingon logo); 31 (claiming copyright in the
Klingon language); 22-23, 25-26, 30, 32-33 (claiming copyright in
unprotectable scènes à faire)

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 3

Page 4

This is just a regular signature page as is required for motion practice.

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 4

Page 5

This is the Table of Contents for the document.

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 5

Page 6

This is the Table of Authorities for the document.

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 6

Page 7

The Table of Authorities for the document continues here.

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 7

Page 8

Here we see more of the Table of Authorities.

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 8

Page 9

The Table of Authorities continues, including the statutes the defense is relying upon.

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 9

Page 10

The Table of Authorities continues with more statutes and certain law books and dictionary definitions of common terms.

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 10

Page 11

The last item in the Table of Authorities is a book on Masonic medals.

Axanar Second Defense Motion to Dismiss

Axanar Second Defense Motion to Dismiss Page 11

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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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