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— | dismissal_opposition [2016/05/02 12:24] – [Opposition to Request for Judicial Notice] Carlos Pedraza | ||
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+ | ====== Plaintiffs Oppose Dismissal Motion ====== | ||
+ | <wrap lo>// | ||
+ | See also: [[summary_of_the_lawsuit|Summary of the legal complaint]], | ||
+ | APR. 11 — The attorneys for CBS and Paramount filed two briefs today **opposing the defense motion to dismiss** their lawsuit against [[Axanar Productions]] and producer [[Alec Peters]] for infringing on the studios' | ||
+ | |||
+ | The studios' | ||
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+ | * One 26-page document opposing the [[motion to dismiss]] filed two weeks before by the firm defending Axanar, [[Winston & Strawn]]. | ||
+ | * A supplemental nine-page document opposing the corresponding [[http:// | ||
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+ | ===== Plausible Copyright Infringement ===== | ||
+ | <WRAP right round tip 50%> | ||
+ | <wrap lo> | ||
+ | </ | ||
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+ | The opposition brief re-states the allegations in the [[summary_of_the_lawsuit|legal complaint]] that defendants Peters, his company Axanar Productions and up to 20 as-yet-unnamed ' | ||
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+ | In its motion to dismiss CBS and Paramounts legal complaint, the defense alleged: | ||
+ | * **Elements are not protected by copyright**. “The amended allegations go beyond the plausible realm of copyright protection, | ||
+ | * **Allegations are not specific enough**. Even if the alleged infringing elements were protected, the defense asserted the violations aren't sufficiently specific. “While Plaintiffs allege that they own 'more than 700' Star Trek television episodes, a dozen motion pictures, and four books, they still fail to specify which of those copyrights Defendants have allegedly infringed.”(([[Motion to Dismiss]], 3/28/16.)) | ||
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+ | The plaintiffs initially criticize the dismissal motion for not asking the court to examine whether Axanar is substantially similar to Star Trek, but go even further to allege " | ||
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+ | > <wrap hi> | ||
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+ | To that end, the brief specifies several elements Axanar has " | ||
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+ | > Numerous specific characters (such as Garth of Izar and Soval), settings (including several fictional planets), races (such as Klingons and Vulcans), copyrighted vessels (such as the U.S.S. Enterprise and other Federation and Klingon spaceships), | ||
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+ | In response, the plaintiffs' | ||
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+ | ===== Copyrightable Star Trek Elements ===== | ||
+ | |||
+ | To plausibly demonstrate infringement the plaintiffs point out they must show: | ||
+ | - Ownership of a valid copyright. | ||
+ | - Copying of constituent elements of the work that are original. | ||
+ | |||
+ | The plaintiffs respond to the defense' | ||
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+ | > The question is not whether “pointy ears” are copyrightable in the abstract, but whether the <wrap hi> | ||
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+ | Where the dismissal motion makes a point of identifying basic elements in Star Trek's copyrights that come from such sources as nature, the public domain, or uncopyrightable ideas, the plaintiffs point out a work must only "be original to be protected by copyright, which means that it “need not be new, but only original, | ||
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+ | > Courts view the work as a whole and do not dissect copyrighted designs into separate components, because to do so would be “akin to accepting the position that every song is merely a collection of basic notes, every painting a derivative work of color and stroke, and every novel merely an unprotected jumble of words.”((Plaintiffs' | ||
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+ | The plaintiffs' | ||
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+ | > This is precisely the tactic that courts have admonished, because it “misses the forest for the trees.” Moreover … Defendants’ arguments are misleading and disingenuous, | ||
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+ | The brief addresses each of the elements cited by the motion to dismiss: | ||
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+ | * **Costumes** — The defense claims costumes can't be copyrighted because clothing is a " | ||
+ | * **Dialogue** — The defense claim that words and short phrases cannot be copyrighted ignores the fact that courts consider dialogue when examining the similarity between a copyrighted work and its alleged infringer. While the words "Garth of Izar" may not be copyrightable, | ||
+ | * **Public Domain** — The defense claims the prior existence of the word Vulcan (the name of a Roman mythological god), for example, as an argument why the alien race in Star Trek cannot be copyrighted. "This is a misrepresentation of the law," the plaintiffs said. In deciding copyright, " | ||
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+ | > Defendants have infringed the Vulcan characters that were developed, and that are owned, by Plaintiffs – not the Roman god of metalworking.((Plaintiffs' | ||
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+ | Similarly, the plaintiffs argued, by use of terms like United Federation of Planets, phasers, dilithium crystals, and warp drives, " | ||
+ | |||
+ | * **Language** — While natural languages are generally not considered protected by copyright, the plaintiffs point out that "the Klingon language is wholly fictitious, original, and copyrightable, | ||
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+ | [{{ :: | ||
+ | |||
+ | * **Mood and Theme** — The defense claims the mood and theme of " | ||
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+ | <WRAP right round info 60%> | ||
+ | In the United States, the French term **[[wp> | ||
+ | </ | ||
+ | |||
+ | * //**Scènes à Faire**// — The generic, genre-driven elements the defense motion painted is not so vague, the plaintiffs' | ||
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+ | * **Characters** — In one of the more controversial parts of its motion to dismiss, the defense asserted that many beloved Star Trek characters were insufficiently developed to qualify for copyright protection — among them, Spock' | ||
+ | ===== Proper Copyright Pleading ===== | ||
+ | |||
+ | In its motion to dismiss, the defense asserted that CBS' and Paramount Pictures' | ||
+ | * The chain of custody | ||
+ | * Lack of specificity of the copyright violations — namely that plaintiffs must draw a line from each specific infringed work to the infringing element in the Axanar works. The motion even goes so far as to assert that Paramount Pictures should not be a party to the suit. | ||
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+ | The plaintiffs counter that degree of specificity is not required by case law: | ||
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+ | > Complaints simply alleging present ownership by plaintiff, registration in compliance with the applicable statute and infringement by defendant have been held sufficient under the rules.((Plaintiffs' | ||
+ | |||
+ | The specific nature of what the defense is asking for in a legal complaint would prove unwieldy in a legal complaint dealing with copyrights spanning so many works — TV series, films, books, games and more — making it appropriate to cite the representative examples the plaintiffs did in their amended legal complaint: | ||
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+ | > 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.((Plaintiffs' | ||
+ | |||
+ | ==== Sufficiently Detailed ==== | ||
+ | |||
+ | The plaintiffs' | ||
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+ | > Defendants insist that Plaintiffs should be required to list each motion picture and television series that is infringed upon by each element in the Axanar Works. … 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.((Plaintiffs' | ||
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+ | ==== Facts Under Defendants' | ||
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+ | The dismissal motion asserted the legal complaint made allegations merely "on information and belief," | ||
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+ | > [The case law] does not prevent a plaintiff from pleading facts alleged “upon information and belief,” particularly when those facts are within the possession and control of the defendant.((Plaintiffs' | ||
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+ | Further, the brief states, many of those facts came from the defendants themselves: | ||
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+ | > Unlike the [case law] on which Defendants rely, Plaintiffs’ allegations are bolstered by specific facts, and many of these allegations are based on information gleaned from Defendants’ public postings on social media.((Plaintiffs' | ||
+ | |||
+ | ===== Plaintiffs' | ||
+ | |||
+ | The defense' | ||
+ | |||
+ | But, the plaintiffs brief said, " | ||
+ | |||
+ | ==== ' | ||
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+ | The principle that an issue should be ' | ||
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+ | > The Motion fails to acknowledge 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. Defendants’ completed acts of infringement, | ||
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+ | ==== Copyright Injunction & First Amendment ==== | ||
+ | |||
+ | With respect to the defense' | ||
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+ | > Defendants’ arguments regarding “prior restraint” are irrelevant and, at best, premature. Defendants are no more “restrained” by the filing of the Complaint than they would be by the sending of a cease and desist letter. Without the filing of a motion for an injunction, Defendants may proceed, but they do so at their own peril.((Plaintiffs' | ||
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+ | Finally, multiple courts have found the First Amendment offers infringers no protection beyond what is offered by a fair use analysis, according to the Ninth Circuit court: | ||
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+ | > 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, | ||
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+ | The brief concludes by asserting " | ||
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+ | ===== Opposition to Request for Judicial Notice ===== | ||
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+ | The request for judicial notice by the defense was meant to convince the judge to admit certain facts (most are references to generic items, characters, shapes, names, etc., claimed as copyright-free elements the defendants are entitled to use without violating Star Trek copyrights). The plaintiffs assert these facts are sufficiently disputed by their arguments for copyright protection of Star Trek elements as a whole as to render the request irrelevant.((Plaintiffs' | ||
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+ | ---- | ||
+ | **Keywords** {{tag> |