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— | motion_to_dismiss [2016/07/11 13:27] – [Motions to Dismiss] correx time Carlos Pedraza | ||
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+ | {{:: | ||
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+ | ====== Motions to Dismiss ====== | ||
+ | {{TOC}} | ||
+ | <wrap lo>//See also: [[dismissal_opposition|Plaintiffs oppose dismissal motion]]//</ | ||
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+ | {{page> | ||
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+ | [[Winston & Strawn]], representing [[Alec Peters]] and [[Axanar Productions]], | ||
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+ | {{page> | ||
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+ | <WRAP right box 50%> | ||
+ | // | ||
+ | </ | ||
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+ | The new motion was filed Monday, March 28, 2016 — three days before the defendants' | ||
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+ | According to the PacerMonitor website, Axanar attorneys Winston & Strawn asked for a hearing May 9 before Klausner, a hearing he canceled, citing sufficient arguments made in legal pleadings.(([[https:// | ||
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+ | {{section> | ||
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+ | Also planned for May 9 was a [[scheduling conference]] for the two sides to discuss possible settlement talks, and their plans for conducting discovery for the case. | ||
+ | |||
+ | ===== Opening Strategy ===== | ||
+ | |||
+ | A motion to dismiss is a common opening strategy by defense attorneys to ensure the legal complaint is technically correct. Judges, however, only rarely grant dismissals, and it can be a risky move. Trying to dismiss what a judge can see is a fundamentally meritorious legal complaint may not be worth the price of the motion and of the defense’s credibility with the judge.(([[http:// | ||
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+ | In this case, the defense filed what is substantially the same motion to dismiss that Judge {{: | ||
+ | |||
+ | ===== Dismissal Motion & Judge' | ||
+ | <WRAP right round download 40%> | ||
+ | <wrap lo> | ||
+ | </ | ||
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+ | The motion was filed instead of an Answer to the amended March 11, 2016, complaint, in which the defendants would normally outline their case against the suit. Winston' | ||
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+ | <WRAP right box 50%> | ||
+ | // | ||
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+ | * **Elements not protected by copyright**. "The amended allegations go beyond the plausible realm of copyright protection," | ||
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+ | > When viewed in a vacuum, each of these elements may not individually be protectable by copyright. Plaintiffs, however, do not seek to enforce their copyright in each of these elements individually. … The Court finds it unnecessary to analyze whether the allegedly non-protectable elements of the Star Trek Copyrighted Works are eligible for copyright protection because Plaintiff describes these elements in the Complaint solely in an effort to demonstrate how the Axanar Works are substantially similar to the Star Trek Copyrighted Works.((Civil Minutes, Judge R. Gary Klausner' | ||
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+ | <WRAP right round info 60%> | ||
+ | In the United States, the French term **[[wp> | ||
+ | </ | ||
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+ | * **Allegations not specific enough**. Even if the alleged infringing elements were protected, the defense asserts 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." | ||
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+ | > Plaintiffs [went] to great lengths to compare and contrast allegedly infringing elements of the Star Trek franchise through photographs and vivid descriptions. … The Court finds the Complaint sufficiently provides Defendants notice of the allegedly infringing elements at issue. For example, Plaintiffs allege that the Starship U.S.S. Enterprise, which first appears in the pilot episodes of The Original Series and is consistently portrayed throughout the franchise’s episodes and films, appears in Defendants’ //Prelude to Axanar// | ||
+ | |||
+ | * **Who owns which copyrights? | ||
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+ | > To demonstrate substantial similarity, Plaintiffs describe individual infringing elements in the Complaint. … However, Plaintiffs do not claim that these individual infringing elements are subject to copyright protection – <wrap hi>these elements are included in the Complaint to demonstrate the similarities between the Star Trek Copyrighted Works and the Axanar Works.</ | ||
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+ | * **Unfair to bundle** the completed short film, //Prelude to Axanar//, (which the motion continues to characterize as a " | ||
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+ | The judge, however, rejected the use of // | ||
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+ | > The Court finds it plausible that Defendants have completed a final script of the Axanar Motion Picture. The Court will be able to analyze substantial similarity based on the script and the already disseminated Vulcan Scene. An infringing work, is “fixed in a tangible medium of expression when its embodiment in a copy … is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. … When the work is ‘prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time.’”((Civil Minutes, Judge R. Gary Klausner' | ||
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+ | * **Unripe fruit**. The //Axanar// film cannot be held accountable for copyright infringement because it has not yet been made. The judge similarly dismissed this argument: | ||
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+ | > Because Plaintiffs have sufficiently alleged Defendants created the Vulcan Scene as well as a “final and locked script,” the Court finds that Plaintiffs’ claims based on the Axanar Motion Picture are ripe for adjudication.((Civil Minutes, Judge R. Gary Klausner' | ||
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+ | * **Prior restraint**. Because //Axanar// has not been made, any attempt to halt production, | ||
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+ | > This argument is unavailing. … Defendants are not restrained by the filing of this Complaint. Rather, Defendants are on notice that Plaintiffs allege certain copyright infringement allegations against them. This ruling does not affect Defendants choice to proceed with the production of the Axanar Motion Picture.((Civil Minutes, Judge R. Gary Klausner' | ||
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+ | <wrap lo>**See Also** \\ [[dismissal-citations|Examining the Case Law Behind the Motion to Dismiss]]</ | ||
+ | </ | ||
+ | |||
+ | ==== Troubled Copyright Claims ==== | ||
+ | |||
+ | Even among plaintiffs' | ||
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+ | * Plaintiffs do not explain how the chain of title conferred which rights in the Star Trek Copyrighted Works to which respective Plaintiff. The defense repeated this in the first dismissal motion. | ||
+ | * The Star Trek copyrighted works "do not all contain the same characters, starships, plots, and other features." | ||
+ | * Plaintiffs failed to include the upcoming feature film, //Star Trek Beyond// (due in 2016), and the new 2017 television series among the allegedly infringed “Star Trek Copyrighted Works.” | ||
+ | |||
+ | ==== Specificity ==== | ||
+ | [{{ : | ||
+ | |||
+ | The defense returns to the same argument it made in its original dismissal motion about the 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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+ | > Paramount may not belong in this case at all if the allegedly “infringing elements” first appeared in CBS’s alleged works.((Motion to Dismiss, 3/28/16, p. 14, lines 13-14.)) | ||
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+ | Also, the defense claims the lack of specificity prevents the defendants from proving //Prelude to Axanar// did not infringe. | ||
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+ | > Courts have time and again expressly rejected this approach [requiring] defendants to sift through each movie and television episode to attempt to determine what Plaintiffs’ claims are.((Motion to Dismiss, 3/28/16, p. 13, lines 18-21.)) | ||
+ | |||
+ | ==== Filtering Out ==== | ||
+ | |||
+ | The motion asserts that much of what the amended complaint offers as copyrighted elements are too general to be protected and should be " | ||
+ | |||
+ | === Costumes === | ||
+ | |||
+ | The costumes in the complaint — gold shirts, cowl necks, green drapes, and robes((Paramount et al., v. Axanar et al., amended complaint, | ||
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+ | The medals and Starfleet insignia are similarly not protected, according to the motion, based as they are on common geometrical shapes. | ||
+ | |||
+ | === Words and Phrases === | ||
+ | The motion identifies several words and short phrases, including names, it asserts are also not copyrightable, | ||
+ | |||
+ | Other non-protectable words cited in the complaint include: Andorians, Tellarites, Romulans, Axanar, Archanis IV, Q’onoS, Nausicaa, Rigel, Andoria, Tellar Prime, Vulcans, Klingons, Terra (land), Starship Enterprise, Starfleet, Federation, Starships, Stardate and Federation, or the short phrase “beaming up.” | ||
+ | |||
+ | === Unprotected Works === | ||
+ | The motion asserts that works derived from nature, public domain or third-party works are not protected. Among them: | ||
+ | |||
+ | [{{ :: | ||
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+ | * **Vulcans**’ appearance is no different from many fantasy works predating Star Trek, <wrap hi> | ||
+ | * The name **Vulcan** which is drawn from Roman mythology. | ||
+ | * **Triangular medals** on uniforms have been used by military, religious and other organizations throughout history. | ||
+ | * **Nausicaa** is a character in Homer’s Odyssey. | ||
+ | * **Rigel** is the name of a star in the constellation Orion. | ||
+ | * **Terra** is the Latin word for " | ||
+ | * The **Federation logo** is adapted from the United Nations flag. | ||
+ | * **Transporters** have existed in science fiction since 1877. | ||
+ | * **Warp drive** has existed in science fiction as early as 1945. | ||
+ | * **Federation** is the general word to describe a country formed by separate states that have given certain powers to a central government while keeping control over local matters. The concept is commonly used in science fiction and is inspired by the United Nations. | ||
+ | * **Phasers** are also known as Heat-Ray weapons, which have existed in science fiction since H.G. Wells’ “War of the Worlds” in 1898. | ||
+ | * **Bridge** is a naval term for a ship's command center. Its first usage predates the 12th century. | ||
+ | |||
+ | === Minor Characters === | ||
+ | |||
+ | The motion cites case law that “characters that have been ‘lightly sketched’ and lack descriptions may not merit copyright protection.” contrasting copyright-protected characters like James Bond, Batman, and Godzilla with what the defense asserts are not sufficiently delineated characters like Garth of Izar, Soval, Richard Robau, John Gill, [[mema> | ||
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+ | <WRAP right box 50%> | ||
+ | // | ||
+ | </ | ||
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+ | However, the Lizerbraum Law Blog thinks arguments reducing the Star Trek copyright to the costumes, words and minor characters is missing the forest for the trees: | ||
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+ | > Unfortunately for Axanar, it’s unlikely that this argument will be successful. Based on a brief review of //Prelude to Axanar//, <wrap hi> | ||
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+ | Also, the motion calls into question the validity of the plaintiffs' | ||
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+ | > We are seeking specifics on what copyrights CBS/ | ||
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+ | The Lizerbram Law Blog calls this, at worst, a minor technicality, | ||
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+ | > <wrap hi>It would take a truly novel theory of copyright to suggest that //Prelude to Axanar// (or, most likely, the forthcoming //Axanar//) is not an unauthorized derivative work of the original Star Trek copyright.</ | ||
+ | ===== ‘Unripe Fruit’ ===== | ||
+ | |||
+ | [{{ :: | ||
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+ | The motion argues that until //Axanar// is complete, in " | ||
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+ | > We are also challenging whether it is premature to claim infringement on a movie that is not done, and in fact, the script is being reworked in light of the lawsuit.(([[http:// | ||
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+ | The motion itself states so: | ||
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+ | > Indeed, there are multiple versions of the script, and the script is still being revised and re-written. Under these circumstances, | ||
+ | |||
+ | ==== Fair Use Defense ==== | ||
+ | |||
+ | In fact, the dismissal motion appears to be setting up an eventual [[copyright infringement# | ||
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+ | > To the extent any of the elements Plaintiffs are complaining about are actually protectable, | ||
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+ | Under U.S. copyright law, these are three of the four factors courts must weigh when determining whether infringement constitutes fair use.((See " | ||
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+ | <WRAP right box> | ||
+ | //**The defense omits the most important factor in determining fair use.**// Notably, the motion omits the fourth factor: commercial impact of the infringing use, which the Supreme Court ruled "is the single most important element of fair use," | ||
+ | </ | ||
+ | |||
+ | ==== ==== | ||
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+ | Interestingly, | ||
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+ | However, Axanar has publicly released many photographs or videos of a finished script, storyboards and other preproduction materials. Neither the Filmation case nor the claim of no preproduction materials appears in the second dismissal motion. Instead, it focuses largely on the script undergoing rewrites and its reliance on Star Trek elements the defense claims cannot be protected under copyright.((Motion to Dismiss, 3/28/16, pp. 16-19.)) | ||
+ | |||
+ | ==== ==== | ||
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+ | The unfinished nature of the script is at odds with Axanar' | ||
+ | * August 2015: The screenplay was "fully revised and locked." | ||
+ | * December 2015: "… with a locked script finally in …" (({{: | ||
+ | |||
+ | The current rewrites "in light of the lawsuit" | ||
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+ | ===== Lack of Harm ===== | ||
+ | |||
+ | The motion says the lawsuit fails to demonstrate how CBS and Paramount have been harmed by Axanar, pointing to the free distribution of //Prelude to Axanar// and the fact no DVDs were sold, and that //Axanar// was always planned to earn no profit, distributed for free online. | ||
+ | |||
+ | ==== Direct Financial Benefit ==== | ||
+ | |||
+ | Also, the complaint failed to provide any specifics about what [[fan_films_breaking_the_unwritten_rules_and_defining_profit|" | ||
+ | |||
+ | However, in denying the motion, Judge Klausner found sufficient cause to proceed with the plaintiffs' | ||
+ | |||
+ | > Although it is unclear whether Defendants stand to earn a profit from the Axanar Works, <wrap hi> | ||
+ | |||
+ | ===== Censorship ===== | ||
+ | The motion stakes a big part of its argument on the fact //Axanar// remains unproduced, claiming that any [[summary_of_the_lawsuit# | ||
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+ | That argument failed to convince the judge, who wrote: | ||
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+ | > This argument is unavailing. Plaintiffs have not yet filed a motion for injunctive relief and Defendants are not restrained by the filing of this Complaint. Rather, Defendants are on notice that Plaintiffs allege certain copyright infringement allegations against them. This ruling does not affect Defendants choice to proceed with the production of the Axanar Motion Picture.((Civil Minutes, Judge R. Gary Klausner' | ||
+ | |||
+ | |||
+ | ===== First Motion to Dismiss ===== | ||
+ | The first motion [[https:// | ||
+ | |||
+ | On March 15, the judge ruled the dismissal motion was moot after the plaintiffs filed their [[summary of the lawsuit|amended complaint]]. That put the case on track for a May 9 [[scheduling conference]] ordered by Judge Klausner. | ||
+ | |||
+ | ===== Further Reading ===== | ||
+ | * In the journal, The Practical Litigator, attorney Edna Sussman, author of "All About Motions To Dismiss: Motions to dismiss can be big winners—or big losers," | ||
+ | |||
+ | > The essential prerequisite for a successful motion for judgment on the pleadings … by the defendant is that there be no triable issue of any fact material to the motion. This is the first question that the court will consider, and <wrap hi>if there is a material fact in dispute, the case will proceed toward trial.</ | ||
+ | |||
+ | ---- | ||
+ | **Keywords** {{tag> |