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breakdown_dismissal_letter [2018/12/07 02:11] – updates throughout with Abdin's reply Carlos Pedrazabreakdown_dismissal_letter [2019/09/20 12:38] (current) – [Unprotected Elements] Carlos Pedraza
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 {{:copied_elements.jpg|}} {{:copied_elements.jpg|}}
-<fs smaller>**SUPERFICIAL SIMILARITIES?** The defense's grounds for dismissing the copyright lawsuit against //Star Trek: Discovery// dismiss the similarities between it and the Tardigrades videogame as "generic."</fs>+<fs smaller>**SUPERFICIAL SIMILARITIES?** The defense's grounds for dismissing the copyright lawsuit against //Star Trek: Discovery// call the similarities between it and the Tardigrades videogame "generic."</fs>
  
-====== Breaking Down the Case for Dismissing the Tardigrades Suit ======+<fs x-small>DECEMBER 6, 2018<wrap indent> |</wrap><wrap indent> ESTIMATED READING TIME 13 MINS</wrap></fs> 
 + 
 +====== The Case For and Against Dismissing the Tardigrades Suit ======
  
 //**Plaintiff Replies to Flaws Found by CBS Lawyer in Copyright Infringement Case Against Star Trek: Discovery**// //**Plaintiff Replies to Flaws Found by CBS Lawyer in Copyright Infringement Case Against Star Trek: Discovery**//
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 Just what's wrong with the lawsuit against CBS and Netflix over //Star Trek: Discovery//, which developer Anas Abdin claims infringes on his unreleased videogame, Tardigrades? Just what's wrong with the lawsuit against CBS and Netflix over //Star Trek: Discovery//, which developer Anas Abdin claims infringes on his unreleased videogame, Tardigrades?
  
-In a December 3, 2018, letter to U.S. District Court [[Judge Naomi Reice Buchwald]], attorney Wook Hwang spelled out precisely why he believed the case shouldn't move forward: Essentially, that Abdin's claims that //Discovery// stole his ideas, and that Netflix (//Discovery//'s international distributor) is equally liable, don't hold up under the law.+In a December 3, 2018, letter to the U.S. District Court  judge in the case, attorney Wook Hwang spelled out precisely why he believed the case shouldn't move forward: Essentially, that Abdin's claims that //Discovery// stole his ideas, and that Netflix (//Discovery//'s international distributor) is equally liable, don't hold up under the law.
  
 For his part, Abdin replied through his lawyers, [[tardigrade_lawsuit_trouble#plaintiff_s_attorneys|John Johnson and Allan Chan]], on December 5 with a letter to the judge answering Hwang's criticism. For his part, Abdin replied through his lawyers, [[tardigrade_lawsuit_trouble#plaintiff_s_attorneys|John Johnson and Allan Chan]], on December 5 with a letter to the judge answering Hwang's criticism.
  
-<WRAP right round important 50%> +<WRAP right round important 320px> 
-<wrap em>UPDATE: Plaintiff's Response</wrap> \\ +<wrap em>UPDATE: New Judge</wrap> \\ 
-<fs smaller>Lawyers for Anas Abdin [[tardigrades_pre_motion|submitted a letter]] to Judge Buchwald December 5, 2018, replying to the grounds for dismissal cited by CBS and Netflix two days before; this article was updated to reflect those arguments.</fs>+<fs smaller>The Tardigrades lawsuit was assigned to another judge, [[tardigrades_pre_motion#lawsuit_fails_to_state_a_claim|Lorna G. Schofield]], on December 11, 2018.</fs>
 </WRAP> </WRAP>
  
 <WRAP center 95%> <WRAP center 95%>
-<fs smaller>**//See also: [[tardigrades_pre_motion|CBS Seeks Meeting with Judge to Dismiss Copyright Case Against Discovery]]//**</fs>+<fs smaller>**//See also: [[tardigrades_pre_motion|CBS Seeks Meeting with Judge to Dismiss Copyright Case Against Discovery]] and [[tardigrades_third_complaint|Copyright Lawsuit Names Discovery Writer as Possible Link]]//**</fs>
 </WRAP> </WRAP>
  
 +===== Conference Scheduled =====
 +
 +U.S. District Judge Lorna G. Schofield scheduled a pre-motion conference regarding the defense's planned motion to dismiss the case. That conference will be January 8, 2019, in New York. Ahead of that meeting, each side must filed a status letter and case management plan by January 2.
 + 
 ===== 'In the Plaintiff's Favor' ===== ===== 'In the Plaintiff's Favor' =====
  
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 ===== Substantially Similar? ===== ===== Substantially Similar? =====
  
-At the heart of CBS/Netflix's defense is the idea that //Discovery// and Tardigrades, despite some superficial similarities, are not substantially similar — a critical test against which [[copyright infringement]] claims must bear up.+At the heart of CBS/Netflix's defense is the idea that //Discovery// and Tardigrades, despite some superficial similarities, are not substantially similar — a critical test against which [[copyright infringement]] claims must hold up.
  
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 [{{:two_tardigrades.jpg?direct|<fs smaller>//Do these two versions of tardigrades evince the same 'aesthetic appeal'? <fs x-small>Click image to view full size</fs>.//</fs>}}] [{{:two_tardigrades.jpg?direct|<fs smaller>//Do these two versions of tardigrades evince the same 'aesthetic appeal'? <fs x-small>Click image to view full size</fs>.//</fs>}}]
 <wrap lo>**What is Substantial Similarity?** \\ <wrap lo>**What is Substantial Similarity?** \\
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 </WRAP> </WRAP>
  
-In their reply, Abdin's lawyers acknowledged tardigrades were a creature found in nature but that "via his imagination and ingenuity" Abdin's description of his game centered on a "giant blue Tardigrade that travels instantly throughout the world of outer space," an ability that does not exist in nature. //Discovery//'s tardigrade, however, is not blue. The creature is brown, though depicted in some scenes bathed in blue light.+In their reply, Abdin's lawyers acknowledged tardigrades were a creature found in nature but that "via his imagination and ingenuity" Abdin's description of his game centered on a "giant blue Tardigrade that travels instantly throughout the world of outer space," an ability that does not exist in nature. //Discovery//'s tardigrade, however, is not blue. The creature is brown, though depicted in some scenes bathed in blue light, a common lighting treatment in sci-fi film and television.
  
 Abdin's attorneys went on to describe "the tardigrade's power of instantaneous space travel was the central theme of the show [//Star Trek: Discovery//]."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 2, 12/05/18.)) Presumably, the central theme of the show was Michael Burnham's redemption after violating Starfleet principles to start the Klingon war; the means of travel employed by a starship was part of the show's setting not its theme. Abdin's attorneys went on to describe "the tardigrade's power of instantaneous space travel was the central theme of the show [//Star Trek: Discovery//]."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 2, 12/05/18.)) Presumably, the central theme of the show was Michael Burnham's redemption after violating Starfleet principles to start the Klingon war; the means of travel employed by a starship was part of the show's setting not its theme.
  
-In a a claim echoed throughout the letter, Abdin's attorneys cited case law demonstrating his version of a tardigrade deserved copyright protection, including //DeBecdelievre v. Anastasia Musical LLC//, which found that were facts such as teleporting tardigrades, "do not exist and are created from the imagination, copyrightable protection exists for the creation."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 1, 12/05/18.))+In a claim echoed throughout the letter, Abdin's attorneys cited case law demonstrating his version of a tardigrade deserved copyright protection, including //DeBecdelievre v. Anastasia Musical LLC//, which found that where facts (such as teleporting tardigrades) "do not exist and are created from the imagination, copyrightable protection exists for the creation."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 1, 12/05/18.))
  
 However, Hwang's letter does not argue Abdin cannot copyright his version of a space-traveling tardigrade. He only disputes whether that copyright extends beyond Abdin's particular depiction of such a creature to protect the very idea of a tardigrade that can travel through space; copyright law, of course, doesn't protect ideas, only their specific expression. However, Hwang's letter does not argue Abdin cannot copyright his version of a space-traveling tardigrade. He only disputes whether that copyright extends beyond Abdin's particular depiction of such a creature to protect the very idea of a tardigrade that can travel through space; copyright law, of course, doesn't protect ideas, only their specific expression.
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 > The court in //Ollie// held that the two figures were wholly different … "although the Dominoid and Donny Domino are similar, in that their bodies consist of a domino with one dot in the top square and two dots in the bottom square, the court find the this similarity is attributable to the fact that both works used Domino's trademarked domino as the body. … However, the humanizing of a domino is an idea not subject to copyright protection."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 3, 12/05/18.)) > The court in //Ollie// held that the two figures were wholly different … "although the Dominoid and Donny Domino are similar, in that their bodies consist of a domino with one dot in the top square and two dots in the bottom square, the court find the this similarity is attributable to the fact that both works used Domino's trademarked domino as the body. … However, the humanizing of a domino is an idea not subject to copyright protection."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 3, 12/05/18.))
  
 +{{anchor:storyboard}}
 That last sentence, however, is precisely how Hwang cited the //Ollie// case. That last sentence, however, is precisely how Hwang cited the //Ollie// case.
 ---- ----
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 Crucially, Hwang noted, Abdin failed to demonstrate //Discovery//'s creators even knew about Abdin's game prior to his initial complaint to CBS — such access is a critical part of making a case for copyright infringement. Crucially, Hwang noted, Abdin failed to demonstrate //Discovery//'s creators even knew about Abdin's game prior to his initial complaint to CBS — such access is a critical part of making a case for copyright infringement.
  
-Hwang criticized Abdin's "bare and speculative allegations" that any of the Defendants had the access to actually copy Abdin's work. To establish access Abdin must "plausibly allege either: (1) a particular chain of events or a link from his work to the creators of the allegedly infringing work, or (2) that plaintiff's work was widely disseminated.”((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 4, 12/03/18.))+Hwang criticized Abdin's "[[tardigrade_october#access_to_the_original_work|bare and speculative allegations]]" that any of the Defendants had the access to actually copy Abdin's work. To establish access Abdin must "plausibly allege either: (1) a particular chain of events or a link from his work to the creators of the allegedly infringing work, or (2) that plaintiff's work was widely disseminated.”((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 4, 12/03/18.))
  
-Instead, Abdin offers no such chain of events or link between his game and //Discovery//'s development, nor does his postings on various websites constitute wide dissemination, according to the 2008 case, //O'Keefe v. Ogilvy & Mather Worldwide, Inc.,// which established "the mere fact that [a plaintiff’s] work was posted on the internet prior to the creation of defendants’ work is insufficient by itself to demonstrate wide dissemination."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 4, 12/05/18.))+Instead, Abdin offers no such chain of events or link between his game and //Discovery//'s development, nor do his postings on various websites constitute wide dissemination, according to the 2008 case, //O'Keefe v. Ogilvy & Mather Worldwide, Inc.,// which established "the mere fact that [a plaintiff’s] work was posted on the internet prior to the creation of defendants’ work is insufficient by itself to demonstrate wide dissemination."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 4, 12/05/18.))
  
 However, "the defendants' use of words such as 'unreleased' [and] 'a few websites,' is wholly misleading," Abdin's lawyers charged. "Hundreds of thousands of interested fans viewed the [Tardigrades game's] treatment, thereby establishing a question of fact as to the defendants' access."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 1, 12/05/18.)) However, "the defendants' use of words such as 'unreleased' [and] 'a few websites,' is wholly misleading," Abdin's lawyers charged. "Hundreds of thousands of interested fans viewed the [Tardigrades game's] treatment, thereby establishing a question of fact as to the defendants' access."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 1, 12/05/18.))
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 However, neither Abdin's legal complaint nor this letter [[tardigrade_october#access_to_the_original_work|offered evidence]] substantiating his claimed "hundreds of thousands of fans." However, neither Abdin's legal complaint nor this letter [[tardigrade_october#access_to_the_original_work|offered evidence]] substantiating his claimed "hundreds of thousands of fans."
  
 +<WRAP right round info 320px>
 +<fs smaller>**COPYRIGHT CERTIFICATE** The copyright registration listed in the U.S. Copyright Office's database for Anas Abdin's Tardigrades refers to Tardigrades as "text, artwork," not a videogame.</fs> \\ [{{::tardigrades_copyright.jpg?direct|<fs x-small>//Source: U.S. Copyright Office//</fs>}}]
 +</WRAP>
 ==== Late Copyright Registration ==== ==== Late Copyright Registration ====
  
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 Abdin's lawyers failed to address how his late copyright registration entitled him to statutory damages and attorneys' fees. Instead, the letter claimed Abdin was entitled to such damages and fees by virtue of the [[https://www.americansforthearts.org/by-program/networks-and-councils/public-art-network/faq/what-is-vara|Visual Artists Rights Act]] of 1990 (VARA), which recognizes under American law the concept of creators’ lasting moral rights to their work. Abdin's lawyers failed to address how his late copyright registration entitled him to statutory damages and attorneys' fees. Instead, the letter claimed Abdin was entitled to such damages and fees by virtue of the [[https://www.americansforthearts.org/by-program/networks-and-councils/public-art-network/faq/what-is-vara|Visual Artists Rights Act]] of 1990 (VARA), which recognizes under American law the concept of creators’ lasting moral rights to their work.
 +
 +If Hwang's reasoning is correct, however, Abdin may not be able to rely on VARA for the damages and fees he's seeking.
  
 === Not Covered Under Berne Convention, Visual Artists' Law === === Not Covered Under Berne Convention, Visual Artists' Law ===
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 > The only domestic act attributed to Netflix is [according to Abdin] having “entered into a contract in the United States with the CBS defendants.” … But the mere act of licensing allegedly infringing works for foreign use does not constitute copyright infringement. See, e.g., //Fun-Damental Too, Ltd. v. Gemmy Indus. Corp// (1996), (“mere authorization and approval [in the United States] of copyright infringements taking place outside the United States is not a copyright violation and does not create jurisdiction over those extraterritorial acts”).((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 5, 12/03/18.)) > The only domestic act attributed to Netflix is [according to Abdin] having “entered into a contract in the United States with the CBS defendants.” … But the mere act of licensing allegedly infringing works for foreign use does not constitute copyright infringement. See, e.g., //Fun-Damental Too, Ltd. v. Gemmy Indus. Corp// (1996), (“mere authorization and approval [in the United States] of copyright infringements taking place outside the United States is not a copyright violation and does not create jurisdiction over those extraterritorial acts”).((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 5, 12/03/18.))
  
-While that principle is well established, Abdin's attorneys note, there is an exception "when the type of infringement permits further reproduction abroad." It's unclear, though, how exactly the case they cite, //Peter Starr Prod. Co. v. Twin Continental Films Inc.//, decided in 1986, would apply to digital streaming used by Netflix three decades later. {{page>footer}} {{tag>Tardigrades_lawsuit copyright Star_ Trek_Discovery CBS Netflix}}+While that principle is well established, Abdin's attorneys note, there is an exception "when the type of infringement permits further reproduction abroad." It's unclear, though, how exactly the case they cite, //Peter Starr Prod. Co. v. Twin Continental Films Inc.//, decided in 1986, would apply to digital streaming used by Netflix three decades later. {{:axamonitor-ico.gif?nolink|}} 
 + 
 +<WRAP tip 75%> 
 +<wrap em>COMMENTS</wrap> \\ 
 +Discuss this article in [[face>groups/axamonitor/permalink/535976436917208/|AxaMonitor's Facebook group]]. 
 +</WRAP> 
 +---- 
 +**Keywords** 
 + {{tag>Tardigrades_lawsuit copyright Star_ Trek_Discovery CBS Netflix}}