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====== Plaintiffs Oppose Dismissal Motion ======
<wrap lo>//Main article: [[Lawsuit]] \\
See also: [[summary_of_the_lawsuit|Summary of the legal complaint]], [[Motion to dismiss]], [[loeb_loeb|Plaintiffs' attorneys]]//</wrap>

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' Star Trek copyrights.

The studios' attorneys, [[Loeb & Loeb]] filed two briefs:

  * 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://www.gandtshow.com/axanar-defense-request-judicial-notice/|request for judicial notice]] filed by Winston's lead attorney, [[Erin Ranahan]], supporting the dismissal motion.

{{section>dismissal denied#dismissal denied}}

===== Plausible Copyright Infringement =====
<WRAP right round tip 50%>
<wrap lo>[[http://www.gandtshow.com/axanar-plaintiffs-respond-2nd-motion-dismiss/|{{ :gnt_logo_150px.jpg?nolink&75|}}]] **ATTORNEY** Janet Gershen-Siegel provides a page-by-page analysis of the plaintiffs' brief opposing the motion to dismiss [[http://www.gandtshow.com/axanar-plaintiffs-respond-2nd-motion-dismiss/|at her blog]] for the popular Star Trek podcast, the G&T Show.</wrap>
</WRAP>

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 '[[Does|Doe]]' 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.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 1, lines 12-16.))

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,” the motion stated. Such elements without protection include clothing, colors, shapes, words, short phrases, works derived from nature, public domain and third-party works, the Klingon language, scènes à faire, certain characters, and ideas — including the “mood and theme” of scifi.(([[Motion to Dismiss]], 3/28/16.))
  * **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.))

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 "bodily appropriating" of Star Trek elements, making such an examination unnecessary:

> <wrap hi>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.</wrap> 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. … The more exact a duplication of constituent pieces of a work the less overall similarity that may be required.”((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 5, lines 5-9; p. 6, lines 1-2; 4/11/16.)) <wrap lo>[emphasis added]</wrap>

To that end, the brief specifies several elements Axanar has "lifted" from Star Trek, including:

> 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), dialogue and much more. … <wrap hi>Defendants have bodily appropriated the Star Trek universe</wrap> — admittedly so in order to create an authentic prequel to The Original Series.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 6, lines 6-8; 4/11/16.)) <wrap lo>[emphasis added]</wrap>

In response, the plaintiffs' brief strikes back at the defense's reductionist argument that breaks up each copyrighted Star Trek element into constituent parts that are themselves not protected by copyright.

===== 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's attack on the constituent elements by reminding the court that "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."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 4, line 25–p. 5 line 1; 4/11/16.)) For example, the brief states:

> The question is not whether “pointy ears” are copyrightable in the abstract, but whether the <wrap hi>specific pointy ears that are part of the fictitious and original Vulcan race</wrap> and characters are a protected element as part of the larger copyrightable elements in Star Trek.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 5, fn. 1; 4/11/16.)) <wrap lo>[emphasis added]</wrap>

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,”((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 6, lines 12-13; 4/11/16.)) and attacking the defense's attempt to nullify valid copyright protection: 

> 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' Opposition to Defendants' Motion to Dismiss, p. 6, lines 14-18; 4/11/16.))

The plaintiffs' brief characterizes the defense's attempt get the court to dismiss the lawsuit by dissecting Star Trek's costumes, shapes, dialogue, public domain elements, language, mood, //scènes à faire// and characters into bits undeserving of copyright protection:

> This is precisely the tactic that courts have admonished, because it “misses the forest for the trees.” Moreover … Defendants’ arguments are misleading and disingenuous, as the doctrines they cite have no application to the infringement at issue in this case, and the individual elements are, in fact, copyrightable.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 7, lines 8-17; 4/11/16.))

The brief addresses each of the elements cited by the motion to dismiss:

  * **Costumes** — The defense claims costumes can't be copyrighted because clothing is a "useful articles," but the plaintiffs call that specious because the costumes aren't being sold as clothing. Rather, they, along with hair styling and makeup  are combined to re-create "the look and feel of the characters that Defendants have misappropriated."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 8, lines 3-6; 4/11/16.)) \\ \\
  * **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, a character with that name is copyrightable in the Star Trek universe, and that same character appears in Axanar.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, pp. 8-9; 4/11/16.)) \\ \\
  * **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, "courts focus on whether the plaintiff has 'selected, coordinated, and arranged' elements, which are sometimes not in and of themselves copyrightable, in an original way." 

> Defendants have infringed the Vulcan characters that were developed, and that are owned, by Plaintiffs – not the Roman god of metalworking.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 9, lines 22-24; 4/11/16.))

Similarly, the plaintiffs argued, by use of terms like United Federation of Planets, phasers, dilithium crystals, and warp drives, "Defendants, by their own admissions, are seeking to replicate the entire fictional Star Trek universe. … [They] have intentionally copied Plaintiffs’ fictional characters, settings and plots, as well as the dynamics and conflicts between various Star Trek races and characters."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, pp. 9-10; 4/11/16.))

  * **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, and … 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.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, pp. 9-10; 4/11/16.))

[{{ ::enterprise-prelude.jpg?300|**VIRTUALLY IDENTICAL** Instead of the generic scifi tropes described in the defense motion, the plaintiffs argue Axanar (left, //Prelude to Axanar//) copied specific copyrighted Star Trek elements, like the U.S.S. Enterprise (right, CBS).}}]

  * **Mood and Theme** — The defense claims the mood and theme of "science fiction space adventure" cannot be copyrighted. But the plaintiffs state the specificity of how the Axanar is portrayed relies on specific Star Trek elements, for which the legal complaint "contains extensive detail as to the Star Trek Copyrighted Works, identifying specific characters, settings, dialogue, and themes."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, pp. 11, lines 6-7; 4/11/16.))

<WRAP right round info 60%>
In the United States, the French term **[[wp>scènes à faire]]** refers to certain elements of a creative work not protected by copyright law when they are mandated by or customary to the genre.
</WRAP>

  * //**Scènes à Faire**// — The generic, genre-driven elements the defense motion painted is not so vague, the plaintiffs' brief states. Axanar didn't merely take "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." For example, ships in Axanar are not the generalized “flying transports” in the defense motion but "virtually-identical visual representation of the U.S.S. Enterprise. … Defendants’ infringing work even copies the “NCC-1701” Starfleet registry number on the underside of the vessel."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, pp. 11-12; 4/11/16.))

  * **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's father [[mema>Sarek]], Vulcan ambassador [[mema>Soval]] and [[mema>Garth of Izar]]. Instead, the plaintiffs say the defense misapplied case law because these 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."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 13, lines 19-21; 4/11/16.))
===== Proper Copyright Pleading =====

In its motion to dismiss, the defense asserted that CBS' and Paramount Pictures' legal complaint suffered from [[motion_to_dismiss#troubled copyright claims]], including:
  * The chain of custody  as Star Trek's copyright ownership has [[cbs#cbs_and_star_trek|changed hands]] several times.
  * 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.

The plaintiffs counter that degree of specificity is not required by case law:

> 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' Opposition to Defendants' Motion to Dismiss, p. 14, lines 13-16; 4/11/16.))

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:

> 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' Opposition to Defendants' Motion to Dismiss, p. 14, lines 21-24; 4/11/16.))

==== Sufficiently Detailed ====

The plaintiffs' brief contends that the level of detail the defense asks for is more appropriate to the [[discovery]] phase of the case rather than the original complaint.

> 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' Opposition to Defendants' Motion to Dismiss, p. 15 lines 9-17; 4/11/16.))

==== Facts Under Defendants' Control ====

The dismissal motion asserted the legal complaint made allegations merely "on information and belief," too low a standard for the the copyright claims in the suit. The plaintiffs countered, saying those facts were all under the defendants' control:

>  [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' Opposition to Defendants' Motion to Dismiss, p. 16 lines 23-25; 4/11/16.))

Further, the brief states, many of those facts came from the defendants themselves:

> 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' Opposition to Defendants' Motion to Dismiss, p. 17, lines 8-10; 4/11/16.))

===== Plaintiffs' Claims Not Premature =====

The defense's dismissal motion claimed an infringement suit was premature since the //Axanar// feature has not been completed. It further claimed that the lawsuit should have waited until, as the plaintiffs alleged, "Defendants are finished making all of their infringing materials,"  and that any plea for an injunction to prevent this would be a prior restraint on the producers'  First Amendment right, the plaintiffs stated.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 17 lines 16-19; 4/11/16.))

But, the plaintiffs brief said, "courts have held, in nearly identical circumstances, that the completed and transitory film elements already fixed in a tangible medium of expression" (e.g., paper, film, data on a hard drive) are "actionable material ripe for review, and that requests for injunctions in the copyright context do not violate the First Amendment."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 17 lines 20-23; 4/11/16.))

==== 'Ripe' Controversy ====

The principle that an issue should be 'ripe' for a lawsuit is to prevent courts from having to deal with theoretical or abstract disputes. While the defense argued the unfinished nature of //Axanar// meant it wasn't ripe for dispute, the plaintiffs' brief observed:

> 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, as well as their transitory products, such as scripts, are actionable, making this case ripe for review.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 18 lines 12-18; 4/11/16.))

==== Copyright Injunction & First Amendment ====

With respect to the defense's First Amendment claims, the plaintiffs' brief pointed out it had not filed a motion for an injunction. Though the legal complaint asks for a permanent injunction as part of its [[summary_of_the_lawsuit#injunction|prayer for relief]], a preliminary injunction would require a separate motion. Without such a motion, the plaintiffs argued:

> 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' Opposition to Defendants' Motion to Dismiss, pp. 19-20; 4/11/16.))

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:

> 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).))

The brief concludes by asserting "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."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 20, lines 16-18; 4/11/16.))

===== Opposition to Request for Judicial Notice =====

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' Opposition to Defendants' Request for Judicial Notice, p. 7; 4/11/16.)) {{:axamonitor-ico.gif?nolink|}}


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**Keywords** {{tag>plaintiffs lawsuit}}