Main article: Lawsuit
See also: Summary of the legal complaint, Motion to dismiss, Plaintiffs' attorneys

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 request for judicial notice filed by Winston’s lead attorney, Erin Ranahan, supporting the dismissal motion.

The opposition brief re-states the allegations in the legal complaint that defendants Peters, his company Axanar Productions and up to 20 as-yet-unnamed '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.¹⁾

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.²⁾
• 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.”³⁾

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.

To plausibly demonstrate infringement the plaintiffs point out they must show:

1. Ownership of a valid copyright.
2. 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.”⁴⁾ For example, the brief states:

The question is not whether “pointy ears” are copyrightable in the abstract, but whether the specific pointy ears that are part of the fictitious and original Vulcan race and characters are a protected element as part of the larger copyrightable elements in Star Trek.⁵⁾ [emphasis added]

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:

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. 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.”⁶⁾ [emphasis added]

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. … Defendants have bodily appropriated the Star Trek universe — admittedly so in order to create an authentic prequel to The Original Series.⁷⁾ [emphasis added]

Defendants have lifted 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. Defendants have bodily appropriated the Star Trek universe — admittedly so in order to create an authentic prequel to The Original Series. The Complaint adequately and “plausibly” alleges copyright infringement and Defendants’ motion should be denied.⁸⁾

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