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⁾

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.”⁴⁾ [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.⁵⁾ [emphasis added]

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.”⁶⁾ 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.⁷⁾ [emphasis added]

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,”⁸⁾ 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.”⁹⁾

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.¹⁰⁾

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.”¹¹⁾
  
  
• 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.¹²⁾
  
  
• 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.¹³⁾

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.”¹⁴⁾

• 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.¹⁵⁾

• 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.”¹⁶⁾

• Scènes à Faire

• Characters

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