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motion_to_dismiss [2016/05/05 18:46] – Adds May 4 judge order info Carlos Pedraza | motion_to_dismiss [Unknown date] (current) – external edit (Unknown date) 127.0.0.1 | ||
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====== Motions to Dismiss ====== | ====== Motions to Dismiss ====== | ||
{{TOC}} | {{TOC}} | ||
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The new motion was filed Monday, March 28, 2016 — three days before the defendants' | The new motion was filed Monday, March 28, 2016 — three days before the defendants' | ||
- | According to the PacerMonitor website, Axanar attorneys Winston & Strawn asked for a hearing May 9 before Klausner. | + | 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:// |
- | + | ||
- | However, in a scheduling | + | |
- | > Motion to Dismiss … calendared for hearing on May 9, 2016, has been taken under submission and off the motion calendar. The Court will issue a ruling after full consideration of properly submitted pleadings.(([[https:// | + | {{section>dismissal denied# |
- | Still 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. | + | 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 ===== | ===== Opening Strategy ===== | ||
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In this case, the defense filed what is substantially the same motion to dismiss that Judge {{: | In this case, the defense filed what is substantially the same motion to dismiss that Judge {{: | ||
- | If he does dismiss or strike portions of the case, it's likely the plaintiffs will be able to correct any problems and re-file, restarting the legal clock on the case for a third time. | + | ===== Dismissal |
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- | ===== Overview of Second | + | |
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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' | + | 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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+ | // | ||
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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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- | In the United States, the French term **[[wp> | + | <wrap lo>In the United States, the French term **[[wp> |
</ | </ | ||
- | * **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." | + | * **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." |
- | * **Who owns which copyrights? | + | |
- | * **Unfair to bundle** the completed short film, //Prelude to Axanar//, (which the motion continues to characterize as a " | + | > 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// |
- | * **Unripe fruit**. The //Axanar// film cannot be held accountable for copyright infringement because it has not yet been made. \\ \\ | + | |
- | * **Prior restraint**. Because //Axanar// has not been made, any attempt to halt production, | + | * **Who owns which copyrights? |
+ | |||
+ | > 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.</ | ||
+ | |||
+ | * **Unfair to bundle** the completed short film, //Prelude to Axanar//, (which the motion continues to characterize as a " | ||
+ | |||
+ | The judge, however, rejected the use of // | ||
+ | |||
+ | > 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' | ||
+ | |||
+ | * **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: | ||
+ | |||
+ | > 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, | ||
+ | |||
+ | > 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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- | However, the Lizerbraum | + | However, the Lizerbram |
> Unfortunately for Axanar, it’s unlikely that this argument will be successful. Based on a brief review of //Prelude to Axanar//, <wrap hi> | > 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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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. | 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|" | 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 ===== | ===== Censorship ===== | ||
The motion stakes a big part of its argument on the fact //Axanar// remains unproduced, claiming that any [[summary_of_the_lawsuit# | The motion stakes a big part of its argument on the fact //Axanar// remains unproduced, claiming that any [[summary_of_the_lawsuit# | ||
- | ===== Hearing on Dismissal Motion ===== | + | That argument failed to convince the judge, who wrote: |
- | The defense has asked for a hearing on the dismissal on May 9. In the meantime, the plaintiffs have time to respond to the motion, or — as they did with the first — file an amended complaint and re-starting | + | |
+ | > 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 | ||
===== First Motion to Dismiss ===== | ===== First Motion to Dismiss ===== | ||
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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. | 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.</ | ||
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**Keywords** {{tag> | **Keywords** {{tag> |