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motion_to_dismiss [2016/05/05 19:02] – [Hearing on Dismissal Motion] moved above and rewrote Carlos Pedrazamotion_to_dismiss [Unknown date] (current) – external edit (Unknown date) 127.0.0.1
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-{{::klingon-justice.jpg|}}+<WRAP box> 
 +{{::live-long-and-prosper.jpg|}} \\ 
 +<wrap lo>**JUDGE DENIES** defense motion to dismiss, citing Vulcan philosophy to state plaintiffs' infringement case will 'live long' enough to seek to 'prosper' in court.</wrap> 
 +</WRAP> 
 ====== 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' Answer to plaintiffs' [[summary_of_the_lawsuit|amended complaint]] was due March 31. The filings in U.S. District Court ask [[judge_r._gary_klausner|Judge R. Gary Klausner]] to strike portions of the suit, or dismiss it outright. The new motion was filed Monday, March 28, 2016 — three days before the defendants' Answer to plaintiffs' [[summary_of_the_lawsuit|amended complaint]] was due March 31. The filings in U.S. District Court ask [[judge_r._gary_klausner|Judge R. Gary Klausner]] to strike portions of the suit, or dismiss it outright.
  
-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://www.pacermonitor.com/public/case/10232337/Paramount_Pictures_Corporation_et_al_v_Axanar_Productions,_Inc_et_al|Scheduling notice to all parties and order by Judge R. Gary Klausner]], PacerMonitor, 5/4/16.))
- +
-===== Hearing on Dismissal Motion ===== +
- +
-However, in a scheduling notice and order published on May 4, Judge Klausner turned down the defense request for a hearing on the motion, stating:+
  
-> 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://www.pacermonitor.com/public/case/10232337/Paramount_Pictures_Corporation_et_al_v_Axanar_Productions,_Inc_et_al|Scheduling notice to all parties and order by Judge R. Gary Klausner]], PacerMonitor, 5/4/16.))+{{section>dismissal denied#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 {{:moot-mtd.jpg?linkonly|Klausner found moot}} because of the amended complaint. Klausner has already demonstrated his propensity to keep this case moving along.(([[http://www.scribd.com/doc/301310328/Order-Denied-stipulation-to-continue|Judge's 2/26/16 order denying continuance, scribd.com]], retrieved 2/29/16)) In this case, the defense filed what is substantially the same motion to dismiss that Judge {{:moot-mtd.jpg?linkonly|Klausner found moot}} because of the amended complaint. Klausner has already demonstrated his propensity to keep this case moving along.(([[http://www.scribd.com/doc/301310328/Order-Denied-stipulation-to-continue|Judge's 2/26/16 order denying continuance, scribd.com]], retrieved 2/29/16))
  
-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 Motion & Judge's Denial =====
- +
-===== Overview of Second Motion to Dismiss =====+
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 <wrap lo>**DOWNLOAD** the entire new Motion to Dismiss ([[https://www.documentcloud.org/documents/2778642-Axanar-Vulcan.html|39 pp., 160K PDF]])</wrap> <wrap lo>**DOWNLOAD** the entire new Motion to Dismiss ([[https://www.documentcloud.org/documents/2778642-Axanar-Vulcan.html|39 pp., 160K PDF]])</wrap>
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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's lead attorney, [[Erin Ranahan]], cited several problems with the amended complaint:+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's lead attorney, [[Erin Ranahan]], cited several problems with the amended complaint, each of which was rejected by the judge.
  
-  * **Elements not protected by copyright**. "The amended allegations go beyond the plausible realm of copyright protection," the motion states. 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. +<WRAP right box 50%> 
 +//**__‘Although it is unclear whether Defendants stand to earn a profit from the Axanar Works, realizing a profit is irrelevant to this analysis. ’__**// — //Federal Judge R. Gary Klausner// 
 +</WRAP> 
 + 
 +  * **Elements not protected by copyright**. "The amended allegations go beyond the plausible realm of copyright protection," the motion states. 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. Judge Klausner rejected this argument: 
 + 
 +> 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's Order to Deny Motion to Dismiss, p. 6 §C, "Non-copyrightable elements," 5/9/16.))
  
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-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 lo>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>
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-  * **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." The judge disagreed: 
-  * **Who owns which copyrights?** The motion repeats the claim from the first dismissal motion that each Plaintiff’s standing is unclear since CBS and Paramount Pictures each claim to own different works, resulting in exaggerated exposure for the defendants for statutory damages.((According to U.S. copyright law, statutory damages are $150,000 per infringement.)) \\ \\ + 
-  * **Unfair to bundle** the completed short film, //Prelude to Axanar//, (which the motion continues to characterize as a "mockumentary") with the unproduced feature film, //Axanar//. Prelude deserves its own defense under fair use, minimal infringement and "lack of substantial similarity," the motion states. \\ \\ +> 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//.((Civil Minutes, Judge R. Gary Klausner's Order to Deny Motion to Dismiss, p. 4 §A(1), "Plaintiffs plead with sufficient specificity," 5/9/16.)) 
-  * **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,  would constitute censorship.+  * **Who owns which copyrights?** The motion repeats the claim from the first dismissal motion that each Plaintiff’s standing is unclear since CBS and Paramount Pictures each claim to own different works, resulting in exaggerated exposure for the defendants for statutory damages, and asserts Paramount may have no standing in the case.((According to U.S. copyright law, statutory damages are $150,000 per infringement.)) The judge did not find a problem with Paramount's or CBS' standing to bring a copyright infringement claim or the need to examine individual copyrighted elements so closely: 
 + 
 +> 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.</wrap> Because it is undisputed that Paramount owns the copyrights to the Star Trek Motion Pictures, which is included in the Star Trek Copyrighted Works, Paramount has standing to sue for copyright infringement based on these works.((Civil Minutes, Judge R. Gary Klausner's Order to Deny Motion to Dismiss, pp. 4-5 §A(2), "Paramount has standing to sue," 5/9/16.)) <wrap lo>[//emphasis added//]</wrap> 
 + 
 +  * **Unfair to bundle** the completed short film, //Prelude to Axanar//, (which the motion continues to characterize as a "mockumentary") with the unproduced feature film, //Axanar//. Prelude deserves its own defense under fair use, minimal infringement and "lack of substantial similarity," the motion states. 
 +  
 +The judge, however, rejected the use of //Axanar//'s status as unproduced to separate the "Axanar Works" in two: 
 + 
 +> 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's Order to Deny Motion to Dismiss, p. 7 §D, "Plaintiffs’ claims are not premature," 5/9/16.)) 
 + 
 +  * **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's Order to Deny Motion to Dismiss, p. 7 §D, "Plaintiffs’ claims are not premature," 5/9/16.)) 
 + 
 +  * **Prior restraint**. Because //Axanar// has not been made, any attempt to halt production,  would constitute censorship. Instead, the judge found that without a motion for a preliminary injunction, this argument wasn't persuasive: 
 + 
 +> 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's Order to Deny Motion to Dismiss, pp. 7-8 §E, "Defendants’ prior restraint argument," 5/9/16.))
  
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-However, the Lizerbraum Law Blog thinks arguments reducing the Star Trek copyright to the costumes, words and minor characters is missing the forest for the trees:+However, the Lizerbram Law Blog thinks arguments reducing the Star Trek copyright to the costumes, words and minor characters is missing the forest for the trees:
  
 > Unfortunately for Axanar, it’s unlikely that this argument will be successful. Based on a brief review of //Prelude to Axanar//, <wrap hi>it’s clear that the costumes, sets, makeup, and spaceship design are all intended to suggest that they’re part of the Star Trek universe.</wrap>(([[http://lizerbramlaw.com/2016/02/25/can-you-create-your-own-star-trek-movie/|Lizerbram Law Blog: Copyright Case: Can You Create Your Own Star Trek Movie?]], 2/25/16.)) <wrap lo>[emphasis added]</wrap> > Unfortunately for Axanar, it’s unlikely that this argument will be successful. Based on a brief review of //Prelude to Axanar//, <wrap hi>it’s clear that the costumes, sets, makeup, and spaceship design are all intended to suggest that they’re part of the Star Trek universe.</wrap>(([[http://lizerbramlaw.com/2016/02/25/can-you-create-your-own-star-trek-movie/|Lizerbram Law Blog: Copyright Case: Can You Create Your Own Star Trek Movie?]], 2/25/16.)) <wrap lo>[emphasis added]</wrap>
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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|"direct financial benefit"]] Axanar or Peters received from the project, the motion asserts. Also, the complaint failed to provide any specifics about what [[fan_films_breaking_the_unwritten_rules_and_defining_profit|"direct financial benefit"]] Axanar or Peters received from the project, the motion asserts.
 +
 +However, in denying the motion, Judge Klausner found sufficient cause to proceed with the plaintiffs' claims of the defendants' gaining direct financial benefit from Axanar:
 +
 +> Although it is unclear whether Defendants stand to earn a profit from the Axanar Works, <wrap hi>realizing a profit is irrelevant to this analysis.</wrap> The Court can easily infer that by raising $1 million to produce the Axanar Works and disseminating the Axanar Works on Youtube.com, the allegedly infringing material “acts as a ‘draw’ for customers” to watch Defendants’ films.((Civil Minutes, Judge R. Gary Klausner's Order to Deny Motion to Dismiss, p. 5 §B(2), “Vicarious Infringement: Direct Financial Benefit Allegations Made on 'Information and Belief,'” 5/9/16.)) <wrap lo>[//emphasis added//]</wrap>
  
 ===== Censorship ===== ===== Censorship =====
 The motion stakes a big part of its argument on the fact //Axanar// remains unproduced, claiming that any [[summary_of_the_lawsuit#injunction]] sought by the plaintiffs would be an unconstitutional "prior restraint" — preventing expression before it even occurs. The motion stakes a big part of its argument on the fact //Axanar// remains unproduced, claiming that any [[summary_of_the_lawsuit#injunction]] sought by the plaintiffs would be an unconstitutional "prior restraint" — preventing expression before it even occurs.
  
 +That argument failed to convince the judge, who wrote:
 +
 +> 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 to proceed with the production of the Axanar Motion Picture.((Civil Minutes, Judge R. Gary Klausner's Order to Deny Motion to Dismiss, p. 7 §E, “Defendants’ Prior Restraint Argument,” 5/9/16.))
  
  
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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," writes:
 +
 +> 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.</wrap>(([[http://www.sussmanadr.com/docs/motions_to_dismiss_plit.pdf|The Practical Litigator, "All About Motions To Dismiss," Edna Sussman, PDF]], p. 18, retrieved 5/5/16.)) <wrap lo>[//emphasis added//]</wrap> {{:favicon.ico|}}
  
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 **Keywords** {{tag>lawsuit plaintiffs defendants copyright}} **Keywords** {{tag>lawsuit plaintiffs defendants copyright}}