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motion_to_dismiss [2016/05/10 16:16] – updates section header Carlos Pedrazamotion_to_dismiss [Unknown date] (current) – external edit (Unknown date) 127.0.0.1
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 {{section>dismissal denied#dismissal denied}} {{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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   * **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:   * **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 Denying Motion to Dismiss, p. 6 §C, "Non-copyrightable elements," 5/9/16.))+> 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>
 </WRAP> </WRAP>
  
   * **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:   * **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:
  
-> 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 Denying Motion to Dismiss, p. 4 §A(1), "Plaintiffs plead with sufficient specificity," 5/9/16.))+> 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.))
  
   * **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:   * **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 Denying Motion to Dismiss, pp. 4-5 §A(2), "Paramount has standing to sue," 5/9/16.)) <wrap lo>[//emphasis added//]</wrap>+> 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.   * **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.
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 The judge, however, rejected the use of //Axanar//'s status as unproduced to separate the "Axanar Works" in two: 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 Denying Motion to Dismiss, p. 7 §D, "Plaintiffs’ claims are not premature," 5/9/16.))+> 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:   * **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 Denying Motion to Dismiss, p. 7 §D, "Plaintiffs’ claims are not premature," 5/9/16.))+> 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:   * **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 Denying Motion to Dismiss, pp. 7-8 §E, "Defendants’ prior restraint argument," 5/9/16.))+> 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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 <wrap lo>**See Also** \\ [[dismissal-citations|Examining the Case Law Behind the Motion to Dismiss]]</wrap> <wrap lo>**See Also** \\ [[dismissal-citations|Examining the Case Law Behind the Motion to Dismiss]]</wrap>
 </WRAP> </WRAP>
 +
 ==== Troubled Copyright Claims ==== ==== Troubled Copyright Claims ====
  
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 </WRAP>  </WRAP> 
  
-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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 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: 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 Denying 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>+> 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.))