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tardigrades_third_complaint [2019/01/17 04:01] – [Attorneys' Fees Ineligible?] Carlos Pedrazatardigrades_third_complaint [2019/02/04 02:48] (current) – [Conceded Points of Law] Carlos Pedraza
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 ====== Copyright Lawsuit Names Discovery Writer as Possible Link ====== ====== Copyright Lawsuit Names Discovery Writer as Possible Link ======
  
-**//Tardigrades Game Developer Files Third Complaint, Concedes Key Claims for Damages//**+**//Tardigrades Developer Files Third Complaint, Timeline Fails to Support Claim Identifying Writer//**
 {{TOC}} {{TOC}}
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 The complaint now numbers 23 pages, plus attachments, as opposed to the 15 pages of the second amended complaint. The amended complaint elaborated further on the original allegations but also withdrew a number of key claims upon which Abdin previously relied. The complaint now numbers 23 pages, plus attachments, as opposed to the 15 pages of the second amended complaint. The amended complaint elaborated further on the original allegations but also withdrew a number of key claims upon which Abdin previously relied.
  
-[{{ :anas_abdin_twitter_avi.jpg?100|Plaintiff **Anas Abdin**}}]+[{{ ::anas_abdin_linkedin.jpg?150|Plaintiff **Anas Abdin** <fs smaller>/LinkedIn</fs>}}]
  
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 One of the key elements in proving copyright infringement is establishing the defendant had seen the copyrighted material. Lawyers for CBS and Netflix had previously criticized Abdin’s ”bare and speculative allegations“ that any of the defendants had the access to actually copy Abdin’s work. To establish access Abdin must “plausibly allege either: (1) a particular chain of events or a link from his work to the creators of the allegedly infringing work, or (2) that plaintiff’s work was widely disseminated.”((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 4, 12/03/18.)) One of the key elements in proving copyright infringement is establishing the defendant had seen the copyrighted material. Lawyers for CBS and Netflix had previously criticized Abdin’s ”bare and speculative allegations“ that any of the defendants had the access to actually copy Abdin’s work. To establish access Abdin must “plausibly allege either: (1) a particular chain of events or a link from his work to the creators of the allegedly infringing work, or (2) that plaintiff’s work was widely disseminated.”((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 4, 12/03/18.))
  
-In a January 8 [[tardigrades_steam|pre-motion conference]], the judge gave Abdin's lawyers until March 19 to find evidence Discovery's creators had in fact accessed the Tardigrades game on the videogame platform [[https://steamcommunity.com/sharedfiles/filedetails/?id=344701010|Steam Greenlight]], a platform in which Steam members can vote in favor of proposed new games to be added for sale on the platform.+In a January 8 [[tardigrades_steam|pre-motion conference]], the judge gave Abdin's lawyers until March 19 to find evidence Discovery's creators had in fact accessed the Tardigrades game on the videogame platform [[https://steamcommunity.com/sharedfiles/filedetails/?id=344701010|Steam Greenlight]], a platform on which Steam members can vote in favor of proposed new games to be added for sale on the platform.
  
 ==== Star Trek Games on Steam ==== ==== Star Trek Games on Steam ====
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 Star Wars, however, is not a CBS property. Presumably this was another in a string of filing errors made by [[tardigrade_lawsuit_trouble#plaintiff_s_attorneys|Abdin's attorneys]] since the case's inception. CBS does have at least a dozen Star Trek games for sale on Steam. Star Wars, however, is not a CBS property. Presumably this was another in a string of filing errors made by [[tardigrade_lawsuit_trouble#plaintiff_s_attorneys|Abdin's attorneys]] since the case's inception. CBS does have at least a dozen Star Trek games for sale on Steam.
 +
 +[{{ ::erika-lippoldt.jpg?150|**Erika Lippoldt**, executive story editor for //Star Trek: Discovery//}}]
  
 ==== Discovery Writer Named ==== ==== Discovery Writer Named ====
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 Lippoldt, perhaps best known as one of the co-writers of //Discovery//'s first mid-season finale, "Into the Forest I Go," is an executive story editor for the show. Lippoldt, perhaps best known as one of the co-writers of //Discovery//'s first mid-season finale, "Into the Forest I Go," is an executive story editor for the show.
  
-[{{ ::erika-lippoldt.jpg?150|**Erika Lippoldt**, executive story editor for //Star Trek: Discovery//}}]+=== Not on Steam === 
 + 
 +**AxaMonitor** found information contradicting Abdin's claim Lippoldt had been polled about his game.  Membership records demonstrated the //Discovery// writer was not a Steam member in 2015 when Tardigrades was voted on by Steam members. The website [[https://steamidfinder.com/lookup/76561198279236556/|Steam ID Finder]] documented her profile was not created until January 25, 2016.
  
 === Bad Timing === === Bad Timing ===
  
-Lippoldt appeared to be an odd choice to single out in the complaint because her tenure on //Discovery// does not match the show's development timeline.+Lippoldt also appeared to be an odd choice to single out in the complaint because her tenure on //Discovery// does not match the show's development timeline. 
 + 
 +[{{ ::lippoldt_steam.jpg?250|**STEAM MEMBERSHIP** //Discovery// writer Erika Lippoldt is named in the legal complaint as having been polled in 2015 regarding the Tardigrades game on the Steam videogame platform. However, records show she didn't join Steam until the following year. <fs smaller>//Image/SteamIDfinder.com//</fs>}}]
  
 Lippoldt, who has a PhD in neurobiology, joined the CBS Writers Mentoring Program in 2014. She moved on to join the writing staff of the CW show, //Reign//, in April 2015. When //Discovery// was announced as the new Star Trek series in November 2015, she was still working on //Reign//. She left that show in October 2016 to join //Discovery// in November 2016, a year into the the new show's development.(([[https://www.linkedin.com/in/erikalippoldt/|Erika Lippoldt's LinkedIn profile]], retrieved 1/16/19.)) Lippoldt, who has a PhD in neurobiology, joined the CBS Writers Mentoring Program in 2014. She moved on to join the writing staff of the CW show, //Reign//, in April 2015. When //Discovery// was announced as the new Star Trek series in November 2015, she was still working on //Reign//. She left that show in October 2016 to join //Discovery// in November 2016, a year into the the new show's development.(([[https://www.linkedin.com/in/erikalippoldt/|Erika Lippoldt's LinkedIn profile]], retrieved 1/16/19.))
  
-When Abdin's Tardigrades game was voted to be greenlighted in August 2015, Lippoldt was still more than two years away from being associated with Star Trek. Meanwhile, when //Discovery//'s creator, showrunner Bryan Fuller, left the series in October 2016, a month before Lippoldt joined the show, several key aspects of the show had already been identified: the spore drive, the tardigrade navigator, the black female lead Michael Burnham, and other characters Abdin claims had to have been stolen from his game.+When Abdin's Tardigrades game was voted to be greenlighted in August 2015, Lippoldt was still more than two years away from being associated with Star Trek. 
 + 
 +Meanwhile, when //Discovery//'s creator, showrunner Bryan Fuller, left the series in October 2016, a month before Lippoldt joined the show, several key aspects of the show had already been identified: the spore drive, the tardigrade navigator, the black female lead Michael Burnham, and other characters Abdin claims had to have been stolen from his game.
  
 Though Burnham actor Sonequa Martin-Green wasn't formally hired until a few months after Fuller's departure, he had auditioned her before he left, praising her as "incredibly insightful as an actor and delightful as a human being."(([[https://ew.com/tv/2017/07/28/bryan-fuller-star-trek-discovery/|Entertainment Weekly]], (ew.com) 7/28/17.)) Though Burnham actor Sonequa Martin-Green wasn't formally hired until a few months after Fuller's departure, he had auditioned her before he left, praising her as "incredibly insightful as an actor and delightful as a human being."(([[https://ew.com/tv/2017/07/28/bryan-fuller-star-trek-discovery/|Entertainment Weekly]], (ew.com) 7/28/17.))
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   * **No statutory damages**. Under U.S. copyright law, plaintiffs can seek damages as high as $150,000 per infringement, but that requires registering the copyright prior to the infringement or within three months of publication. Abdin met neither of those timelines; he registered the Tardigrades copyright 10 months after //Discovery//'s premiere. \\ <wrap indent>Consequently, the most Abdin could be awarded is actual damages, which could be minimal since the game has yet to be released.  Statutory damages can in some cases be significantly more than the actual damages suffered by the rightsholder or the profits of the infringer.</wrap>   * **No statutory damages**. Under U.S. copyright law, plaintiffs can seek damages as high as $150,000 per infringement, but that requires registering the copyright prior to the infringement or within three months of publication. Abdin met neither of those timelines; he registered the Tardigrades copyright 10 months after //Discovery//'s premiere. \\ <wrap indent>Consequently, the most Abdin could be awarded is actual damages, which could be minimal since the game has yet to be released.  Statutory damages can in some cases be significantly more than the actual damages suffered by the rightsholder or the profits of the infringer.</wrap>
   *  **No claim against visual artists' rights**. Abdin's earlier complaint asserted the right to damages under the 1990 Visual Artists' Rights Act (VARA), which protects the integrity of a creator's work. However, in a letter to the judge, defense attorney Wook Hwang ruled out that claim because VARA covers only limited works of fine art (e.g., paintings, sculptures, drawings, prints and still photographs) produced for exhibition, with fewer than 200 copies. The law grants no protection to diagrams, models, motion pictures, books and other publications or electronic publications.(([[http://www.law.harvard.edu/faculty/martin/art_law/esworthy.htm|"A Guide to the Visual Artists Rights Act," Cynthia Esworthy]], NEA Office of General Counsel, JD Washington & Lee Law School, 1997; retrieved 12/06/18.))   *  **No claim against visual artists' rights**. Abdin's earlier complaint asserted the right to damages under the 1990 Visual Artists' Rights Act (VARA), which protects the integrity of a creator's work. However, in a letter to the judge, defense attorney Wook Hwang ruled out that claim because VARA covers only limited works of fine art (e.g., paintings, sculptures, drawings, prints and still photographs) produced for exhibition, with fewer than 200 copies. The law grants no protection to diagrams, models, motion pictures, books and other publications or electronic publications.(([[http://www.law.harvard.edu/faculty/martin/art_law/esworthy.htm|"A Guide to the Visual Artists Rights Act," Cynthia Esworthy]], NEA Office of General Counsel, JD Washington & Lee Law School, 1997; retrieved 12/06/18.))
-  * **No claim under Berne Convention**. As a Kuwati resident, Abdin's had earlier claimed jurisdiction under the Berne Convention, an international copyright agreement. Hwang, however, pointed out to the judge that since Abdin is suing in a U.S. court, he can seek no damages beyond what's offered by U.S. copyright law.+  * **No claim under Berne Convention**. As a Kuwati resident, Abdin had earlier claimed jurisdiction under the Berne Convention, an international copyright agreement. Hwang, however, pointed out to the judge that since Abdin is suing in a U.S. court, he can seek no damages beyond what's offered by U.S. copyright law.
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