Axanar Defense Opposition to Plaintiffs’ Motion for Partial Summary Judgment

Axanar Defense Opposition to Plaintiffs’ Motion for Partial Summary Judgment

Defense opposition to plaintiff’s motion for partial summary judgment has arrived.

There are a number of documents filed and I have them all (a good $70+ worth, I might add). And as before, I will cover these quickly as the verbiage on this case (and the blog posts) can fill volumes already.

Defendants Axanar Productions, Inc., and Alec Peters’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment

Axanar Defense Opposition to Plaintiffs’ Motion for Partial Summary Judgment

First of all, this document makes the following arguments:

  • Plaintiffs Rely On Inadmissible And Disputed Evidence For
    Substantial Similarity
  • The Overlapping Characters At Issue Are Minor
  • Defendants Did Not Earn, And Had No Intention of Earning, Any
    Profits From Defendants’ Works
  • Plaintiffs’ History of Tolerating Widespread Creation of Fan
  • Defendants’ Works Are Fan Films
  • Plaintiffs’ [Have Made ]Irrelevant Misstatements

Disputed Evidence

One of the standards for summary judgment requires that the material facts are not in dispute. Hence a contradiction can make a motion such as this fail. Spoiler alert: I believe both motions will fail.

However, since the defense claims this, then any dispute as to the facts will also make their own motion fail.

Furthermore, defense claims plaintiffs have not made a sufficient ‘substantial similarity’ argument. Except I believe that would be a question of law and not of fact.

Characters are Minor

And then in this area, the defense claims Garth of Izar and Soval are minor characters. Hence I think we can all stipulate that they aren’t ‘major’ characters in the vein of Kirk, Spock, Archer, T’Pol, etc. However, that does not mean they exist as amorphous, undefined extras.

Because Garth did not just appear in the TOS episode, Whom Gods Destroy. He also appeared in two authorized novels and an authorized comic book. In addition, his Mirror Universe counterpart appeared in the authorized novel, The Sorrows of Empire. Furthermore, an illustration of him from the FASA sourcebook for the game (yes, he’s in that, too) appears in the TNG episode, The Big Goodbye.

Soval appeared 11 times and was referenced in four other episodes. Furthermore, the Mirror Universe version of this character appeared in two more episodes. He was also a part of 10 authorized novels and novelizations.

No Profit Was Earned

However, that’s not why plaintiffs brought suit. Instead, they have claimed personal benefit, which is not the same thing.

Tolerating Fan Films

While this might, in a way, support an estoppel argument, the term estoppel isn’t even in this document. Hence I have no idea why this was mentioned at all.

The Works are Fan Films

Since there is no case law or statute giving any credence to the distinction between fan and professional works (and the defense, several times, referred to their work as professional and independent anyway), this one is another head-scratcher.

Irrelevant Misstatements

And then on pages 11 and 12, defense states:

For example, contrary to Plaintiffs’ suggestion,
Defendants’ truthful remarks that their works are “independent” from Plaintiffs have
no bearing on this lawsuit, and neither does any use by Defendants of the name “Star
Trek” given that Plaintiffs have asserted no trademark claims in this lawsuit.

However, mentioning the term ‘Star Trek’ does not mean a dispute suddenly becomes one of trademark (the infringement thereof is not being litigated herein).

Defense Response to Plaintiffs’ Statement of Uncontrovertible Facts

In addition, we have this document.

Axanar Defense Opposition to Plaintiffs’ Motion for Partial Summary Judgment – Defense Response to Plaintiffs’ Statement of Uncontrovertible Facts

First of all, a lot of the facts are not disputed, including plaintiffs owning certain copyrights. However, on page 6 – 7, plaintiffs state:

23. Soval is portrayed by actor Gary
Graham, who reprised his role as
Ambassador Soval in Defendants’
infringing works, and even wore
virtually identical makeup and
costumes that he had in the
Enterprise series, rendering the
portrayal of that character all but
identical to that seen in Plaintiffs’
Van Citters Decl., ¶¶ 21-24, 45-46.

Chinese, Japanese, what’s the difference?

In addition, defense responds:

Disputed. Gary Graham’s makeup and
hair as Soval in Defendants’ Works were
different from that of the Soval who
appeared in Plaintiffs’ Works. The ears,
while pointed, were different from those
Gary Graham wore in “Enterprise.” Gary
Graham’s costume was different in
Prelude to Axanar, the Vulcan Scene, and
in Plaintiffs’ Works. While in Prelude,
Gary Graham’s robes were Chinese, in the
Vulcan Scene, he wore Japanese-style
robes over a business suit. These costumes
were not identical to each other, much less
to the one Soval wore in Plaintiffs’ Works.

Grossman Decl., ¶ 13, Ex. A (Peters Tr.,
Vol. II at 425:11-22)
ECF No. 75-19, Peters Decl., Ex. 1
(Prelude to Axanar at 45-:58, 2:32-45,
3:11-20, 3:49-58, 7:30-43, 9:30-43, 10:14-
ECF No. 75-19, Peters Decl., Ex. 2
(Vulcan Scene)
See also Evidentiary Objections to Van
Citters Decl.
24. Defendants’ works incorporate
Plaintiffs’ character, Garth of Izar.
Van Citters Decl., ¶¶ 17-20.

Back up a Second there, Samurai

Here are Japanese characters (this image is from Omniglot):

And here is Soval’s robe:

Amended Complaint, Page 18 (cropped)

Amended Complaint, Page 18 (cropped)

Here’s a good close up, directly from Prelude (the female Vulcan character is named T’Lara):

Axanar Defense Answer and Counterclaim

Prelude close up of Vulcan lettering

And here’s an image of a Vulcan robe from Star Trek III: The Search for Spock:

Axanar Defense Answer and Counterclaim

Vulcan robe with lettering from Star Trek III: The Search for Spock (image is from Memory Alpha)

So are you offended yet? Because maybe you should be, eh?

Because these are not Chinese or Japanese characters. They are Vulcan glyphs – as the defense called them, I might add.

What’s Next?

First of all, the plaintiffs also filed opposition (though to the defense motion, of course). Furthermore, the defense filed a number of declarations and they also filed objections to the plaintiffs’ motion. While I will try to blog about these in a timely fashion, they are a good GB’s worth of documents. Hence, stay tuned and I will get to these when I can. Many thanks for your patience.

Janet Gershen-Siegel

Jespah (Janet Gershen-Siegel) has been a fan of Star Trek since probably the first set of reruns of The Original Series. She has an eclectic background, including an undergraduate degree in Philosophy, a JD (she practiced insurance defense law for a few years in New York and is a lot happier since she retired from that in 1990), and a MS in Interactive Media, which is a real-live social media degree. Along the way, she has about a decade and a half of data analysis work under her belt and currently works as a blog coordinator for a high-end wedding blog and also as a blogger for hire (topics include diverse subjects like ad retargeting but also the nursing job market), and has a shingle out to work on social media presence, with a focus on independent authors as she is also a published science fiction author. Plus, she has been a community manager for a large Q & A website since 2002, which is before that existed as a job title. She was raised on Long Island so, when she is riled up, the accent gallops back out and she can sound like Fran Drescher with a law degree. She lives in Boston with her husband of over 30 years and more computers than they need. She can always be bribed with pie.

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