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 20 years and more computers than they need.
She can always be bribed with pie.
Latest posts by Janet Gershen-Siegel (see all)
- Seuss v. ComicMix Amended Complaint - July 13, 2017
- Seuss v. ComicMix Defense Summary Judgment Motion Granted in Part - June 23, 2017
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Axanar Defense Summary Judgment Motion
So I have the Defense Summary Judgment motion and it is enormous. And much like the plaintiffs’ motion, I can’t go through it all, page by page and line by line because you and I would be here for the next year, just looking at documents. Therefore, I will summarize where I can and will upload as I can. And then you can download as you please. However, we can’t host every single document. So if you want something not here, or if you have any questions, please go to the Contact page and send us a note. And I will do my best to answer you and/or find a way to get you the bigger documents. However, any documents under seal are impossible for me to get unless either of the parties successfully moves to change that.
The Motion Itself
First of all, we start off with the motion itself.
And defense lays out three separate alleged grounds for granting summary judgment:
- Plaintiffs’ claims are premature (this line of reasoning was rejected when the defense lost their motion to dismiss)
- “… none of Plaintiffs’ alleged works in this action are substantially similar to Defendants’ works” and
- Defendants’ works constitute fair use
When I attended law school, we were always told to lead with your strongest argument. And perhaps that has changed. However, it’s still of interest that the first argument being made didn’t fly a few months ago. So I’m not so sure it will fly now.
As before (and this argument failed last time), defense argues that the question of copyright infringement is being asked too early to be answered because defense only created Prelude to Axanar and the Vulcan scene and nothing else. Defense states:
Moreover, while the latest script for the Potential Fan
Film features 50 original characters, an original plot, dialogue, timeline, and story,
Defendants have not yet settled on the direction or style the Potential Fan Film will
take, thus making consideration of substantial similarity and fair use analyses between
Plaintiffs’ Works and any final Potential Fan Film impossible.
However, the plaintiffs don’t have to wait around to be damaged (perhaps irreparably) before seeking a ruling. Judge Klausner more or les said so already.
Substantial Similarity Argument
So the defense states:
none of Defendants’ Works are substantially similar to Plaintiffs’
Works. Plaintiffs own a limited number of Star Trek episodes and films, but they do
not own a copyright to the idea of Star Trek, or the Star Trek universe as a whole.
Defendants’ works do not borrow sufficient material from the heart of any of
Plaintiffs’ Works to be considered substantially similar to, or derivative of, any
particular episode or film owned by Plaintiffs.
Emphasis mine. So, if you are scratching your head over this one, you’re not alone. The argument sets up a straw man and it also contrasts with the defense’s previous arguments that smaller constituent elements could not be subject to copyright. Again: huh?
However, let’s consider an analogy. What is an apple? Is it the seeds, the skin, the pulp, the stem, and even a leaf on the stem? Or is it the whole? Defense has already argued that the elements of an apple aren’t an apple (even though you and I would certainly recognize them as being the parts of an apple and only an apple). Defense is now arguing that the whole shebang can’t be an apple.
In the case of Star Trek, Klingons are Star Trek. Vulcans are Star Trek. The Enterprise is Star Trek. Benjamin Sisko is Star Trek. Malcolm Reed is Star Trek. Christine Chapel is Star Trek. Harry Kim is Star Trek. Risa is Star Trek. Nausicaa is Star Trek. And you better believe they are in a universe and that universe has a name. Two guesses on that universe’s name, and the first two don’t count.