Axanar Plaintiffs Summary Judgment Motion

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 20 years and more computers than they need.

She can always be bribed with pie.

Axanar Plaintiffs Summary Judgment Motion

So I have the plaintiffs summary judgment motion in my hot little hands.

However, the motion is actually for what’s called partial summary judgment.

I have a ton of documents. And it will not do anyone any good for me to go through every single one of them. Because if I went through every single page, I would end up writing a good ten or so blog posts. And I would split them in order to keep from writing huge blog posts that would never see the light of day. Hence I’m just happy the hearing won’t happen until December 19, 2016. However, the matter could still settle before then. Yet either way, I paid a good $80 or so for all of these documents (no lie!) and so I will blog about them. In addition, I feel they interest you, the readers. Still, I will do my damndest to keep these blog posts short. Because, let’s face it, a lot of trees died for this.

And that means few images. However, you can click on whatever you like. Because I have paid for these documents and they are a matter of public record. And you, a member of the public, have the right to know.

A Word About Redactions

Furthermore, three of the documents were originally incorrectly redacted. Hence I am only going by redactions (and have created properly redacted versions thereof). Because there is plenty to go over without peeking under anyone’s skant. Furthermore, plaintiffs’ counsel already petitioned the court to re-redact the documents and correct their error (and their motion was granted, so the newly, correctly redacted documents are what’s officially in the record now). So as a professional courtesy to my fellow attorneys (I would do this for defense counsel as well, folks), I will not reveal what was under the redactions.

Authenticity

And on page 12, plaintiffs state:

The director of Prelude, Christian Gossett, confirmed that
Defendants’ intention was to create an authentic Star Trek work. In fact, Mr.
Gossett, in response to a question from Defendants’ counsel, testified that he
believes Prelude is an infringing work. UMF 56 (Q. Do you think Prelude to
Axanar is – infringes upon the Star Trek intellectual property? A. Yes. Q. And
in what way? A. In that it is an unlicensed filmed entertainment that uses
countless elements of the Star Trek fictional world without — yeah, unlicensed.”).

Emphasis theirs.

The Professional, Commercial Nature of the Works

So on page 13, plaintiffs add:

In raising money for the Axanar Works, Peters stated: “Axanar is the first
fully-professional, independent Star Trek film. While some may call it a ‘fan film’
as we are not licensed by CBS, Axanar has professionals working in front and
behind the camera, with a fully-professional crew–many of whom have worked on
Star Trek itself–who ensure Axanar will be the quality of Star Trek that all fans
want to see.” UMF 100.

Peters repeatedly referenced the Axanar Works as a
professional production, and also repeatedly protested that his production was not to
be called a “fan film.” UMF 102, 103. Peters attempted to meet with Netflix to
become a producer of Star Trek productions, and even attempted to trademark (for
use in commerce) the word “Axanar.” UMF 104.

And again, emphasis theirs.

Characters and Species

So on page 15, plaintiffs talk about Garth of Izar being a character introduced in TOS. They also mention Klingons and Vulcans. And in particular, they touch upon the character of Ambassador Soval. In a footnote, they state:

Ambassador Soval is a Vulcan diplomat who was first seen in the 2001 pilot
episode of the television series Enterprise (entitled “Broken Bow”). UMF 22.
Thereafter, Ambassador Soval became a recurring character in the Enterprise series.
Id. 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 as he had in the Enterprise series, rendering the portrayal of that
character all but identical to that seen in Plaintiffs’ works. UMF 23, 48, 60, 77.

Copied Plot Points

So moving onto page 16, plaintiffs add:

In this case, however, Defendants
concede that they intentionally set out to, and in fact did, extensively copy
Plaintiffs’ Star Trek Copyrighted Works. UMF 42-82. Defendants’ Axanar Works
simply replicate Plaintiffs’ plot points, copyrighted characters, including Garth of
Izar, Ambassador Soval, Klingons, Vulcans, the Federation, the Starship Enterprise,
Klingon battlecruisers and even specific settings such as the fictional planet Vulcan.

Where, as here, there is direct evidence of copying, the question is whether
there is “substantial similarity as a matter of law,” which involves an examination of
whether Defendants copied “elements of the work that were original.”

It’s Not Just About the Ears

And we’re off to page 17, where plaintiffs state:

Defendants have argued that protection cannot lie for individual elements
such as “pointy ears” or “spaceships,” but this argument is a disingenuous straw
man. Plaintiffs do not seek protection for generic elements. While ideas are not
protectable under copyright law, the expression of those ideas is protected.
Defendants did not simply take the “idea” of pointy ears and use it in their works;
they intentionally appropriated the entire Star Trek universe for the purpose of
creating an authentic “professional” and “independent Star Trek film.”

And More

Defendants’
copying did not consist only of characters, costumes, and space ships. Rather, to
create their “professional independent Star Trek film,” Defendants took their plot
about Garth of Izar and The Four Years War from the Star Trek Copyrighted Works
and attempted to flesh out a Star Trek story about events that were discussed in The
Original Series. Defendants also took characters, sequence, themes, mood,
dialogue, and settings from the Star Trek Copyrighted Works. UMF 72, 81. Far
from merely taking unprotectable “ideas,” Defendants infringed specific, creative
and original expression from Plaintiffs’ copyrighted works.

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 20 years and more computers than they need. She can always be bribed with pie.

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2 Comments:

  1. Pingback: Axanar Pretrial Voir Dire and LCS Petition - Semantic Shenanigans

  2. Pingback: Axanar Defense Opposition to Plaintiffs’ Motion for Partial Summary Judgment - Semantic Shenanigans

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