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Defense Reply Brief in Support of Motion for Summary Judgment
I have the defense reply brief and now you do, too! As always, these documents exist in the public record and I have paid for them. Want a copy? Be my guest! In addition, if you have any questions, be sure to go to the Contact page and give me a shout. I will always try to get you an answer.
Defense Reply Brief
First of all, this document repeats the same old defense assertions, namely:
- Plaintiffs’ claims – premature (argued numerous times in this case)
- The works are not substantially similar (a question of fact which should torpedo this motion all by itself, BTW)
- and defendants’ use is fair as a matter of law
Hence I will only to comment on the third assertion. And on page 11, defense states:
From Virgil’s Aeneid (based on a minor character from
Homer’s Iliad) to John Gardner’s Grendel (retelling Beowulf from the monster’s point
of view), and from Campbell v. Acuff-Rose, Inc., to Suntrust Bank v. Houghton Mifflin Co.,
there is ample precedent for artistic works that “comment” on other artistic works.
What a weird collection of examples. So can you spot the issues with all four examples?
- The Aeneid and the Iliad, apart from both being in the public domain, were created long before the concept of intellectual property even existed (copyright goes back to the Statute of Anne, 1710).
- Grendel comments on a work in the public domain.
- The Campbell case was a song parody/sampling case and so the fact pattern doesn’t really jibe.
- And the Suntrust case, which is about Alice Randall’s The Wind Done Gone truly does change the character of its source material, Gone With the Wind. In fact, if any of these examples work at all, it’s only the Suntrust case which might successfully help defense. However, the level of transformation in Suntrust seems more extensive than that regarding Axanar.
Reply to Plaintiffs’ Statement of Genuine Issues
This side by side comparison of defense’s initial statements, then plaintiffs’ responses thereto, and then defense’s secondary responses, rehashes more old territory. And this includes the claim that plaintiffs’ don’t own a copyright in the “Star Trek universe”. Consider this: if plaintiffs had claimed a specific copyright in the “Star Trek universe”, defense would argue that was overly broad and sweeping.
Yes, welcome to Contradictions 101.
Additional arguments center around the FASA game and whether any profit was intended. Because we’ve covered this before, let’s move on.
In addition, this portion (split off because the court’s electronic filing system has limits) address the ‘fan film’ vs. ‘independent production’ dichotomy, claiming that statements of Axanar being more than a fan film only had to do with quality and nothing more.
Objections to Grossman Declaration
Furthermore, this document repeats the same objections about the FASA game, wherein defense claims plaintiffs never said it was being infringed upon (except plaintiffs did).
Objections to Van Citters Declaration
In addition, defense’s objections to plaintiffs using Van Citters as an expert witness center around technicality objections and not much else.
Brian Li-A-Ping Declaration
First of all, like many attorney declarations, the Li-A-Ping declaration serves as a vehicle for exhibits and not much else.
Because this is the 50-page Christian Tregellis report already covered, I will refrain from repeating myself. However, be sure to check out page 17.
Since this exhibit is the Henry Jenkins document I’ve already covered, I won’t comment on it again.
And then this exhibit consists of the FAQ for Star Trek Enterprise, as found on IMDB. So is it relevant? I have no idea.
In addition, this exhibit consists of a Digital Trends article on Star Trek Discovery.
Furthermore, this exhibit consists of the Wikipedia page on the name ‘Garth’, purporting to show its occurrences in popular culture. However, that page is incomplete, because it fails to include The Starlost‘s supporting character, Garth, played by Canadian actor Robin Ward. See 7:45, below, et seq.
And that is one of the many reasons why using Wikipedia as a primary source is rarely a good idea.
In addition, this exhibit consists of the Wikipedia entry on Epsilon Boötis, AKA Izar.
Furthermore, this exhibit consists of a page about Hindu baby boy names, including Soval (which completely ignores the fact of creating Star Trek names or even taking them from regular old nouns, such as Phlox and Nog. So apparently it means ‘powerful’. Which is lovely but, I assure you, not really dispositive of, well, anything.
Spoiler alert: I strongly suspect the show runners of Enterprise did not consider Hindu boy names when creating the Soval character.
In addition, this exhibit encompasses a page from SAG-AFTRA about paying its members. While I imagine the idea was to show that working with SAG-AFTRA members required paying them, that doesn’t get to the essence of personal financial gain. After all, the SAG-AFTRA members (other than defendant Peters, who I am led to believe is one) aren’t being sued. Yet this doesn’t speak to the basic question, which is: why use SAG-AFTRA actors at all? While, yes, they certainly have a more advanced skill set and they bring name recognition which allows for more fundraising, a production not using SAG-AFTRA members would not need as much money as one which has them. Chicken, meet egg.
Furthermore, the Li-A-Ping Declaration includes the already-covered Alec Peters declaration, dated December 5, 2016.
Finally, it also contains a Ranahan declaration regarding the discovery dispute (e. g. whether defense’s experts’ depositions could occur after discovery closed). I’ll spare you the details.
The next documents encompass a part of the Defense Application for Leave to File Document under Seal.
The oral arguments for this motion are scheduled for December 19, 2016. However, I don’t know when the decision would go online. Given the holiday schedule, it’s possible the judge would issue a quick decision and then follow it up with a more extensive written opinion after the first of the year. Keep in mind, trial is scheduled for later in January. Finally, as always, the case could settle. So please stay tuned, and thank you for reading!