Defense Reply Brief in Support of Motion for Summary Judgment

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.

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

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?

  1. 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).
  2. Grendel comments on a work in the public domain.
  3. The Campbell case was a song parody/sampling case and so the fact pattern doesn’t really jibe.
  4. 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

Defense Reply Brief: Reply to Plaintiffs’ Statements of Genuine Issues, Part 1

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.

Defense Reply Brief: Reply to Plaintiffs’ Statements of Genuine Issues, Part 2

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

Defense Reply Brief: 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

Defense Reply Brief: 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

Defense Reply Brief: 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.

Exhibit 3

Defense Reply Brief: Brian Li-A-Ping Declaration, Exhibit 3

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.

Exhibit 4

Defense Reply Brief: Brian Li-A-Ping Declaration, Exhibit 4

Since this exhibit is the Henry Jenkins document I’ve already covered, I won’t comment on it again.

Exhibit 5

Defense Reply Brief: Brian Li-A-Ping Declaration, Exhibit 5

And then this exhibit consists of the FAQ for Star Trek Enterprise, as found on IMDB. So is it relevant? I have no idea.

Exhibit 6

Defense Reply Brief: Brian Li-A-Ping Declaration, Exhibit 6

In addition, this exhibit consists of a Digital Trends article on Star Trek Discovery.

Exhibit 7

Defense Reply Brief: Brian Li-A-Ping Declaration, Exhibit 7

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.

Exhibit 8

Defense Reply Brief: Brian Li-A-Ping Declaration, Exhibit 8

In addition, this exhibit consists of the Wikipedia entry on Epsilon Boötis, AKA Izar.

Defense Reply Brief: Wikipedia Entry on Epsilon Boötis, Page 3

Defense Reply Brief: Wikipedia Entry on Epsilon Boötis, Page 3

Exhibit 9

Defense Reply Brief: Brian Li-A-Ping Declaration, Exhibit 9

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.

Exhibit 10

Defense Reply Brief: Brian Li-A-Ping Declaration, Exhibit 10

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.

What’s Next?

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!

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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