Plaintiffs’ Reply Brief in Support of Motion for Partial 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.

Plaintiffs’ Reply Brief in Support of Motion for Partial Summary Judgment

The reply brief (actually, several other documents as well) has arrived. Therefore, let the blogging begin!

 

As always, these documents are a matter of public record, and I have paid for them. Therefore, please feel free to download whatever strikes your fancy. Furthermore, if you have any questions, go to the Contact page and send a note. And I will do my level best to answer you. Finally, some of these documents are redacted; I will not make any efforts to circumvent redactions (and neither should you, by the way!).

Reply Brief

Plaintiffs’ Reply Brief

First of all, let’s start with the brief itself. Because I have gone over these arguments several times, I will only hit the highlights here. However, again, if you feel I missed something vital, please let me know. Since the truly interesting part of this document comes on page 4, I’ll just quote it here:

Boiled down to its essence, Defendants’ claim in this case is that they are
entitled to create a full-length film featuring copyrighted characters such as
Klingons, Vulcans, and Federation officers, along with Star Trek weapons,
spaceships, settings, and dialogue – so long as they do not include Captain Kirk and
Mr. Spock. This is not the law. Defendants’ theory would permit others, including
competing studios, to create “professional” “independent Star Trek films” and
television shows, featuring all of these elements.

… If this were the law, the exclusive right to create derivative
works under Section 106 of the Copyright Act would no longer exist.

So for your information, Section 106 of the Copyright Act states as follows:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

… (2) to prepare derivative works based upon the copyrighted work;

Plaintiffs’ Reply to Defense’s Response to Plaintiffs’ Statement of Uncontroverted Facts

Reply Brief: Plaintiffs’ Reply to Defense’s Response to Plaintiffs’ Statement of Uncontroverted Facts

First of all, this document consists of 179 pages. Therefore, kindly join me in a moment of silence for the Amazon rainforest in case anyone gets it in their head to print it. However, a big part of why the document drags on is because plaintiffs had to reply to, well, everything. Hence you see them confirming things like when Star Trek: Discovery will take place.

Hair, Ears, Robes, Glyphs, and Gary Graham

And then on page 12, the parties get into it about Gary Graham’s costume and makeup. Since most of that has already been hashed out, I won’t repeat it. Suffice it to say that the defense arguments about haircuts and ear curvature are the same kind of minutiae they objected to several months ago. Sauce for the goose, eh?

However, I’ll attach the page and you, gentle reader, can draw your own conclusions as to similarity:

Reply Brief: Plaintiffs' Reply to Defense's Response to Plaintiffs' Statement of Uncontroverted Facts, Page 12

Reply Brief: Plaintiffs’ Reply to Defense’s Response to Plaintiffs’ Statement of Uncontroverted Facts, Page 12

By the way, on page 36, defense adds that the age of the Vulcan is in dispute. Because, apparently, Gary Graham is never supposed to age.

Finally, the remainder of this particular document consists of objections and small disputes, many of which have already been covered and will not be repeated herein. Because, frankly, I’m kind of tired of this stuff, and I bet you are, too.

Merchandising

In addition, on page 26, in the “Undisputed” Facts column, it states:

In exchange for donations on Prelude to
Axanar, Defendants provided donors with
perks that included various branded
merchandise.

Grossman Decl., ¶ 69, Ex. D (Kingsbury
tr. at 114:16-25).

And then in the Plaintiffs’ Evidentiary Objection column, it counters with:

(first the defense objection):

Disputed. The merchandise did not
include any Star Trek marks and
was “Axanar” branded, not Star
Trek branded.

Peters Decl., ¶ 11

See also Evidentiary Objections to
Grossman Decl.

(and then the plaintiffs’ reply):

This fact should be deemed
undisputed The fact does not state
that the merchandise was branded
with the name “Star Trek.”

Plaintiffs’ Evidentiary Objections

Reply Brief: Plaintiffs’ Evidentiary Objections

So for the most part, this document showcases objections based upon relevancy. However, plaintiffs note that when an affidavit contradicts deposition testimony, according to the Ninth Circuit Court of Appeals, that does not create a question of fact. Furthermore, the truly interesting part is on page 2, where in the Defendants’ Evidence column, it states:

Peters Decl. ¶ 4. “We also sought to create a first
war-like documentary Star Trek project with
Prelude, pulling source material from M*A*S*H
and Band of Brothers, and now potentially Axanar,
pulling from various sources including Midway,
Patton, Saving Private Ryan, A Bridge Too Far,
and Tora, Tora, Tora.”

And then in the Plaintiffs’ Evidentiary Objection column, it counters with:

Fed. R. Evid. 401, 402, 403,
602, 701-703
Lacks foundation, irrelevant,
improper lay opinion.

Prelude speaks for itself.
There is no evidence that any
of the referenced works were
copied in creating Prelude.

Finally, for those interested, the Federal Rules of Evidence are presented in their entirety here.

Response to Defense Objections

Reply Brief: Response to Defense Objections

Since this document mainly goes over references to the FASA game, and to Grossman’s earlier declaration regarding defendant Peters not providing requested documents pursuant to subpoena, it is somewhat repetitive to what we have already seen. Therefore, I won’t repeat myself.

Grossman Declaration

Reply Brief: Grossman Declaration

Because this Grossman Declaration really only exists as a vehicle for its exhibit, I won’t dwell on it.

Exhibit C: Excerpts from Gossett Deposition

Reply Brief: Exhibit C: Excerpts from Gossett Deposition

First of all, on page 3, we get a glimpse into the behind the scenes goings on at Axanar (I believe the questioner was Ms. Coorg, who is defense counsel):

Q. What did he tell you about that?

A. He was hoping to flip Axanar from a nonunion
shoot into a union shoot under the New Media rules as
described by the Screen Actors Guild and other
affiliated unions.

Q. Did he tell you why he wanted to do that?

A. Sorry for the pause. It’s that a lot of the
time with — I’m trying to keep the answer simple. I
would imagine he did. It was the way that he speaks.

Whenever he had a proposal to shift or change or add
something to the efforts, it was usually accompanied by
a very, very excited reason why even if you didn’t
necessarily agree or see the need for that reason.

While the remainder is of some interest, that testimony gives an interesting glimpse into what, to this outside observer, looks like a “kid in a candy store” and not a business person or director.

Reply Brief: Gossett Deposition; Exhibit C, Page 3

Reply Brief: Gossett Deposition; Exhibit C, Page 3

What’s Next?

More documents, what else? Hence next up will be the Defense Reply Brief in Support of Motion for Summary Judgment. Furthermore, keep in mind that the oral arguments for all of this … stuff … are scheduled for December 19, 2016. In addition, I doubt the proceedings would be open to the public. However, the results will show up in the court records and should be available for download (although I have no idea when. Furthermore, given the holiday schedule, there might be a preliminary order and then something longer released after the first of the year). In addition, the case could end up settling, as it’s about to turn one year old this month. Stay tuned!

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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