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Pro Hac Vice Antics, You Say?
What are pro hac vice antics? Why, I’m so glad you asked that! Because that’s what happens when lawyers try for pro hac vice, don’t get it, and then try again. So, if at first you don’t succeed … etc….
Wait a Minute. Are There No Lawyers in California?
To read the various documents filed so far, you would be excused for thinking so. Because the Piper firm (for plaintiff) released a flurry of motions to get attorneys from pretty much everywhere but California provisionally admitted for the purposes of only this one case. That process is call pro hac vice.
Except the Piper firm has two offices in Los Angeles and two in San Diego. Hence Judge Janis Sammartino was none too thrilled with what certainly looks like unnecessary motion practice and the prospect of a ton of wasteful travel. And so she denied all of the pro hac vice motions she saw. While I can appreciate that some of the lawyers seeking provisional, temporary admission are high-powered and all, I kinda don’t blame the judge. Because, seriously, California has close to a quarter of a million attorneys. Surely there was someone local who could handle this case, yes? Furthermore, this does not represent an instance where most of the team was local except for the lead, such as we saw in the Axanar matter. Instead, nearly everyone working for plaintiff wanted pro hac vice.
And the judge basically said, “I don’t think so.”
Ms. Duvdevani (a name I will surely mangle if I have to say it while podcasting, so I will apologize now) has impeccable credentials. She serves as the firm’s New York Chair of the Intellectual Property and Technology group. She first moved for admission pro hac vice on January 10, 2017, and that motion went down in flames on January 13. However, apparently, she won’t take no for an answer, so she refiled on January 23, yet the sole difference consists of a different local counsel designation (Stanley Panikowski instead of Gina Durham). Because the two petitions appear virtually identical, I suspect this second one will crash and burn, too.
So near the same thing happened with Marc Miller. Miller serves as an associate in the same New York office. He first filed on January 13, 2017, and received his denial from the judge on January 18. And he, too, moved again, on January 24. While I can see Ms. Duvdevani as (probably) essential, Miller has practiced for six years. Hence I suspect, like me, the judge will see the plaintiff’s firm as probably having a local substitute somewhere in the Golden State.
James Stewart called in from the Washington, DC office and first tried on January 13, 2017. He lost out on January 18 as well. Undaunted, this lawyer with only seven months of practice under his belt tried again on January 24.
Finally, Stanley Panikowski joined in the fun and filed a Notice of Appearance on January 17, 2017. And unlike the others, he is admitted to practice in California. In addition, he has substantial experience in front of the federal bar in California. Because his credentials outshine those of Stewart and Miller, I suspect those two attorneys will not see their current petitions granted.
Motion to Seal Exhibits
Because two of the exhibits consist of intellectual property, defense moved to have both filed under seal. Exhibit 5 consists of Gerrold’s Oh, the Places You’ll Boldly Go! However, Exhibit 6 (Seuss’s Oh, the Places You’ll Go!) seems more problematic. After all, you can buy it on Amazon. But no matter, as Judge Sammartino granted the motion.
Plaintiff’s Response to Defense’s Motion to Dismiss
So, you got me. I admit I kind of buried the lede on this one (although all the pro hac vice antics are kinda fun to see everyone just sorta playing “no tag backs”). Because this matters more.
First of all (after the many citations), on Page 9, plaintiff writes:
In Oh, The Places You’ll Boldly Go! (the “Infringing Work”), Defendants have taken some of the most creative and recognized Dr. Seuss expression and indicia. Defendants do not shy away from this taking, but instead excuse it by claiming that it was necessary in order to market, crowd-fund, and eventually sell its competing book, a purported parodic “mash-up” of Dr. Seuss and Star Trek intellectual property.
Fair Use Defense and a Little Something Familiar
The response references a number of familiar concepts, such as substantial similarity and parody. On Page 12, in a footnote, they refer to an all too familiar case: CBS/Paramount vs. Axanar:
As discussed in detail further below, the “fair use” defense is inappropriate for consideration on this Motion. Moreover, ComicMix’s slipshod approach to filtering out certain “unprotectable” elements of the DSE Works, “mischaracterizes the scope of [DSE’s] copyright claims.” Paramount Pictures Corp. v. Axanar Prods., Inc., No. CV 15-09938, 2016 WL 2967959, *5 (C.D. Cal. May 9, 2016) (denying defendants’ motion to dismiss plaintiffs’ copyright claim).
Separating out the Unprotected Elements Won’t Fly Here, Either
In addition, on Pages 13 and 14, the response quotes Judge Gary Klausner regarding Axanar’s attempt to do the very same thing:
When viewed in a vacuum, each of these elements may not individually be protectable by copyright. Plaintiffs, however, do not seek to enforce their copyright in each of these elements individually. Rather, Plaintiffs’ copyright infringement claims are based on the Star Trek Copyrighted Works as a whole. …
Further, even if each individual element were not protected by copyright, unprotectable elements “may gain some protection in combination with each other. Specific combinations of unprotectable elements may be copyrightable provided that the elements combined are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.
Hence, as before, defense attempts to break an IP down into constituent elements, like the letters for words in a book. However, it’s not the letters which create an IP, and it’s not even the words. Instead, words in combinations, in sentences, paragraphs and on and on up the chain of communications aggregations, is what creates intellectual property.
No one can (nor should they so much as try) copyright the letter ‘W’. However, in various combinations, it becomes a part of IPs from Gone With the Wind to the 1939 film version of The Wizard of Oz. And probably every other IP written with a western alphabet.
Plaintiff’s Opposition to Defense’s Request for Judicial Notice
Finally, we get to this last bit of Seuss backlog. And as we have seen before, the main objections come under the general scope of hearsay or facts not properly subject to judicial notice and/or not authenticated.
So, we have the following schedule:
- ComicMix shall file its reply to plaintiff’s response to the defense motion to dismiss, if any, on or before February 9, 2017
- A hearing is set for March 16, 2017 at 1:30 p.m.
Finally, anything can happen, particularly as the parties continue to talk settlement. So, please stay tuned!