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.

Fair Use Test

And then on page 18, plaintiffs outline the fair use test:

As set forth in §107 of the Copyright Act:
the fair use of a copyrighted work … for purposes such as
criticism, comment, news reporting, teaching …,
scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a work
in any particular case is a fair use the factors to be
considered shall include—

(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or
value of the copyrighted work.

Why Plaintiffs Feel Axanar Fails

Plaintiffs state:

It is beyond dispute that Defendants’ works were not created for purposes of
criticism, comment, news reporting, or teaching. Similarly, the Axanar Works do
not constitute either parody or satire, and (prior to this lawsuit) Defendants never
claimed they were. Indeed, Defendants expressly set out to create an authentic and
“independent Star Trek film” that stayed true to Star Trek canon down to
excruciating details. UMF 54, 55, 73, 100-103. This is hardly a use contemplated
by Section 107 of the Copyright Act.

And so the motion addresses the first two elements of Section 107.

It’s Not Transformative

Furthermore (the discussion continues on the next page), the purpose and character of the use (e. g. #2) goes to the question of whether a work is ‘transformative’. And plaintiffs add:

Here, there is virtually nothing that could even arguably be deemed to be
“transformative” about Defendants’ work. The Axanar Works meticulously
replicate the Star Trek Copyrighted Works. Defendants copied exact characters
(some played by actors who had appeared in the Star Trek Copyrighted Works),
appropriated plots and elements from works owned by Plaintiffs and, by their own
admission, sought to create a motion picture “prequel” to The Original Series that
was meant to be the first “independent Star Trek film.” UMF 74, 75.

The Amount and Substantiality Test

So in discussing how much of the original IP was used, plaintiffs state:

In this case,
Defendants appropriated nearly every major element from the Star Trek
Copyrighted Works. Indeed, they were required to do so in order to professionally
produce an “independent Star Trek film.”

Defendants’ plot is taken directly from an episode of The Original Series that
described the military exploits of Garth of Izar at the Battle of Axanar. The Axanar
Works also take story elements from the copyrighted licensed Star Trek: The Role
Playing Game supplement called “The Four Years War.” UMF 29-35.

Effect Upon the Market

And on page 23, plaintiffs add:

Here, by creating a derivative work, set in the Star Trek universe, using
Plaintiffs’ copyrighted characters, settings, and plots, Defendants are, by definition,
causing market harm to Plaintiffs by damaging Plaintiffs’ potential market for
derivative works. See Paramount Pictures Corp. v. Carol Publishing Group, 11 F.
Supp.2d 329, 336 (S.D.N.Y. 1998) (“While the book cannot serve as a market
substitute for the richly entertaining [Star Trek] television shows and movies, it can
interfere with Paramount’s market for derivative 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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  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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