The attorney representing Alec Peters and his “independent” Star Trek film company, Axanar Productions, is asking a judge to dismiss the copyright infringement case CBS Corp. and Paramount Pictures have filed against it.
Erin Ranahan of Winston & Strawn, along wth attorneys Andrew Jick and Kelly Oki, filed the motion in response to the complaint Monday in the U.S. District Court’s Central District of California. Ranahan and her team are looking to either dismiss the complaint outright, or at the very least remove some of the allegations in CBS/Paramount’s original suit. That’s everything in the suit, including the simple allegations that Peters and Axanar are making a film called “Axanar,” and that those named in the suit are writing such a film.
CBS and Paramount “fails to state a claim” that the court could correct, Ranahan claims, and failed to put Peters and Axanar “on notice.”
The studios filed a lawsuit against Peters and Axanar last December, claiming that its “Star Trek: Axanar” fan-film was copyright infringement. That production, which Peters later maintained in an interview was an independent Star Trek production, raised more than $1.1 million in crowdfunding more than a year ago, but has yet to begin filming, or even cast. The group had produced a short called “Prelude to Axanar,” which was made available online two years ago, featuring Gary Graham reprising his “Star Trek: Enterprise” character of the Vulcan ambassador Soval.
The motion is typically a standard procedure used by defendants, according to legal observers, to test whether a plaintiff’s suit meets the minimum technical requirements of filing. In the rare case a judge does grant a dismissal, a plaintiff can simply correct its lawsuit and refile, but that does start the legal clock all over again.
CBS and Paramount claim ownership of “thousands of copyrights” related to Star Trek, but didn’t specify in their complaint which ones they accuse Peters and Axanar of violating, according to Ranahan’s response. At the same time, CBS and Paramount are claiming they both own the copyrights to Star Trek without delineating which company owns what. Finally, Ranahan said, CBS and Paramount are basing their claims on “bare allegation of information and belief,” stating there is no solid efforts to show a specific copyright infringement.
Ranahan also states that the claims against the feature length film Peters and his production company are planning are premature, because the film has yet to even been made. The “Prelude to Axanar” short has been produced and distributed, thus allowing Axanar to demonstrate “fair use” of the CBS and Paramount copyrights, Ranahan said. The feature length film has not been made, thus it would be impossible for either side to either demonstrate infringement or fair use.
The Axanar response also talks about the difference between each of the Star Trek television series owned by the companies. While the complaint itself focuses on the original “Star Trek,” Ranahan points out that other series, like “Star Trek: The Next Generation” and “Star Trek: Voyager,” where different captains commanded different ships, went on completely different adventures. It’s not immediately clear why Ranahan points this out, and she doesn’t elaborate in the motion why the point was made.
But it does appear Ranahan is moving toward profit motive, or at least what she describes in her motion is the lack thereof. While profit incentive may not be necessary to show copyright infringement, as Florida intellectual property attorney Suzi Marteny told 1701News in the past, it could be used to help establish damages.
CBS/Paramount, Ranahan said, do not allege Peters and Axanar “plan to profit in any way from the potential fan film,” or to “sell tickets, DVDs, or to charge anyone to view the work online.” Also, CBS/Paramount don’t provide any “specific facts showing how they have been or will be harmed by the potential fan film.”
Finally, Ranahan claims that an injunction against the feature-length Axanar production would be “prior restraint,” an action she says CBS and Paramount can’t do, thanks to the First Amendment. That means that one party can’t cry foul on something that hasn’t even been done yet.
Janet Gershen-Siegel, a retired attorney from New York and one of the hosts of the “The G&T Show” podcast, speculated that one of the defenses Peters and Axanar could use is fair use, a set of case law-established practices that allows specific instances when copyrighted material can be used by someone else. It’s still not clear if that will ultimately be the defense offered by Ranahan, as the motion to dismiss employs a different strategy attacking the technical aspects of the CBS/Paramount case, and little else.
If the case were to survive the motion to dismiss, it’s also possible that Ranahan could pull in one of the crowdfunding companies Axanar used to raise funds, according to Gershen-Siegel, including Indiegogo.
“About the only thing Axanar can argue is that they would not have been targeted without the $1 million crowdfunding total, and they didn’t get there without Indiegogo’s help,” Gersen-Siegel said. “They can also potentially argue that Indiegogo made money off the Star Trek IP (through commissions in fundraising). Essentially, this means throwing Indiegogo under the bus, and shouting the old Scooby Doo villain catchphrase, ‘I would have gotten away with it, if it wasn’t for those meddling kids (at Indiegogo).'”
Ranahan calls for a hearing March 21 to air her arguments on dismissal, but the judge has yet to set a hearing date.