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CBS, Paramount Say Axanar Motion Is Misguided, Misleading

Studios rebut dismissal demand in copyright case against fan-film

When Erin Ranahan filed her second motion to dismiss a copyright infringement case filed by CBS Corp. and Paramount Pictures, many news outlets and blogs had fun with some of the claims being made, like the similarities between Spock and the movie vampire Nosferatu, as well as whether the Klingon language is even copyrightable.

But according to an attorney for CBS and Paramount, the claims by Ranahan for her clients, Axanar Productions Inc. and its principal Alec Peters, are just as ridiculous as those outlets made it out to be.

Loeb & Loeb attorney David Grossman laid out the studios’ opposition to Ranahan’s motion to dismiss, basically claiming Axanar’s attorney is misleading the court with efforts to isolate specific copyright claims, and take them out of context.

“This is precisely the tactic that courts have admonished, because it ‘misses the forest for the trees,'” Grossman wrote, adding that the studios copyrighted elements “have already been fixed in the Axanar works for the court to determine, at the appropriate time, that there is no fair use.”

CBS and Paramount sued Axanar and Peters last December claiming its independent fan-film, “Star Trek: Axanar,” infringed on its copyrights. Peters said the production has raised as much as $1.3 million from fans, a significantly large amount compared to other Star Trek fan-films, and even admitted that he and other members of the production staff took salaries from the donation, including at least $38,000 plus expenses for Peters himself in 2015.

The studios have asked for either actual damages, or statutory damages that could top out at $150,000 per violation. CBS and Paramount also want to stop any other Star Trek-related work by Axanar and Peters, as well as a group of unnamed “John Doe” defendants, that could later include other members of the production staff.

In two separate motions to dismiss filed over the past two months, Ranahan has focused not only on a position that the studios’ legal action was premature — the full-length “Axanar” film has yet to be produced — but also demanded CBS and Paramount provide each and every copyright registration it holds for works they claim have been infringed by Axanar.

Grossman dismissed that demand, saying Ranahan was asking for material that would be turned over in the discovery phase — when both sides get to basically open the other side’s books — that would come after the case moved into trial phase.

“Defendants are on notice, for example, that each time the USS Enterprise appears in their Axanar works, they are infringing upon each and every Star Trek copyrighted work in which the USS Enterprise appears,” Grossman said in his answer to the dismissal motion, filed Monday. “Plaintiffs should not be required to identify at the pleading stage each and every television episode in which this copyrighted element appears. The information that defendants seek can be elicited during the discovery stage, and a motion to dismiss should not be used as a substitute for discovery requests.”

When it comes to whether CBS and Paramount filed its complaint prematurely, Grossman says Axanar and Peters “cannot deny that they have already created and distributed numerous Star Trek works without the plaintiffs’ authorization. While defendants may intend to create and distribute additional infringing scenes or works, that fact does not render the complaint premature.”

As part of its fundraising efforts through crowdfunding sites like Kickstarter, Axanar produced a trailer for the motion picture, as well as an extended scene known as “the Vulcan scene,” which features Gary Graham reprising his “Star Trek: Enterprise” role as Vulcan ambassador Soval.

Ranahan also claimed that CBS and Paramount were trying to copyright elements that were not owned by them, and even in the public domain. Like the use of pointed ears by Vulcans, the name “Vulcan” itself — which is based on Roman mythology — as well “phasers” being similar to heat rays used by author H.G. Wells in “The War of the Worlds.”

“Courts view the work as a whole, and do not dissect copyrighted designs into separate components, because to do so would be ‘akin to accepting the position that every song is merely a collection of basic notes, every painting a derivative work of color and stroke, and every novel merely an unprotected jumble of words,'” Grossman said, citing a 2000 court decision.

“Defendants have infringed the Vulcan characters that were developed and that are owned by plaintiffs, not the Roman god of metalworking. Plaintiffs have also infringed the specific expression of plaintiffs’ United Federation of Planets (including the races in that alliance) as well as plaintiffs’ copyrighted ships and weaponry, such as phasers, warp drives and dilithium crystals.”

The studios’ lawyer also rejected Ranahan’s claim that CBS and Paramount can’t copyright “useful articles” like clothing, or even languages like that spoken by Klingons, since it, too, is useful.

“The costumes at issue are not ‘useful articles,'” Grossman said. “They are not being sold as clothing. The costumes, hair and makeup that defendants have depicted in order to recreate the Star Trek copyrighted works are all part of the look and feel of the characters that defendants have misappropriated. The visual representations of these fictional characters are by no means ‘useful articles.'”

And since a language is “only useful if it can be used to communicate with people,” Grossman points out that “there are no Klingons with whom to communicate.”

“The Klingon language is wholly fictitious, original and copyrightable,” Grossman added.

The court has scheduled a hearing on the motion to dismiss in early May, but first Axanar and Peters will have a chance to rebut the arguments laid out by CBS and Paramount to deny the motion to dismiss.

The earlier motion to dismiss was denied earlier this month after CBS and Paramount opted to file an amended complaint, which outlined in detail what they claimed to be infringing elements from Axanar.

h/t Carlos Pedraza

Source: 1701News

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