Case 2:15-cv-09938-RGK-E Document 41 Filed 05/06/16 Page 1 of 3 Page ID #:415

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Erin R. Ranahan (SBN: 235286)
eranahan@winston.com
Andrew S. Jick (SBN: 278943)
ajick@winston.com
Kelly N. Oki (SBN: 304053)
koki@winston.com
WINSTON & STRAWN LLP
333 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 615-1700
Facsimile: (213) 615-1750
Attorneys for Defendants,
AXANAR PRODUCTIONS, INC.,
and ALEC PETERS

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PARAMOUNT PICTURES
CORPORATION, a Delaware
corporation; and CBS STUDIOS INC., a
Delaware corporation,
Plaintiffs,
vs.
AXANAR PRODUCTIONS, INC., a
California corporation; ALEC PETERS,
an individual; and DOES 1-20,
Defendants.

Case No. 2:15-cv-09938-RGK-E
Assigned to: Hon. R. Gary Klausner
DEFENDANTS’ RESPONSE TO
PLAINTIFFS’ OPPOSITION TO
THE LANGUAGE CREATION
SOCIETY’S APPLICATION FOR
LEAVE TO FILE BRIEF AS
AMICUS CURIAE
Hearing Date:
Time:

May 9, 2016
9:00 a.m.

Original Complaint Filed: 12/29/15
Amended Complaint Filed: 3/11/16

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DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OPPOSITION TO THE LANGUAGE CREATION SOCIETY’S APPLICATION FOR
LEAVE TO FILE BRIEF AS AMICUS CURIAE

 Case 2:15-cv-09938-RGK-E Document 41 Filed 05/06/16 Page 2 of 3 Page ID #:416

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Plaintiffs use their Opposition to the Language Creation Society’s (“LCS’s”)

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Application for Leave to File an Amicus Brief (Dkt. 35) to belatedly raise new

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arguments in opposition to Defendants’ Motion to Dismiss or Strike the First

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Amended Complaint (“FAC”) (Dkt. 29) (“Motion”).

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First, while Plaintiffs now argue that the Klingon language is “merely one

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aspect of the Star Trek Copyrighted Works” and that Defendants’ use of Klingon is

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“further evidence of their infringement of Plaintiffs’ characters” (Dkt. 38 at 3-4), in

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the First Amended Complaint (“FAC”) Plaintiffs do not limit their allegations in this

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way. In the FAC, Plaintiffs claim ownership over “Klingons” as a race (FAC at 12)

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and over the appearance of Klingons (FAC at 13-14), and they claim separately to

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own the “Klingon language” (FAC at 32). In fact, the Klingon language is listed as a

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“Star Trek Copyrighted Work” according to the chart in the FAC. Id. Plaintiffs are

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hard-pressed to link their claim to the Klingon language to an actual character when

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their FAC does not identify a single specific Klingon character, let alone any character

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they claim Defendants have infringed through using the Klingon language.

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Second, Plaintiffs argue that whether the Klingon language is protectable as a

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matter of law is irrelevant on Defendants’ Motion. Not so. Defendants raised the

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same fundamental arguments as LCS in their Motion and Reply. Mot. (Dkt. 29) at

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20:7-14; Reply (Dkt. 33) at 10:7-19, n. 10-11 at 10:24-28. And the Court must filter

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out unprotectable elements when determining whether Plaintiffs have stated a claim

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for infringement. Mot. (Dkt. 29) at 17:5-12. Indeed, like recipes in a cookbook, while

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the Klingon Dictionary may be protected from wholesale copying, the individual

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Klingon words contained therein and expression flowing from the Klingon language

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system are simply not protected.1 This Court should decline to allow Plaintiffs to stifle

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expression in Klingon when this matter can be resolved now as matter of law.

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Third, Plaintiffs argue that the Court should not resolve factual disputes at this

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stage. Defendants submit that it is not necessary for the Court to resolve the factual

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http://www.copyright.gov/fls/fl122.html.
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DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OPPOSITION TO THE LANGUAGE CREATION SOCIETY’S APPLICATION FOR
LEAVE TO FILE BRIEF AS AMICUS CURIAE

 Case 2:15-cv-09938-RGK-E Document 41 Filed 05/06/16 Page 3 of 3 Page ID #:417

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issue of who began the Klingon language for purposes of their Motion. Plaintiffs’

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FAC does not even identify either or both of the Plaintiffs as the copyright owner(s) in

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the Klingon Dictionary or the Klingon language.2 And in response to Plaintiffs’

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insistence that it was “absurd” to treat Klingon as a language used by real speakers

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(Opp. (Dkt. 31) at 16:14-16), Defendants’ Reply pointed to real Klingon speakers.

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Reply (Dkt. 33) at n. 11 at 10:27-28. Unable to counter the undisputed fact that fans

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do use the Klingon language to communicate, Plaintiffs hope to block the Court’s

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consideration purely on evidentiary objections. But regardless of whether the Court

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considers any of this evidence, it is not necessary to the Court’s ruling on this issue.

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Finally, Plaintiffs’ Opposition to the Motion claims that substantial similarity

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analysis is “unnecessary” here. Opp. (Dkt. 31) at 11:7-9. But now, Plaintiffs are

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reversing course and suddenly claiming that the individual works they alleged in the

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FAC are just pieces for a broader substantial similarity analysis. Plaintiffs cannot

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invoke the substantial similarity test only when convenient, and cannot complain

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about parsing out Plaintiffs’ claim to the Klingon language when their FAC does just

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that. FAC at 32. Further, the FAC remains unclear about (1) which episodes and

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films that Plaintiffs claim to own are at issue here (rendering it impossible to even

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begin to engage in any substantial similarity analysis), and (2) how the Court could

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engage in a substantial similarity analysis with respect to the Potential Fan Film when

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it has not yet been made.
The Court should dismiss and/or strike Plaintiffs’ FAC to the extent that it

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attempts to claim copyright protection of the Klingon language.

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Dated: May 6, 2016

WINSTON & STRAWN LLP

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By: /s/ Erin R. Ranahan
Erin R. Ranahan
Attorneys for Defendants,
AXANAR PRODUCTIONS, INC.
and ALEC PETERS

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If this claim survives, Defendants intend to investigate ownership of the Klingon
dictionary in discovery.
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DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OPPOSITION TO THE LANGUAGE CREATION SOCIETY’S APPLICATION FOR
LEAVE TO FILE BRIEF AS AMICUS CURIAE