Case 2:15-cv-09938-RGK-E Document 29 Filed 03/28/16 Page 1 of 31 Page ID #:162

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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’ NOTICE OF
MOTION AND MOTION TO
DISMISS OR STRIKE IN PART
PLAINTIFFS’ FIRST AMENDED
COMPLAINT; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT THEREOF
FED. R. CIV. P. 12(b)(6), 8(a), 12(f)
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’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:

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PLEASE TAKE NOTICE that on May 9, 2016, at 9:00 a.m., or as soon

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thereafter as this matter may be heard before the Honorable R. Gary Klausner of the

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United States District Court for the Central District of California, in Courtroom 850 of

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the above-entitled Court, located at 255 East Temple Street, Los Angeles, California

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90012, Defendants Axanar Productions, Inc. and Alec Peters (hereinafter collectively

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referred to as “Defendants”) will and hereby move, pursuant to Rules 12(b)(6), 8(a),

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and/or 12(f) of the Federal Rules of Civil Procedure,1 for an order dismissing all

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claims against Defendants in this action and/or striking the claims in part (the

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“Motion”).

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In addition and/or alternatively, Defendants seek an order striking the following
allegations from Plaintiffs’ First Amended Complaint:

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 From paragraph 2, the allegation that Defendants “are in the process of

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producing a film called Axanar (the ‘Axanar Motion Picture’) based on the

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Axanar Script, or a version thereof,” and the inclusion of the Axanar Motion

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Picture within the definition of the “Axanar Works”;
 From paragraph 9, the allegation that Defendant Alec Peters “continues to

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...produce the Axanar Motion Picture”;

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 The allegations contained in paragraphs 31 through 42 to the extent they

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attempt to state a claim based on the Axanar Motion Picture (hereinafter

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referred to as the “Potential Fan Film”);

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 The allegations contained in paragraphs 46 and 47 to the extent they include

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elements not protected by copyright law, including, as addressed herein,

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clothing, colors, shapes, words, short phrases, works derived from nature,

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works in the public domain, works created by third parties, the Klingon

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language, ideas—including the “mood and theme” of the “Science fiction action

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adventure” genre—scènes à faire, and certain characters

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Plaintiff’s First

All further statutory references are to the Federal Rules of Civil Procedure unless
otherwise stated.
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Amended Complaint (“FAC”), at ¶ 46, pp. 11-12 (claiming copyright in the

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names and characters of Garth of Izar, Soval, Richard Robau, Captain Robert

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April, Chang, Sarek, and John Gill); 13 (claiming copyright in the word

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“Vulcan”); 17-18 (claiming copyright in “cowl neck” clothing, “green drapes,”

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and “robes”); 18-19 (claiming copyright in the “Starfleet Command Insignia”

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and “triangular medals on uniforms”); 19-21, 26, 30, 33, 35, 38 (claiming

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copyright in the words “Andoria,” “Archanis IV,” “Axanar,” “beaming up,”

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“Federation,” “Klingons,” “Nausicaa,” “Rigel,” “Romulans,” “Starship

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Enterprise,” “Starfleet,” “Tellar Prime,” “Tellarites,” “Terra,” and “Qo’noS,”

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27-29 (claiming copyright in the United Federation of Planets logo, the

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Memory Alpha logo, and the Klingon logo); 31 (claiming copyright in the

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Klingon language); 22-23, 25-26, 30, 32-33 (claiming copyright in

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unprotectable scènes à faire);

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 The allegations contained in paragraph 48;

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 The allegations contained in paragraphs 64 through 69 to the extent they

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attempt to state a claim based on the Potential Fan Film; and
 The request contained in paragraph 2 of the Prayer for Relief.

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This Motion is brought pursuant to Rules 12(b)(6), 12(f), and 8(a) on the

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grounds that Plaintiffs’ claims against Defendants fail to state a claim upon which

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relief can be granted and fail to put Defendants on notice of the claims alleged against

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them.

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This Motion is based upon this Notice, the attached Memorandum of Points and

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Authorities, Defendants’ Request For Judicial Notice and the exhibits attached thereto,

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all pleadings and papers filed in this action, and upon such other and further

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submission, evidence, and argument as may be presented to the Court prior to or at the

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time of hearing on this Motion. This Motion is made following the conference of

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counsel, pursuant to Local Rule 7-3, which took place on March 14, 2016.

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Dated: March 28, 2016

WINSTON & STRAWN LLP

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By: /s/ Erin R. Ranahan
Erin R. Ranahan
Andrew S. Jick
Kelly N. Oki
Attorneys for Defendants,
AXANAR PRODUCTIONS, INC.
and ALEC PETERS

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TABLE OF CONTENTS

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I. 

Page
INTRODUCTION ................................................................................................ 1 

II. 

FACTUAL BACKGROUND .............................................................................. 2 

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A. 

The Parties .................................................................................................. 2 

B. 

The “Star Trek Copyrighted Works” ......................................................... 2 

C. 

The Short Mockumentary .......................................................................... 3 

D. 

The Potential Fan Film ............................................................................... 4 

E. 

Plaintiffs’ Specific Claims Against Defendants ........................................ 5 

III. 

LEGAL STANDARD .......................................................................................... 5 

IV. 

ARGUMENT........................................................................................................ 6 

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A. 

Plaintiffs Fail to Plausibly Allege Infringement as to Unprotectable
Elements ..................................................................................................... 6 

B. 

Plaintiffs’ Claims Are Not Sufficiently Detailed To Survive .................. 11 

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1. 

Plaintiffs’ FAC Does Not Specify Which Among Hundreds
of Alleged Copyrights Have Been Infringed ................................. 11 

2. 

Plaintiffs’ Claims Are Improperly Based Upon Allegations
Made On “Information And Belief” .............................................. 15 

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C. 

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V. 

Plaintiffs’ Claims Based on the Potential Fan Film Should Be
Dismissed or Stricken Because They are Premature ............................... 16 
1. 

Plaintiffs’ Claims Based on the Potential Fan Film are
Unripe ............................................................................................ 16 

2. 

Enjoining the Potential Fan Film Would be a Prior Restraint ....... 19 

CONCLUSION .................................................................................................. 20 

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TABLE OF AUTHORITIES
Page(s)
CASES

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A & M Records, Inc. v. Napster, Inc.,
239 F.3d 1004 (9th Cir.2001) ............................................................................. 15
Althouse v. Warner Bros. Entm’t,
No. CV 13-00696-RGK SSX, 2014 WL 2986939
(C.D. Cal. Apr. 28, 2014) ............................................................................ 10, 11
Ashcroft v. Iqbal,
556 U.S. 662 (2009)........................................................................................ 5, 15
Baker v. Selden,
101 U.S. 99 (1879)................................................................................................ 9

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Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007).................................................................................... 5, 6, 18
Cavalier v. Random House, Inc.,
297 F.3d 815 (9th Cir. 2002) .............................................................................. 10
Chase-Riboud v. DreamWorks, Inc.,
987 F.Supp. 1222 (C.D. Cal. 1997) .................................................................... 19
Christianson v. West Pub. Co.,
149 F.2d 202 (9th Cir. 1945) .............................................................................. 14
Clinton v. Acequia, Inc.,
94 F.3d 568 (9th Cir. 1996) ................................................................................ 16
Cole v. John Wiley & Sons, Inc.,
2012 WL 3133520 (S.D.N.Y. Aug.1, 2012) ...................................................... 11
DC Comics v. Towle,
802 F.3d 1012 (9th Cir. 2015) ............................................................................ 10
Ellison v. Robertson,
357 F.3d 1072 (9th Cir. 2004) ............................................................................ 15
Ent. Research Group, Inc. v. Genesis Creative Group, Inc.,
122 F.3d 1211 (9th Cir. 1997) .............................................................................. 6

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Fantasy, Inc. v. Fogerty,
984 F.2d 1524 (9th Cir. 1993) rev'd on other grounds, 510 U.S. 517 (1994) ... 16
FASA Corp. v. Playmates Toys, Inc.,
869 F. Supp. 1334 (N.D. Ill. 1994) ....................................................................... 9
Feist Publ’ns, Inc. v. Rural Tel. Svc. Co., Inc.,
499 U.S. 340 (1991).......................................................................................... 7, 9
Four Navy Seals v. Associated Press,
413 F. Supp. 2d 1136 (S.D. Cal. 2005) .............................................................. 12
Funky Films, Inc. v. Time Warner Entm't Co., L.P.,
462 F.3d 1072 (9th Cir. 2006) ........................................................................ 6, 17
Gilbert v. New Line Prods., Inc.,
No. CV 09-02231 RGK, 2009 WL 7422458 (C.D. Cal. Nov. 16, 2009) ........... 17
Globe Int’l, Inc. v. Nat’l Enquirer, Inc.,
No. 98-10613 CAS (MANX), 1999 WL 727232 (C.D. Cal. Jan. 25, 1999)...... 20
Harper & Row Publishers, Inc. v. Nation Ents.,
471 U.S. 539 (1985).............................................................................................. 9
Hudson v. Universal Pictures Corp.,
No. 03-CV-1008(FB)(LB), 2004 WL 1205762 (E.D.N.Y. April 29, 2004) ...... 19
Ideal Toy Corp. v. Kenner Products Div. of General Mills Fun Group, Inc.,
443 F. Supp. 291 (D.C.N.Y. 1977) ....................................................................... 9

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Int’l Harvester Co. v. Deere & Co.,
623 F.2d 1207 (7th Cir. 1980) ............................................................................ 17
Kelley v. Chicago Park Dist.,
635 F.3d 290 (7th Cir. 2011) ................................................................................ 6
Marshall v. McConnell,
No. Civ.A. 3:05-CV-1062L, 2006 WL 740081 (N.D. Tex. Mar. 23, 2006) ...... 11
Marshall v. Yates,
No. CV-81-1850-MML, 1983 WL 1148 (C.D. Cal. Oct. 26, 1983) .................. 19
Nebraska Press Ass'n v. Stuart,
427 U.S. 539 (1976)............................................................................................ 19
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New Name, Inc. v. Walt Disney Co.,
No. CV 07-5034 PA, 2007 WL 5061697 (C.D. Cal. Dec. 3, 2007)................... 15
New York Times Co. v. United States,
403 U.S. 713 (1971)............................................................................................ 20
Palmer Kane LLC v. Scholastic Corp.,
No. 12 Civ. 3890 (TPG), 2014 WL 1303135 (S.D.N.Y. Mar. 31, 2014) .... 11, 12
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) ............................................................................ 20
Plunket v. Doyle,
No. 99 Civ. 11006 (KMW), 2001 WL 175252 (S.D.N.Y. Feb. 22, 2001)......... 12
Portland Police Ass’n. v. City of Portland,
658 F.2d 1272 (9th Cir. 1981) ............................................................................ 16
Psihoyos v. The National Geographic Society,
409 F. Supp. 2d 268 (S.D.N.Y. 2005) .................................................................. 7
Quirk v. Sony Pictures Entertainment, Inc.,
No. C 11-3773 RS, 2013 WL 1345075 (N.D. Cal. April 2, 2013) .................... 19
Richtek Tech. Corp. v. UPI Semiconductor Corp.,
No C 09-05659 WHA, 2011 WL 166198 (N.D. Cal. Jan. 18, 2011) ................. 15
Rosenfeld v. Twentieth Century Fox Film,
No. CV 07-7040 AHM FFMX, 2008 WL 4381575
(C.D. Cal. Sept. 25, 2008) .................................................................................. 11
See v. Durang,
711 F.2d 141 (9th Cir. 1983) ........................................................................ 18, 19
Sierra Applied Scis., Inc. v. Advanced Energy Indus., Inc.,
363 F. 3d 1361 (Fed. Cir. 2004) ......................................................................... 17
Solis v. City of Fresno,
No. 1:11-CV-00053 AWI GSA,
2012 WL 868681 (E.D. Cal. Mar. 13, 2012)...................................................... 15
Synopsys, Inc. v. ATopTech, Inc.,
No. C 12-CV-02965 SC, 2013 WL 5770542 (N.D. Cal. Oct. 24, 2013) ........... 12

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Team Angry Filmworks, Inc. v. Geer,
No. 15-1381, 2016 WL 1086370 (W.D. Pa. Mar. 21, 2016).............................. 17
Thomas v. Union Carbide Agric. Prods. Co.,
473 U.S. 568 (1985)............................................................................................ 16
Universal Surface Tech., Inc. v. Sea-A Trading Am. Corp.,
No. CV 10-6972 CAS, 2011 WL 281020 (C.D. Cal. Jan. 26, 2011) ................. 12
Van Olson v. Nat'l Broad. Co.,
855 F.2d 1446 (9th Cir. 1988) ............................................................................ 11
Veoh Networks, Inc. v. UMG Recordings, Inc.,
522 F. Supp. 2d 1265 (S.D. Cal. 2007) .............................................................. 17
Vivendi SA v. T-Mobile USA Inc.,
586, F.3d 689 (9th Cir. 2009) ............................................................................. 15
Walker v. Time Life Films, Inc.,
615 F. Supp. 430 (S.D.N.Y. 1985) ..................................................................... 19
Warner Bros., Inc. v. Am. Broad. Cos.,
720 F.2d 231 (2d Cir. 1983) ............................................................................... 18
Zella v. E.W. Scripps Co.,
529 F. Supp. 2d 1124 (C.D. Cal. 2007) .............................................................. 14

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STATUTES

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17 U.S.C. § 101 .................................................................................................... 6, 20

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17 U.S.C. § 101(3) ................................................................................................... 20

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17 U.S.C. § 101(4) ................................................................................................... 20

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17 U.S.C. § 102(b) ..................................................................................................... 9

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17 U.S.C. § 103(b) ................................................................................................... 14

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17 U.S.C. § 106(1)-(2) ............................................................................................. 20

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17 U.S.C. § 504(c) ................................................................................................... 13

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37 C.F.R. § 202.1(a) .............................................................................................. 7, 6

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RULES
Fed. R. Civ. P. 8 ................................................................................................... 5, 12
Fed. R. Civ. P. 8(a) .............................................................................................. 1, 11
Fed. R. Civ. P. 8(a)(2) ................................................................................................ 5

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Fed. R. Civ. P. 12(b)(6) ......................................................................................... 1, 5

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Fed. R. Civ. P. 12(f) ............................................................................................. 16, 1

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OTHER AUTHORITIES

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1 M. Nimmer & D. Nimmer, Nimmer on Copyright ............................................... 18
4 Nimmer on Copyright § 13.03 ......................................................................... 7, 19
5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1382,
711 (1990) ........................................................................................................... 16
6 William F. Patry, Patry on Copyright (2015) ................................................. 11, 12
http://www.cbsstore.com/detail.php?p=53084 .......................................................... 3

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http://dictionary.reference.com/browse/mockumentary ............................................ 3

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http://www.merriam-webster.com/dictionary/bridge ................................................ 9

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http://www.merriam-webster.com/dictionary/elf ...................................................... 8

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http://www.merriam-webster.com/dictionary/federation .......................................... 9

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http://www.merriam-webster.com/dictionary/Rigel .................................................. 8

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http://www.merriam-webster.com/dictionary/teleportation ...................................... 8

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http://www.merriam-webster.com/dictionary/terra ................................................... 8

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http://www.merriam-webster.com/dictionary/Vulcan ............................................... 8

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U.S. Copyright Office, Compendium II: Copyright Office Practices §
503.02(a)-(b) (1984) ......................................................................................... 6, 7

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W. Landes & R. Posner, The Economic Structure of Intellectual Property Law
109 (2003) ........................................................................................................... 18
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WILLIAM T. R. MARVIN, THE MEDALS OF THE MASONIC FRATERNITY: DESCRIBED
AND ILLUSTRATED (1880) ....................................................................................... 8

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I.

INTRODUCTION

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Plaintiffs’ first amended complaint (“FAC”) alleges copyright infringement

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against Defendants over one short film, a mockumentary called Prelude to Axanar,

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and a longer film that has yet to be created. Plaintiffs’ FAC is deficient for multiple

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reasons.

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copyright protection, alleging numerous “infringing elements” that are unprotectable

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as a matter of law, including clothing, colors, shapes, words, short phrases, works

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derived from nature, works in the public domain, works created by third parties, an

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entire language, scènes à faire, certain characters, and ideas—including the “mood and

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First, Plaintiffs’ amended allegations go beyond the plausible realm of

theme” of the “Science fiction action adventure” genre.
Even assuming that any of the allegedly infringing elements are actually

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protected by copyright, Plaintiffs’ allegations are not specific enough.

While

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Plaintiffs allege that they own “more than 700” Star Trek television episodes, a dozen

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motion pictures, and four books, they still fail to specify which of those copyrights

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Defendants have allegedly infringed. This defect not only prevents Defendants from

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investigating each Plaintiff’s standing (given that they claim to own different works),

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it greatly exaggerates Defendants’ potential statutory damages exposure.

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With respect to Plaintiffs’ claims regarding the yet-to-be-made Potential Fan

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Film, there are additional defects. The claims are premature. Unlike Prelude to

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Axanar—which exists and thus allows Defendants the opportunity to demonstrate fair

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use, lack of substantial similarity, and de minimis use—the same cannot be said for the

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Potential Fan Film. Further, seeking to stop the creation of a work would operate as

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an impermissible prior restraint. And despite Plaintiffs’ allegation that scripts exist,

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Plaintiffs have not plausibly alleged that any version of the script violates their rights,

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let alone the film itself, which does not exist in a fixed, tangible form.

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Because Plaintiffs’ FAC does not satisfy the standard necessary to survive this

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Motion under Rule 12(b)(6) or Rule 8(a), the Court should dismiss the claims, or

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strike Plaintiffs’ claims in relevant part under Rule 12(f).
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II.

FACTUAL BACKGROUND

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A.

The Parties

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Plaintiff Paramount Pictures Corporation (“Paramount”) is a major movie

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studio. Plaintiff CBS Studios Inc. (“CBS”) is a major television studio. Defendant

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Axanar Productions, Inc. (“Axanar”) is alleged to be a motion picture, television,

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and/or video production company. FAC ¶ 8. Defendant Alec Peters is an individual

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alleged to be the controlling principal of Axanar. Id. ¶ 9.

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B.

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Star Trek was originally created by Gene Roddenberry. FAC ¶ 13. Plaintiffs

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allege that CBS owns the rights to six Star Trek television series “totaling more than

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700 episodes” (collectively, the “Star Trek Television Series”). Id. at ¶¶ 15, 18.

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Plaintiffs further allege that Paramount owns the rights to 12 Star Trek motion

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pictures (the “Star Trek Motion Pictures”). Id. ¶¶ 16, 18. Plaintiffs also allege that

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they own copyrights in other Star Trek works, including four novels (the “Star Trek

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Books”). Id.¶ 19. Plaintiffs define the “Star Trek Copyrighted Works” by lumping

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together the “more than 700” episodes from the Star Trek Television Series, the 12

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Star Trek Motion Pictures, and the Star Trek Books. Id.

The “Star Trek Copyrighted Works”

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Plaintiffs do not explain in their FAC when or how the chain of title conferred

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which rights in the Star Trek Copyrighted Works to which respective Plaintiff. In the

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Appendix, Plaintiffs identify the registration numbers for each of the 12 Star Trek

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Motion Pictures. For the Star Trek Television Series, however, Plaintiffs merely list

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each of the five series and identify one episode from each. FAC, App. A. In a

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footnote, Plaintiffs explain that “Plaintiffs own the copyrights for all episodes of each

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Star Trek television series, and have identified the copyright registrations for the first

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episode of each television series.” Id., n.1 (emphasis added).

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The Star Trek Copyrighted Works do not all contain the same characters,

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starships, plots, and other features.

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“chronicled the adventures of the U.S.S. Enterprise and its crew as they traveled

Plaintiffs allege that The Original Series

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through space during the twenty-third century” and “featured…the Starship

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Enterprise, its bridge…fictitious races and species, including the Vulcan race and the

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Klingon race, the United Federation of Planets… and… weapons and technology.”

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FAC ¶ 13. But by CBS’s own explanation, the other Star Trek Television Series

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contain very different plots, characters, and other elements.2 Similarly, the Star Trek

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Motion Pictures differ significantly from the various Television Series, and indeed,

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from each other. Plaintiffs have announced plans to release a new Star Trek motion

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picture in 2016 and a new Star Trek television series in January 2017, but they have

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not included these prospective works within their definition of the allegedly infringed

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“Star Trek Copyrighted Works.”

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C.

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Plaintiffs allege that Defendant Peters wrote and Defendant Axanar produced a

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short film called Prelude to Axanar. FAC ¶¶ 22-24. To fund production, Defendants

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used the crowdfunding website Kickstarter, promising fans “Star Trek like you have

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never seen it before.”3 FAC ¶ 29. The 20-minute film is a fictional documentary, also

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known as a “mockumentary”4 (hereafter, the “Short Mockumentary”). See id. (the

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Short Mockumentary “show[s] the central characters of Axanar giving both a

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historical and personal account of the war”). Plaintiffs allege that “[i]n one of the

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episodes of The Original Series, James T. Kirk, the Captain of the U.S.S. Enterprise,

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meets his hero, Garth of Izar, a former Starship captain. Kirk and Garth discuss

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Garth’s victory in a battle at Axanar.”

The Short Mockumentary

Id. ¶ 14 (emphasis added).

The Short

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2

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The Next Generation “revealed a universe with previously unexplored dimensions.
Captain…Picard…took the helm of a very different Enterprise with a[n entirely
different] crew....” By contrast, Voyager “details the adventures of...the U.S.S.
Voyager, as it is led by Captain Kathryn Janeway ...” And Enterprise “was set in the
22nd century, a hundred years before Captain Kirk appeared. Captain....Archer and
his crew travel on a revolutionary spacecraft, Enterprise NX-01, to explore unknown
civilizations. A court may consider judicially noticeable facts in connection with a
motion to dismiss. Shwarz v. U.S., 234 F.3d 428, 435 (9th Cir. 2000); see concurrently
filed
Request for Judicial Notice (“RJN”) at ¶¶ 1-3.
3
Incidentally, this allegation contradicts the notion that the Short Mockumentary is
substantially similar to any of Plaintiffs’ alleged copyrighted works.
4
See http://dictionary.reference.com/browse/mockumentary (a “mockumentary” is “a
movie or television show depicting fictional events but presented as a documentary”).
3
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1

Mockumentary allegedly “tells the story of…Garth of Izar, during the war between

2

the Federation and the Klingon Empire.” Id. ¶ 28.

3

Plaintiffs allege that the Short Mockumentary copies elements from the Star

4

Trek Copyrighted Works, which “include, but are not limited to” characters, races,

5

species, costumes, settings, logos, dialogue, mood and theme. FAC ¶ 46. Plaintiffs

6

do not allege that Defendants used any of the main Star Trek characters (e.g., Captain

7

Kirk, Spock) in the Short Mockumentary. Nor do Plaintiffs allege that Defendants

8

profited in any way from the Short Mockumentary. As Plaintiffs admit, Defendants

9

funded the Short Mockumentary by raising money through Kickstarter donations, and,

10

once it was completed, they posted it online, making it available for free.5 FAC ¶¶ 22,

11

27. Plaintiffs fail to allege how they were harmed by the Short Mockumentary.

12

Defendants have never sold tickets, DVDs, charged to view, or otherwise

13

commercialized the Short Mockumentary, and there is no allegation to the contrary.

14

D.

15

Plaintiffs allege that Defendants have written a script for, and are “in the

16

process of producing, a film called Axanar” based on that script “or a version thereof.”

17

FAC ¶¶ 2, 32, 33.6 Even though Plaintiffs have never actually seen the Potential Fan

18

Film (no one has, as it simply does not exist), Plaintiffs presumptively allege that the

19

Axanar script “contains the copyrighted elements found in the Axanar Motion Picture,

20

and many more copyrighted Star Trek elements.” Id. ¶ 48.

The Potential Fan Film

21

Plaintiffs allege that the Potential Fan Film takes place in the year 2245, “21

22

years before the events of ‘Where No Man Has Gone Before’”—one of only a few

23

works that Plaintiffs allege Garth of Izar has appeared in. FAC ¶ 40; see id. ¶¶ 14, 19

24

(alleging that Garth of Izar appears in one television episode from The Original Series

25

and three books). Plaintiffs allege that the film “tells the story of Garth and his crew

26

during the Four Years War.” Id. ¶ 40. Plaintiffs allege that “Defendants incorporated

27

5

28

Though the Short Mockumentary has been available online since 2014, Plaintiffs
never
complained to Axanar about it until filing this lawsuit on December 29, 2015.
6
As Plaintiffs acknowledge, there are multiple versions of the script, and others in
progress, which Defendants have adjusted since learning of Plaintiffs’ concerns.
4
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

 Case 2:15-cv-09938-RGK-E Document 29 Filed 03/28/16 Page 16 of 31 Page ID #:177

1

numerous elements of the Star Trek Copyrighted Works into the Axanar Script and

2

the Vulcan Scene, and will incorporate those elements into the Axanar Motion

3

Picture.” Id. ¶ 41. Plaintiffs provide a chart of what they allege to be “some of the

4

infringing elements from the Vulcan Scene,” including certain characters, races and

5

species, costumes, settings, plot points, mood, and theme. FAC ¶ 47.

6

Plaintiffs do not allege that Defendants plan to profit in any way from the

7

Potential Fan Film. Plaintiffs do not allege that Defendants plan to sell tickets, DVDs,

8

or to charge anyone to view the work online. Nor do Plaintiffs allege any specific

9

facts showing how they have been or will be harmed by the Potential Fan Film.

10

E.

Plaintiffs’ Specific Claims Against Defendants

11

Plaintiffs allege four claims against Defendants: (1) direct copyright

12

infringement; (2) contributory copyright infringement; (3) vicarious copyright

13

infringement; and (4) declaratory relief. With respect to their claims for direct and

14

secondary copyright infringement, Plaintiffs’ allegations are almost exclusively made

15

in conclusory form “on information and belief.” FAC ¶¶ 55, 57, 58, 61, 62.

16

III.

LEGAL STANDARD

17

In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must

18

“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

19

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A plaintiff’s

20

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than

21

labels and conclusions, and a formulaic recitation of a cause of action’s elements will

22

not do.

23

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).

Factual allegations must be enough to raise a right to relief above the

24

Rule 8(a)(2) requires that a pleading set forth a “short and plain statement of the

25

claim showing that the pleader is entitled to relief” and giving “the defendant fair

26

notice of what the…claim is and the grounds upon which it rests.” Twombly, 550 U.S.

27

at 554-56. Where a complaint fails to satisfy the pleading standards set forth by Rule

28

8, it must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon
5
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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1

which relief can be granted. Twombly, 550 U.S. at 570.

2

IV.

3

ARGUMENT
A.

4

Plaintiffs Fail to Plausibly Allege Infringement as to Unprotectable
Elements

5

Plaintiffs’ lawsuit fails to plausibly state a claim as to numerous unprotectable

6

elements that have appeared in the Star Trek Copyrighted Works. To prove copyright

7

infringement, Plaintiffs must show that the “protectable elements” of their works,

8

“standing alone, are substantially similar” to Defendants’ works. Funky Films, Inc. v.

9

Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1077 (9th Cir. 2006) (emphasis in

10

original). In making this determination, a court must “filter out and disregard the non-

11

protectable elements.” Id. As set forth below, this Court should “filter out and

12

disregard the non-protectible elements” by dismissing or striking Plaintiffs’ claims.

13

i.

The Costumes Identified By Plaintiffs Are Not Protected

14

Plaintiffs claim infringement as to certain clothing, alleging that they own the

15

rights to a “gold shirt,” “cowl neck,” “green drapes,” and “robes.” (FAC ¶ 46, at 17-

16

19). These claims fail because under the “useful article” doctrine, clothing cannot be

17

copyrighted except to the extent there are original designs on the clothing that can be

18

separated from the function of the clothing, which is not alleged here. Id.; 17 U.S.C. §

19

101; Ent. Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1221

20

(9th Cir. 1997) Further, a color cannot be copyrighted. 37 C.F.R. § 202.1(a).7

21

ii.

Geometric Shapes Are Not Protected By Copyright

22

“[C]ommon geometric shapes cannot be copyrighted.” Kelley v. Chicago Park

23

Dist., 635 F.3d 290, 303 (7th Cir. 2011) (citing U.S. Copyright Office, Compendium

24

II: Copyright Office Practices § 503.02(a)-(b) (1984) (“Copyright Compendium II”).

25

The U.S. Copyright Office refuses to base copyright registration on simple and

26

“standard ornamentation,” such as “chevron stripes,” “a plain, ordinary cross,

27
7

28

Plaintiffs also include an image of Mr. Peters wearing the “original Garth” costume.
But this picture is not a shot from the Potential Fan Film; Mr. Peters, a lifelong Star
Trek fan, lawfully purchased the costume for his collection and is shown wearing it.
6
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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1

“common geometric figures or shapes, or “a standard symbol such as an arrow or a

2

five-pointed star.” Copyright Compendium II § 503.02(a)-(b).

3

Therefore, the Starfleet Command Insignia (FAC ¶ 46, at 18), “triangular

4

medals on uniforms” (id. at 19-20), the United Federation of Planets logos (simply the

5

letters “UFP” surrounded by stars) (id. at 27), Federation logo (id. at 28), Memory

6

Alpha logo (simply the Greek letter “alpha” with the words “Memory Alpha”) (id.),

7

and Klingon logos (simply a three-pointed star) (id. at 29), are not protectable

8

elements and cannot form the basis of a copyright claim.

9

iii.

Words and Short Phrases Are Not Protected

10

“Words and short phrases such as names, titles, and slogans” are not subject to

11

copyright. 37 C.F.R. § 202.1(a). Thus, the names Garth of Izar, Soval, Richard

12

Robau, and John Gill (FAC ¶ 46, at 11-12) are not protectable, and neither are the

13

words Andorians, Tellarites, Romulans, Axanar, Archanis IV, Q’onoS, Nausicaa,

14

Rigel, Andoria, Tellar Prime, Vulcans, Klingons, Terra (land), Starship Enterprise,

15

Starfleet, Federation, Starships, Stardate, and Federation or the short phrase “beaming

16

up.” (Id. at 13, 16, 19-21, 26, 30, 33, 35, 38.)

17

iv.

18

Elements of Works Derived From Nature, the Public
Domain, or Third-Party Works Are Not Protected

19

A plaintiff cannot claim copyright protection for elements of its works that are

20

not original in the public domain. Feist, 499 U.S. at 350 (“[c]opyright does not

21

prevent subsequent users from copying from a prior author's work those constituent

22

elements that are not original, [including] materials in the public domain”). Further,

23

“to the extent a [work] captures the characteristics of an object as it occurs in nature,

24

these characteristics are not protectible.”

25

Society, 409 F. Supp. 2d 268, 275 (S.D.N.Y. 2005). “Even if a work does not occur in

26

nature—[like] a dragon—there is no liability if the only similarity between the two

27

works is that they each portray the same item, but in a different form.” 4 Nimmer on

28

Copyright § 13.03[B][2].

Psihoyos v. The National Geographic

7
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 Case 2:15-cv-09938-RGK-E Document 29 Filed 03/28/16 Page 19 of 31 Page ID #:180

1
2

Here, Plaintiffs improperly assert claims based on numerous unprotectable
elements derived from nature, the public domain, or third-party works, including:

3

 Vulcans’ appearance (FAC at 15): a species with “pointy ears” is not original

4

to Star Trek, and has appeared in many fictional fantasy works depicting

5

imaginary humanoid species predating Star Trek, including, but not limited to,

6

vampires, elves, fairies, and werewolves,8 as well as in many animals in nature.
 Vulcan (FAC at 14): in Roman mythology, Vulcan is the god of fire and

7

metalworking. The first known use of “Vulcan” was in 1513.9

8

 Triangular medals on uniforms (FAC at 19): have been used by military,

9

religious, and other organizations throughout history.10

10
11

 Nausicaa (FAC at 20): is a character in Homer’s Odyssey.11

12

 Rigel (id.): is the name of a first-magnitude star in the constellation Orion.12

13

 Terra (id.): is the Latin word for “Land.”13

14

 Federation logo (FAC at 27-28): is adapted from the United Nations flag.14

15

 Transporters (FAC at 32): have existed in science fiction since 1877.15

16

 Warp drive (FAC at 32): has existed in science fiction as early as 1945.16

17

 Federation (FAC at 33): is the general word to describe “a country formed by

18

separate states that have given certain powers to a central government while

19
20
21
22
23
24
25
26
27
28

8

RJN, at ¶ 4 and Ex. D-E. See, e.g., NOSFERATU (Jofa-Atelier Berlin- Johannisthal,
Prana-Film GmbH (1922); Elf, Merriam Webster, http://www.merriamwebster.com/dictionary/elf (last visited Mar. 27, 2016) (defining elves as “a small
creature in stories usually with pointed ears and magical powers”).
9
RJN, at ¶ 5 and Ex. F Vulcan, Merriam Webster, http://www.merriamwebster.com/dictionary/Vulcan
(last visited Mar. 27, 2016).
10
RJN, at ¶ 6 and Ex. G. See WILLIAM T. R. MARVIN, THE MEDALS OF THE MASONIC
F
RATERNITY: DESCRIBED AND ILLUSTRATED (1880).
11
RJN, at ¶ 7 and Ex. H. Translated by WILLIAM CULLEN BRYANT, THE ODYSSEY OF
H
OMER, James R. Osgood and Co. (1871).
12
RJN, at ¶ 8 and Ex. I. Rigel, Merriam Webster, http://www.merriamwebster.com/dictionary/Rigel
(last visited Mar. 27, 2016).
13
RJN, at ¶ 9 and Ex. J. Terra, Merriam Webster, http://www.merriamwebster.com/dictionary/terra
(last visited Mar. 27, 2016).
14
RJN,
at
¶
10
and
Ex.
K.
15
RJN, at ¶ 11 and Ex. L. Teleportation, Merriam Webster, http://www.merriamwebster.com/dictionary/teleportation; see also, NEWSPAPER ARTICLE 1878 (last
visited
Mar. 27, 2016).
16
RJN, at ¶ 12 and Ex. M. Sten Odenwald, Who Invented Faster Than Light Travel?,
http://www.astronomycafe.net/anthol/scifi1.html (last visited Mar. 28, 2016).
8
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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1

keeping control over local matters” commonly used in science fiction and is

2

inspired by the United Nations.17
 Phasers (FAC at 33): are also known as Heat-Ray weapons, which have existed

3

in science fiction since H.G. Wells’ “War of the Worlds” in 1898.18

4

 Bridge (FAC ¶ 66(b)): is a naval term for a ship’s command center whose first

5

usage predates the 12th century.19

6
7

v.

Copyright Does Not Protect the Klingon Language

8

The Klingon language (FAC ¶ 46, at 31) itself is an idea or a system, and is not

9

copyrightable. As the Supreme Court held in the context of a system of bookkeeping,

10

although copyright protects the author’s expression of the system, it does not prevent

11

others from using the system. Baker v. Selden, 101 U.S. 99, 101 (1879). The mere

12

allegation that Defendants used the Klingon language, without any allegation that

13

Defendants copied Plaintiffs’ particular expression of that language, is therefore

14

insufficient to state a claim for copyright infringement as to any protected element.

15

vi.

Ideas Are Not Protected By Copyright

16

“In no case does copyright protection for an original work of authorship extend

17

to any idea...regardless of the form in which it is...illustrated[] or embodied in such

18

work.” 17 U.S.C. § 102(b). Rather, “copyright...encourages others to build freely

19

upon the ideas...conveyed by a work.” Feist, 499 U.S. at 350-41 (citing Harper &

20

Row, 471 U.S. at 556-57); FASA Corp. v. Playmates Toys, Inc., 869 F. Supp. 1334,

21

1351 (N.D. Ill. 1994) (plaintiffs could not claim protection for “general ideas and

22

concepts [such as]...a futuristic, interstellar, battle dominated universe”).

23

Consequently, the “mood and theme” of “science fiction action adventure”

24

(FAC ¶¶ 46, 47, at 34, 39) is not protectable. Ideal Toy Corp. v. Kenner Prods. Div.

25

of Gen. Mills Fun Group, Inc., 443 F. Supp. 291 (D.C.N.Y. 1977) (although toy

26
17

27
28

RJN, at ¶ 13 and Ex. N, Federation, Merriam Webster, http://www.merriamwebster.com/dictionary/federation
(last visited Mar. 27, 2015).
18
RJN,
at
¶
14
and
Ex.
O,
H.G.
Wells,
War of the Worlds, Leipzig (1898).
19
RJN, at ¶ 15 and Ex. P, Bridge, Merriam Webster, http://www.merriamwebster.com/dictionary/bridge (last visited Mar. 27, 2016).
9
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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1

company “sought to make use of the themes embodied in” Star Wars and its licensed

2

products, “[a] theme is not protectable…[because] it is only the idea which stands

3

behind a protectible expression”). Plaintiffs cannot seek to prevent Defendants or

4

anyone else from creating new works in the science fiction action adventure genre.

5

vii.

Copyright Does Not Protect Scènes à Faire

6

“Scenes-a-faire, or situations and incidents that flow necessarily or naturally

7

from a basic plot premise, cannot sustain a finding of infringement.” Cavalier v.

8

Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002). The following elements are

9

unprotectable scènes à faire because they are staples of science fiction: starships and

10

spacedocks, beaming up/transporters, warp drive, phasers, command insignia and

11

medals on uniforms, stardates, Starfleet, and a federation of planets. (FAC at 22, 23,

12

25, 26, 29, 30, 32, 33). Indeed, Star Wars makes use of nearly all of these elements.

13

See Althouse, 2014 WL 2986939, at *4 (“these features can be traced back to films

14

like Star Wars and Terminator, and are neither original nor protectable”).

15

viii. Characters Plaintiffs Have Identified Are Not Protected

16

The Ninth Circuit has explained that copyright protection is not available for

17

“every comic book, television, or motion picture character”—only for those that are

18

“especially distinctive.” DC Comics v. Towle, 802 F.3d 1012, 1019 (9th Cir. 2015).

19

To meet this standard, a character must be “sufficiently delineated” and display

20

“consistent, widely identifiable traits.” Id. Further, “characters that have been ‘lightly

21

sketched’ and lack descriptions may not merit copyright protection.”

22

example, courts have held that James Bond, Batman, and Godzilla are characters

23

protected by copyright. Id. at 1020. Here, Plaintiffs have not plausibly alleged that

24

any of the characters they claim have been infringed—Garth of Izar, Soval, Richard

25

Robau, John Gill, Captain Robert April, Chang, or Sarek (FAC at 11-12, ¶ 66)—meet

26

the requirements for copyright protection because they have not set forth “especially

27

distinctive” and “widely identifiable traits” of these characters that Defendants have

28

copied. None of these relatively minor characters are as distinctive as James Bond,
10
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

Id.

For

 Case 2:15-cv-09938-RGK-E Document 29 Filed 03/28/16 Page 22 of 31 Page ID #:183

1

Batman, or Godzilla, because the characters named by Plaintiffs cannot be associated

2

with specific, consistently identifiable traits. Van Olson v. Nat’l Broad. Co., 855 F.2d

3

1446, 1452 (9th Cir. 1988) (holding minor characters not protected by copyright).

4

In sum, Plaintiffs fail to state a plausible claim of infringement as to the

5

foregoing elements because they are unprotectable as a matter of law. See, e.g.,

6

Althouse v. Warner Bros. Entm’t, No. CV 13-00696-RGK SSX, 2014 WL 2986939, at

7

*3 (C.D. Cal. Apr. 28, 2014) (“Plaintiff lists a total of 118 alleged similarities between

8

[the works]. However, all of Plaintiff's examples are either too general for copyright

9

protection, are scenes a faire, or are commonly used, unoriginal ideas. Thus, none of

10
11
12
13

Plaintiff's 118 alleged similarities creates a triable issue of fact.”) (Klausner, J.).
B.

Plaintiffs’ Claims Are Not Sufficiently Detailed To Survive
1.

Plaintiffs’ FAC Does Not Specify Which Among Hundreds of
Alleged Copyrights Have Been Infringed

14

When alleging copyright infringement, “in order to give fair notice of the claim,

15

[a] plaintiff must identify both the work alleged to have been infringed and the

16

infringing work; merely asserting that ‘certain works’ have been copied is

17

insufficient.” 6 William F. Patry, Patry on Copyright § 19:6 (2015); Palmer Kane

18

LLC v. Scholastic Corp., No. 12 Civ. 3890 (TPG), 2014 WL 1303135, at *3 (S.D.N.Y.

19

Mar. 31, 2014) (finding plaintiff’s failure to “properly specify” the copyrights

20

allegedly infringed upon warranted dismissal); Cole v. John Wiley & Sons, Inc., 2012

21

WL 3133520, at *12 (S.D.N.Y. Aug. 1, 2012) (dismissing copyright infringement

22

claims where plaintiff failed to allege whether any or all of his copyrights were

23

infringed); Marshall v. McConnell, No. Civ.A. 3:05-CV-1062L, 2006 WL 740081, at

24

*4 (N.D. Tex. Mar. 23, 2006) (finding plaintiff failed to satisfy Rule 8(a) where

25

allegations could have related to any number of allegedly copyrighted works, leaving

26

defendants without sufficient notice as to how to defend against the claims); Rosenfeld

27

v. Twentieth Century Fox Film, No. CV 07-7040 AHM FFMX, 2008 WL 4381575, at

28

*7 (C.D. Cal. Sept. 25, 2008) (dismissing copyright infringement claim where
11
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 Case 2:15-cv-09938-RGK-E Document 29 Filed 03/28/16 Page 23 of 31 Page ID #:184

1

plaintiff’s allegations, which did not specify the copyrighted works at issue, failed to

2

provide sufficient notice to defendant).

3

In Four Navy Seals v. Associated Press, the court granted the defendant’s

4

motion to dismiss where “the complaint [did] not identify exactly which works

5

Defendants infringed….” 413 F. Supp. 2d 1136, 1148 (S.D. Cal. 2005). Where the

6

plaintiffs asserted that “at least one” of the “1800” works that the plaintiffs alleged

7

they owned were “copied…and distributed,” neither the defendants nor the court were

8

put on sufficient notice of the copyright claims at issue. see also Universal Surface

9

Tech., Inc. v. Sea-A Trading Am. Corp., No. CV 10-6972 CAS (PJWx), 2011 WL

10

281020, at *4-6 (C.D. Cal. Jan. 26, 2011) (finding complaint listing 82 copyrights

11

insufficient to notify defendants about which copyrights were allegedly infringed).

12

Where, as here, multiple works are alleged to have been infringed, “care should

13

be taken to identify each work at issue.” Patry, § 19:6; Plunket v. Doyle, No. 99 Civ.

14

11006 (KMW), 2001 WL 175252, at *4 (S.D.N.Y. Feb. 22, 2001) (finding “‘fair

15

notice requir[es] that the plaintiff allege…which specific original works are the

16

subject of the copyright claim,” and dismissing plaintiff’s claims for failure to comply

17

with Rule 8, where plaintiff’s multi-page schedule of allegedly infringed works stated

18

that her claims were not limited to those listed works);

19

Scholastic Corp., No. 12 Civ. 3890 (TPG), 2014 WL 1303135, at *3-4 (S.D.N.Y.

20

Mar. 31, 2014) (granting motion to dismiss where plaintiff’s list of allegedly infringed

21

works was not exhaustive); See Synopsys, Inc. v. ATopTech, Inc., No. C 12-CV-02965

22

SC, 2013 WL 5770542, at *4 (N.D. Cal. Oct. 24, 2013) (dismissing claim where

23

plaintiff failed to “make clear what Defendant copied, which ma[de] it impossible for

24

the Court to find plaintiff’s claim plausible”).

Palmer Kane LLC v.

25

As in the cases cited above, Plaintiffs have failed to satisfy their “minimum”

26

pleading requirement to “identify exactly which works Defendants infringed,” and

27

have thus failed to put Defendants “on notice” of their claims. Plaintiffs apparently

28

believe that their amended allegations—in particular, those in paragraphs 46 and 47 of
12
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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1

the FAC—satisfy their obligation to specify the copyrights that Defendants have

2

allegedly infringed. They do not. Simply providing a non-exhaustive list of examples

3

of allegedly infringing elements from the Star Trek Copyrighted Works, and

4

referencing where they appeared, does not satisfy Plaintiffs’ obligation to identify the

5

specific works that Plaintiffs claim have been infringed in this case. Indeed, Plaintiffs

6

do not limit their claims to the allegedly protected “infringing elements” specified in

7

the FAC, but allege these merely as “examples.”

8

copyrighted Star Trek elements include, but are not limited to, those listed below”);

9

id. ¶ 47 (“The following chart includes some of the infringing elements from the

10

Vulcan Scene from the Axanar Motion Picture as well as examples of many of the

11

corresponding Star Trek Copyrighted Works”) (emphasis added).

See FAC ¶ 46 (“The copied

12

Given that Plaintiffs’ list of allegedly infringing elements is non-exhaustive,

13

Defendants have no way of determining which copyrights, or how many copyrights,

14

Defendants allegedly infringed among the “more than 700” copyrights that Plaintiffs

15

allege they own. FAC ¶ 15. Given the vast differences among the motion pictures,

16

television series, and episodes, more specificity is needed.

17

attempt to leave Defendants guessing about the scope of their claims by suggesting

18

that Defendants could have infringed hundreds of copyrights, which would require

19

Defendants to sift through each movie and television episode to attempt to determine

20

what Plaintiffs’ claims are. As shown above, courts have time and again expressly

21

rejected this approach. Defendants are not asking that Plaintiffs be required to list the

22

copyright registration number and date for every motion picture and television episode

23

that they allege they own. Rather, Defendants simply seek to narrow the field of

24

inquiry to those specific episodes, films, and elements that were allegedly infringed, to

25

provide notice of and allow investigation into the claims and potential exposure of this

26

case.20 As the Short Mockumentary is only 20 minutes long and freely available

27

20

28

Plaintiffs improperly

Plaintiffs’ pleading approach is particularly troubling given that a claim for alleged
willful copyright infringement carries a statutory damages penalty as high as $150,000
per infringed work. 17 U.S.C. § 504(c). Without knowing how many works are at
issue, Defendants cannot evaluate the scope of this action and the prospects for
13
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1

online, and the Vulcan Scene (the only completed scene in the Potential Fan Film) is

2

even shorter, Plaintiffs should easily be able to properly specify their claims.

3

Plaintiffs’ failure to specify the works at issue also prevents Defendants from

4

assessing Paramount’s standing to assert a claim of copyright infringement in this

5

action. Under 17 U.S.C. section 103(b), any “[c]opyright in a…derivative work

6

extends only to the material contributed by the author of such work, as distinguished

7

from the preexisting material employed in the work.” In other words, to the extent

8

that subsequent derivative works contain the same elements as the original work, only

9

the new elements are protected by the subsequent copyright. Thus, in order to have

10

standing to assert copyright infringement, Paramount must show that Defendants have

11

copied a protected element in an original work owned by Paramount, not simply a

12

derivative work that copies the protected element from, for example, The Original

13

Series, which are allegedly owned by CBS.21 Paramount may not belong in this case

14

at all if the allegedly “infringing elements” first appeared in CBS’s alleged works.

15

Plaintiffs’ failure to specify the works at issue in this action has also prevented

16

Defendants from showing at this early stage that the Short Mockumentary is not

17

infringing. See, e.g., Christianson v. West Pub. Co., 149 F.2d 202, 203 (9th Cir. 1945)

18

(where “the copyrighted work and the alleged infringement are both before the court,

19

capable of examination and comparison, non-infringement can be determined on a

20

motion to dismiss”); see also Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1130

21

(C.D. Cal. 2007) (“The Court may assess copyright infringement as a matter of law on

22

the [ ] motion to dismiss.”). While courts have thus assessed whether a work is not

23

infringing on a motion to dismiss, that would necessarily require that Plaintiffs

24

identify the copyrights at issue (which they have not done).22

25

potential
resolution of Plaintiffs’ claims prior to a costly discovery process.
21
Indeed, without knowing which works Plaintiffs allege have been infringed,
Defendants will be unable to narrow the scope of their discovery requests with respect
to, among other things, chain of title discovery relating to Plaintiffs’ alleged
ownership
of the relevant Star Trek Copyrighted Works.
22
And with respect to the Potential Fan Film, Plaintiffs do not and cannot plausibly
plead alleged infringement with any specificity, as they (like the Court) simply will
not and cannot know what the finished product will look like until it is completed.

26
27
28

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DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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1
2

Because Plaintiffs have not properly specified which of their works have been
infringed in this action, the Court should dismiss Plaintiffs’ claims.

3

2.

4

Plaintiffs’ Claims Are Improperly Based Upon Allegations
Made On “Information And Belief”

5

Many of Plaintiffs’ allegations are devoid of any supporting facts and based

6

solely “on information and belief.” FAC ¶¶ 48, 55, 57, 58, 61, 62. But “[i]n the post-

7

Twombly and Iqbal era, pleading on information and belief, without more, is

8

insufficient to survive a motion to dismiss for failure to state a claim.” Solis v. City of

9

Fresno, No. 1:11-CV-00053 AWI GSA, 2012 WL 868681, at *8 (E.D. Cal. Mar. 13,

10

2012); Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th Cir. 2009) (finding

11

allegations based on “information and belief” insufficient); Richtek Tech. Corp. v. UPI

12

Semiconductor Corp., No C 09-05659 WHA, 2011 WL 166198, at *3 (N.D. Cal. Jan.

13

18, 2011) (finding defendants were not on notice of copyright claim through formulaic

14

recitation of elements and conclusory allegations made on “information and belief”).

15

Plaintiffs here have alleged direct, contributory, and vicarious23 copyright

16

infringement largely “on information and belief.”24 FAC, ¶¶ 55, 57, 58, 61, 62. Such

17

“[b]ald recitations of legal conclusions…do not state a claim upon which relief can be

18

granted. Richtek, 2011 WL 166198, at *3; see also New Name, Inc. v. Walt Disney

19

Co., No. CV 07-5034 PA (RZx), 2007 WL 5061697, at *3 (C.D. Cal. Dec. 3, 2007)

20

(granting motion to dismiss where allegations “on information and belief” were

21

speculative and an improper “formulaic recitation of the elements of infringement”);

22

see Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action,

23

23

24
25
26
27
28

To show vicarious infringement, Plaintiffs must show that Defendants: (1) enjoy a
direct financial benefit from the infringement, and (2) have declined to exercise the
right and ability to supervise or control that infringing activity. Ellison v. Robertson,
357 F.3d 1072, 1078 (9th Cir. 2004). Plaintiffs’ FAC does not state facts supporting
either of these elements. Instead, the allegations are again made solely on
“information and belief,” and merely restate the elements of the claim. Nowhere do
Plaintiffs allege facts as to how Defendants have enjoyed a “direct financial benefit.”
24
It is well-established that“[s]econdary liability for copyright infringement does not
exist in the absence of direct infringement....” A & M Records, Inc. v. Napster, Inc.,
239 F.3d 1004, 1013 (9th Cir.2001). Thus, to the extent that the Court dismisses the
direct copyright infringement claims for any reason addressed in this Motion, the
secondary claims should likewise be dismissed.
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supported by mere conclusory statements, do not suffice.”). Plaintiffs’ allegations are

2

too conclusory for their copyright claims to survive.

3

C.

4

Plaintiffs’ Claims Based on the Potential Fan Film Should Be
Dismissed or Stricken Because They are Premature

5

Further compounding Plaintiffs’ failure to plead their copyright claims with

6

specificity is Plaintiffs’ attempt to assert copyright claims based on a film which has

7

not even been made yet. Plaintiffs’ claims based on the Potential Fan Film are

8

premature, unripe, and would constitute an impermissible prior restraint on speech.

9

Thus, Plaintiffs’ claims should be dismissed or stricken.25 Plaintiffs concede that

10

(with the exception of the “Vulcan Scene”) the Potential Fan Film has not yet been

11

made. FAC ¶¶ 2, 9. Indeed, there are multiple versions of the script, and the script is

12

still being revised and re-written. Under these circumstances, the Court should not

13

permit Plaintiffs to proceed with their copyright claims to the extent they are based on

14

the Potential Fan Film itself.

15

1.

Plaintiffs’ Claims Based on the Potential Fan Film are Unripe

16

A federal court will “not resolve issues involving contingent future events that

17

may not occur as anticipated, or indeed may not occur at all.” Clinton v. Acequia,

18

Inc., 94 F.3d 568, 572 (9th Cir. 1996); Thomas v. Union Carbide Agric. Prods. Co.,

19

473 U.S. 568, 580-81 (1985). Accordingly, “[b]efore a case is justiciable in federal

20

court” the plaintiff must allege that it “is threatened by injury that is both real and

21

immediate;” not “conjectural or hypothetical.” Portland Police Ass’n. v. City of

22

Portland, 658 F.2d 1272, 1273 (9th Cir. 1981). Without “immediacy and certainty of

23

injury the dispute is not ripe; it has not matured…to warrant judicial intervention.” Id.

24

In analogous cases seeking declaratory relief, courts have dismissed copyright

25

claims as premature unless a party seeking relief can establish that the potentially

26
25

27
28

Under Rule 12(f), a court may strike any “immaterial [or] impertinent” allegation
that has no “essential or important relationship,” or is unnecessary, to the claims. 5
Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1382, at 706–
07, 711 (1990).; see Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)
rev’d on other grounds, 510 U.S. 517 (1994) (affirming order striking allegations).
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infringing work “presented to the court is the same product which will be produced if

2

a declaration of noninfringement is obtained.” Sierra Applied Scis., Inc. v. Advanced

3

Energy Indus., Inc., 363 F. 3d 1361, 1379 (Fed. Cir. 2004); see Int’l Harvester Co. v.

4

Deere & Co., 623 F.2d 1207, 1216 (7th Cir. 1980) (“Our concern is not that the

5

[product] will never be produced, but rather that because of the relatively early stage

6

of its development, the design which is before us now may not be the design which is

7

ultimately produced and marketed.”); Team Angry Filmworks, Inc. v. Geer, No. 15-

8

1381, 2016 WL 1086370, *10 (W.D. Pa. Mar. 21, 2016) (dismissing complaint where

9

plaintiff failed to allege facts sufficient to show justiciable controversy where

10

potentially infringing film was not yet completed). To show an actual controversy,

11

“[t]he disagreement must not be nebulous or contingent, but must have taken on a

12

fixed and final shape so that a court can see what legal issues it is deciding and what

13

effects its decision will have on the adversaries.” Veoh Networks, Inc. v. UMG

14

Recordings, Inc., 522 F. Supp. 2d 1265, 1269 (S.D. Cal. 2007) (emphasis added).

15

Here, Plaintiffs’ claims against Defendants based on the Potential Fan Film are

16

unripe because the allegedly infringing work does not yet exist. To determine whether

17

there is substantial similarity between the Star Trek works and the allegedly infringing

18

Potential Fan Film, this Court must be able to compare the relevant works. See, e.g.,

19

Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076 (9th Cir. 2006).

20

As this Court has stated, “for the extrinsic similarity analysis, the court may compare

21

the two works for similarities in ‘the plot, themes, dialogue, mood, setting, pace,

22

characters, and sequence of events.’” Gilbert v. New Line Prods., Inc., No. CV 09-

23

02231 RGK, 2009 WL 7422458, at *2 (C.D. Cal. Nov. 16, 2009) (Klausner, J.).

24

Plaintiffs have alleged infringement of 12 movies and “more than 700” television

25

episodes spanning five series and 50 years. FAC ¶¶ 1, 15. Until the film has been

26

completed, the Court will not be able to compare Defendants’ film with the relevant

27

Star Trek films and episodes at issue to determine whether the themes, mood, setting,

28

pace, plot, and characters are substantially similar. Moreover, to the extent any of the
17
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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elements Plaintiffs are complaining about are actually protectable, Defendants intend

2

to vigorously defend their use (if any) as a fair use. Without a film, the Court cannot

3

evaluate the purpose and character of Defendants’ film, whether it is transformative or

4

a parody, and the amount and substantiality taken (if any). Similarly, the Court will

5

not be able to evaluate any de minimis use defense.26

6

The mere allegation that the Potential Fan Film is intended to be an

7

unauthorized derivative work does not suffice to state a claim. Even if the Potential

8

Fan Film were “derived” from or inspired by any of the Star Trek Copyrighted Works,

9

it will only be a “derivative work” if it appropriates protected expression from those

10

works. See W. Landes & R. Posner, The Economic Structure of Intellectual Property

11

Law 109 (2003) (“If there is no copying of copyrighted material, the fact that a work

12

derived from, in the sense of being inspired or suggested by, a previous work does not

13

make the second work an infringement of the first.”). Indeed, “[a] work is not

14

derivative unless it has substantially copied from a prior work.” 1 M. Nimmer & D.

15

Nimmer, Nimmer on Copyright, § 3.01 at 3-3. Until the film is completed, the Court

16

will not be able to evaluate whether the Potential Fan Film “substantially” copied

17

protected expression from the Star Trek works.

18

As courts have also recognized, “a defendant may legitimately avoid

19

infringement by intentionally making changes in a work which would otherwise be

20

regarded as substantially similar to that of the plaintiff’s.” Warner Bros., Inc. v. Am.

21

Broad. Cos., 720 F.2d 231, 241 (2d Cir. 1983); See v. Durang, 711 F.2d 141, 142 (9th

22

Cir. 1983) (“Copying deleted or so disguised as to be unrecognizable is not copying”).

23

Plaintiffs’ premature claims seek to prevent Defendants from avoiding liability by

24

making changes to the Potential Fan Film’s script to address Plaintiffs’ concerns.

25

This is contrary to the letter and spirit of copyright law, and should be rejected.

26

Plaintiffs’ allegation that the Axanar Script infringes Plaintiffs’ copyrights in

27
26

28

Plaintiffs’ allegation that the Potential Fan Film does “not…constitute fair use” is a
legal conclusion and need not be accepted by the Court. See Compl. ¶ 53. Moreover,
as discussed above, this allegation is not plausible. Twombly, 550 U.S. at 554-56.
18
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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the Star Trek Copyrighted Works does not resolve this issue. See FAC ¶¶ 2, 32, 41.

2

Even if some versions of the script (there are many) contained alleged infringements,

3

and there were plot similarities to analyze between the script and Plaintiffs’ alleged

4

works (no protected similarities are alleged), courts “have routinely rejected requests

5

to consider earlier drafts of the screenplay” on the basis that “[c]onsideration of earlier

6

versions of the screenplay is too unreliable in determining substantial similarity.”

7

Walker v. Time Life Films, Inc., 615 F. Supp. 430, 435 (S.D.N.Y. 1985); See, 711 F.2d

8

at 142 (plaintiff not allowed discovery of “early drafts”); Quirk v. Sony Pictures

9

Entertainment, Inc., No. C 11-3773 RS, 2013 WL 1345075, at *6 (N.D. Cal. April 2,

10

2013) (“even assuming the preliminary drafts…include indications of copying that

11

was later deleted or revised, the only relevant question” is whether “the final movie as

12

filmed, edited, and released contains matter substantially similar to protectable

13

elements” of the copyrighted work); Hudson v. Universal Pictures Corp., No. 03-CV-

14

1008(FB)(LB), 2004 WL 1205762, at *3 (E.D.N.Y. April 29, 2004) (“The Court is

15

under no obligation to consider the draft scripts[.]”); Marshall v. Yates, No. CV-81-

16

1850-MML, 1983 WL 1148, at *2 n.2 (C.D. Cal. Oct. 26, 1983) (refusing to consider

17

“draft screenplays or the shooting script” of movie because they were “not relevant”).

18

Rather, it is “the works as they were presented to the public” that are relevant,

19

not preliminary internal drafts. Walker, 615 F. Supp. at 434; see Chase-Riboud v.

20

DreamWorks, Inc., 987 F. Supp. 1222, 1227 n.5 (C.D. Cal. 1997) (to determine

21

substantial similarity, “the court need only consider the final version of [defendant’s]

22

film as presented to the viewing public”); 4 Nimmer on Copyright § 13.03[D]

23

(“[C]ourts have routinely rejected requests to consider earlier [screenplay] drafts.”).

24

Accordingly, the existence of draft scripts for the Potential Fan Film does not save

25

Plaintiffs’ deficient claims, which are based on the visual aspects of the film itself.

26

2.

Enjoining the Potential Fan Film Would be a Prior Restraint

27

According to the Supreme Court, a prior restraint is the “the most serious and

28

the least tolerable infringement” of First Amendment rights, Nebraska Press Ass’n v.
19
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE

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1

Stuart, 427 U.S. 539, 559 (1976), and is presumptively unconstitutional. See New

2

York Times Co. v. United States, 403 U.S. 713, 714 (1971) (request for prior restraint

3

“comes to this Court bearing a heavy presumption against its constitutional validity”).

4

In Globe Int’l, Inc. v. Nat’l Enquirer, Inc., the Globe sought an order blocking

5

publication by the Enquirer of “a hypothetical article the Enquirer has not published

6

(and might not publish), based on an interview Ms. Johnson has not yet even given.”

7

No. 98-10613 CAS (MANX), 1999 WL 727232, at *5 (C.D. Cal. Jan. 25, 1999). The

8

court denied the plaintiffs’ motion for a preliminary injunction, finding that such an

9

order would be a prior restraint. Recognizing that the fair use defense “requires a

10

case-by-case determination,” the Court held that it “may not rule that any future use of

11

the Globe’s materials by the Enquirer…would automatically fail the case-specific ‘fair

12

use’ test.” Id. at *6 (quoting Harper & Row, 471 U.S. at 549).

13

As in Globe Int’l, fair use cannot be evaluated in a vacuum, and allowing

14

Plaintiffs to seek an injunction against creating the Potential Fan Film would

15

constitute an impermissible prior restraint.27

16

V.

CONCLUSION

17

Plaintiffs implausibly claim infringement as to elements not protected by

18

copyright, have failed to put Defendants on fair notice of their claims, and seek

19

premature relief. Defendants respectfully request that the Court grant their motion to

20

dismiss or strike Plaintiffs’ claims.

21
22

Dated: March 28, 2016

23

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

24
25
26
27
28

WINSTON & STRAWN LLP

27

Further, Plaintiffs fail to state a claim based on the Potential Fan Film because a
work that has not been made is not “fixed” in any material object. 17 U.S.C. §§
101, 106(1)-(2); See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159-63
(9th Cir. 2007). Plaintiffs’ conclusory allegations that Defendants have distributed
copies of or publicly performed the Potential Fan Film are implausible, and should be
dismissed or stricken. 17 U.S.C. §§ 101(3), (4); FAC ¶ 55.
20
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STRIKE