Axanar Productions and producer Alec Peters have filed yet another motion to dismiss in the copyright infringement lawsuit brought by Paramount Pictures and CBS Studios.
Second time is the charm?
The motion, filed on Monday, is a response to the studios’ amended filing, and claims that Paramount and CBS have still not provided enough clarity regarding which copyrights have been infringed, and they continue to insist no infringement has taken place since the film, Axanar, hasn’t been produced yet.
They also go on the offensive, questioning what rights the studios have to elements like the pointy ears of Vulcans, pointing out that many fictional characters have had pointy ears, “including, but not limited to, vampires, elves, fairies, and werewolves, as well as in many animals in nature.”
They go further, questioning whether elements such as the color of a uniform(like a gold one), geometric shapes (like the Starfleet insignia) and phrases (such as “Vulcan” or “Starship Enterprise”) even fall under copyright.
It is this line of reasoning which leads them to request another dismissal –
Plaintiffs implausibly claim infringement as to elements not protected by copyright, have failed to put Defendants on fair notice of their claims, and seek premature relief.
The stakes for Axanar are big: the studios are seeking up to $150,000 for each potential infringement. If they were to be found guilty of multiple instances of infringement, the damages could run into the millions of dollars.
Axanar and its legal team, the law firm of Winston and Strawn, have requested a hearing on their request for dismissal on May 9. The entire 31-page motion can be read here.
What does this mean?
To help sort out this out, we spoke to TrekMovie’s very own legal counsel, Susan Kayler. Kayler, who founded the Artists and Writers Legal Resource Center, explains the rationale behind this new motion:
The motion that was just filed is commonly known as a Rule 12(b)(6) motion which is actually a Motion to Dismiss for Failure to State a Claim. What that means is, if EVERYTHING factual in the complaint is treated as if it is true, there is still no cause of action, i.e., no claim.
So presuming the Plaintiffs own the copyright and presuming the defendants used copyrighted material, is there a claim or cause of action? (Example: I sue you because my tv is black and white. You file a 12(b)(6) motion saying assuming as true that the tv is black and white, so what? There is nothing to sue over.)
What the motion does, however, is argue the facts, again, arguing whether the Plaintiffs had a copyright and whether what they are alleging was copyrightable. Rule 12(b)(6) motions require the presumption that Plaintiffs facts are true (they did have copyrights). This motion (see page 6 etc.) goes on and on about the facts. Determination of the facts is done by the trier of fact at a trial (i.e. the judge or jury) and is not proper argument for a motion like this.
On page 13 of the motion, which discusses “The Star Trek Copyrighted Works”, the Axanar team continues to push for more specificity regarding which studio owns which copyrights as well as more detail regarding the numerous copyright elements from all the television shows and movies:
These arguments seem to be that since there are so many copyrights it’s not Axanar’s fault they infringed them because how can anybody look up that many copyrights? So if you have so many copyrights you can’t sue because the defendant could not have figured out what they were infringing ahead of time because it’s just too complicated???
But here is what is probably really going on. The Federal Law, aka US Code §504(c) provides:
“In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118(f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.”
The motion, in part, is defendant’s attempt to claim ignorance and therefore avoid “willfulness” and higher damages. This seems to be the song they intend to sing. “We didn’t know and couldn’t possibly know” is their defense. Even if there is a copyright violation, we didn’t know. They even suggest that it is too complicated for the Plaintiffs to know which copyrights so how could Axanar have known?
She thinks that ultimately it’s worth filing the motion because “once in a blue moon it actually works.”
To learn more about the lawsuit and the stakes involved, we recommend checking out Carlos Pedraza’s very thorough wiki about the case, AxaMonitor. He also wrote up an overview of the case for us just last week, which can be viewed here.