Hi, all:
After a long break, I’m just chiming in here to offer some guidance on what W&S is trying to do in their motion to dismiss (and why it’s a huge fallacy, albeit a valiant attempt to make a purse out of the sow’s ear they were given.) Frankly, a good many people here
already sussed out the rationale for this, so my comments are more support of what others have said, rather than “schooling” anybody. Most peoples’ instinct around here are right on the money, even if based more on just plain old common sense than any legal training.
Here’s why the nit-picky “no element of Star Trek cited by the Plaintiffs is copyrightable” is a bust of an argument from a legal perspective.
1. First, you have to start with the “idea-expression dichotomy” embodied in the U.S. Copyright Act (17 USC 102(b).) In short, no one can claim a copyright in an idea; ideas are free for everyone to use. However, the particular way one person
expresses an idea – the creative choices he or she makes to express an idea– is protectable by copyright.
2. Next, let’s look at things from the other end – how a plaintiff proves that his or her copyright is infringed and wins the case. There are two ways – through “direct evidence” of copying and, where there is no direct proof, by circumstantial evidence of copying:
a. “Direct evidence” – believe it or not, this is actually pretty strict – you really need a confession by a person that he copies, or a photo of them engaged in the act of copying etc. Such direct evidence is actually rare.
b. “Circumstantial evidence” - When you don’t have “direct evidence”, the law allows you to raise an inference that copying occurred through circumstantial evidence if you show
two things:
i. The defendant had access to your copyrighted work, and
ii. The defendant’s work is “substantially similar” to your work.
You get the drift? Even without any direct evidence of copying, the law will let you prove your case if you can show its more likely than not the defendant copied your work because he or she was exposed to your work in some way and came up with something substantially similar to it – the idea being that it beggars the imagination that it could only be sheer coincidence that their work was so similar to your work. In the present case, it’s clear SuperStarTrekFan Alec had access to the Star Trek works , and the work he has/is/might-maybe-someday-create is substantially similar to Star Trek.
Unfortunately, the inquiry doesn’t end there. Plaintiff only wins if he can show that the “substantial similarity” arises from copying of the
copyrightable elements of his work. Since anyone is free to use ideas or uncopyrightable material, there is no infringement unless something that is
proprietary to the Plaintiff is copied.
So this is the basis for Ranahan’s breaking everything down to its most basic level and point-by-point claiming each constitutent part is unprotectable. “You say we copied the word ‘Vulcan’? ‘Vulcan is a god’s name.” “You say we copied pointy ears? Wombats have pointy ears.” In short, she’s trying to state that any similarities are due to unprotectable elements. But I know you all get that.
But
here’s the rub, and the fallacy in her argument, and why I think it will ultimately go down in flames. The law recognizes that “copyrightable expression” is
by definition made up of a
combination of
uncopyrightable components. In fact, that’s what “copyrightable expression”
is – the specific, creative way that one person chooses to
combine those uncopyrightable components to express an idea. Let’s face it – it’s black letter law that single words and short phrases are not copyrightable. But a novel – which consists of nothing more than a creative combination of uncopyrightable words and phrases – is
100% copyrightable. Same thing for music – single notes are not copyrightable and there are only twelve notes in the entire (Western) musical scale – but there are thousands of creative
combinations of those notes, and thousands of copyrighted songs. Thousands of different ways of expression, all built from the same public-domain pieces. It’s the
choices and combinations that are copyrightable.
And just like you can’t avoid copyright infringement in a song by claiming “well, A-flat has been used before, and C-sharp has been used before” and knocking out through all other ten individual notes in the scale the same way – you can’t avoid copyright infringement for a Vulcan character by saying “Vulcan is a god’s name, and wombats have pointy ears, and people have been logical since before Socrates.” Because what is protected by copyright is the
overall expression – the creative choices the authors made – to express their own unique conception of an alien race by combining preexisting elements in a creative way. Alien races can come in all shapes and forms – the bug-eyed “grays”, the fat Jabba the Hutts, the warlike Xenomorphs, the lovable E.T. and so on.
C/P’s protected expression in their “alien” consists of the sum of the creative, original choices they made to express an alien that is logical, aloof, and peaceful with pointy ears and greenish skin.
If – using Vulcans as just
one example - C/P can show that one ground of substantial similarity between ST and Axanar is that both contain an alien that is logical, aloof, and peaceful with pointy ears and greenish skin, then this will raise a legal inference that C/P’s copyrightable
expression was copied – and no amount of trying to tear down the individual components (claiming “no individual note of the song is copyrightable, and no individual word in the book is copyrightable”) is going to save Axanar. As noted above, if the “system” worked any differently, then
no book, play, song or poem would be copyrightable. Luckily, that's not how the system works.
M
(And just to prove my point - the post above is my copyrightable expression of my ideas, even though it's made up entirely of public-domain words. And anybody who quotes my post - in whole or in part - in any subsequent post is gonna get the living bejesus sued out of them by me. Eh, I'm just joshin' with ya. Just wanted to see if anyone managed to read this far without falling asleep.)
)?
), e. g. maybe some sort of argument will be bought and a precedent, however narrow and flimsy, will be set