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IP/Entertainment Case Law Updates

Abdin v. CBS Broadcasting

District court grants motion to dismiss claims that new Star Trek: Discovery television series infringes video game concept involving fictionalized space-traveling creature, finding lack of substantial similarity.

Plaintiff Anas Abdin, a video game developer, sued CBS Broadcasting, asserting that CBS’s new Star Trek: Discovery series infringed his video game concept materials. Between May 2014 and September 2017, Abdin published draft designs, videos and descriptions of a proposed video game on his personal website, YouTube and other websites. Plaintiff registered for copyright in 2018 a “distillation” of a video game “concept,” which was first published in 2017. Plaintiff had not yet released the game, the story of which is set around the year 20,000 B.C., when civilization is about to discover galactic travel, and “the deserts of south Egypt and Ethiopia are green and full of advanced technology.” The video game’s main character is a blond male botanist who lives on a space station that orbits Jupiter.

In early 2015, plaintiff changed the video game’s title from Epoch to Tardigrades and introduced a fictionalized version of an animal called a tardigrade into the game. A tardigrade is “any of a phylum (Tardigrada) of microscopic invertebrates with four pairs of stout legs that live usually in water or damp moss – called also water bear.” Since at least 2007, tardigrades have been identified as the first known animal to survive unprotected in outer space. Plaintiff’s video game concept materials imply that the game’s protagonist is protected from the conditions of space travel by being enveloped within the tardigrade.

Star Trek: Discovery, which first aired on Sept. 24, 2017, follows similar themes as earlier Star Trek television shows and movies. The protagonist is a Vulcan-raised human black woman who fights for the United Federation of Planets on a spaceship in a war against the Klingons. One storyline in the series involves instantaneous space travel made possible by injecting the DNA of an alien tardigrade.

Plaintiff sued CBS for infringement of his proposed video game concept, alleging that both works feature “instantaneous” space travel facilitated by a tardigrade. For purposes of defendants’ motion to dismiss, the court considered all of plaintiff’s works (draft designs, videos, and descriptions of the video game on his personal website, YouTube and other popular websites) to be part of his protected video game concept. As an initial matter, the court found that, despite plaintiff’s allegation to the contrary, the video game does not suggest that plaintiff’s tardigrade is capable of “instantaneous” space travel. The court therefore considered the broader concept of a “tardigrade flying in space” for purposes of the infringement analysis.

The court first considered the concept and plot of the two works and found that, unlike plaintiff’s video game concept materials, which consist of “disparate videos” and are “in an early stage of production,” Star Trek: Discovery has a “clear and fully constructed concept,” developed throughout the season and prior Star Trek works. This assessment also supported the court’s finding that the two works lack a similar total concept and feel, as “instructed by … good eyes and common sense.” 

The court also found that although both works employ the concept of a tardigrade flying in space, this concept is “associated in popular culture with the tardigrade and not original to plaintiff’s work,” citing three examples of prior art. Broader shared concepts such as supernatural forces, war games and space exploration are all “scènes-à-faire in science fiction dramatizations about space and not protectable.” Similarly, the court found that the “common storyline of adventuring through space and discovering aliens is a scènes-à-faire common to works that involve space travel,” analogizing this storyline to “cowboys, bank robbers, and shootouts in stories of the American West.”

As to the tardigrade characters themselves, the court explained that the shared characteristics of the real-life microscopic tardigrade are unprotectable, and that the remaining differences between the two works are “sufficient to defeat any finding of substantial similarity.” The video game tardigrade is large and deep blue. Although the Star Trek: Discovery tardigrade is lit with a blue light, it is “brownish greenish.” Where the video game tardigrade is most closely associated with the spiritual symbolism of the scarab beetle, the Star Trek: Discovery tardigrade is “best associated with a beloved, but poorly behaved, pet dog.” The court explained that “[t]he bar for substantial similarity in a character is set quite high, and the similarity between the two tardigrades falls short of this standard.”

In addition to the tardigrade concept, plaintiff alleged similarity of 10 additional elements. As to the similarities between the human characters in the two works – blond male protagonist, biologists, black women characters, female characters with red hair, and gay male characters with black hair and facial hair – the court found them to be “mostly generalized non-protectable descriptions,” noting that “[c]ourts have denied claims of substantial similarity when comparing characters who are far more similar than these.” As to the remaining alleged similarities – Egyptian cultural influences and supernaturalism, a glowing blue light, an astro-plane, uniforms delineating status and rank, and space suits with a large head piece – the court found them “disparate and not essential to the overall feel or understanding of [Star Trek: Discovery].”

Summary prepared by Tal Dickstein and Nathalie Russell

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