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IP/Entertainment Case Law Updates

Abdin v CBS

Second Circuit affirms dismissal of indie game developer’s copyright action alleging that CBS’s Star Trek: Discovery series infringed his Tardigrades video game, holding that parties’ works are not substantially similar as matter of law.

Video game developer Anas Abdin sued CBS and Netflix for copyright infringement claiming that the Star Trek: Discovery series infringed the development materials for plaintiff’s Tardigrades game concept. Plaintiff published his materials to YouTube and game development websites between May 2014 and September 2017. These materials consisted of videos, designs and descriptions of his game, set around the year 20,000 B.C.E. as civilization was beginning to discover galactic space travel and focusing on an interstellar space station orbiting Jupiter. In 2015, plaintiff changed the game’s title from Epoch to Tardigrades and introduced a fictionalized version of a tardigrade—a real-life microscopic vertebrate known in the scientific community for its ability to survive harsh environments, and discovered in 2007 to have the unique ability to survive unprotected in space. Plaintiff’s tardigrade is enlarged and depicted in his videos as facilitating space travel by enveloping a human and carrying him through space. In 2018, plaintiff obtained a copyright registration for a treatment of his Tardigrades game expounding on the concept and characters in the game.

Star Trek: Discovery, which premiered in 2017, is the latest installment in the Star Trek franchise and tells various storylines taking place approximately 11 years before the original Star Trek series. One of the storylines in three episodes of the first season involves a creature named Ripper, an enlarged version of the Earth-based tardigrade with the ability to travel in space. During these episodes, the crew discovers that Ripper has the ability to power an experimental drive (the “DASH” drive) that functions on a universe-spanning network (the “mycelial spore network”), allowing for space travel to any location instantaneously. Later, a crew member injects the tardigrade’s DNA into himself, which allows him to serve the same function upon Ripper’s departure.

In the action, plaintiff claimed that Star Trek: Discovery infringed his Tardigrades game materials, based on allegations that both works feature “instantaneous” space travel facilitated by a tardigrade, share certain character elements and themes, and have a similar “total concept and feel” through their common use of science fiction tropes. The district court previously granted CBS’s motion to dismiss for lack of substantial similarity. (Read our summary of the district court’s decision here.) On plaintiff’s appeal, the Second Circuit affirmed.

The court rejected plaintiff’s assertion that the shared use of space-traveling tardigrades constituted infringement. Explaining that facts are not copyrightable, and taking judicial notice of known scientific facts concerning tardigrades, the court held that the similarities in appearance between the parties’ tardigrade characters were based on tardigrades’ actual appearance, which resides in the public domain. Similarly, the court held, “the tardigrade’s ability to survive in space has been reported and discussed in numerous scientific studies and thus has entered the public domain as a scientific fact.” The court further held that “the extension of tardigrades’ known ability to survive in space into the ability to travel in space” is an unprotectable idea. As the court explained, “[b]y permitting Abdin to exclusively own the idea of a space-traveling tardigrade, this Court would improperly withdraw that idea from the public domain and stifle creativity naturally flowing from the scientific fact that tardigrades can survive the vacuum of space.” This, according to the court, would hinder the purpose of copyright law to promote “the progress of science and useful arts” and, in one of several references to Star Trek dialogue, violate the principle espoused by Lieutenant Spock that “[t]he needs of the many outweigh the needs of the few … or the one.” Extracting these unprotectable elements and noting the differences in the parties’ tardigrades, the court concluded “there is no substantial similarity between the protectable features of Abdin’s tardigrade and Ripper from Discovery.”

The court further rejected plaintiff’s reliance on other shared elements between the parties’ works. Among other things, “many of the alleged similarities in the parties’ works (e.g., the use of a space ship, space travel, and alien encounters)” were held to constitute unprotectable scenes a faire that “follow naturally from a work’s theme rather than from an author’s creativity.” With respect to the parties’ characters, “[w]hile the characters do share some traits such as hair color, race, and profession, … the suggestion that a copyright infringement claim can be based on such generic and common characteristics is ‘highly illogical.’” Finally, in examining the works’ total concept and feel, the court explained, “our independent comparison of the two works confirms that the ‘total concept and feel’ of the Videogame is different from that of Discovery” based on the works’ disparate storylines and numerous other differences between them.  

Accordingly, the court concluded that, “after extracting the unprotectable elements from Abdin’s Videogame—the scientific facts, general ideas, science fiction themes constituting secnes a faire, and generalized character traits—… the [v]ideogame and Discovery are not substantially similar,” and on this basis affirmed the district court’s dismissal.

Summary prepared by Wook Hwang and Nathalie Russell