Abdin v. CBS Broad., Inc.
| Decision Date | 20 September 2019 |
| Docket Number | 18 Civ. 7543 (LGS) |
| Citation | 405 F.Supp.3d 591 |
| Parties | Anas Osama Ibrahim ABDIN, Plaintiff, v. CBS BROADCASTING, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Allan Chan, Allan Chan & Assoc., John Johnson, John Johnson & Associates, New York, NY, for Plaintiffs.
Wook J. Hwang, Jonathan Zavin, Loeb & Loeb LLP, New York, NY, for Defendants.
Plaintiff Anas Osama Ibrahim Abdin filed the Third Amended Complaint ("TAC") on January 15, 2019, against CBS Broadcasting, Inc. and/or CBS Corp. and/or CBS Interactive Netflix, Inc. The TAC alleges that Defendants violated the Copyright Act, 17 U.S.C. § 101 et seq. , by copying Plaintiff's concept for an unreleased science fiction videogame Tardigrades in their Star Trek: Discovery television series (the "Television Series").1 Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants move to dismiss the TAC on the ground that Star Trek: Discovery is not substantially similar to Plaintiff's videogame as a matter of law. As discussed below, Defendants' motion is granted.
The facts below are drawn from the TAC and its exhibits, which include all available images and video and audio footage of the Videogame, and other evidence integral to the Complaint, which includes all fifteen episodes of the Television Series' first season. The facts are construed in the light most favorable to Plaintiff as the non-moving party. See Doe v. Columbia Univ. , 831 F.3d 46, 48 (2d Cir. 2016).
Between May 2014 and September 2017, Plaintiff published draft designs, videos, and descriptions of the videogame on his personal website, YouTube, and other popular websites. Plaintiff has compiled these materials in a video file with the filename "Exhibit K-H" (the "Video Compilation"), comprising approximately thirty minutes of twenty-three separate YouTube videos, followed by static blog posts from two websites. None of the contents of the Video Compilation is alleged to be registered for copyright. On June 28, 2018, Plaintiff registered for copyright a distillation of the game concept, which was first published July 12, 2017 (the "Distillation"). Plaintiff claims, and it is assumed for purposes of this motion, that the Video Compilation and Distillation are the protected work that Defendants allegedly infringed. The videogame itself has not yet been released. Nevertheless, for ease of reference, Plaintiff's allegedly protected work hereafter is collectively referred to as the "Videogame."
The Videogame follows Carter, a blonde male botanist who lives on a space station, Marsi 3, which orbits the planet Jupiter. Other characters are Aziz, a technician with a dark complexion who is gay, Kat, a blonde engineer, Yolanda, a black woman who is the space station's communications engineer, and Natasha, a red-haired woman whom Plaintiff describes as a "bad girl." The game 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."
Carter communicates with others and explores the space station, the outer space, and planet terrains to solve puzzles. The player decides Carter's mood as he completes tasks, which may alter the Videogame's storyline. The storyline "has a plot twist and deals with slavery, secrecy, espionage and other issues." One video suggests that the game involves an alien race that knows the origins of the universe. Another suggests that Carter has superpowers.
In early 2015, Plaintiff changed the Videogame's title from Epoch to Tardigrades2 and introduced tardigrades to the game series, as reflected in about the last ten minutes of the Video Compilation. These ten minutes contain two video snippets depicting Plaintiff's tardigrade. The first is the closing sequence to each of the videos showing a small tardigrade fading into the background and lasting approximately one second. The second is a thirteen-second sequence in a single video that shows a massive, deep blue tardigrade, standing upright, that grabs Carter from behind with its eight limbs and envelopes Carter within itself before crawling off into space. The same sequence appears on two pages of the Distillation. In the blog post announcing the name change, Plaintiff describes tardigrades as "indestructible." He states that "[d]espite their little size," tardigrades can "survive temperatures from just above absolute zero up to above the boiling point of water," can "survive extreme conditions of radiation and the vacuum of space" and can "go without food or water for more than 10 years." The blog post asks, "Who else can travel in space like tardigrades?" Although unexplained, it can be surmised that Carter, enveloped within the tardigrade, is also protected from the conditions of space. Despite the allegation in the TAC, the Videogame does not suggest that Plaintiff's tardigrade is capable of "instantaneous" space travel.
A June 2015 blog post announced a change to the Videogame's logo, describing it as "a combination of the water bear [a colloquial name for the tardigrade] posing as the ancient Egyptian scarab holding a crook and a flail, accessorized with two wings."
The Television Series first aired on September 24, 2017, and follows the same themes as earlier Star Trek television shows and movies.3 The protagonist is Michael Burnham, a Vulcan-raised, human, black woman who fights for the United Federation of Planets (the "Federation") on a spaceship in a war against the alien Klingons. Other characters are Captain Philippa Georgiou, an Asian woman who shares a close bond with Burnham; Captain Gabriel Lorca, a white man with a hawkish disposition; Silvia Tilly, an anxious young woman with red hair; Paul Stamets, a blonde, white man who is an "astromycologist" (someone who studies space-based fungi) and is gay; and Hugh Culber, a doctor with a dark complexion who is Stamets' partner.
A storyline early in the first season involves an advanced technology called the "Displacement Activated Spore Hub (DASH) Drive." The DASH Drive connects to a "mycelial network" that spans the galaxy and allows a spacecraft to travel instantaneously to any location. The DASH Drive, however, does not work until Burnham, Stamets and Tilly find an alien tardigrade and learn that its "unique genetic makeup allows it to navigate through the [mycelial] network because of its symbiotic relationship with the mycelium spores."
The alien tardigrade is named Ripper and is a polar bear-sized "cousin" of the microscopic earth tardigrade. Although the alien tardigrade is often lit in electric blue light, it is not blue; it is greenish brownish with four pairs of clawed limbs and body armor segments with tentacles. The alien tardigrade is at first violent, but Burnham discovers that it is normally docile. Burnham also learns that the alien tardigrade feels pain when Captain Lorca uses it to travel instantaneously through space. Rather than harm the creature, Stamets chooses to inject himself with the alien tardigrade's DNA so that he -- instead of the entrapped tardigrade -- can connect to the DASH Drive. Michael and Tilly ultimately release the alien tardigrade into space, and the creature flies away through the subspace mycelial spore network. Episodes four and five are the only episodes of the fifteen-episode series in which Ripper (the only tardigrade-like creature in the series) makes more than a fleeting appearance.
The show interweaves storylines about the Klingon War and intergalactic travel with storylines about the personal struggles of its lead characters. Burnham carries guilt over her prior acts of mutiny and dual identity as a human-born on Vulcan. Tilly feels anxiety as a young member of the space crew. Stamets struggles to balance his professional ambitions with his personal relationship with Culber. The Television Series also follows the story of a Klingon, named Voq, whom other Klingons disrespect because of the "color of [his] skin.
On a motion to dismiss, a court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party. Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a pleading "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
Where the disputed works are attached to or incorporated by reference in the complaint, a district court can "consider the similarity between those works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation." Peter F. Gaito Architecture, LLC v. Simone Dev. Corp. , 602 F.3d 57, 64 (2d Cir. 2010). In a copyright infringement action, "the works themselves supersede and control contrary descriptions of them, including any contrary allegations, conclusions or descriptions of the works contained in the pleadings." Id. at 64 (internal citations and quotation marks omitted); accord Hirsch v. Complex Media, Inc. , No. 18 Civ. 5488, 2018 WL 6985227, at *2 (S.D.N.Y. Dec. 10, 2018). "In order to establish a claim of copyright infringement, a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectable elements of plaintiff's." Gaito , 602 F.3d at 63 (citation and internal quotation marks omitted); accord Gardner v. Merlo , No. 19 Civ. 6701, 2019 WL 3936965, at *2 (S.D.N.Y. Aug. 19, 2019)...
To continue reading
Request your trial