Abdin v. CBS Broad. Inc.
| Decision Date | 17 August 2020 |
| Docket Number | August Term, 2019,Docket No. 19-3160-cv |
| Parties | Anas Osama Ibrahim ABDIN, Plaintiff-Appellant, v. CBS BROADCASTING INC., Netflix, Inc., CBS Corporation, CBS Interactive, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
John Johnson and Allan Chan, Allan Chan & Associates, New York, New York, for Plaintiff-Appellant.
Wook Hwang, Loeb & Loeb LLP, New York, New York, for Defendants-Appellees.
Before: Chin and Carney, Circuit Judges, and Dooley, District Judge.*
This copyright infringement case marks the latest lawsuit involving the iconic Star Trek series. Since Star Trek premiered in September 1966, courts have wrestled with copyright and trademark lawsuits involving the television series.1 Today, in the latest round of Star Trek -related litigation, we are asked to boldly go where no court has gone before and determine whether the television series Star Trek: Discovery (a recent addition to the Star Trek franchise) unlawfully infringed upon a game developer's videogame concept involving a tardigrade, a real life microscopic organism with the unique ability to survive in space.
In 2014, plaintiff-appellant Anas Osama Ibrahim Abdin submitted a version of his science fiction videogame to several online forums and websites (the "Videogame").
The Videogame was initially introduced on May 8, 2014 under the name Epoch , before Abdin changed the name to Tardigrades on February 22, 2015. As the title of the Videogame suggests, the game featured a tardigrade -- traveling in space. Two years later, on September 24, 2017, defendant-appellees CBS Broadcasting Inc., Netflix, Inc., CBS Corporation, and CBS Interactive, Inc. ("defendants") premiered their latest installment in the Star Trek series, Star Trek: Discovery ("Discovery "). Discovery featured, in three episodes, a tardigrade named "Ripper" and followed the space adventures of its newest Starfleet crew.
Abdin brought this copyright infringement action alleging that in making Discovery , defendants copied elements of his Videogame, including not only the tardigrade, but the plot, mood, characters, and overall feel as well. For the reasons set forth below, we agree with the district court that Abdin failed to plausibly allege substantial similarity between his Videogame and Discovery . Accordingly, the district court's judgment dismissing his third amended complaint is AFFIRMED.
The tardigrade, also known as a "water bear" or "moss piglet," is a microscopic eight-legged animal less than one millimeter in length. App'x at 149. As reported in Smithsonian Magazine, most tardigrades are found on moss or the bottom of lakes feeding on bacteria or plant life. Some have been found, however, "surviving in boiling hot springs" and "buried under layers of ice on Himalayan mountaintops." App'x at 149.3 Further, experiments have shown that tardigrades are able to survive being frozen and heated to extreme temperatures and can withstand pressure and radiation thousands of times stronger than what a human could endure.
See App'x at 157 ().
Willow Gabriel, Goldstein Lab, University of North Carolina at Chapel Hill (May 20, 2007) available at: https://www.flickr.com/photos/waterbears/1614095719.
Tardigrades can survive in such conditions due to "their ability to enter a dehydrated state that closely resembles death." App'x at 150. This state involves a tardigrade curling up into a "ball called a tun , [and] reducing its metabolic activity to as low as .01 percent of normal levels." App'x at 150. A tardigrade can survive as a tun for over a decade, returning to its normal metabolic state in a few hours when immersed in water. When encountering other environmental stresses, tardigrades undergo additional transformations: if the oxygen in their water medium drops too low, they can stretch "into a long, relaxed state" to increase their water and oxygen intake, and if they encounter freezing conditions, they form a "special cold-resistant" tun that helps prevent the formation of ice crystals on their body. App'x at 150. Scientists believe the tardigrades' ability to survive in outer space derives from their ability to survive extreme conditions on Earth.
In 2007, a group of European researchers conducted "the first research project to evaluate the ability of tardigrades to survive under open space conditions," known as "Tardigrades in Space" or "TARDIS." App'x at 144. They exposed a sample of dehydrated tardigrades to the vacuum and solar radiation of outer space for ten days. The tardigrades were "able to survive space vacuum without loss" and some even survived "combined exposure to space vacuum and solar radiation." App'x at 140. Given their findings, the researchers declared the experiment to "represent the first record of an animal surviving simultaneous exposure to space vacuum and solar/galactic radiation." App'x at 142.4
Two additional experiments involving tardigrades in space were conducted, one by the Russian Federal Space Agency and the other by the Italian Space Agency. As reported in Scientific American, the Russian Federal Space Agency arranged for a space probe to carry samples of Earth life to one of Mars' moons. Tardigrades were among the organisms chosen for the experiment, due to "their ability to repair DNA damage." App'x at 154. In addition, BBC Nature reported in 2011 that the Italian Space Agency sponsored a project to "investigate the impact of short-duration spaceflight on a number of microscopic organisms." App'x at 158. One experiment, the "Tardkiss," planned to "expose colonies of tardigrade[s] to different levels of ionising radiation" during the spaceflight to help determine how radiation affects the way tardigrades' cells work. App'x at 158. Overall, while not crediting the truth of the matters asserted in the studies, this Court notes that the tardigrades' unique ability to survive in extreme conditions, including apparently in the vacuum of space, has been the subject of scientific research and public discussion.
Tardigrades have also been the subject of fictional works, in addition to the works at issue in this case. In 2010, a children's fantasy novel featured Otto, a "gargantuan" tardigrade that was "the size of an elephant." App'x at 134 (quoting Tony DiTerlizzi, The Search for Wondla 110, 206 (2010)). In 2013, a science fiction novel referred to the ability of tardigrades to resist radiation. App'x at 135 (citing Sir Terry Pratchett, The Science of Discworld IV: Judgment Day (2013)). In 2014, Cartoon Network aired the fifth season of a television series Adventure Time , an episode of which featured a creature called "Grass Bear" based on a tardigrade. App'x at 135. And in 2015, an animator posted an animated video to YouTube featuring "Captain Tardigrade," a half-man, halftardigrade traveling in space. App'x at 136 ().
Between May 2014 and July 2017, Abdin posted draft designs, video trailers, and descriptions of a science fiction script on his personal blog, YouTube, social media, and online forums, promoting his unreleased Videogame concept. None of the video or internet content published between May 2014 and September 2017 was registered for copyright. On June 28, 2018, Abdin registered a copyright for a distillation of the Videogame concept (the "Distillation").5 The Distillation is a twenty-three-page compilation of images, descriptions, and illustrations providing details of the Videogame's characters and backstory.
In general, the Videogame is a point-and-click adventure game about a civilization that existed in 20,000 B.C. and "discover[ed] intergalactic travel using their latest technologies." App'x at 71. The Videogame follows a protagonist, Carter, a blonde male botanist who lives on a space station orbiting the planet Jupiter. Carter communicates with other characters and explores the space station and other planets to solve puzzles. See Suppl. App'x at 131 (Game Trailer 1). The Videogame has "two possible endings and [tens] of ways to complete its puzzles," which are "triggered randomly at any time of the game play." App'x at 71. In short, the Videogame is interactive and the individual playing the game (the "player") can alter the "story" based on the player's "attitude in dialogs, tasks, choices and/or random events." App'x at 71. The player is "basically ... writing the story of the game." App'x at 71.
The essential elements of the possible Videogame storylines can be drawn from vignettes in the Distillation and video trailers published by Abdin online. The Videogame explores space travel and contains themes involving adventure, romance, "slavery, secrecy[,] and espionage." App'x at 71.
An important character in the Videogame is the "giant blue tardigrade." App'x at 67. The Distillation notes that tardigrades can "withstand extreme temperatures between -458 F° up [ ] to 300 F°," and "are the first known animals to survive in space." App'x at 85. The Distillation depicts Carter "being absorbed into the tardigrade, becoming one with the tardigrade, and having the tardigrade's abnormal powers." App'x at 24; see also App'x at 78. With assistance from the tardigrade, Carter discovered "instantaneous space travel" by traveling through a "wormhole" -- i.e. , "a theoretical method of folding space and time so that [one] could connect two places in space together." App'x at 227. Using essentially the same image, the video trailers and teasers also show a blue tardigrade enveloping Carter and then moving through space. See Suppl. App'x at 135.
The Distillation also provides biographical descriptions and images of some of the Videogame's characters. These biographies describe a diverse cast of characters with different...
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