The Second Circuit of Appeals has ruled that the Star Trek: Discovery series, which was shown on CBS All-Access, did not infringe a copyright in a video game that, like the series, features a giant-sized blue tardigrade creature. In a ruling laced with Trekker references, the appeals court found that the plaintiff failed to show a substantial similarity between his video game and the latest iteration of the famed sci-fi series.

Copyright Infringement Suit

As Judge Denny Chin noted in the court’s opinion in Abdin v CBS Broadcasting Inc., the Second Circuit was “asked to boldly go where no court has gone before and determine whether the television series Star Trek: Discovery…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, Anas Osama Ibrahim Abdin submitted a version of his science fiction videogame to several online forums and websites (the "Videogame"). The game featured a giant blue tardigrade traveling in space. For those who may be unfamiliar with this creature, the tardigrade is an actual microscopic eight-legged animal less than one millimeter in length. While most commonly seen on moss or the bottom of lakes, tardigrades are most well-known for their ability to survive in extreme conditions, including hot springs, Himalayan mountaintops, and even open space.

On September 24, 2017, defendant-appellees CBS Broadcasting Inc., Netflix, Inc., CBS Corporation, and CBS Interactive, Inc. (collectively, the “defendants") premiered their latest installment in the Star Trek series, Star Trek: Discovery (Discovery). Discovery featured, in three episodes, a giant blue tardigrade named "Ripper" and followed the space adventures of its newest Starfleet crew.

On June 28, 2018, Abdin registered a copyright for a distillation of the Videogame concept (the "Distillation"). The Distillation is a twenty-three-page compilation of images, descriptions, and illustrations providing details of the Videogame's characters and backstory. Notably, a central character in the Videogame is the "giant blue tardigrade."

One month later, Abdin filed a copyright infringement suit against the defendants. He alleged that in making Discovery, the defendants copied elements of his Videogame, including not only the tardigrade, but the plot, mood, characters, and overall feel as well. The district court granted the defendants' motion to dismiss after concluding that Abdin's copyright claim failed as a matter of law because his Videogame was not substantially similar to Discovery.

Second Circuit’s Decision

The Second Circuit affirmed the lower court’s dismissal. “[W]e agree with the district court that Abdin failed to plausibly allege substantial similarity between his Videogame and Discovery,” Judge Chin wrote.

As noted by the Second Circuit, to establish a claim of copyright infringement, a plaintiff "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 protectible elements of plaintiff's [work]." In this case, the court found that three limitations on copyright protection were particularly relevant to its decision.

To start, the Second Circuit emphasized that facts and ideas are not protected by copyright. “Abdin’s space-traveling tardigrade is an unprotectable idea because it is a generalized expression of a scientific fact—namely, the known ability of a tardigrade to survive in space,” Judge Chin wrote. “By 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.”

The Second Circuit next highlighted that scènes à faire, which the Second Circuit has described as "sequences of events which necessarily follow from a common theme," Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir. 1976), and "incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic," Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir. 1980), are also unprotectable. The appeals court further noted that space travel, supernatural forces, war games, alien discovery, and adventuring through space are “stock themes” in the science fiction genre shared by the Videogame and Discovery.

“Here, we have little trouble concluding that many of the alleged similarities in the parties' works (e.g., the use of a space ship, space travel, and alien encounters) ‘are unprotectable elements that follow naturally from a work's theme rather than from an author's creativity,’” Judge Chin wrote. “Likewise, the basic idea of a tardigrade traveling in space is a natural extension of the tardigrades' known ability to survive in space. Similarly, the idea of a tardigrade facilitating space travel is also unprotectable.”

Based on the foregoing, the Second Circuit held that even assuming that actual copying occurred, Abdin failed to plausibly allege substantial similarity between protectable elements of his Videogame and elements from Discovery. “Overall, the presence of Ripper the tardigrade in Discovery is minimal, as it only appears in three episodes. The main storyline in Discovery focuses on the continuation of storylines beginning in the original Star Trek series and continuing throughout the decades of Star Trek spinoffs and movies,” the court concluded. “Thus, after extracting the unprotectable elements from Abdin's Videogame -- the scientific facts, general ideas, science fiction themes constituting scènes à faire, and generalized character traits -- we hold that the Videogame and Discovery are not substantially similar because the protectable elements, as described above, are markedly different.”

Thus, as in many copyright infringement cases, the result turned upon the feeling of the judge in reaching a subjective decision of substantial similarity.  As Captain James T. Kirk once aptly said: “Sometimes a feeling is all we humans have to go on.”

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, David Einhorn, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.