The US Court of Appeals for the Second Circuit affirmed a district court’s pleadings-stage determination that certain Star Trek: Discovery characters and plotlines did not infringe copyrighted elements of a video game because there was not substantial similarity between protectible elements of the video game and the Discovery episodes. Abdin v. CBS Broad. Inc., Case No. 19-3160 (Fed. Cir. Aug. 17, 2020) (Chin, J.).

Between 2014 and 2017, Plaintiff Abdin posted videos and draft designs online for his sci-fi video game, Tardigrade, a puzzle-based game in which the human protagonist can travel through outer space in the warm embrace of a gigantic blue tardigrade. Tardigrades, also known as water bears, are microscopic animals capable of withstanding extreme climates—including the harsh vacuum and radiation of space. After a 2007 research study confirmed tardigrades’ spacefaring abilities, they became somewhat of a pop culture phenomenon, being featured in numerous literary works and television shows. In June 2018, Abdin registered a copyright for a distillation of his video game concept.

In the latest installment of the Star Trek series, the 2017 season of Discovery features a three-episode storyline involving a creature called Ripper that resembles a giant tardigrade. The crew of the USS Enterprise realizes that Ripper is able to act as a type of supercomputer to improve the performance of their space traveling equipment (the DASH Drive).

Abdin filed suit for copyright infringement against CBS in August 2018, alleging that the Discovery creators copied aspects of his video game, including space-traveling tardigrades. CBS filed a motion to dismiss, which was granted by the district court. The district court concluded that Abdin’s video game was not substantially similar to Discovery. Abdin appealed.

The Second Circuit reviewed the lower court’s dismissal de novo and affirmed the district court’s dismissal, finding that Abdin failed to plausibly allege substantial similarity between protectible elements of his video game and the Discovery episodes. The Court first looked to the two elements of a copyright infringement claim: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The Court explained that to satisfy the second element, Abdin must demonstrate that CBS actually copied Abdin’s work, and that a substantial similarity exists between CBS’s work and the “protectible” elements of Abdin’s work.

The Second Circuit identified three elements of Abdin’s video game that were not protectible under copyright law: facts and ideas, scènes à faire and generic character traits. First, the Court found that the scientific facts relating to tardigrades’ survivability are not copyrightable, and that Abdin’s idea of tardigrades moving through space was also unprotectible. While noting the distinction between an idea and its expression is elusive, the Court explained that Abdin’s space-traveling tardigrade was merely a generalized expression of a scientific fact. Second, the Court looked to whether any of Abdin’s otherwise protectible expressions were unprotected scènes à faire—indispensable “stock themes” in a given genre. The Court explained that space travel, supernatural forces and alien encounters are all generic themes that appear regularly in the science fiction genre. Citing to numerous cases involving science fiction works, the Court had “little trouble” concluding that many of the allegedly unlawful similarities between Discovery and Tardigrade were not protected by copyright law as scènes à faire. Third, the Court agreed with the district court’s conclusion that character similarities between Discovery and Tardigrade were general, undeveloped and unprotectible. While several of the characters shared ethnicities, sex, mannerisms and hair color, the Court noted that it has denied claims with far more similar characteristics, and that such “stock similarities” are unprotectible.

The Second Circuit also noted that there is no infringement when the “total concept and feel” of competing works is different. The Court independently compared the works, finding that the total concept and feel of the two works was different. Namely, Discovery builds on decades of consistent Star Trek plot lines, themes and stories, while Tardigrade’s total concept and feel is unclear, disjointed and puzzle-focused.

After extracting the unprotectible portions of the video game, Abdin was left with few elements upon which to argue substantial similarity. Abdin argued that the tardigrade-human interaction (the tardigrade hug) was protectible, but the Second Circuit noted that in Discovery, Ripper was simply “hooked up to the DASH Drive.” Further, the tardigrade in Abdin’s game was nameless, with no clear role, while Ripper was the central character of a Discovery storyline. Accordingly, the Court concluded that Abdin failed to allege substantial similarity between the works, and that the district court did not err in its dismissal.