Tardigrades v. Human Enterprise, ----E.D.A. 5th---- (2020). [1]
OPINION
Lauren C. Ostberg, Esq.
A Second Circuit case concerning the alleged infringement of copyrightable elements in the video game Tardigrades by the television series Star Trek: Discovery provides a launching point for one essayist’s mixed metaphors and concerns about the smallness of human creation.
BACKGROUND
1. The Plaintiff and the Tardigrade
The Plaintiff, Adas Abdin, developed a video game, originally called Epoch, amended title Tardigrades. He submitted versions of the as-yet-incomplete game in internet forums in 2014 and 2015. In 2018, after receiving multiple comments and questions from fans [2] about the similarity of his blue, instantaneously-space-traveling tardigrades and those featured in the recently-premiered Star Trek: Discovery TV series, Abdin filed a complaint for copyright infringement and amended it thrice. The Southern District of New York dismissed Abdin’s suit in September 2019, so he appealed to a higher power: the Second Circuit.
App's at 71 (Abdin's tardigrade).
The tardigrade, the eponymous hero of Plaintiff’s videogame, is a creature that exists on earth. Also called a “moss piglet” and “water bear,” it is a microscopic, eight-legged animal less than a millimeter in length. [3] Experiments show that tardigrades can survive in boiling hot springs, being frozen and then reheated, exposure to pressure and radiation thousands of times stronger than what humans can endure. They retract their limbs and enter a “tun” state of mostly-suspended animation, from which they can sometimes be revived (even thirty years later) with a little rehydration. Experiments have (i) determined that tardigrades can survive in outer space for a period of at least ten days; (ii) sent tardigrades for one of Mars’ moons; and (iii) exposed tardigrades to variable levels of radiation. [4] Some of these experiments have gone awry. A failed lunar missions has left tardigrades, who are possible not yet dead, marooned on the surface of the moon. [5]
See App'x at 157 (photo of a tardigrade published on "BBC Nature Features" on May 17, 2011).
2. The Defendant
Abdin sued CBS and Netflix, alleging that several episodes of Star Trek: Discovery infringed on his work. Star Trek: Discovery is (or began as) a prequel to Star Trek: The Original Series. The entire first season of the series was examined by the trial court. In that season, there was a three-episode arc in which (spoiler) several crew members were slain, and the ship ultimately saved, through the actions of a giant tardigrade-like being called Ripper.
Suppl. App'x at 143 at 25:42 (Ripper).
3. The Judge
Denny Chin, a justice of the Second Circuit, is supposed, by some, to be a fan of the Star Trek series. [6] His opinion quotes Captain Kirk twice; one of those quotations is in the form of a legal citation. [7] He not only cites a California case that defines Klingons—“a militaristic, alien species”—but also one that names their home planet—“from Qo’noS.” [8] He includes a gratuitous summary of the Prime Directive in his description of the Star Trek franchise, which shows the irresistibility of a (severely attenuated) guiding principle—a Constitution, if you will—to the Court.
Judge Chin pays extensive tribute to the backlog of Star Trek related litigation, [9] but, after having some fun exploring the elsewhere-defined Star Trek Properties, he recognizes the frontier of this particular set of facts. This case is boldly going, Judge Chin writes, where no other court has gone before: to decide the narrow issue of “whether the television series Star Trek: Discovery (a recent addition to the Star Trek franchise) unlawfully infringed upon a video game developer’s videogame concept involving a tardigrade, a real life microscopic organism with a unique ability to survive in space.”
4. The Essayist 
I am of a generation that grew up on Star Trek: The Next Generation. I owned The Nitpicker’s Guide and wondered how its author [10] could see so many small “mistakes” in a world that had wormholes and alternate timelines and very, very fake science to iron over inconsistencies. Mom took me to a convention when I was eight. There were Klingons there, with forehead ridges and combat uniforms. I trotted around like Wesley Crusher, a precocious ensign lucky to have found myself aboard the flagship of the fleet, a humanistic—no, broader. . . humanoidistic?—utopia.
These days, I work as a lawyer. I tell people I do primarily intellectual property and cybersecurity, but there’s some general commercial litigation in there, too. The partner who supervises most of my work is a former engineer. (I am a former English major. “I’m fluent!” I declare, a little too often.) Sometimes, my boss laughs at my wordplay, but sometimes he says, “Lauren, this isn’t a short story; it’s a brief.” [11]
DISCUSSION
First, yes, I think Judge Chin was right, as was the district court below. Abdin didn’t invent tardigrades; he wasn’t the first to think about making a microscopic animal macroscopic. He wasn’t the first to send them into outer space, literally or fictionally. Also, the elements of Abdin’s work allegedly copied by Discovery—a large, blue tardigrade, who moves almost instantaneously through space—seem to fall on the unprotectable [12] “idea” end of the idea-expression spectrum. [13]
But these are all abstractions, and, honestly, while the outcome of this suit is meaningful to Abdin and Netflix and presumably the court below (affirmation always feels good), it is not likely to rock the Second Circuit’s jurisprudence or change the way anyone thinks about copyright law. I am delighted by this case, its warmhearted treatment of the facts, the image in my mind of a judge or clerk consulting a Klingon dictionary or another fictional guide for a proper transliteration of the spelling of an alien homeworld. I am exasperated by this case: how small are we—we, the legal system, we, creators, we, humanity—that we spend tens of thousands of dollars, the billable hours of at least three named appellate counsel, and the expertise of four federal judges sitting at three levels of Court, on this?
1. Allegorically Applicable Law
What concerns me, I think, is a question of scale: quarks versus cosmology, the created versus the described. It’s also about the way that the unknown—the dark matter, if you will—and our attempts to understand it changes what is. If you muddle the Heisenberg uncertainty principle and Schrodinger’s cat, if you use your humanities-oriented-education to approach theoretical physics, [14] you end up tangled in similes and cfs. and far, far from the facts on the ground. [15]
Let me try again: what is at issue, for me, in the Abdin case is the perverse narrowness, on one end, and the agoraphobic expanse—the wormholes—on the other. “Fragmented literal similarity” and “comprehensive nonliteral similarity,” two tests accepted in the Second Circuit to examine the “substantial similarity” prong of copyright infringement, will frame this discussion.
A. Fragmented literal similarity
Fragmented literal similarity refers to exact copying of a portion of a work. [17] For example, when The Joy of Trek, a fan guide to Star Trek Properties, included the phrases “make it so” and “live long and prosper,” the court found fragmented literal similarity. [18] If I wrote “The recombinant is manifest as forms as diverse as . . . genre-warping fan fiction from the universes of Star Trek and Buffy” and later included the insight that “To ‘tell a story well’ is to make what one writes resemble the schemes people are used to—in other words, their ready-made idea of reality,” this essay would have fragmented literal similarity to David Shields’s Reality Hunger.
To me, metaphorically, at least, [19] there’s fragmented literal similarity between the Abdin case and the planting of an American flag on the moon. What are we claiming, exactly, but a sliver of what exists, whether it be rocks in a distant orbit or blue versions of gray creatures? What are we leaving but debris? The founders imagined a system that would “promote the progress of science and useful arts” and secure, for a time, the rights of “authors and inventors.” [20] And here we are, arguing whether an unfinished game’s application of a standard science fiction trope to a real creature actually shot into space is substantially similar to a predecessor to an “original series” of a once-progressive show’s depiction of that same creature. This case is a shard that exposes fissures in the mighty engines of human enterprise.
I may have overstated my position. [21] Honestly, the Abdin case was funny to me until I read an article about tardigrades who crash landed on the moon. [22] Something about imagining beings that were already in a tun state—limbs retracted, dehydrated—scattered, withering, unstudied and unaccompanied, wrecked me. We (we being humanity) could have left them on the floor of terrestrial lakes. We could have attempted a rescue mission. Rather than making them into bitmoji, we could have thought about the Jurassic Park question. [23] Rather than writing this essay, I could have thought through the ethics of experimentation. I could have developed an argument for jurisdiction. I could have searched for someone with standing. [24]
B. Comprehensive nonliteral similarity
Comprehensive nonliteral similarity is peripherally referenced, [25] but not actually discussed, in the Star Trek opinions Judge Chin dutifully recites. Here’s my educated guess about what it means: the story has the same arc. [26] It’s the Clueless to the Emma, maybe. Here’s what the hornbooks say it means: it’s a form of infringement when one work appropriates “the fundamental structure or pattern” of another. [27] Of course, because a general idea—the sequence of the hero’s journey, the science fiction trope of “but what if this small thing is huge?”—is not copyrightable, the question of comprehensive literal similarity is a question of scale as well. To draw these distinctions, and to really understand what “comprehensive literal similarity” [28] means to the Second Circuit (Judge Chin’s court), I need to read Arica v. Palmer, 970 F.2d 1026 (2d. Cir. 1992).
The Arica case is a delight. It involves a plaintiff claiming that defendant’s book copied “the sequence or arrangement of the ego fixations within [third party’s] system.” [29] It discusses Enneagrams. And it includes this nugget here: [30]
Arica has stated elsewhere that the series of fixations is a “natural declension” comparable to “the spectrum of colors,” and that “the sequence of the series cannot be changed at will by subjective preference.” Ichazo, Letters to the School 74 (1988). Thus, for the purposes of this lawsuit we take Arica at its word and assume that the sequence of the fixations, like the fixations themselves, is an unalterable fact, the product of discovery and not creativity.
So, according to this court, ego fixations occur in a natural, unalterable order because Plaintiff says they do. This is a masterful sidestep, and also a means of accepting the universe both plaintiff and defendant’s works inhabit. So, according to this court, the allegedly infringed material is “the product of discovery and not creativity.” [31] This distinction between discovery and creation brings me exactly to where I was hoping to end up: back at the Abdin case, back at tardigrades, and back at joy.
What so pleases me about tardigrades, and Judge Chin’s opinion in Abdin, and maybe the law, is that they are products of discovery, rather than pure creativity. Instead of developing fictional worlds whose inconsistencies can be glossed over with a timeloop or a dilithium shortage, we (we being lawyers, we being essayists, we being humans limited by the laws of physics and space and time) dig up facts and draw distinctions between “fictionalized history” and sequences that can and cannot “be changed at will by subjective preference.” [32] We apply microscopes and see a being that can survive in space, a creature born for science-fiction, a marvel beyond human engineering. Nonfictional scientists study the tardigrade’s physical properties. Its narrative possibility—its meaning—is approached by multiple layers in our cultural imagination.
And even when one variable is ascertained, one narrow issue decided, the tardigrade—our discovery of it—has a propulsive, exponential force. Does the tardigrades’ crash-landing violate the Outer Space Treaty, and, if so, should such treaty be amended? [33] Is the Abdin opinion a text worth of a course in Legal Science Fiction? What sort of meaning, what sort of art, could we make if we were rehydrated and released from our artificially-imposed tun state?
CONCLUSION
For the foregoing reasons, the mission continues.
ENDNOTES
[1] Rather than follow the in-text citation style of the bluepages of the Bluebook, I am following the local rules for this specific jurisdiction. See, e.g, 2020 (I invent a citation style that I hope will be both skimmable and readable).
[2] Anas Abdin, Star Trek: Discovery and Tardigrades, Anas-tronaut (Oct. 18, 2017 11:46 a.m.).
[3] Abdin v. CBS Broadcasting Inc., 971 F.3d 57 (2020), App’x at 149.
[4] Id., App’x at 142, 154, 158.
[5] Kameron Virk, Tardigrades: ‘Water Bears’ Stuck on the Moon After Crash, BBC.com (Aug. 7, 2019).
[6] I do not mean to suggest that he is implicitly biased, and note that the attorneys below did not seek recusal on these grounds. See Model Code of Judicial Conduct, r. 2.11(A) (Am. Bar. Ass’n 2020).)
[7] See, e.g., Abdin, 971 F.3d at 69 (quoting Captain James T. Kirk, Star Trek: The Return of the Archons, Star Trek: The Original Series (1967) (“Without freedom of choice, there is no creativity”).
[8] Id. at 64.
[9] See, e.g. Paramount Pictures Corp v. Carol Pub. Grp., 11 F. Supp. 2d 329, 333 (S.D.N.Y. 1998)(“Paramount”), as well as Star Trek legal scholarship, see, e.g., The Interstellar Relations of the Federation: International Law and “Star Trek: The Next Generation”, 25 U. Tol. L. R. 577, 581 (1994).
[10] My mother, who married an engineer, wondered out loud how the author of that guide (a computer programmer and novelist) had managed to find someone to not only eat dinner with him, but to do so every night. I liked to imagine that he didn’t nitpick at dinner, but saved it all for readers of his website, who had similarly high expectations for continuity and consistency in their fictional universes.
[11] See also 2014 (my legal writing professor fails to appreciate the “surprise endings” in my assigned memorandum, and someone advises me that constructing a legal argument isn’t about creating a work of art: it’s about building a machine).
[12] Abdin writes, in his blog, that the lawsuit and its fallout has made it very difficult for him to finish his game. I imagine that it would be very painful to have a court essentially adjudicate the creativity level of an artistic project and find it lacking, and strange to finish a story that, in the creator’s mind, is already the subject of a spinoff.
[13] See Abdin, 971 F.3d at 68 (citing 17 U.S.C. § 102(b); Attia v. Soc’y of N.Y. Hosp., 201 F.3d 50, 54 (2d Cir. 1999) (quotation omitted)). But see Ryan Britt, Star Trek’s Famous “Tribble” Episode Was a Sweet Ripoff, Inverse (Dec. 29, 2017, 3:38 p.m., updated Jan. 1, 2018) (author of Star Trek episode involving rapidly-producing troublesome creatures allegedly sought permission from Robert Heinlein, author of The Rolling Stones (1952), a novel about rapidly-reproducing troublesome creatures, in order to avoid a potential suit for copyright infringement; Heinlein denies giving permission).
[14] See, e.g, 2010 (using the Buddhist concept of anatta to explain string theory to myself).
[15] See, e.g, 2006 (my relentless insistence that Joseph Campbell’s The Golden Bough proved that every story is the same story, without being able to read more than three pages of Campbell’s book, and despite the fact that Sir James George Frazer, not Joseph Campbell, wrote The Golden Bough); cf. Northern Securities Co. v. United States, 193 U.S. 197, 400 (Harlan, J.)(dissenting)(“Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”).
[16] See Paramount, 11 F. Supp. 2d 329, 333 (S.D.N.Y. 1998).
[17] Id. (citing Ringgold v. Black Entmt. Television, Inc., 126 F.3d 70, 75 n.3 (2d Cir. 1997)).
[18] Id. at 333-334.
[19] See, e.g., Darmok, Star Trek: The Next Generation, 5:2 (Sept. 30, 1991) (an episode in Season 5, when ST:TNG was peaking, involving a culture that spoke only in reference to a mythology that was mysterious to the Enterprise’s crew). Cf. 2015 (I am watching a trivia game, which followed a panel on vessel schematics, at a convention in Cherry Hill, New Jersey. A woman who had been sitting in front of us is wearing a Darmok and Jalad T-shirt. When she is ousted on an early question, both my companion and I want to convey our empathy with, “Shaka, when the walls fell,” but we miss our moment.). See also 2016, 2018, 2019 (this failure is referenced in subsequent discussions of minor disappointments).
[20] U.S. Const. art. 1, sec. 8, cl 8.
[21] See 2015 (Career Services suggest I “dial it back.” “Dial what back?” I ask. “The speed at which I talk? My volume? The amount of information I offer in response to a single question.” She nods. “Yes.”).
[22] See, e.g., Kameron Virk, Tardigrades:‘Water Bears’ Stuck on the Moon After Crash, BBC.com (Aug. 7, 2019).
[23] See Ian Malcolm, Jurassic Park (Universal Pictures 1993) (“Your scientists were so preoccupied with whether or not they could that they didn’t stop to think if they should.”).
[24] Cf. Nonhuman Rights Project, Inc. v. R.W. Commeford & Sons, Inc., AC 41464 (Conn. App. Ct. Aug 20, 2019) (habeas corpus petition for elephants denied for lack of standing).
[25] Paramount, 11 F. Supp. 2d at 333 (S.D.N.Y. 1998).
[26] See generally 2006.
[27] McCarthy, J, Thomas; Roger E. Schecter; David J. Franklyn (2004), McCarthy’s Desk Encyclopedia of Intellectual Property (3 ed.), BNA Books, pp. 576-577.
[28] I am using scare quotes here because the words have a specific meaning in this context, and also because, if you really drill down on a word for more than thirty seconds, you find that it means very little and language is arbitrary and what is a referent but a symbol paired with one person’s psychology. See, e.g., 2005 (I take a linguistics class and write a series of lengthy research papers, using new-to-me words, addressing the inadequacy of language); see generally C.K. Ogden and I.A. Richards, The Meaning of Meaning (Harcourt 1923).
[29] Arica v. Palmer, 970 F.2d at 1075 (citing Arica, 770 F. Supp. at 191; accord Arica, 761 F. Supp. at 1063).
[30] Id. (not ego) at 1076.
[31] Id.
[32] Compare Paramount, 11 F. Supp. 2d at 333 with Arica, 761 F. Supp. at 1063.
[33] See Loren Grush, Why Stowaway Creatures on the Moon Confound International Space Law, The Verge, (Aug. 16, 2019 9:00 a.m.).
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Lauren C. Ostberg is living that sweet, sweet MFA/JD life in Western Massachusetts. You can find her work on New England Public Radio, The [now-defunct] Hairpin, and in a wide array of alternative weekly magazines.
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