UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
MARTIN POLL, LARRY COHEN,
HOLLANE CORPORATION, LARCO,
Plaintiffs, - against - COMPLAINT
FOX ENTERTAINMENT GROUP;
TWENTIETH CENTURY FOX;
FOX FILMED ENTERTAINMENT, Defendants.
Plaintiffs, by their undersigned attorneys, for their complaint against defendants, allege as follows:
1. Plaintiffs are well-known and respected figures in the film industry, who developed a screenplay, and revisions thereof, entitled "Cast of Characters" (hereinafter "COC"), which depicts the banding together of certain 19th Century literary figures to form a league of Victorian era superheroes to thwart a fiendish plot masterminded by the evil Moriarty, the arch nemesis of Sherlock Holmes, with the help of Oscar Wilde's Dorian Gray. Defendants, who collectively constitute one of the five largest national film studios, deliberately misappropriated plaintiffs' work after plaintiffs repeatedly submitted COC to defendants' highest level of management, including to Tom Rothman, Twentieth Century Fox's then president of production and current co-chairman. As defendants well knew, plaintiffs submitted COC with the purpose of determining if defendants would finance and distribute plaintiffs' screenplay with plaintiffs Hollane Corp. / Martin Poll as producer. The submissions were to be kept strictly confidential. Defendants flagrantly and unlawfully stole COC in violation of the copyright and other state laws and repackaged it as a major feature film entitled, "The League of Extraordinary Gentlemen" ("LXG"). Not coincidentally, LXG, like the plot in COC which it copies, depicts a league of Victorian era superheroes that, comparable to the overlapping superheroes featured in COC, battle the evil Moriarty and Dorian Gray.
JURISDICTION AND VENUE
2. This claim arises under the provisions of the Copyright Act of 1976, as amended, 17 U.S.C.A. 1 et. seq., and is for infringement of a copyright registered in the Copyright Office of the United States. Additionally, plaintiffs assert pendent causes of action under state law for the breach of an implied contract in-fact and breach of confidence.
3. This Court's jurisdiction over this matter is proper pursuant to 28 U.S.C. 1331 and 1338(a).
4. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) and 1400(a) in that defendants or their agents may be found in this district and a substantial part of the events or omissions giving rise to the claim occurred in this district.
5. Plaintiff Martin Poll resides in Los Angeles, California. He is a respected and well known film producer, having produced the "The Lion in Winter" (1968), starring Katharine Hepburn, Anthony Hopkins, Timothy Dalton and Peter O'Toole, which garnered nine Academy Award nominations, three Academy Awards, seven Golden Globe nominations and received the Awards for Best Picture and Best Actor (Peter O'Toole), eight British Academy Award nominations and two Awards, and the Italian David di Donatello Award for Best Film. Among Poll's other films are "Night Watch" (1973) starring Elizabeth Taylor, Woody Allen's "Love and Death" (1975) (Executive Producer) and "Nighthawks" (1981) starring Sylvester Stallone.
6. Poll is well known to Fox; he was executive producer of a feature film entitled "Gimme an 'F,'" which was financed and distributed by Fox in 1984. Poll is and was well-known to Tom Rothman, Fox's current chairman of all Fox Feature Film Divisions. Rothman was President of Worldwide Production for Samuel Goldwyn Films in 1991 when Goldwyn distributed the Poll produced film "My Heroes Have Always Been Cowboys" that starred Scott Glenn, Kate Capshaw and Ben Johnson.
7. Larry Cohen resides in Beverly Hills, California at 2111 Coldwater Canyons, Beverly Hills, CA 90210. He is an award winning veteran writer of TV and Film including the 2003 Joel Schumacher film "Phone Booth", starring Colin Farrell, which was financed and distributed by Fox. Several of Larry Cohen's films have ranked #1 on the Variety Box Office Charts. Cohen has been honored in a month-long retrospective of eleven of his films at Joseph Papp's New York Shakespeare Festival, followed by another month-long tribute at Chicago's Art Institute. He also received the George Pal Award from the Academy of Science Fiction in 1987, the Grand Prize for Best Comedy at the Paris Film Festival and twice received the coveted Special Jury Prize at the Avoriaz Film Festival in France.
8. Martin Poll is the sole stockholder of Plaintiff Hollane Corp. ("Hollane"), a Delaware corporation, which is authorized to and does business in California, with its business address located at 1156 N. Curson Avenue, Los Angeles, CA 90046.
9. Larry Cohen is the sole stockholder of Plaintiff Larco Productions, Inc. ("Larco"), which has been incorporated in New York State since 1964 and licensed to do business in the State of California approximately since 1967, with its principal offices presently located at 2111 Coldwater Canyons, Beverly Hills, CA 90210.
10. Defendant Fox Entertainment Group ("FEG") is a Delaware Corporation with its principal executive offices located at 1211 Avenue of the Americas, New York, N.Y. 10036. FEG is principally engaged in the development, production and worldwide distribution of feature films and television programs, television broadcasting and cable network programming. FEG is a majority-owned subsidiary of The News Corporation Limited ("News Corporation"), which as of March 31, 2003, held equity and voting interests in FEG of 80.6% and 97.0%, respectively.
11. Defendant Fox Filmed Entertainment ("FFE") is a corporation wholly owned by FEG with its principal place of business at 10201 W. Pico Blvd., Los Angeles, CA 90035 and is engaged in, among other things, the production, financing and distribution of feature films.
12. Defendant Twentieth Century Fox ("TCF") is a wholly-owned subsidiary of FEG and with its principal place of business at 10201 W. Pico Blvd., Los Angeles, CA 90035. FEG, TCF and FFE are collectively referred to as "Fox." Fox financed and distributed the July 2003 box office release titled, "The League of Extraordinary Gentlemen."
13. Over the first seven months of 2003, Fox enjoyed 9.9% of the total studio market share and earned a total gross of $539.8 million in revenues, the fifth largest of all studios. For the year 2002, Fox enjoyed 10.1% of the total film studio market and earned $921.1 million in total gross revenues, the fourth largest of all studios. For the year 2001, Fox enjoyed 10.5% of the film studio market and generated a total gross of $855.6 million, the fifth largest of all film studios.
14. In or about 1992, Larry Cohen authored the original version of the COC screenplay. Larry Cohen assigned the rights to COC to his wholly owned corporation, Larco. Plaintiffs have not annexed the COC screenplay to this complaint, or any of its rewrites, because of their bulk, but will make them available to the Court at all appropriate hearings.
15. On or about March 31, 1993, pursuant to a written agreement (the "Option Agreement"), Hollane optioned from Larco, after the payment of $50,000.00, the exclusive option (the "Option") for a one-year period to develop motion pictures or other productions based upon COC. On March 31, 1994, the Option Agreement was extended through May 5, 1995, in consideration for an additional $50,000 payment. On March 31, 1995, Larco again optioned COC to Hollane, this time by oral agreement. That option has been in effect at all times relevant to this complaint.
16. On or about June 15, 1993, Poll, through Hollane, submitted COC to 20th Century Fox, which purportedly passed ("passed" is the colloquial term to turn down a project in the film industry) on the project.
17. In September 1993, Poll contacted director John Landis, the well-known director of gigantic box office successes such as "Animal House," "An American Werewolf in London," "Trading Places," "Coming to America," and Michael Jackson's video, "Thriller" to direct COC. Landis agreed to direct. They discussed hiring Peter Barnes to do a rewrite. Barnes had just been nominated for an Academy Award for best adapted screenplay for the film "Enchanted April" and is recognized as a prominent playwright as well.
18. On October 4, 1993, Martin Poll, as producer, through Hollane, entered into a written agreement (the "Hollane/Barnes Agreement") with Peter Barnes to revise COC for $125,000.00. The Hollane / Barnes agreement provided that "all results and proceeds of Writer's services are specially ordered by Producer and shall be deemed a 'work-made-for-hire' for Producer and therefore, Producer shall be the author and copyright owner thereof."
19. On February 9, 1994, Poll sent COC to Michael Wimer, John Landis' agent at Creative Artists Agency ("CAA"). Hollane, through Poll, agreed that Landis' agent, Michael Wimer, would submit the COC "package" consisting of Poll as producer, Landis as director and the first draft of COC as modified pursuant to the Hollane/Barnes agreement to the major studios. Pursuant to an April 13, 1994 agreement between Levitsky Productions, Inc. f/s/o John Landis and Hollane, "Hollane [is] the sole owner and copyright proprietor of all the results and proceeds of Landis' services in connection with the project."
20. From 1994 to 1996, Poll repeatedly spoke with Fox's Rothman and repeatedly submitted several rewrites of COC. Poll also spoke with Rothman directly about a new concept of a musical version with Stephan Elliot as director. During this time, Rothman was president of one of Fox's film divisions. On July 28, 1994, Poll wrote Rothman reminding him of their conversation regarding COC and Elliot's concept. In the letter, Poll asked Rothman to attend a screening of "Priscilla, Queen of the Desert" directed by Stephan Elliot. "Priscilla" had not opened at the time, but in 1995 was nominated by the Golden Globes for the Best Motion Picture - Comedy/Musical. Rothman told Poll to set up a meeting with Elliot, then read the latest version of COC and saw "Priscilla". He called Poll and said he was "passing" on a musical version directed by Elliot.
21. On or about October 20, 1995, Hollane applied to the Register of Copyrights for a Certificate of Registration for COC. The Certificate was issued by the Register of Copyrights on October 23, 1995, and bears registration number PAu 2 - 023 - 291. A true and correct copy of this Certificate is annexed hereto as Exhibit "A." The Certificate of Registration lists Larry Cohen as the author of the COC screenplay with Hollane Corporation, as employer for hire, rewriting and polishing the screenplay.
22. Thereafter, in 1996, Poll resubmitted COC to Rothman at Fox with Peter Markham as director. Once again, Fox purportedly passed on the project.
23. Poll through his wholly-owned corporation invested more than $350,000.00 in developing many versions of COC.
24. COC contains material wholly original with plaintiffs and constitutes copyrightable subject matter under the laws of the United States. COC recounts a fictional struggle of principally 19th century English literary figures such as Sherlock Holmes, Dr. Frankenstein, Allan Quatermain, Mowgli, Dr. Jekyll, Tom Sawyer (American literary character) and Annie Oakley (an American historical personality) who intend to prevent Professor James Moriarty (Holmes' arch enemy), Mr. Hyde (Dr. Jeckyll's alter ego) and Dorian Gray from destroying the world economy. COC uniquely and creatively selects and develops the aforementioned characters in a manner that differs from their public persona and prior uses.
25. Plaintiffs, as set forth above, repeatedly submitted COC to high level executives at Fox, including current co-chairman Thomas Rothman, on not less than four separate occasions between 1993 and 1996. Fox had continuing access to COC and knew full well that plaintiffs had developed and promoted this artistic work while Fox developed LXG. Fox executives, including Rothman, not only were exposed to COC's underlying premise, but also extensively reviewed the details of several rewrites of COC.
FOX'S ATTEMPT TO CONCEAL THE TRUE CREATORS OF LXG
26. Plaintiffs and defendants had agreed, based upon their prior course of conduct and custom and usage in the industry, that Fox would keep the concept of COC confidential by not disclosing COC to third parties or using COC beyond the limits of the confidence without the consent of plaintiffs. Moreover, defendants knew that plaintiffs submitted COC with the expectation, understanding and agreement that Fox exclusively would use the COC submission to decide whether Fox would finance and distribute a film based on COC. Poll would be the producer of the film and would participate in the project in accordance with the custom and usage in the film industry for a producer of similar stature and accomplishment. Additionally, if Fox had agreed to finance and distribute a film based upon COC, Cohen and Barnes would receive compensation in accordance with the custom and usage in the film industry for writers/authors of similar stature and accomplishment.
27. LXG was released by Fox throughout the United Sates and elsewhere in July 2003. LXG bears a conspicuous resemblance to COC both in terms of characters and a very similar plot line.
28. While the LXG film is purportedly based upon a graphic novel, bearing the same title, and allegedly created and written by comic book author Alan Moore, numerous commentators have noted that the relationship between the film and the graphic novel is, at best, loose.
29. Indeed, LXG much more closely resembles COC than the graphic novel. As set forth below, based upon evidence available thus far, Fox, in breach of its implicit agreement with plaintiffs, disclosed the concept behind COC to Moore with the intent to then falsely claim that LXG was based on the graphic novel and thereby conceal its theft of COC. Fox has had repeated prior dealings and direct contact with Moore at least since 1996.
30. In June 1998, Rothman who had already received COC four times, decided to go forward with production of a film based upon COC. As reported by Daily Variety on Tuesday June 16, 1998: "Fox executive vice president Peter Rice championed the project (LXG) and will oversee it along with prexy of production, Tom Rothman." However, Rothman knew that COC was the property of plaintiffs and that any film based upon it would quickly and properly have been seen as plagiarism. Upon information and belief, Rothman, or others at Fox under his direction, provided Moore with ideas from COC that are protected under state and federal law. Thus, Moore could write a graphic novel to provide a smokescreen behind which Fox could hide when plaintiffs inevitably saw COC being misappropriated as LXG.
31. Indeed, while Fox hired screenwriters in 1998 (as reported in Variety) to base LXG on the graphic novel by Moore, the novel itself was not published or finished until the following year, in 1999.
32. Not only do numerous and significant differences exist between the LXG film and graphic novel, including no relationship whatsoever between the respective plots, but Fox executives formulated the LXG film in a manner to more closely resemble COC. Thus, for example, Fox executives, including Rothman, insisted upon the addition of Tom Sawyer and Dorian Gray to LXG. These two crucial characters in COC do not play any role in the LXG graphic novel, further demonstrating that Fox exploited its access to COC to misappropriate plaintiffs' copyrighted work.
33. Such Machiavellian plots are not new to either Rothman or Fox. In March 2001, a Michigan jury returned a $19,000,000.00 verdict against Fox in a copyright case for plagiarizing a script authored by an elderly high school teacher which Fox then transformed into the hit movie "Jingle All the Way," starring Arnold Schwarzenegger. In that case, the plaintiff-publishing company's screenplay had been submitted to Tom Rothman on a confidential basis conditioned upon the implicit promise that Fox would compensate plaintiff if it used the screenplay. Thereafter, the copyrighted screenplay was slightly modified by another Fox employee, who then was falsely given credit as its creator by Fox. Rothman, who was given the original screenplay, had to know, like he knew in this case, that "Jingle All the Way" was plagiarized.
FOX'S "LEAGUE OF EXTRAORDINARY GENTLEMEN"
IS SUBSTANTIALLY SIMILAR TO "CAST OF CHARACTERS"
34. The strong similarities between COC and LXG in terms of their common theme, plot/sequence of events, mood, setting, pace and characters and dialogue are truly unique and hardly of the type to be merely coincidental, particularly given Fox's repeated access to COC. Thus, the following examples, which by no means are inclusive of all the similarities, demonstrate the remarkable resemblance of LXG to COC: THEME (Subject Matter and Values)
a. COC revolves around the converging together in a struggle of good vs. evil the following seven 19th Century English literary characters - James Moriarty, Dorian Gray, Dr. Jekyll/Mr. Hyde, the Phantom, Alan Quatermain, Dr. Frankenstein, Jack the Ripper - with the addition of two American literary characters - Tom Sawyer and Huck Finn. The COC heroes must save the world from the evil Professor Moriarty and the traitorous Dorian Gray. No prior film or comic book has creatively selected any two of these characters, much less all nine of them, who did not appear in the same Victorian work despite the passage of about a hundred years since their first creation. LXG contains the same nine characters, with Professor Moriarty and Dorian Gray being the principal villains. Thus, the subject matter of the two works are stunningly similar.
b. COC espouses the following underlying themes/values as well, themes and values copied by LXG: of a battle of good vs. evil, with the good characters making sacrifices to join the group and willing to work together despite their differences; that modern and young audiences should be shown that Victorian characters were as imaginative and exciting as their modern, high-tech superhero counterparts; an older, leading male character adopting a paternalistic relation towards a boyish member of the group who is in danger (in COC Quatermain and Mowgli; in the LXG film Quatermain and Sawyer); the subsidiary role of American characters mirroring our Country's international status at the end of the 1800's in European affairs (in COC Sawyer, Huck Finn, Annie Oakley and Buffalo Bill; in the LXG film Tom Sawyer); the feminist notion that even in the Victorian era a heroine could conquer a vain male villain (in COC Annie Oakley kills Dorian Gray with his Portrait; in the LXG film Mina Harker kills Dorian Gray with his Portrait); and an unrequited Victorian romance between a leading male and female "hero" (in COC Sherlock Holmes and Annie Oakley; in the film LXG Dorian Gray and Mina Harker).
PLOT/SEQUENCE OF EVENTS
c. In COC, Moriarty stages an ambush in Dorian Gray's London mansion, providing the launching pad for their adventure. In LXG, the initial confrontation with Moriarty occurs in Dorian Gray's mansion.
d. In COC, Gray is blackmailed by Moriarty, who discovers the secret of Gray's portrait, into helping Moriarty with his plot to take over the world. In LXG, Moriarty blackmails Gray after discovering the secret of Gray's portrait, thereby coercing Gray into helping him with his plot to take over the world;
e. In COC an elderly, retired Quatermain returns to London where he becomes a father figure to another literary figure, Mowgli. In LXG, an elderly, retired Quatermain returns to London and becomes a father figure to Tom Sawyer
f. In COC, Quatermain's eventual death is foreshadowed by his confrontation with a Bengal tiger. Likewise, in LXG Quatermain's death is foretold by his confrontation with a Bengal tiger.
g. During a climactic battle in COC, a woman uses Gray's portrait to kill him and then Gray decomposes. Gray suffers the same demise in LXG. By sharp contrast, in the Victorian novel, Gray unwittingly commits suicide by stabbing his aging portrait image only to be discovered as a horribly wrinkled and disfigured old man with a self-inflicted knife wound to the heart (he does not decompose);
h. In COC, London is being terrified by Jack the Ripper who turns out to be Moriarty. In LXG, the Phantom who is terrorizing London turns out to be Moriarty.
i. In COC, Dr. Frankenstein resuscitates deceased COC figures in the 18th Century manner by which he created the Frankenstein monster, including bringing back to life Moriarty as a more powerful criminal. In the LXG film, Moriarty's plan for world conquest involves the contrived notion of having captured Indian scientists to use DNA gene cloning to attempt to recreate the unique abilities of each of the Victorian superheroes. Furthermore, in LXG Moriarty reveals that in his otherwise undisclosed past that he had been killed and was reborn as a more powerful villain.
MOOD/SETTING & PACE
j. The mood, setting and pace of the two works are extremely similar. COC commences with scenes introducing an elderly, retired Quatermain in a remote, uncivilized British outpost, with the heroes banding together in London and their confrontation with their enemies first occurring in Dorian Gray's residence. Likewise, LXG uncannily commences in Africa, moves to London and then opens with the battle in Dorian Gray's mansion.
k. Both "comic book" style adventures occur at the end of the 19th Century.
CHARACTERS & DIALOGUE
l. LXG and COC contain the same nine 19th Century characters that never previously had been grouped together.
m. COC prominently contains Tom Sawyer and Dorian Gray. The graphic novel does not. Tellingly, Tom Rothman insisted that these characters be inserted into LXG, where they play prominent roles.
n. COC portrays an elderly Alan Quatermain who, in the Victorian novels and subsequent American movies, is middle-aged. In fact, Poll had suggested to Rothman that Sean Connery would be excellent in the role and informed Rothman that he had discussed the casting of Connery as Quatermain with Fred Specktor, Connery's agent at CAA. LXG portrays an elderly Quatermain played by Sean Connery.
o. COC also creatively develops the characters in a manner that is different from their public domain personas, and which is plagiarized by LXG. For instance,
i. COC contains a unique development of the Dorian Gray character, who first appeared in Oscar Wilde's 1891 publication of A Picture of Dorian Gray, about a handsome man who remains young while his portrait ages as the result of Gray pledging his soul. As discussed above, in both COC and LXG, Moriarty blackmails Dorian Gray into joining his evil plot by discovering Gray's secret portrait and Gray is killed in a climactic battle by a leading heroine.
ii. Gray uses a sword cane in COC at times as a central device. He never used a cane,much less sword cane, in Wilde's novel. He uses a sword cane in LXG as a central device (he doesn't even appear in the graphic novel other than, allegedly, as a portrait on the wall in one or two panels);
iii. COC portrays Quatermain in his seventies and retired, despite his adventures in the 1937, 1950 and 1985 King Solomon's Mines films occurring as a hunter in his prime. LXG portrays him in his seventies and retired;
iv. In COC, Annie Oakley was an expert marksman who uses a special rifle. In LXG, the special rifle has been placed in the hands of Tom Sawyer;
v. In COC, Dracula is among the literary characters. In LXG, one of Dracula's victims from the Victorian novel, Mina Harker, fills the vampire role;
vi. The Phantom from "Phantom of the Opera" appears in COC. In LXG, Moriarty disguises himself as the Phantom. Although COC portrays him as good and LXG portrays him as evil, the characterization of the Phantom's costume is identical: that of a cloak and silver mask. In the original Phantom of the Opera, the Phantom's mask was white.
vii. Huck Finn and Dr. Frankenstein appear in COC. They are both referenced in LXG.
35. On July 11, 2003, Fox released LXG as a "PG-13" rated film in the United States. As of September 4, 2003, LXG had generated $65,331,619.00 in gross domestic revenue, and it generated an opening weekend gross revenue of $23,075,892. Internationally, LXG opened in Brazil on or about August 6, 2003, in Israel, New Zealand and in the United Kingdom on or about August 13, 2003, and opened throughout the rest of Europe in the following weeks. As of September 5, 2003, LXG had generated $14.6 million dollars in gross international revenue. Defendants intend to generate further revenues throughout the US and all Foreign Markets from the LXG film through free television to the public US networks [i.e., CBS, NBC, ABC, Fox, WB etc.], DVD and VHS sales, cable television deals, possible sequels and spin-offs.
36. As a direct result of Fox's actions in this case, plaintiffs have been and will be unable to exploit the commercial value of the COC screenplays, despite firm interest by other producers with studio deals prior to learning of the development of LXG.
LEGAL CAUSES OF ACTION
FIRST CAUSE OF ACTION
COPYRIGHT INFRINGEMENT UNDER 17 USCA 101 ET. SEQ.
AGAINST ALL DEFENDANTS
37. Plaintiffs incorporate and repeat each of the paragraphs numbered "1" through "36," with the same force and effect, as if stated fully herein.
38. Plaintiffs owned a valid copyright to COC and defendants copied protected elements of COC.
39. On October 23, 1995, plaintiffs complied, in all respects, with the copyright laws of the United States and all other laws governing copyrights, and secured the exclusive rights and privileges in and to the motion picture screenplay, receiving from the Register of Copyrights a certificate of registration dated October 23, 1995 and bearing registration number "PAu 2 - 023 -291." Plaintiffs have been and still are the proprietor of all rights, title and interest in and to the above copyright.
40. Plaintiffs, as owners of the COC copyright, enjoy the exclusive rights with respect to COC to: 1) reproduce the copyrighted work in copies; 2) to prepare derivative works based upon the copyrighted work; 3) to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; 4) to perform the copyrighted work publicly; and 5) to display the copyrighted work publicly.
41. COC constitutes original literary works of authorship fixed in a tangible medium of expression. COC contains copyrightable, original expressions of ideas.
42. Fox infringed plaintiffs' copyright in COC by producing and distributing on the market the LXG film, a product which is copied from plaintiffs' copyrighted work. Fox infringed upon plaintiffs' exclusive rights with respect to COC without plaintiffs' authorization. Fox infringed upon protected parts of COC, elements of COC that were original forms of expression and not mere generalized ideas.
43. Fox's copying of protected elements of COC can be inferred because: 1) Fox had access to the plaintiffs' work; and 2) the infringing work, LXG, is materially and substantially similar to the COC screenplays in terms of their common theme, plot/sequence of events, mood, setting, pace and characters and dialogue.
44. The total concept and feel of COC and LXG are substantially similar. Both works contain the creative selection of nine of the same 19th Century literary figures: Allan Quatermain, Dr, Jekyll/Mr. Hyde, Dorian Gray, Tom Sawyer, the Phantom, James Moriarty, Jack-the-Ripper, Huck Finn, and Dr. Frankenstein.
45. COC and LXG are substantially similar to each other when comparing the comprehensive non-literal similarities among the two works.
46. COC and LXG are substantially similar to each other in that LXG literally copies COC's creative selection of the use of nine 19th Century characters common to both works.
47. In fact, several producers with studio deals have withdrawn from development and financing deals for COC because of defendants' production of LXG.
48. Fox's infringement was willful, in bad faith, intentional, and performed in conscious disregard of the resulting infringement of plaintiffs' rights in the copyrighted material.
49. Fox's infringement has directly and substantially impacted plaintiffs' business.
50. Fox's infringement has destroyed the market value of COC. On numerous occasions, including as recently as June 2003, other major producers with studio deals as well as major non-studio financing companies were interested in COC, but withdrew their interest upon learning of Fox's LXG film. These major studios and financing companies cited significant similarities between COC and LXG as the basis for their reversal of interest.
51. As a result of Fox's infringement, Poll and Cohen have been damaged in an amount to be proven at the time of trial but not less than $100,000,000.00.
52. As a direct, natural, proximate, and foreseeable consequence of the foregoing, plaintiffs have suffered damages which they are entitled to recover pursuant to 17 U.S.C. 501-505, including, but not limited to, actual damages and profits, and recovery of costs and attorney fees
53. Plaintiffs request the following relief:
a. A full and complete accounting of all payments, receipts, income, benefits, compensation, remuneration, and monies received, paid or due in connection with the purchase of the screenplay "League of Extraordinary Gentlemen", and production, merchandising, distribution of the film/video/DVD "League of Extraordinary Gentlemen" and all other commercial tie-ins;
b. Final injunction pursuant to 17 U.S.C. 502; c. Impoundment and disposition of infringing articles pursuant to 17 U.S.C. 503;
d. Actual damages and profits in excess of $150,000 pursuant to 17 U.S.C. 504 with reservation of its right to elect to recover statutory damages at any time before final judgment is rendered, including for willful infringement;
e. Costs and attorney fees pursuant to 17 U.S.C. 505;
g. Such other relief as is warranted.
SECOND CAUSE OF ACTION
IMPLIED-IN-FACT CONTRACT UNDER LAW
54. Plaintiffs incorporate and repeat each of the paragraphs numbered "1" through "53", with the same force and effect, as if stated fully herein.
55. Fox, including its now co-chairman Tom Rothman, knew that plaintiffs had invested substantial amounts of time, money and their expertise in developing COC and Fox thereafter voluntarily received plaintiffs' submission of COC.
56. Based upon Poll's prior dealings with Fox and Rothman, Rothman and Fox had a long-standing agreement or understanding with Poll that he should submit to Fox any of his acquired novels, manuscripts or screenplays for proposed financing and distribution by Fox. Poll enjoyed similar long-standing invitations from the other major studios to seek production/financing of novels, manuscripts or screenplays by submitting it to a high level executive at the studio for review.
57. Plaintiffs submitted COC to Fox on at least four occasions between 1993 through 1996.
58. Under all of the circumstances attending each disclosure, Fox voluntarily accepted the disclosures knowing that it was expected, as a condition of such submission, that Fox would finance the film and contract with Poll to produce the resultant film in accordance with custom and usage in the industry for persons of his stature, if Fox wished to use the ideas contained in the screenplay. If such a production/financing contract had been entered into between Fox and Poll or his wholly-owned company, Hollane, it would have provided, among many other things, for compensation of plaintiffs Hollane and Poll in accordance with the custom and usage in the industry for producers of their stature. Also, such a production/financing contract would have provided for compensation for Cohen and Barnes in accordance with the custom and usage in the industry for writers of their stature. Fox, including through Rothman, knowingly assented to the terms of plaintiffs' offer to submit COC to Fox.
59. Fox had the opportunity to reject the disclosures if the conditions of receipt were unacceptable to Fox.
60. Fox implicitly agreed that Poll or his wholly owned company, Hollane, would produce any film derived from COC under terms and conditions usual and customary for producers of their stature regardless of whether Fox used COC in a manner that would infringe any right protected by the Copyright Act.
61. Based upon the course of dealings between Fox and plaintiffs, the parties had agreed, without expressly reducing to writing, that if Fox used COC, Fox would finance and distribute the film with Poll as producer.
62. An implied-in-fact contract between the parties also was created by virtue of the industry custom among major Hollywood studios to compensate professional and experienced authors for the use of their submitted screenplays. Fox agreed with respect to each submission, but never reduced to writing, that under no circumstances would Fox use the ideas contained in plaintiffs' screenplay for their own benefit without fairly compensating plaintiffs and obtaining plaintiffs' approval in advance.
63. In writing the LXG script, Fox actually used plaintiff's ideas by basing LXG on ideas contained in COC.
64. Plaintiffs' ideas that were taken by Fox had value.
65. Plaintiffs are entitled to recovery of the reasonable value of their screenplay used by Fox.
66. Plaintiffs are entitled to the amount of damages which will compensate them for all the detriment caused by defendants' breach of this implicit contract, or which in the ordinary course of things would be likely to result therefrom, including, but not limited to, compensatory damages, consequential damages, interest, costs, attorney fees, and a complete accounting of all payments, receipts, income, benefits, compensation, remuneration, and monies received, paid or due in connection with the purchase of the screenplay "League of Extraordinary Gentlemen," and production, distribution, and merchandising of the film/video of "League of Extraordinary Gentlemen", and all commercial tie-ins.
THIRD CAUSE OF ACTION
BREACH OF CONFIDENCE UNDER STATE LAW
67. Plaintiffs incorporate and repeat each of the paragraphs numbered "1" through "76", with the same force and effect, as if stated fully herein.
68. Plaintiffs conveyed confidential and novel information to Fox.
69. Fox knew that COC was being disclosed in confidence.
70. An understanding existed between Fox and plaintiffs that the confidence would be maintained. Fox voluntarily received COC in confidence with the understanding that it was not to be disclosed to others and was not to be used by Fox for purposes beyond the limits of the confidence without plaintiffs' permission.
71. Fox disclosed or used COC and information relating to COC in violation of their understanding.
72. Plaintiffs are entitled to be compensated for all the detriment proximately caused by defendants' breach of confidence, whether it could be anticipated or not, including, but not limited to: compensatory damages, consequential damages, interest, costs, attorney fees, and a complete accounting of all payments, receipts, income, benefits, compensation, remuneration, and monies received, paid or due in connection with the purchase of the screenplay "League of Extraordinary Gentlemen," and production, distribution, and merchandising of the film/video of "League of Extraordinary Gentlemen", and all commercial tie-ins.
WHEREFORE, plaintiffs pray for judgment as follows:
a) On plaintiffs' first cause of action against Fox for copyright infringement, damages in an amount to be proven at trial but not less than $100,000,000;
b) On plaintiffs' second cause of action against Fox for breach of an implied-in-fact contract, damages in an amount to be proven at trial but not less than $100,000,000;
c) On plaintiffs' third cause of action against Fox for breach of confidence under state law, damages in an amount to be proven at trial but not less than $100,000,000.
d) For such other relief that is just and equitable, including but not limited to their lost profits; injury to plaintiffs' goodwill; defendants' gross revenues from LXG; plaintiffs' cost of suit under the Copyright Act; dimunition in the value of plaintiffs' copyright to COC and ownership of the COC screenplay; Attorneys' fees as costs under the Copyright Act; interest, and expert witness fees.
Dated: Los Angeles, California September 23, 2003
Ghoreichi & Associates
By:Jay A. Ghoreichi (SBN 177274)
1925 Century Park East
Los Angeles, CA 90067
Storch Amini & Munves
Steven G. Storch (SS 5241)
Bijan Amini (BA 3533)
Russell Bogart (RB 0320)
405 Lexington Avenue
New York, New York 10174
Awaiting Admission Pro Hac Vice