MCGUIRE WOODS LLP

1 DAVID B. VAN ETTEN #119049

LESLIE M. WERLIN #67994
2 1800 Century Park East, 8th Floor
Los Angeles, California 90067
3 Telephone: (310) 315-8200
Facsimile: (310) 315-8210
4 DVanetten@mcguirewoods.com
LWerlin@mcguirewoods.com
5
SHERMAN & HOWARD, L.L.C.
6 Mark W. Williams (appearing Pro Hac Vice)
Marcy M. Heronimus (appearing Pro Hac Vice)
7 633 Seventeenth Street, Suite 3000
Denver, CO 80202
8 MWilliams@shermanhoward.com
MHeronimus@shermanhoward.com
9
Attorneys for Plaintiffs
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13 QED Productions, LLC, et al., CASE NO. 07-CV-00225-SVW (SSx)
14 Plaintiffs, The Hon. Stephen V. Wilson
Dept. 6
15 vs.
REPLY MEMORANDUM OF
16 James Nesfield, et al., POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFFS’
17 Defendants. MOTION FOR PARTIAL
SUMMARY JUDGMENT
18
Date: January 5, 2009
19 Time: 1:30 p.m.
Ctroom: 6
20
21
22
23
24
25
26
27
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSX)
 1 TABLE OF CONTENTS
2 I. SYNOPSIS OF ARGUMENT................................................................................1
3 II. THE MATERIAL FACTS SUPPORTING PLAINTIFFS’ CLAIMS ARE NOT
4 CONTROVERTED ...................................................................................................3
5 III. LEGAL STANDARDS .......................................................................................4
6 IV. ARGUMENT.......................................................................................................6
7 A. Plaintiffs have standing to assert each of the claims set forth in the SAC
8 because they are the exclusive owners of the trademarks, copyrights, and name,
9 likeness and persona at issue. .................................................................................6
10 1. QED has standing.........................................................................................7
11 a. Copyright Infringement. ...........................................................................7
12 b. Trademark Infringement........................................................................ 11
13 2. POW! has standing.................................................................................... 13
14 a. Trademark Infringement........................................................................ 13
15 b. Cybersquatting ....................................................................................... 15
16 3. Stan Lee has standing................................................................................ 16
17 a. Stan Lee owns his own name, likeness, signature and persona. .......... 17
18 b. Opp. Defendants are using Stan Lee’s name, likeness, signature and
19 persona without his consent and for their advantage, and Stan Lee is
20 suffering injury-in-fact from their use of his rights...................................... 18
21 4. Plaintiffs have standing on all additional claims. ..................................... 19
22 B. Stan Lee and QED Complied with the Essential and Material Bases of the
23 APA and the Bankruptcy Court’s Order. ............................................................ 19
24 C. Opp. Defendants’ “Void” Argument Itself is Void of Substance. ............... 24
25 V. CONCLUSION .................................................................................................. 25
26
27
i
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSX)
 1 TABLE OF AUTHORITIES
2 Cases
3 A&A Plush Inc. v. SKM (USA) Enterprises Inc., 47 U.S.P.Q.2d 1438 (C.D. Cal
4 1998) .................................................................................................................... 11
5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505 (1986)............5
6 Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d
7 1036 (9th Cir. 1999) ............................................................................................ 12
8 Cleanmaster Industries, Inc. v. Sandra Showry, 491 F. Supp. 2d 937, 941 n.1 (C.D.
9 Cal. 2007). ..............................................................................................................4
10 D’lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008)
11 ........................................................................................................................... 5, 6
12 Eden Toys Inc. v. Florelee Undergarment Co., 697 F.2d 27, 36 (2nd Cir. 1982).. 10
13 Garnder v. Nike, Inc., 279 F.3d 774, 778-79 (9th Cir. 2002)....................................8
14 Halicki Films, LLC v. Sanderson Sales and Mktg., 547 F.3d. 1213 (9th Cir. 2008)
15 ................................................................................................................. 11, 13, 15
16 Henderson v. City of Simi Valley, 305 F.3d 1052, 1055 (9th Cir. 2002)...................5
17 Iconix, Inc. v. Tokuda, 457 F. Supp. 2d 969, 993-94 (N.D. Cal. 2006).....................8
18 Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th
19 Cir. 1995)............................................................................................................. 10
20 In re Napster, Inc., 191 F. Supp. 2d 1087, 1097 (N.D. Cal. 2002) ........................ 10
21 Krohn v. San Bernardino County Sheriff’s Dept., 2008 WL 4390162, *5 (C.D. Cal.
22 2008) .......................................................................................................................5
23 Lanard Toys Ltd. v. Novelty, Inc., 511 F. Supp. 2d 1020, 1033 (C.D. Cal. 2007) ....8
24 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d
25 351 (1992).......................................................................................................... 4, 5
26
27
ii
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 Magnuson v. Video Yesteryear, Inc., 85 F.3d 1424, 1426, 1428-29 (9th Cir. 1996)
2 ............................................................................................................................. 10
3 Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 799 (9th Cir. 2003) .7
4 Miller v. Glenn Miller Productions, Inc., 454 F.3d 975 (9th Cir. 2006)................ 17
5 Milton H. Greene Archives, Inc. v. BPI Communications, Inc., 378 F. Supp. 2d
6 1189, 1194 (C.D. Cal. 2005) ..................................................................................8
7 Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003)........................................ 16
8 Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)................................................... 17
9 Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996)...................................................5
10 Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992).................................. 16
11 Ultrapure Systems, Inc. v. Ham-Let Group, 921 F. Supp. 659 (N.D. Cal.1996) ... 12
12 Wendt v. Host Intern., Inc., 117 F.3d 1427*3 (9th Cir. 1997)................................ 16
13 White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992)........ 17
14 Statutes
15 15 U.S.C. § 1114..................................................................................................... 13
16 15 U.S.C. § 1114(1) ................................................................................................ 12
17 15 U.S.C. § 1117..................................................................................................... 15
18 15 U.S.C. § 1127..................................................................................................... 12
19 15 U.S.C. §§ 1114, 1125(a) .............................................................................. 11, 15
20 17 U.S.C. § 204(a) .................................................................................................. 10
21 17 U.S.C. § 501(b) ................................................................................................ 7, 8
22
Rules
23
Fed. R. Civ. P. 56 .......................................................................................................5
24
25
26
27
iii
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. SYNOPSIS OF ARGUMENT
3 Plaintiffs have absolute standing to pursue all claims pled in the Second
4 Amended Complaint (“SAC”). When the smoke and fire of the Opposition to
5 Plaintiffs’ Motion for [Partial] Summary Judgment (the “Opposition”) are cleared
6 away, the positions advanced therein cannot be factually or legally supported, and
7 should be rejected. Plaintiffs’ Motion for Partial Summary Judgment (“Motion,
8 11/25/08”)1 should be granted, and Plaintiffs should be permitted to proceed with
9 all claims in the SAC: Plaintiffs are the owners of the rights upon which they sue;
10 and this Court can and should provide Plaintiffs redress for Defendants’ actions.
11 Stan Lee, through a company he controlled, QED, obtained the subject rights
12 and assets from the bankruptcy estate of Stan Lee Media, Inc. (“SLMI”). The
13 essential and material element of the transaction was that Stan Lee be involved in
14 the company that would exploit the assets. This fact is established in Plaintiffs’
15 Statement of Undisputed Facts (“Plaintiffs’ SUF”),2 ¶¶ 14 to 20 (and see
16 Declaration of David B. Golubchik, 12/12/08, Ex. 2 hereto, ¶¶ 5 – 7), and is
17 uncontroverted. The name of the entity did not matter.3 It was formed solely to
18 exploit SLMI’s assets pursuant to the Asset Purchase Agreement.4 Stan Lee and
19 QED in fact exploited the assets for the benefit of the estate.5 Plaintiffs reported on
20 their efforts.6 No one connected with the Bankruptcy has ever complained or
21 1
See Case No. 07-CV-00225-SVW (SSx), Document No. 108, Notice of
22 Motion and Motion for Partial Summary Judgment
2
23 See Case No. 07-CV-00225-SVW (SSx), Document No. 109, Statement of
Uncontroverted Facts
24 3
See, Ex. 2, 12/12/08 Golubchik Dec., ¶¶ 7 – 8.
4
25 See, Motion, 11/25/08, Ex. 19, ¶¶ 6 – 7; Motion, 11/25/08, Ex. 20, ¶ 8.
5
See, Motion, 11/25/08, Ex. 19, ¶ 7; Motion, 11/25/08, Ex. 20, ¶¶ 5 – 9; Ex.
26 3, Declaration of Gill Champion, ¶¶ 6 – 10, 11 – 12, 15.
6
27 See, Motion, 11/25/08, Ex. 20, ¶ 9.
1
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 objected to Plaintiffs’ actions or rights upon which they sue. These fact are
2 uncontroverted. Plaintiffs have standing on all claims pled in the SAC.
3 The Opposition brief was filed by Individual Defendants Nesfield,
4 Galloway, Cogan, Belland, and Petrovitz (herein referred to as the “Opp.
5 Defendants”). A critical fact here is that none of these persons have any rights in
6 the intellectual property described in the SAC. Indeed, until they began their
7 machinations described in the SAC (e.g. ¶¶ 54-69), they were complete strangers to
8 SLMI. This Court has already determined that they have “no right to use any of
9 SLMI’s assets,”7 and their actions heretofore have been illegal. They argue (with
10 no adduced evidence) with decidedly unclean hands. And, under the law they have
11 no right or standing to object to Plaintiffs’ ownership of the copyrights,
12 trademarks, names, likeness, signature, and other intellectual property rights
13 described in the SAC. See, infra, pp. 10 – 11.
14 Plaintiffs have standing under Federal law to prosecute their claims and, this
15 Court should provide redress to Plaintiffs to fully and finally resolve the dispute
16 between the parties. Indeed, this Court is “the” Court to do so, as SLMI’s
17 operations were in this District, its bankruptcy occurred here, Plaintiffs’ claims
18 arise out of conduct of the Defendants in this District, many of the claims involve
19 intellectual property rights protected by Federal law, and other substantive issues
20 (e.g. rights under the SLE Agreement) controlled in part by Federal law. Thus,
21 Plaintiffs should be permitted to proceed with all of their claims.
22 Opp. Defendants attempt to create much smoke and fire by alleging a
23 violation of the Court’s Bankruptcy Order and an alleged “fraudulent scheme” in
24 connection with the Asset Purchase Agreement (“APA”). No violation or scheme
25
26 7
See Case No. 07-Cv-00225-SVW (SSx), Document No. 63, Order, 2/19/08
27 p. 12.
2
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 occurred. All actions of Plaintiffs were open and notorious to the public and to
2 those involved in the SLMI bankruptcy. Evidence adduced by Plaintiffs –
3 uncontroverted by Opp. Defendants – shows that the material element of the APA
4 transaction was Stan Lee; without him, the intellectual property was useless. Not
5 only was Stan Lee involved, he controls QED (as required by the transaction), and
6 in fact worked hard to exploit the properties as required. These facts are known to
7 all except, apparently, Opp. Defendants. Thus, the basis of Opp. Defendants’
8 arguments in their Opposition are themselves false and should be rejected.
9 Plaintiffs have standing to pursue all of their claims. This includes Federal
10 Jurisdiction to redress rights protected under federal law (Claims One to Six), as
11 well as the Unauthorized Use and Misappropriation Claims (Six & Seven),
12 Interference claims (Eight and Nine), Unfair Business Practices (Ten), Fraud
13 (Eleven), Aider and Abettor (Twelve), and Declaratory Judgment claims (Thirteen
14 and Fourteen), because they concern, in relevant part, the SLE Agreement, its
15 termination, and the rights Opp. Defendants wrongly claim from it.
16 II. THE MATERIAL FACTS SUPPORTING PLAINTIFFS’
17 CLAIMS ARE NOT CONTROVERTED
18 Pursuant to Local Rule 56-3, in determining a motion for summary
19 judgment, the Court is to assume that the material facts as claimed are adequately
20 supported by the moving party are admitted to exist without controversy except to
21 the extent that such material facts are (a) included in the “Statement of Genuine
22 Issues” and (b) controverted by declaration or other written evidence filed in
23 opposition to the motion. “To raise a genuine issue of material fact, the defendant
24 must do more than make a bald, unsupported assertion. To the extent that a
25 defendant fails to indicate why a dispute exists or point to counterrailing evidence
26
27
3
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 in the record, the court accepts the plaintiff’s allegations as true.” Cleanmaster
2 Industries, Inc. v. Sandra Showry, 491 F. Supp. 2d 937, 941 n.1 (C.D. Cal. 2007).
3 Here, Opp. Defendants have failed in the Opposition to provide any
4 evidence whatsoever, either in the form of a declaration or other written evidence,
5 to controvert any of Plaintiffs’ material facts. Indeed, Opp. Defendants have failed
6 to controvert even one of the facts listed in Plaintiffs’ SUF. (See Ex. 1, Chart of
7 Material Facts). Thus, all of the material facts set forth by Plaintiffs must be taken
8 as true for purposes of this Court deciding the Motion for Summary Judgment, and
9 in so doing, it is clear that Plaintiffs have standing for each and every claim
10 asserted.
11 III. LEGAL STANDARDS
12 The facts set forth in the SAC, as supported by the evidence adduced in
13 Plaintiffs’ Motion, 11/25/08 and herein, demonstrate that, as a matter of fact and
14 law, Plaintiffs have standing. Plaintiffs meet the requirements to assert the claims
15 in the SAC, and this Court has jurisdiction to—and should—redress Defendants’
16 wrongs.
17 Opp. Defendants misstate Plaintiffs’ legal standard set forth in Plaintiffs’
18 Motion, 11/25/08. Plaintiffs stated that the Court must treat the factual allegations,
19 as supported by the evidence, in support of standing as true for purposes of this
20 Motion for Summary Judgment. See Motion, 11/25/08, p. 6:19-7:1 (emphasis
21 added). Further, Plaintiff cited to Lujan v. Defenders of Wildlife, the case that
22 Defendants also cite to in their Response, in its Motion as the proper legal standard
23 for determining standing on summary judgment. Id., p. 7:4 – 10. Contrary to
24 Defendants’ assertions, Plaintiffs meet the correct legal standard.
25 Summary judgment is proper when the pleadings, discovery and disclosures
26 on file, and any affidavits show that there is no issue as to any material fact, and
27
4
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 the movant is therefore entitled to judgment as a matter of law. Fed. R. Civ. P. 56;
2 see Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). Plaintiffs have previously,
3 and do here again, establish their absolute standing to pursue the claims in the
4 SAC. As such, the Court may properly rule, and allow this action to proceed. The
5 burden was on Opp. Defendants in their Opposition to set forth specific facts
6 showing there is a genuine issue of material fact for trial. Henderson v. City of
7 Simi Valley, 305 F.3d 1052, 1055 (9th Cir. 2002). The non-moving party must
8 come forward with more than “[T]he mere existence of a scintilla of evidence[.]”
9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505 (1986). When
10 a non-moving party presents no evidence, a court has no duty “to search for
11 evidence that would create a factual dispute.” Krohn v. San Bernardino County
12 Sheriff’s Dept., 2008 WL 4390162, *5 (C.D. Cal. 2008). In their Opposition, Opp.
13 Defendants failed to produce any evidence to demonstrate that a dispute actually
14 exists, and they failed to controvert any of Plaintiffs’ facts. Id.; Ex. 1. Thus, Opp.
15 Defendants have failed to meet their burden, and Plaintiffs’ motion should be
16 granted.
17 Standing requires that a party allege an injury-in-fact to its rights, which is
18 traceable to the defendants, and can be redressed by a favorable decision. D’lil v.
19 Best Western Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008) (citing
20 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d
21 351 (1992) (internal citations and quotations omitted)). Opp. Defendants only
22 assert that Plaintiffs fail to meet the standing prong of ownership of the rights upon
23 which they sue. They are wrong.
24 In Lujan, the Supreme Court discussed standing at various stages of a case
25 as follows:
26 Since [the standing elements] are not mere pleading requirements but
rather an indispensable part of the plaintiff's case, each element must
27
5
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 be supported in the same way as any other matter on which the
1 plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation… In
2 response to a summary judgment motion, however, the plaintiff can
no longer rest on such “mere allegations,” but must “set forth” by
3 affidavit or other evidence “specific facts,” Fed. Rule Civ. Proc. 56(e),
which for purposes of the summary judgment motion will be taken to
4 be true.
5
Id. at 561; see also D’lil, 538 F.3d at 1036. Plaintiffs have established the
6
elements of standing for their claims against Opp. Defendants. In the SAC,
7
Motion, 11/25/08, and in this Reply, Plaintiffs set forth specific, undisputed,
8
material facts in declarations and other written evidence that support each of the
9
elements of standing for each of its claims. There is no dispute that Plaintiffs meet
10
their burden required at this stage of the litigation.
11
12
IV. ARGUMENT
13
A. Plaintiffs have standing to assert each of the claims set forth in the
14
SAC because they are the exclusive owners of the trademarks, copyrights, and
15
name, likeness and persona at issue.
16
Plaintiffs’ Statement of Uncontroverted Facts set forth in detail that
17
Plaintiffs are the exclusive and legal owners of copyrights, trademarks and name,
18
likeness, signature and persona at issue. Opp. Defendants’ express copying and
19
use of the works, which are legally protected and owned by Plaintiffs, directly
20
proves injury-in-fact to Plaintiffs. Indeed, Opp. Defendants do not deny injury.
21
Therefore, it is without dispute that Plaintiffs have standing to assert the claims in
22
their SAC.
23
Most notably, as discussed above in Section II, Opp. Defendants failed to
24
provide any declaration or other written evidence in their Opposition to dispute
25
Plaintiffs’ SUF and, therefore, the Court should assume Plaintiffs’ material facts as
26
claimed are admitted to exist without controversy. In determining a motion for
27
6
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 summary judgment, the Court should assume that the material facts as claimed and
2 adequately supported by the moving party are admitted to exist without
3 controversy except to the extent that such material facts are (a) included in the
4 “Statement of Genuine Issues” and (b) controverted by declaration or other
5 evidence filed in opposition to the motion. L.R. 56-3 (emphasis added).
6 Plaintiffs’ Exhibit 1, a chart of their SUF, lists Opp. Defendants’ failures to address
7 them with declarations and actual facts. As such, the Court should assume as true
8 Plaintiffs’ facts that they legally own the copyrights, trademarks and name,
9 likeness and persona at issue, and are admitted to exist without controversy when it
10 rules on Plaintiffs’ Motion, 11/25/08.
11 1. QED has standing.
12 QED has standing to assert its claims for copyright infringement and
13 trademark infringement against Opp. Defendants because it meets all of the
14 standing requirements. QED is the legal owner of the Federal copyright
15 registrations of the following works: THE ACCUSER, THE DRIFTER, and
16 STAN’S EVIL CLONE. QED also owns the trademarks for these three properties.
17 QED has been injured in fact by Opp. Defendants in this matter because it is
18 uncontroverted that Opp. Defendants copied and used the registered works that
19 QED legally owns.
20 a. Copyright Infringement.
21 The legal or beneficial owner of an exclusive right under a copyright is
22 entitled to institute an action for any infringement of that particular right
23 committed while he or she is the owner of it. 17 U.S.C. § 501(b). “A prima facie
24 case of copyright infringement by reproduction is established by showing
25 ownership by the plaintiff and copying by the defendant.” Mattel, Inc. v. Walking
26 Mountain Productions, 353 F.3d 792, 799 (9th Cir. 2003).
27
7
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 i. QED is the legal owner of the copyrights.
2 QED has standing to bring suit regarding the works at issue because it is the
3 legal owner of the copyrights assigned to it by SLMI. 17 U.S.C. § 501(b); Motion,
4 11/25/08, Exs. 11 – 14. The legal owner of exclusive rights under a copyright, at
5 the time the act of infringement occurs, has standing to institute an action for any
6 infringement of such rights. 17 U.S.C. § 501(b); Lanard Toys Ltd. v. Novelty, Inc.,
7 511 F. Supp. 2d 1020, 1033 (C.D. Cal. 2007). Under § 501(b), original owners,
8 assignees, and licensors have standing to sue. Id. (emphasis added); see also
9 Garnder v. Nike, Inc., 279 F.3d 774, 778-79 (9th Cir. 2002).
10 A copyright registration, which QED has and presented to this Court, is
11 prima facie evidence of ownership of the copyright in favor of the plaintiff. Milton
12 H. Greene Archives, Inc. v. BPI Communications, Inc., 378 F. Supp. 2d 1189, 1194
13 (C.D. Cal. 2005) (“A certificate of registration is prima facie evidence of
14 ownership of a copyright.”). Courts will also look to proprietary agreements and
15 assignments for proof of ownership. Id. (holding certification of copyright
16 registration constituted prima facie evidence of copyright ownership by the
17 plaintiff, even though the plaintiff was not named on the certificate, because there
18 was evidence that the plaintiff was assigned the seven copyrights at issue); Iconix,
19 Inc. v. Tokuda, 457 F. Supp. 2d 969, 993-94 (N.D. Cal. 2006) (holding plaintiff
20 established prima facie case of copyright ownership both through its copyright
21 registration and its Proprietary Agreements). Since there is an absence of any
22 controverting evidence, Plaintiffs’ Motion, 11/25/08 should be granted for this
23 reason alone.
24 The following table of the U.S. Copyright Office’s records is prima facie
25 evidence of QED’s legal ownership of the Federal copyrights for The Accuser, The
26 Drifter, and Stan’s Evil Clone:
27
8
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 Facts Evidentiary Support
2 QED is the registered owner of an item • Motion, 11/25/08, Exs. 11 & 13,
3 of original artwork related to The U.S. Copyright Records
4 Accuser
5 QED is the registered owner of all right, • Motion, 11/25/08, Exs. 12 & 13,
6 title, interest and copyright in certain U.S. Copyright Records;
7 animated webisodes of The Accuser • Copyright Registrations:
8 VA1045261,VA1045262,
9 VA1068231, PA0001341307,
10 VA0001387661
11 QED is the registered owner of all right, • Motion, 11/25/08, Exs. 11 & 14,
12 title, interest and copyright in certain U.S. Copyright Records;
13 animated webisodes of The Drifter • Copyright Registrations:
14 VA1045264, VA1045263,
15 VA0001387662
16 QED is the registered owner of an item • Motion, 11/25/08, Exs. 11 and 14,
17 of original artwork related to The Drifter U.S. Copyright Records
18 QED is the registered owner of all right, • Motion, 11/25/08, Ex. 15, U.S.
19 title, interest and copyright in certain Copyright Record;
20 animated webisodes of Stan’s Evil • Copyright Registrations:
21 Clone PA00013413068
22 Where, as here, an assignment has occurred (Plaintiffs’ SUF 24; Motion,
23 11/25/08, Ex. 7, Assignment of Copyright), a transfer of copyright ownership is
24 valid upon showing of an instrument of conveyance, or a note or memorandum
25
26 8
The Court can take judicial notice of the online records of the United States
27 Copyright Office.
9
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 documenting the transfer. See 17 U.S.C. § 204(a). The instrument, note or
2 memorandum must be in writing and signed by either the owner of the rights
3 conveyed or the owner’s authorized agent. Not only can QED prove its ownership
4 of the copyrights with the copyright registrations, but it also has a valid
5 Assignment of Copyright showing the transfer from SLMI to QED. Id. There is
6 no dispute between SLMI and QED about the status of the copyrights under the
7 Assignment Agreement. The copyright registrations and assignment of the
8 copyrights establish a prima facie case that QED is the legal owner of the
9 copyrights, and as such, has standing to assert its copyright infringement claim
10 against Opp. Defendants.
11 Opp. Defendants cannot, as a matter of law, object in any way to QED’s
12 ownership because they are strangers to the properties. They have no standing to
13 challenge the presumption of ownership of the copyrights to QED because QED
14 claims ownership by assignment and there is no dispute between SLMI and QED
15 regarding the assignment of the copyrights. Imperial Residential Design, Inc. v.
16 Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th Cir. 1995); In re Napster, Inc., 191
17 F. Supp. 2d 1087, 1097 (N.D. Cal. 2002) (stating “a third party does not have
18 standing to challenge the presumption of ownership when plaintiffs claim
19 ownership by assignment.”). “[W]here there is no dispute between the copyright
20 owner and the transferee about the status of the copyright, it would be unusual and
21 unwarranted to permit a third-party infringer to invoke § 204(a) to avoid suit for
22 copyright infringement.” Imperial Residential Design, Inc., 70 F.3d at 99 (citing
23 Eden Toys Inc. v. Florelee Undergarment Co., 697 F.2d 27, 36 (2nd Cir. 1982));
24 Magnuson v. Video Yesteryear, Inc., 85 F.3d 1424, 1426, 1428-29 (9th Cir. 1996)
25 (Where the conveyance is between the transferor and the plaintiff, the alleged third
26 party infringer should not be able to defeat an otherwise valid infringement action
27
10
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 by relying on excessive formalism to contest plaintiff’s standing.). In A&A Plush
2 Inc. v. SKM (USA) Enterprises Inc., the court denied defendants’ motion to dismiss
3 the plaintiffs’ copyright infringement claim for lack of standing because the
4 plaintiffs showed ownership through a valid copyright assignment. 47 U.S.P.Q.2d
5 1438, 1441-42 (C.D. Cal. 1998). The court found that there was no dispute
6 between the transferor and the plaintiff concerning the terms and rights of the
7 assignment to the plaintiff and, therefore, the defendant, a third party to the
8 assignment, could not invoke the contemporaneous requirement of § 204(a) of
9 Copyright Act. Id. Here, SLMI does not dispute the assignment to QED/Stan Lee,
10 and Opp. Defendants, as strangers to that relationship, cannot create one. Id.
11 ii. Opp. Defendants have copied the works QED
12 legally owns, and thus, QED has been injured-
13 in-fact by Opp. Defendants.
14 Opp. Defendants have copied, without any discretion, the protected works
15 that QED legally owns, as asserted in the SAC. See SAC, ¶¶ 62, 71 – 72. The
16 SAC is supported by documentary evidence which shows Opp. Defendants copied
17 the protected works. Opp. Defendants have failed to provide any declaration or
18 evidence to the contrary. As such, Opp. Defendants have directly caused injury-in-
19 fact to QED who are the rightful owners of the copyrights. By showing copyright
20 ownership and injury-in-fact, QED is automatically entitled to damages under 17
21 U.S.C. § 504 and, thus, has established its standing for its infringement claim.
22 b. Trademark Infringement.
23 A plaintiff need only demonstrate that he is the registered owner of a mark
24 for any class of products to establish standing to sue under the Lanham Act. 15
25 U.S.C. §§ 1114, 1125(a); Halicki Films, LLC v. Sanderson Sales and Mktg., 547
26 F.3d. 1213, 1226 (9th Cir. 2008). A plaintiff may establish a prima facie case of
27
11
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 trademark infringement by showing the following: (1) the plaintiff is the owner of
2 a valid protectable mark; and (2) the alleged infringer is using a confusing, similar
3 mark. 15 U.S.C. § 1114(1); Brookfield Communications, Inc. v. West Coast
4 Entertainment Corp., 174 F.3d 1036, 1046 (9th Cir. 1999).
5 i. QED is the legal owner of the trademarks.
6 Section 32 of the Lanham Act grants standing to assert a claim for trademark
7 infringement solely to the “registrant” of the trademark. 15 U.S.C. § 1114. This
8 term includes both the registrant and its “legal representatives, predecessors,
9 successors and assigns.” 15 U.S.C. § 1127 (emphasis added); Ultrapure Systems,
10 Inc. v. Ham-Let Group, 921 F. Supp. 659, 665-66 (N.D. Cal.1996) (trademark
11 licensee had property interest in trademark and qualified as assignee or successor
12 of registrant, and thus had standing to bring trademark infringement action).
13 Pursuant to the APA, Stan Lee, through the company he controls—QED—
14 acquired the rights and titles to the trademarks for The Accuser, The Drifter and
15 Stan’s Evil Clone. Plaintiffs’ SUF 16; Motion, 11/25/08, Ex. 6, § 1.1.6. Once the
16 sale was approved by the Bankruptcy Court, the ownership of these trademarks
17 was assigned and transferred to QED. QED has standing to assert claims related to
18 the infringement of those marks because it is an assignee, which is a recognized
19 legal owner under the Lanham Act. 15 U.S.C. § 1127; Ultrapure Systems, Inc.,
20 921 F. Supp. at 665-66. The facts are undisputed that QED was assigned the
21 interests in the trademarks, and Opp. Defendants have failed to prove otherwise
22 with controverted evidence or written materials. See Ex. 1. Most notably, none of
23 the parties involved in the bankruptcy proceeding have ever objected to Plaintiffs’
24 ownership or use of the trademarks. Thus, QED legally owns the trademarks and
25 has standing to file a trademark infringement claim against Opp. Defendants.
26
27
12
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 ii. Opp. Defendants used the exact marks that
2 QED legally owns, and thus, QED has been
3 injured-in-fact by Opp. Defendants.
4 Opp. Defendants used marks that are similar, if not exact, to those marks,
5 which QED rightfully owns and are legally protected. See SAC, ¶¶ 62, 84, 101.
6 Plaintiffs have asserted that Opp. Defendants are using similar marks that are
7 confusing to the public in the SAC, and the documents attached to the SAC support
8 their claims. Id. Again, Opp. Defendants did not provide any controverted
9 evidence that they are not using similar marks or the marks are not confusing to the
10 public. L.R. 56-3. As such, the Court must assume Plaintiffs’ facts to be admitted
11 to exist without controversy. Id. Opp. Defendants’ use of almost identical marks,
12 constitutes injury-in-fact to Plaintiffs. Plaintiffs have and own the rights which
13 have been injured by Opp. Defendants, and as such, Plaintiffs are automatically
14 warranted damages under 15 U.S.C. § 1117. Thus, Plaintiffs have standing to sue.
15 2. POW! has standing.
16 POW! has standing to assert its claims for trademark infringement and
17 cybersquatting because it is the registered owner of trademarks infringed upon by
18 Opp. Defendants, and POW! has suffered an injury-in-fact because Opp.
19 Defendants are using marks that are almost exactly the same to POW!’s legally
20 protected trademarks.
21 a. Trademark Infringement
22 i. POW! is the legal registrant of the trademarks.
23 POW! is the registered owner of the following trademarks – STAN LEE
24 PRESENTS, and EXCELSIOR!. As detailed above, to establish standing under
25 the Lanham Act, a plaintiff need only demonstrate he is the registered owner of the
26 mark for any class of products. 15 U.S.C. § 1114; see also Halicki Films, LLC,
27
13
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 547 F.2d at 1226. A prima facie case of the owner’s exclusive right to use a mark
2 is shown with a certificate of registration. 15 U.S.C. § 1057(b). POW!’s
3 ownership of the marks is demonstrated in the official records from the United
4 States Patent and Trademark Office as outlined in the following table:
5 Undisputed Facts Evidentiary Support
6 POW! is the registered owner of the • Motion, 11/25/08, Ex. 16, U.S.
7 trademark STAN LEE PRESENTS Copyright Record, Reg. # 3357243
8 POW! is the registered owner of the • Motion, 11/25/08, Ex. 17, U.S.
9 trademark EXCELSIOR Copyright Record
10 Further, POW! acquired the rights and ownership of these two marks, as
11 well as the rights to use Stan Lee’s name, likeness and persona, pursuant to an
12 agreement between POW! and Stan Lee. Plaintiffs’ SUF 23, Motion, 11/25/08,
13 Ex. 18. Stan Lee is the owner of these two marks, which is further evidenced by
14 the APA. Plaintiffs’ SUF 16; Motion, 11/25/08, Ex. 6. Stan Lee was free to do
15 whatever he chose to with the marks, and POW! is the legal owner of these marks
16 and has, along with Stan Lee, standing to bring the claims asserted.
17 ii. Opp. Defendants are using marks that are
18 similar to POW!’s trademarks, which is likely
19 to cause confusion amongst the public.
20 Opp. Defendants have utilized marks that are similar, if not exact, to
21 POW!’s registered and legally protected trademarks. POW! shows that Opp.
22 Defendants used these marks as set forth in detail in the SAC, and provide
23 evidence to support its claim. See SAC, ¶¶ 62, 71 – 72, 84, 101. In the Response,
24 Opp. Defendants are silent on the issue of whether they used the marks and do not
25 provide any declaration or other evidence contrary to Plaintiffs’. POW! has
26 suffered injury-in-fact by Opp. Defendants’ improper use of the marks. Pursuant
27
14
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 to L.R. 56-3, this fact is uncontroverted, and Plaintiffs are entitled to an automatic
2 award of damages under 15 U.S.C. § 1117.
3 b. Cybersquatting
4 As stated above, to establish standing under the Lanham Act, a
5 plaintiff need only demonstrate that he is the owner of a mark. 15 U.S.C. §§ 1114,
6 1125(a); Halicki Films, LLC, 547 F.3d. at 1226. A party may establish a prima
7 facie case of cybersquatting by proving 1) the party owns a distinct mark, 2) the
8 defendant had a bad faith intent to profit from the mark, and 3) the defendant
9 registered, trafficked or used a domain name that is identical to, or confusingly
10 similar to that mark. 15 U.S.C. § 1125(d); Interstellar Starship Services, Ltd., v.
11 Epix, Inc., 304 F.3d 936, 946-47 (9th Cir. 2002).
12 i. POW! owns the rights to Stan Lee’s name,
13 likeness, signature and persona.
14 Stan Lee assigned to POW! the right to use his name, likeness, signature and
15 persona. Plaintiffs’ SUF 23; Motion, 11/25/08, Ex. 18. As detailed below, Stan
16 Lee owned the rights to his name, likeness, signature and persona, and thus, had
17 the right to transfer these marks to POW!. POW!, through Stan Lee, legally owns
18 these rights and, as such, has standing to sue for claims related to these rights.
19 ii. Opp. Defendants’ use of marks that POW!
20 legally owns in their domain names have caused
21 injury-in-fact to POW!.
22 As detailed in SAC ¶¶ 106 – 110, Defendants registered and used the
23 domain names “www.stanleemedia.net” and “www.stanleestudios.com.” Plaintiffs
24 attached documents to the SAC to support the use of these domain names by
25 Defendants. The very use of the name Stan Lee in these domain names has caused
26 injury-in-fact to POW! and to Stan Lee. As POW!, through Stan Lee, legally owns
27
15
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 the rights to Stan Lee’s name, likeness, signature and persona,9 and it has suffered
2 injury from Defendants’ actions, it is entitled to statutory damages. 15 U.S.C.
3 § 1117. POW! has met the requirements of standing to sue for cybersquatting
4 against Defendants.
5 3. Stan Lee has standing.
6 Stan Lee has standing to assert claims for unauthorized use, infringement
7 and cybersquatting of his rights to his own name, likeness, signature and persona
8 because he owns and has always owned these rights. These rights exist both under
9 Federal law and California state law. “Celebrities have standing to sue under
10 Section 43(a) [15 U.S.C. § 1125(a)] of the Lanham Act because they possess an
11 economic interest in their identities akin to that of a traditional trademark holder.”
12 Parks v. LaFace Records, 329 F.3d 437, 445 (6th Cir. 2003). To prevail on such a
13 claim, a person must show that he or she owns valid trademark rights in their own
14 name or likeness. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992).
15 Under California state law, section 3444 of the California Code recognizes that “A
16 common law cause of action for appropriation of name or likeness may be pleaded
17 by alleging 1) the defendant’s use of the plaintiff’s identity; 2) the appropriation of
18 plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise;
19 3) lack of consent; and 4) resulting injury.” Wendt v. Host Intern., Inc., 117 F.3d
20 1427, *3 (9th Cir. 1997).
21
22
23
24
25
26
9
27 Plaintiffs’ SUF 23; Motion, 11/25/08, Ex. 8.
16
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 a. Stan Lee owns his own name, likeness, signature and
2 persona.
3 As Stan Lee owns his own name, likeness, signature and persona, he has the
4 right to file suit for unauthorized use or infringement of his rights.
5 Plaintiffs have provided prima facie evidence that they own the rights to
6 Stan Lee’s own name, likeness, signature and persona,10 and thus have standing to
7 assert claims for unauthorized use or infringement of those rights both under
8 Federal and state law. See White v. Samsung Electronics America, Inc., 971 F.2d
9 1395, 1399 – 1401 (9th Cir. 1992) (celebrity has a claim under section 43(a) of the
10 Lanham Act for infringement of one’s persona); Rogers v. Grimaldi, 875 F.2d
11 994, 1003-04 (2d Cir. 1989) (a person has the exclusive right to control the
12 commercial value and exploitation of his/her own name and to prevent others from
13 exploiting that value without permission); Miller v. Glenn Miller Productions,
14 Inc., 454 F.3d 975, 989-90 (9th Cir. 2006) (holding there is an inherent right of
15 every human being to control commercial use of his or her identity).
16 In support of their ownership, Plaintiffs have provided documentary
17 evidence to establish that they, and only they, have the right to use Stan Lee’s
18 name, likeness, signature and persona,11 and that such elements have been used
19 commercially to identify Plaintiffs’ business activities. As set forth in Plaintiffs’
20 Motion, Stan Lee has been using his professional name to identify himself, his
21 image and his work for over 60 years. See SAC, ¶ 22; Defendants’ Answer,
22 10/03/08, ¶ 12 (“Defendants admit that Plaintiff Stan Lee used his name to identify
23 himself, his image and his work for a number of years.”). Furthermore, as
24 demonstrated by both the California state law and Stan’s termination of the
25
26 10
Motion, 11/25/08, pp. 8 – 9, Exs. 9 – 10, 19; Plaintiffs’ SUF 9, 11, 13.
11
27 See, supra, pp. 16 – 17, Motion, 11/25/08, Exs. 9 – 10, 18 – 19.
17
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 agreement that allegedly assigned these right to SLMI, Stan alone possessed the
2 rights to his name, likeness, signature and persona as of January 2001.12 These
3 facts are uncontroverted. In fact, Opp. Defendants fail to provide any evidence to
4 support their contentions. Rather, they make overreaching and self-serving
5 statements to attempt to contradict the actual evidence. This attempt is insufficient
6 to overcome a motion for summary judgment.
7 Stan Lee further has standing to assert claims for cybersquatting under
8 15 U.S.C. § 1125(d), which allows the claim to be asserted by anyone who is “the
9 owner of a mark, including a personal name, which is protected as a mark under
10 this section.” 15 U.S.C. § 1125(d)(1)(A). Stan Lee owns and claims infringement
11 of common-law marks protected under 15 U.S.C. § 1125(a), and such claims
12 further relate to the use of a personal name. Stan Lee therefore satisfies the
13 elements required to bring a cybersquatting claim against Defendants.
14 b. Opp. Defendants are using Stan Lee’s name, likeness,
15 signature and persona without his consent and for
16 their advantage, and Stan Lee is suffering injury-in-
17 fact from their use of his rights.
18 No where in their Opposition do the Opp. Defendants deny they have used
19 Stan Lee’s name, signature and likeness, along with copyrights and trademarks,
20 without permission and have injured him in doing so. Stan Lee is automatically
21 entitled to damages under 15 U.S.C. § 1117 because he has suffered injury-in-fact.
22 Therefore, Stan Lee has standing to sue for trademark infringement, unauthorized
23 use of his name and cybersquatting.
24 ///
25 ///
26
12
27 See Plaintiffs’ SUF, ¶¶ 11- 12.
18
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 4. Plaintiffs have standing on all additional claims.
2 Given that Plaintiffs have clearly demonstrated their ownership of the
3 copyrights, trademarks and Stan Lee’s persona, name, likeness and signature, and
4 injury-in-fact caused by Opp. Defendants unauthorized use of the protected works,
5 Plaintiffs have standing for their additional claims13 that are based, in part, on
6 Plaintiffs’ ownership of these rights.14 Specifically, Opp. Defendants’ interference
7 with the contract and interference with prospective economic relations supports
8 Plaintiffs’ claim that they have suffered injury-in-fact as a result of the actions
9 taken by Opp. Defendants. See SAC ¶¶ 130 – 133; 137 – 140.
10 B. Stan Lee and QED Complied with the Essential and Material
11 Bases of the APA and the Bankruptcy Court’s Order.
12 In their principal brief and Plaintiffs’ SUF, Plaintiffs list in detail the
13 numerous statements in the Bankruptcy Court’s record that the principal and
14 material element of the sole transaction from SLMI to Stan Lee, through an entity
15 that would form and control, was: Stan Lee himself.15 It is uncontroverted that
16 without Stan Lee, the transaction could not have occurred.
17 Opp. Defendants assert that Plaintiffs committed some violation of the
18 Bankruptcy Court’s order of April 2002 or engaged in some “fraudulent scheme”
19 by allegedly: (1) not creating a single purpose entity to exploit the properties (2)
20 transferring an interest in the properties without consent of the Debtors and the
21 Creditor’s Committee; and (3) by QED failing to pay SLMI. Opp. Defendants
22
23
13
The additional claims include, but are not limited to, Eighth Claim for
24 Relief – Intentional Interference with Contractual Relations, and Ninth Claim for
25 Relief – Intentional Interference with Prospective Economic Advantage.
14
Plaintiffs have standing for all other claims for relief in the SAC that
26
Defendants did not address in their Response.
15
27 See, Plaintiffs’ SUF, ¶¶ 14 – 20; Motion, 11/25/08, Exs. 3, 4 & 20.
19
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 have no basis or standing to even raise this specious argument as they are complete
2 strangers to the transaction; and, once again, their allegations are not correct.
3 In fact, Stan Lee formed QED for the sole purpose of exploiting the
4 properties sold. 16 The Court, and the Creditor’s Committee all knew that Stan Lee
5 was the key and that he was involved. While the name “QED” is different from
6 “SLC, LLC,” QED is a single-purpose entity controlled by Stan Lee, and formed
7 solely to exploit the Properties. It is uncontroverted that this fact was hidden from
8 no one. Indeed, as the attached Declaration of David Golubchik17 (counsel for
9 SLMI in the Bankruptcy) states, the name of the entity was not relevant. See
10 Exhibit 2. What was essential and material was the involvement of Stan Lee, and
11 that in fact occurred, as the following illustrates:
12
13 The key to the Asset Purchase • Motion, 11/25/08, Ex. 3 – Motion to
14 Agreement was Stan’s Approve APA;
15 involvement. • Motion, 11/25/08, Ex. 4 – Transcript from
16 Hearing;
17 • Ex. 2, Golubchik Dec. ¶¶ 5 – 7
18 The name of the Transferee Entity • Ex. 2, Golubchik Dec. ¶ 8;
19 was not important. The other key • Motion, 11/25/08, Ex. 3 – Motion to
20 to the Asset Purchase Agreement Approve APA;
21 was the exploitation of the • Motion, 11/25/08, Ex. 4 – Transcript from
22 properties. Hearing;
23 • Ex. 3, Champion Dec. ¶¶ 5 - 11, 13;
24 • Motion, 11/25/08, Ex. 20, ¶¶ 5, 6, 8, 9
25
26 16
See Motion, 11/25/08, Ex. 19, ¶¶ 6 -7; Motion, 11/25/08, Ex. 20, ¶ 8.
17
27 See, Ex. 2, Golubchik Dec., ¶¶ 7 – 8.
20
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 No one objected to the assignment • Ex. 3, Champion Dec. ¶ 14;
2 or development of the properties • Motion, 11/25/08, Ex. 20, ¶ 7
3 by QED
4 Importantly, Stan Lee and QED (with the assistance of others) in fact spent
5 considerable time attempting to exploit the properties received from SLMI, and
6 their efforts were open and notorious, so there was no hiding who was exploiting
7 the properties as the following demonstrates:18
8 QED was used solely for the purpose of • Motion, 11/25/08, Ex. 20, ¶ 8;
9 developing, promoting and exploiting • Ex. 3, Champion Dec. ¶ 5 and Ex. 3
10 the properties. – Membership Purchase and
11 Employment Agreement ¶ 4(b)
12 (“MPEA”)
13 QED, through Stan Lee and his • Motion, 11/25/08, Ex. 19, ¶ 7;
14 associates, has tried to exploit the • Motion, 11/25/08, Ex. 20, ¶¶ 5 – 9;
15 properties. • Ex. 3, Champion Dec. ¶¶ 6 – 12, 15
16 QED did NOT transfer or assign the • Motion, 11/25/08, Exs. 11 – 15,
17 properties to POW! Official Records of Copyright Office
18 show QED is the registered owner;
19 • Ex. 3, Champion Dec., Ex. 3 –
20 MPEA ¶ 4(a)-(b) – only assigns any
21 rights, title and interest that Stan Lee
22 may have, not that QED has.
23
24 18
No evidence exists or has been adduced by Opp. Defendants to even
25 suggest that QED and Stan Lee exploited the assets for themselves. Indeed, the
evidence extant in this record is, in fact, that QED and Stan Lee worked hard to
26
exploit the assets for the benefit of the estate, as the Declarations above
27 demonstrate.
21
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 Pursuant to its efforts to exploit the • Motion, 11/25/08, Ex. 20, ¶ 6.
2 properties, QED did receive monies on
3 one of the SLMI projects, and this
4 money was paid to SLMI.
5
6 QED complied with the April 2002 • Motion, 11/25/08, Ex. 20 ¶ 9;
7 Order by sending report to Creditor’s • Report – Ex. 6 to QED’s Opposition
8 Committee on the attempts to exploit to Motion for Summary Judgment.
9 the properties.
10 As such, Stan Lee and QED complied with the essential and material portions of
11 the APA and the bases of the Bankruptcy Court’s order approving the same.
12 The only people to even make the baseless claims in the opposition are the
13 Opp. Defendants. No persons, creditors, attorney for the Creditor’s Committee, or
14 anyone else – the very people who have a vested interest in Stan Lee’s success –
15 has ever objected to QED, Stan Lee, or their actions after the sale. If one could be
16 made, such persons logically would have made them, but have not. Opp.
17 Defendants are complete strangers to SLMI until they aided and abetted each other
18 in illegally dealing with SLMI’s assets (see Court’s Order, 2/19/08, p. 12) and
19 violating the law (see SAC, ¶¶ 62, et seq.), and they have no basis to complain
20 about how the transaction took place or QED’s and Stan Lee’s conduct after.
21 The “MPEA,” as Opp. Defendants call it, is no “smoking gun.” It has
22 previously been disclosed in this case.19 A reading of it leads to none of the
23 positions advanced by Opp. Defendants. Indeed, the only mention of QED is:
24
25 To assign convey and grant to POW! Forever, all right title and
interest that Stan Lee may have in any income arising from the
26
19
27 See, Ex. 3, Champion Dec., Ex. 3.
22
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 ownership of a Membership interest in QED Productions LLC
(“QED”) or arising from the sale of the ownership of such
2 Membership Interest. QED (or any other company so formed) is
3 formed to receive the intellectual property from Stan Lee Media. Stan
Lee represents and warrants that he will not cause or permit any
4 ownership interest to be issued to any other party without the consent
5 of Managers of POW! other than Stan Lee.

6
Motion, 11/25/08, Ex. 18, p. 42 of 44, ¶ 4(b). The only thing Stan Lee assigned by
7
the MPEA was income he would get from QED; nothing from QED went to
8
POW!. Stan Lee affirmatively states that “QED (or any other company so formed)
9
is formed to receive the intellectual property from Stan Lee Media.” Id. As
10
discussed above, if it had said “SLC, LLC …,” it would not matter. The actual
11
circumstances are consistent with the deal: Stan Lee would be involved, the
12
company would be controlled by him, and its sole purpose was to accept the
13
properties of SLMI; and the assets would be exploited. POW!’s affairs are public,
14
as Opp. Defendants note. As such, there was no mystery. Again, Opp. Defendants
15
are the only ones to raise this specious issue; they do so to take the Court’s
16
attention away from the uncontroverted and undeniable truths that they are
17
wrongdoers looking for a trapdoor to escape liability. Opp. Defendants have
18
utterly failed to controvert the facts presented by Plaintiffs either by declaration or
19
other written evidence, as is required by L.R. 56-3. The Court should assume that
20
the facts outlined by Plaintiffs are admitted. Stan Lee, QED and POW! own the
21
rights and claims they sue on; Opp. Defendants undeniably violated the Plaintiffs’
22
rights, and this Court should hold them accountable.
23
24
25
26
27
23
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 C. Opp. Defendants’ “Void” Argument Itself is Void of Substance.
2 QED’s and Stan Lee’s ownership of the Intellectual Property rights is
3 established.20 POW! has no properties from QED, despite Opp. Defendants false
4 assertion to the contrary;21 rather, it has its own rights from Stan Lee, which Stan
5 Lee rightfully owns and could legally and validly assign to POW!22
6 QED is controlled by Stan Lee, and its sole purpose was and is to exploit the
7 properties obtained from SLMI. Stan Lee and QED used their “best efforts” (to
8 use Opp. Defendants words Opposition, p. 21) to exploit them, as outlined in the
9 Declarations of Stan Lee, Gill Champion, and Junko Kobayashi.23 Opp.
10 Defendants do not and cannot controvert these facts. Again, they merely raise a
11 false “spectre.” And they, as strangers to the Bankruptcy, are the only ones to ever
12 bring up the assertion. No creditors – people with the greatest stake in the
13 Bankruptcy – have ever made such a claim. Plaintiffs complied with the APA and
14 the Bankruptcy Court’s approval of it. This Court has, under the applicable law
15 and facts, the proof to support Plaintiffs’ right to sue.
16 While Opp. Defendants would have this Court believe that somehow the
17 APA would not have been agreed to or granted by the Bankruptcy Court if the
18 name of the acquiring entity were something other than “SLC, LLC,” the facts, as
19 supported by documentary evidence, simply do not support this contention.
20 Because Opp. Defendants have utterly failed to controvert the facts presented by
21
22
20
23 See, supra, pp. 8 – 12, 17 – 18; Opp. Defendants’ failure to controvert
Plaintiffs’ Statement of Uncontroverted Facts.
24 21
See, Opposition, p. 20.
22
25 Compare, Motion, 11/25/08, Ex. 6., p. 41 (APA – listing Properties which
went to Stan himself).
26 23
See Motion, 11/25/08, Ex. 19, ¶ 7; Ex. 3, Champion Dec., ¶¶ 6 – 12, 15;
27 Motion, 11/25/08, Ex. 20, ¶¶ 5 - 9.
24
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 Plaintiffs either by declaration or other written evidence, as is required by L.R. 56-
2 3, this Court must assume that Plaintiffs’ facts are admitted.
3 V. CONCLUSION
4 Plaintiffs have standing to pursue all of their claims; the Court can and
5 should redress Opp. Defendants’ wrongs. For their reasons set forth in Plaintiffs’
6 motion papers and in this reply, partial summary judgment should enter for
7 Plaintiffs.
8
9 DATED: December 16, 2008.
10
11 Respectfully Submitted,
12 Sherman & Howard L.L.C.
McGuireWoods LLP
13
14 By:/s/Mark W. Williams
15 Sherman & Howard L.L.C.
Counsel for Plaintiffs
16
17
18
19
20
21
22
23
24
25
26
27
25
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)
 1 CERTIFICATE OF SERVICE
2
3 I hereby certify that a true and correct copy of REPLY MEMORANDUM
OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
4 MOTION FOR PARTIAL SUMMARY JUDGMENT was electronically filed
5 and served via CM/ECF this 16th day of December, 2008, upon:

6
Jack Cairl (E-mail: jcairl@oslaw.com)
7 Pierce O’Donnell (E-mail: pod@oslaw.com)
8 O’Donnell and Associates
550 S. Hope Street, Suite 1000
9 Los Angeles, CA 90071
10
David Pash (E-mail: dap@dpashlaw.com)
11 David A Pash Law Offices
12 1880 Century Park East, Suite 1511
Los Angeles, CA 90013
13
14 Judith Sasaki (E-mail: jms@scsattys.com)
Simke Chodos and Sasaki
15 1880 Century Park East, Suite 1511
16 Los Angeles, CA 90013

17 and via overnight delivery to:

18
Peter F. Paul
19 1854A Hendersonville Rd #10
Asheville, NC 28803
20
Sean P. Sheppard
21 Andersen Firm
1200 Plantation Island Drive South
22 Suite 220
St. Augustine, FL 32080
23
24 s/ Deborah J. Meyer
25
26
27
26
28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
CASE NO. 07-CV-00225-SVW (SSx)