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Attorneys for Plaintiff The Kil1manjaro Corporation

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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THE KILIMANJARO CORPORA110N. a California Corporation. Plai ntiff,

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C01v1PLAINT FOR COPYRIGHT INFRINGEMENT AND DECLARATORY RELIEF

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v.

JURy TRIAL DEMAND

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INC., a California corporationi ANDREW NICCOL, an indiVIdual; and DOES 1 through 10. inclusive, Defendants.

NEW REGENCY PRODUCTIONS,

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Plaintiff The Kilimaltjaro Corporation ("TKC' or "Plaintiff') hereby alleges

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the following claims for relief against defend'ants New Regency Productions, Inc. ("Regency"), Andrew Niccol (collectively, JURISDICTION AND VENUE 1. This Court has original subject matter jurisdiction over this Ilction and and Does 1 through \ 0, inclusive

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the claims asserted herein, pursuant to 28 U.S.C. § 1331 ("federal question
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COMPLAINT FOR COPYRIGHT lNFRINOEMENT AND.TURV TRIAL DEMAND

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DRINKER BIDDLE & REATl-I LLP Cl11;'istopher F. Wong (SBN 142507) 2 chns. worm@dbr.com Adam J. Thurston (SBN 162636) 3 adam. com Ryan R. Salsig,1SBN 250830) 4 · ryan.salsig@dbr.com 1800 Century Park East, Suite 1400 5 Los Angeles, California 90067-1517 Telephone: (310) 203-4000 6 Facslmile: (310) 229-1285

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jurisdiction") and § 1338(a) (actions arising under any Act of Congress relating to
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copyright), in that this action arises under the laws of the United States and, more specifically, Acts of Congress relating to copyrights. 2. Defendants are subject to personal jurisdiction of the Court because

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they reside, have agents, do or transact business, or are othelwise found, and have purposefully availed themselves of the privilege of doing business, in California

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3.

Venue is proper in this District pursuant to 28 U.S.C. § 1400(a)

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because Defendants have a regular and established place of business in this District and may be found in this District. Venue is also proper in this District pursuant to

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28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving

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rise to the claims occurred in this District and a substantial part of the property that is the subject of this action is situated in this District. Alternatively, venue is also

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proper in this District pursuant to 28 U.S.C. § 1391(b)(3) because Defendants have a regular and established place of business in this District and may be found in this

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District.

THE PARTIES

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At all times material hereto, Plaintiff TKC was a California

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corporation with its principal place of business in Sherman Oaks, California, duly

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authorized to do and doing business in this District. At all times material hereto,

TKC has been engaged in the business of, among other things, holding, distributing, copying, licensing and otherwise exploiting the copyrighted works of Harlan

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Ellison, including without limitation, for adaptation into television programs, feature films and other formats. Harlan Ellison is the President of TKC. 5. TKC is informed and believes and thereon alleges that defendant

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Niccol is an individual residing and doing business in this District. TKC is informed and believes and thereon alleges that defendant Niccol wrote the screenplay for a feature length motion picture entitled I'm.Mortal, and sold,
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and this District.

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licensed, or otherwise authorized defendant Regency to use it to make the motion picture entitled In Time, as more fully alleged below. 6. TKC is informed and believes and thereon alleges that defendant

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Regency is a California corporation with its principal place of business in Los Angeles, California, doing business in this District. At all times material hereto, Regency has been engaged in the business of, among other things, developing,

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The true names and capacities, whether individual, corporate, partner,

associate, agent, employee, or otherwise, of the defendants named in this complaint as Does 1 through 10, inclusive, are unknown to TKC, which therefore sues such

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defendants by such fictitious names. TKC will amend this complaint to show the

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true names and capacities of the Doe defendants when it has ascertained the same. TKC is informed and believes and on that basis alleges that, at all relevant times,

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Does 1 through 10, inclusive, are responsible in some manner for the conduct herein alleged and proximately caused TKC's damages. TKC is informed and believes and on that basis alleges that, at all relevant times, Does 1 through 10, inclusive, and each of them, were the agents of, and/or were acting in concert with,

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each of the remaining defendants and, in doing the things alleged, were acting

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within the scope of such agency. Any reference to any of the named defendants herein shall also constitute a reference to the Doe defendants.

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FACTUAL BACKGROUND

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Harlan Ellison is one of the most celebrated science fiction writers of

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our time, and has won more awards for his science fiction writing than any other living author, including the Hugo award (eight and a halftimes), Nebula (four

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times), Bram Stoker (six times), Edgar (two times), the Writers Guild of America A ward (four times), and many others. 9.
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Harlan Ellison is the author of "Repent, Harlequin!" Said the
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Ticktockman (hereafter, "Repent, Harlequin!"), one of the most famous and widely
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producing and distributing feature films.

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published science fiction short stories ever written. Repent, Harlequin! won the 1966 Hugo Award for best short story, as well as the 1965 Nebula Award. It has been translated into rmmerous foreign languages and published throughout the world. It is also among the most reprinted short stories in the English language. Repent, Harlequin! was first published in 1965 and is registered with the United States Copyright Office under registration number B217120, which was duly renewed in December 1993 under renewal number RE648724. 10. By a fully executed written agreement dated July 19,2001, and

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recorded with the United States Copyright Office, Harlan Ellison transferred all TKC owns the copyrights in and to Repent, Harlequin!. 11.

right, title and interest in Repent, Harlequin! to TKC. As a result of this transfer,

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Over the years, Mr. Ellison has been approached on numerous

occasions with requests for permission to adapt Repent, Harlequin! into a feature

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film but, until recently, Mr. Ellison has declined. In or around November 2010,

TKC entered into an agreement with a third party to create a screenplay based upon

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Repent, Harlequin!, suitable for sale or license to a studio for the creation of a feature length motion picture. The screenplay has been written and is ready to 12. However, the value and marketability of the screenplay authorized by

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present to studios.

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TKC has been and will be seriously and irreparably degraded by the creation, marketing and release of an unauthorized feature film by Regency entitled In Time,

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which infringes TKC's copyright in Repent, Harlequin! In Time is scheduled to be 13. Repent, Harlequin! is one ofMr. Ellison's most famous works and his

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released in theaters on October 28, 2011.

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most precious assets. It is truly outrageous that Andrew Niccol and Regency have gone behind his back to create a movie based on this iconic and valuable work without any attempt to obtain his authorization or to accord him credit. 14.
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DRINKER BIDDLE & REATH LLP
ATTORNEYS AT LAW

The similarity between In Time and Repent, Harlequin! is obvious and,
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indeed, widely noted by critics who have seen advanced screenings. For example, Richard Roeper states in his Fall Movie Preview that "In Time is based on a brilliant story by the great Harlan Ellison .... " Similarly, the E-Street preview states that In Time is "[b]ased on the Harlan Ellison story 'Repent, Harlequin, said the Ticktockman .... '" 15.
In Time copies key plot elements, themes, characters, events,

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following:
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a. Repent, Harlequin! takes place in a dystopian corporate future in

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which everyone is allotted a specific amount of time to live. The precise amount of time each person has left to live is known,

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tracked on a time card, and subject to monitoring by a government authority known as the "Master Timekeeper." In Time also takes

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place in a dystopian corporate future in which everyone is allotted a specific amount of time to live. The precise amount of time each

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person has left to live is known, tracked on a luminescent clock displayed on the ann, and subject to monitoring by a govermnent

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authority known as the "Senior Timekeeper."

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b. In Repent, Harlequin!, the amount of time an individual has left to live may be manipulated, and breaking the rules of society results

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in the deduction of time from the perpetrator's life. For example,

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tardiness to work results in revocation of a commensurate amount of time from one's life. Similarly, in In Time, the amount of time one has left to live may be manipulated, and violations are punished

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by deducting time from the perpetrator's life, such as for tardiness to work or failure to meet one's quota. c. In Repent, Harlequin!, when one's allotted time to live has expired, instant death occurs by stoppage of the heart. This is precisely
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DRINKER BIDDLE &

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sequences and settings of Repent, Harlequin!, including without limitation, the

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what happens to In Time characters, as well. d. In Repent, IIarlequin!, the constant threat of advancing the time of one's death by time revocation is the system used to force conformity with a highly regimented and oppressive society in which the masses are forced to adhere to a strict time schedule in their daily lives as they serve their corporate masters. Similarly, in

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In Time, the constant threat of imminent death by running out of
one's allotted time is the system used to force conformity with a

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highly regimented and oppressive society in which the masses live short, brutish lives of poveliy in service to the wealthy corporate elite.

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e. The protagonist in Repent, Harlequin! rebels against the system in

the hopes of destroying it and restoring freedom to the masses. He becomes an outlaw and a hero of the people by sabotaging the system in ways that disrupt the strict schedule and encourages

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people to enjoy their time. The protagonist in In Time also rebels against the system in the hopes of destroying it. He becomes an outlaw and a hero of the people by sabotaging the strict time

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distribution system by giving others more time to live.

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f. In Repent, Harlequin!, the protagonist's acts of defiance present a

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threat to the system of strict schedule control enforced by the

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Master Timekeeper and his staff, who monitor infractions from a central command post. The Master Timekeeper and his staff

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proceed to hunt down the protagonist, at first using wanted posters and eventually by resorting to informants and torture. Similarly, in

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DRINKER BIDDLE & REATH LLP
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In Time, the protagonist's acts of defiance present a threat to the
system of strict time distribution control enforced by the Senior Timekeeper and his staff, who also monitor infractions from a
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central command post. The Senior Timekeeper and his staff proceed to hunt down the protagonist, at first using electronic wanted posters and eventually employing a street gang that uses intimidation, torture and murder.

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FIRST CLAIM FOR RELIEF FOR COPYRIGHT INFRINGEMENT
16. TKC incorporates by reference paragraphs 1 through 15, inclusive, and

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realleges them here as though fully set forth herein. 17.

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Repent, Harlequin! is an original work of authorship fixed in a

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tangible means of expression that constitutes a literary work pursuant to 17 U.S.C.

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§§ 101 et seq. 18.

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TKC's exclusive rights extend to each protectable component of

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Repent, Harlequin!, including the right to create derivative works such as an
adaptation of Repent, Harlequin! to a motion picture screenplay. 19.

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IKC has the right and standing to enforce its exclusive rights to

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Repent, Harlequin! and its copyrightable component parts.
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At all times material hereto, TKC has duly complied with all of the

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provisions of the copyright laws of the United States applicable to Repent,

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Harlequin!.
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Defendants had access to Repent, Harlequin! because Repent,

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Harlequin! was and is a successful, well known science fiction short story that was
and is widely distributed and continues to be sold and available throughout the

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United States. 22. By producing and distributing In Time, Defendants have reproduced,

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copied, prepared derivative works based upon, and distributed copies of substantial portions of Repent, Harlequin!, including key plot elements, characters, events and
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§ 102(a), and is subject to copyright protection under the Copyright Act, 17 U.S.C.

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(Against All Defendants)

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sequences for their own use, without TKC's permission or authorization. Defendants continue to do so. 23. Defendants' conduct constituted, and continues to constitute,

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infringement upon TKC's exclusive rights to reproduce, copy, prepare derivative works based upon, and distribute Repent, Harlequin!, all in violation of 17 U.S.C. §§ 106 and 501. 24. Defendants' infringement was, and continues to be, intentional,

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deliberate, willful, malicious and in blatant disregard ofTKC's exclusive rights. 25.

Defendants' acts as alleged above have caused, and ifnot enjoined,

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will continue to cause, irreparable damage to TKC's exclusive rights in a manner

that cannot be calculated or compensated solely by money damages. Accordingly,

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TKC is entitled to a preliminary and permanent injunction against Defendants and

their officers, directors, employees, agents, representatives, affiliates, subsidiaries, distributors and all persons acting in concert with them, to stop their infringing

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conduct, pursuant to 17 U.S.C. § 502. 26.

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TKC is further entitled to temporary and permanent orders impounding

and disposing of all infringing materials, including but not limited to all originals, copies, reproductions and derivatives of In Time, in Defendants' possession,

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custody or control pursuant to 17 U.S.C. § 503. 27.

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Defendants' infringing conduct has caused TKC to suffer damages and

harm, including, but not limited to, lost derivative market exploitation opportunity,

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lost revenues and profits, lost market share, loss of goodwill and reputation, and

other damages, including costs and attorneys' fees, the exact nature and extent of

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which will be proven at trial. 28.

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Accordingly, TKC is entitled to an award against Defendants for the

recovery of Defendants , profits, ifany, TKC's actual damages or statutory damages, punitive damages, and attorneys' fees and costs, pursuant to 17 U.S.C. §§ 504 and 505.
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SECOND CLAIM FOR RELIEF FOR A DECLARATORY JUDGMENT
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(Against All Defendants) 29. TKC incorporates by reference paragraphs 1 through 28, inclusive, and

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realleges them here as though fully set forth herein. 30. An actual controversy has arisen and now exists relating to the rights

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and duties ofTKC and Defendants under the U.S. copyright laws in that TKC

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Time infringe upon TKC's exclusive copyrights. Upon information and belief,

Defendants contend that their use, reproduction, marketing, sale, and distribution of

In Time are lawful.
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Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 & 2202,

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and Rule 57 of the Federal Rules of Civil Procedure, TKC desires ajudicial determination of its rights, and a declaration of whether Defendants' use,

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reproduction, marketing, sale, and distribution of In Time infringe upon TKC's exclusive rights in violation of the U.S. copyright laws. 32.

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A judicial declaration is necessary and appropriate at this time under

the circumstances in order that TKC may ascertain the parties' rights.

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PRA YER FOR RELIEF

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WHEREFORE, TKC prays for judgment against Defendants as follows: 1. That Defendants, and each of them, be adjudged to have infringed

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TKC's copyrights, in violation of 17 U.S.C. §§ 106 and 501; 2.

That Defendants, and each of them, and their respective officers,

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directors, employees, agents, representatives, affiliates, subsidiaries, distributors and all persons acting in concert with them, be forthwith preliminarily and

thereafter permanently enjoined from infringing TKC's copyrights, pursuant to 17

U.s.C. § 502;
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That Defendants, and each of them, and their respective officers,
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contends that Defendants' use, reproduction, marketing, sale, and distribution of In

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directors, employees, agents, representatives, affiliates, subsidiaries, distributors and all persons acting in concert with them, be forthwith preliminarily and thereafter permanently ordered to impound and dispose of all infringing materials, pursuant to 17 U.S.C. § 502; 5. That Defendants, and each of them, be directed to file with this Court

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and serve on TKC, by and through its counsel of record herein, within thirty (30)

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forth in detail the manner and form in which Defendants have complied with the injunctions and orders described above; 6.

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That Defendants, and each of them, be required to account to TKC for

any and all profits derived by their respective exploitation of In Time; 7.

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That Defendants, and each of them, be ordered to pay over to TKC all

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damages, including future damages, that TKC has sustained, or will sustain, as a consequence of the acts complained of herein, subject to proof at trial, and that

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TKC be awarded any profits derived by Defendants as a result of said acts, or as determined by said accounting, or in the alternative, statutory damages, pursuant to 17 U.S.C. § 504; 8.

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For a judicial declaration that Defendants' use, reproduction,

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marketing, sale, and distribution of In Time infringe TKC's exclusive rights under the copyright laws; 9.

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That TKC be awarded its costs, attorneys' fees and expenses in this

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action pursuant to 17 U.S.C. § 505; 10.

That TKC be awarded pre-judgment interest; and

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days after service of any such injunctions, a report in writing, under oath, setting

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hat TKC have such other and further relief as the COlirt may deem

appropriate. Dated: September 14, 2011

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Attorneys for Plaintiff The Kiltmanjaro Corporation

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JURy TRIAL DEMAND

Plaintiff IKC hereby demands a trial by jury.
Dated: September 14,2011

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PlaiIltiff . The Kil1manJaro CorporatlOn