Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 1 of 26 Page ID #:1 1 ROBERT H. ROTSTEIN (SBN 72452) rxr@msk.com 2 ELAINE K. KIM (SBN 242066) ekk@msk.com 3 MITCHELL SILBERBERG & KNUPP LLP 11377 West Olympic Boulevard 4 Los Angeles, California 90064-1683 Telephone: (310) 312-2000 5 Facsimile: (310) 312-3100 6 Attorneys for Plaintiffs MGM Television Entertainment Inc., 7 Orion Pictures Corporation, and PFE Library Acquisition Company, Inc. 8 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 CASE NO. 2:16-cv-8775 13 MGM TELEVISION ENTERTAINMENT INC.; ORION 14 PICTURES CORPORATION; PFE LIBRARY ACQUISITION 15 COMPANY, INC., COMPLAINT FOR: (1) DECLARATORY JUDGMENT OF COPYRIGHT OWNERSHIP (COUNTS I THROUGH III); Plaintiffs, 16 17 18 (2) DECLARATORY JUDGMENT THAT DEFENDANTS’ OWNERSHIP CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS (COUNT IV); AND v. 19 EARL M. RAUCH (A/K/A EARL MAC RAUCH); WALTER D. 20 RICHTER, 21 (3) DECLARATORY JUDGMENT THAT DEFENDANTS’ OWNERSHIP CLAIMS ARE BARRED BY ESTOPPEL (COUNT V) Defendants. 22 23 24 25 Mitchell Silberberg & Knupp LLP 26 27 28 Plaintiffs MGM Television Entertainment Inc., Orion Pictures Corporation, and PFE Library Acquisition Company, Inc. allege against Defendants Earl M. Rauch and Walter D. Richter, as follows: 1 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 2 of 26 Page ID #:2 NATURE OF ACTION 1 2 1. This action arises out of Defendants’ campaign to sabotage Plaintiff 3 MGM Television Entertainment Inc.’s (“MGM”) plans to develop, produce, and 4 distribute a television series based upon the screenplay and 1984 motion picture 5 The Adventures of Buckaroo Banzai Across the 8th Dimension, and the characters, 6 plots, themes, dialogue, mood, settings, pace, sequence of events, and other 7 protected elements therein (“Buckaroo Banzai”). Plaintiffs MGM, Orion Pictures 8 Corporation (“Orion”), and PFE Library Acquisition Company, Inc. (“PFE”) are 9 the legal and beneficial owners of the copyright to Buckaroo Banzai, including the 10 right to adapt the screenplay, motion picture, and elements therein in a new 11 television series. Plaintiffs’ predecessor-in-interest registered the copyrights to the 12 Buckaroo Banzai screenplay (Pau 555-142) and motion picture (PA 224-582) with 13 the United States Copyright Office in 1983 and 1984, respectively. However, over 14 two decades later, Defendants have now asserted in multiple letters to Plaintiffs 15 that they, not Plaintiffs, supposedly own the exclusive right to produce and 16 distribute a Buckaroo Banzai television series. In addition, Defendants’ counsel 17 has contacted MGM’s business associates in the television series endeavor and 18 falsely asserted that Plaintiffs do not have the right to produce the series. Even 19 worse, Defendants have taken their bogus story to the press, falsely claiming that 20 Plaintiffs do not own the rights to Buckaroo Banzai and trying both to squelch the 21 television series endeavor and to poison the goodwill that fans of Buckaroo Banzai 22 have for MGM’s new project. 23 2. There is now a substantial controversy between the parties with great 24 immediacy. MGM seeks to develop its new television series without Defendants’ 25 interference. Accordingly, Plaintiffs bring this action to seek a declaration of the Mitchell Silberberg & Knupp LLP 26 rights and legal relations of the parties with regard to Buckaroo Banzai. 27 28 2 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 3 of 26 Page ID #:3 THE PARTIES 1 2 3. Plaintiff MGM Television Entertainment Inc. is a Delaware 3 corporation with its principal place of business at 245 N. Beverly Dr., Beverly 4 Hills, CA 90210. MGM Television Entertainment Inc. is an indirect, wholly5 owned subsidiary of MGM Holdings Inc., a leading entertainment company 6 focused on the global production and distribution of film and television content. 7 4. Plaintiff Orion Pictures Corporation is a Delaware corporation with its 8 principal place of business at 245 N. Beverly Dr., Beverly Hills, CA 90210. Orion 9 Pictures Corporation is an indirect, wholly-owned subsidiary of MGM Holdings 10 Inc. 11 5. Plaintiff PFE Library Acquisition Company, Inc. is a Delaware 12 corporation with its principal place of business at 245 N. Beverly Dr., Beverly 13 Hills, CA 90210. PFE Library Acquisition Company, Inc. is an indirect, wholly14 owned subsidiary of Orion Pictures Corporation. 15 6. On information and belief, Defendant Earl M. Rauch (a/k/a Earl Mac 16 Rauch) is currently domiciled in the State of Texas. Plaintiffs’ predecessor-in17 interest hired Rauch to write the screenplay for Buckaroo Banzai. He did so 18 pursuant to a work-for-hire contract through his “loan out” company, Johnny B. 19 Good, Inc. (“JBG”). Rauch was at all relevant times the alter ego of JBG. The 20 contract expressly provided that Metro-Goldwyn-Mayer Film Company, Plaintiffs’ 21 predecessor-in-interest, was the sole and exclusive owner of the copyright to 22 Buckaroo Banzai, and also contained an assignment of all exclusive rights under 23 copyright to Metro-Goldwyn-Mayer Film Company. On information and belief, at 24 the time that the work-for-hire contract was entered into and Buckaroo Banzai was 25 made, Rauch resided in this District and JBG’s principal place of business was in Mitchell Silberberg & Knupp LLP 26 this District. 27 28 3 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 4 of 26 Page ID #:4 1 7. On information and belief, Defendant Walter D. Richter is currently 2 domiciled in the State of Vermont. Richter directed the Buckaroo Banzai motion 3 picture pursuant to a work-for-hire contract with Plaintiffs’ predecessor-in-interest 4 through his “loan out” company, Harry Bailly Productions, Inc. (“HBP”). Richter 5 was at all relevant times the alter ego of HBP. The contract expressly provided 6 that Plaintiffs’ predecessor-in-interest was the sole and exclusive owner of the 7 copyright to Buckaroo Banzai, and also contained an assignment of all exclusive 8 rights under copyright to Plaintiffs’ predecessor-in-interest. On information and 9 belief, at the time that the work-for-hire contract was entered into and Buckaroo 10 Banzai was made, Richter resided in this District and HBP’s principal place of 11 business was in this District. 12 JURISDICTION AND VENUE 13 14 8. This Court has subject matter jurisdiction under the Copyright Act, 17 15 U.S.C. § 101 et seq., and under 28 U.S.C. §§ 1331, 1338 and 2201. This case 16 involves the interpretation and scope of the Copyright Act of 1976, 17 U.S.C. 17 § 106. In addition, this Court has diversity jurisdiction over the present action 18 pursuant to 28 U.S.C. § 1332(a)(1). There is complete diversity in citizenship 19 between Plaintiffs and Defendants, and the amount in controversy exceeds the sum 20 or value of $75,000, exclusive of interest and costs. 21 9. This Court has personal jurisdiction over Defendants in that 22 Defendants have engaged in transactions within California, by which they 23 purposefully availed themselves of the privilege of conducting activities in 24 California, and which conduct gave rise to the claims in this action. Among other 25 things, Defendants are bound by contracts entered into in California and containing Mitchell Silberberg & Knupp LLP 26 California choice-of-law provisions. 27 28 4 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 5 of 26 Page ID #:5 1 10. Venue is proper in this District pursuant to 28 U.S.C. § 1391 and 2 § 1400(a) in that, among other things, a substantial part of the events or omissions 3 giving rise to the claims in this lawsuit, as well as substantial injury to Plaintiffs, 4 have occurred or will occur in this District as a result of Defendants’ acts, as 5 alleged in detail below. 6 7 FACTUAL BACKGROUND 8 Plaintiffs’ Ownership of Buckaroo Banzai 9 11. The Buckaroo Banzai motion picture, released in 1984, is a comedic 10 science-fiction story starring Peter Weller, Ellen Barkin, John Lithgow, Jeff 11 Goldblum, and Christopher Lloyd. The protagonist, Buckaroo Banzai, is a 12 scientist, neurosurgeon, and rock-and-roll guitarist/singer. With the help of his 13 bandmates, a group of friendly aliens, and a woman he falls in love with (who 14 turns out to be his dead wife’s twin sister), Buckaroo Banzai saves Earth from 15 malevolent aliens who are posing as industrialist military contractors. At the end 16 of the film, the screen informs the audience that a sequel will be coming by 17 displaying the following message: “WATCH FOR THE NEXT ADVENTURE 18 OF BUCKAROO BANZAI - BUCKAROO BANZAI AGAINST THE WORLD 19 CRIME LEAGUE.” 20 12. Defendant Earl Mac Rauch wrote the screenplay for the 1984 21 Buckaroo Banzai motion picture. Rauch, and his loan-out company JBG, entered 22 into multiple contracts related to his work on the screenplay. 23 (a) In a memorandum agreement dated April 9, 1981, a copy of which 24 is attached hereto as Exhibit 1, Rauch and his loan-out company 25 agreed that the “standard terms” of Metro-Goldwyn-Mayer Film 26 Company, Plaintiffs’ predecessor, would apply to the Buckaroo 27 Banzai project. Mitchell Silberberg & Knupp LLP 28 5 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 6 of 26 Page ID #:6 1 (b) In a “long-form” agreement also dated April 9, 1981, a copy of 2 which is attached hereto as Exhibit 2, Rauch and his loan-out 3 company agreed that Rauch would write and deliver a screenplay 4 to Metro-Goldwyn-Mayer Film Company “based upon an original 5 story idea by Writer currently entitled ‘Buckaroo Banzai.’” The 6 long-form agreement also incorporated the “Standard Terms” and 7 attached them as Exhibit A. 8 (c) Attached to the long-form agreement, behind the Standard Terms, was an “Agreement of Writer,” signed personally by Rauch on or 9 10 about September 9, 1981. In this document, Rauch agreed that 11 JBG had “the right to enter into said agreement and to grant all 12 rights therein granted….” Rauch also agreed “to perform said 13 agreement in all respects.…” Rauch also agreed that he was 14 “bound by all of the provisions [of the agreement] related to 15 [Rauch].” 16 (e) Paragraph 7 of the Standard Terms states that Metro-Goldwyn- 17 Mayer Film Company “shall be the sole and exclusive owner of 18 the work, in whatever stage of completion it may be from time to 19 time, including but not limited to the copyright thereof and all 20 renewals and extensions and rights of renewal and extension of 21 copyright, and of sole and exclusive rights throughout the world 22 perpetually of production, recordation, public performance, 23 broadcasting, television and reproduction by any method, whether 24 such work consists of literary, dramatic, musical, or other material 25 and without obligation to pay any fees, royalties or other amounts 26 except those expressly provided for in this agreement and in the 27 Basic Agreement. [JBG] hereby assigns all such rights to [Metro- Mitchell Silberberg & Knupp LLP 28 6 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 7 of 26 Page ID #:7 1 Goldwyn-Mayer Film Company] without condition, reservation or 2 limitation.” 3 (f) Paragraph 7 of the Standard Terms also required Rauch to sign, 4 upon request, a “certificate in substantially the following form: ‘I 5 hereby certify that I wrote the work identified as [Buckaroo 6 Banzai] as an employee for hire of Metro-Goldwyn-Mayer Film 7 Co. pursuant to a certain loanout agreement …. I acknowledge that 8 Metro-Goldwyn-Mayer Film Co., is the owner of all rights in said 9 work, and of the copyright thereof and of all renewals and 10 extensions and rights of renewal and extension of such copyright, 11 and has the right to make such changes therein and such uses 12 thereof as it may determine.” Further, Paragraph 4 of the Standard 13 Terms required Rauch to make “such changes as may have been or 14 as may be requested” to the screenplay. 15 (g) In Paragraph 8 of the Standard Terms, Rauch and JBG represented 16 and warrantied that Metro-Goldwyn-Mayer Film Company’s use 17 of Buckaroo Banzai “in any form, adaptation or version” would 18 not “infringe any copyright, literary, dramatic, photo-play or 19 common law rights of any person, firm or corporation….” Rauch 20 and JBG also represented and warrantied “that no incident therein 21 or part thereof is or shall be taken or copied from or based upon 22 any other source….” 23 (h) Pursuant to this agreement, Rauch signed a “Certificate of 24 Authorship,” a copy of which is attached as Exhibit 3. In the 25 Certificate of Authorship, Rauch agreed that Metro-Goldwyn- 26 Mayer Film Company’s successor-in-interest, Days Picture 27 Corporation (which was a wholly owned subsidiary of United Mitchell Silberberg & Knupp LLP 28 7 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 8 of 26 Page ID #:8 1 Artist Corporation, which was itself a wholly owned subsidiary of 2 Metro-Goldwyn-Mayer Film Company), owned “all literary 3 material (the ‘Material’) submitted, and to be submitted, by 4 [Rauch] in connection with a motion picture tentatively titled 5 ‘SHIELDS AGAINST THE DEVIL’ aka ‘BUCKAROO 6 BANZAI’” and that all such literary works “were written and/or 7 will be written by [Rauch] as an employee for hire of [Days Picture 8 Corporation] and that the Material was written or created and will 9 be written or created by [Rauch] as a work made for hire specially 10 ordered or commissioned by [Days Picture Corporation] for use as 11 part of a motion picture, with [Days Picture Corporation] being 12 deemed the author of the Material and entitled to the copyrights 13 (and all extensions and renewals of copyrights) therein and thereto, 14 with the right to make such changes therein and such uses thereof 15 as [Days Picture Corporation] may from time to time determine as 16 such author.” 17 13. Defendant Walter D. Richter directed the 1984 Buckaroo Banzai 18 motion picture. Richter, and his loan-out company, HBP, entered into multiple 19 contracts related to his work on the motion picture. 20 (a) Like Rauch, Richter and his loan-out company entered into a 21 memorandum agreement regarding Buckaroo Banzai dated April 22 10, 1981, a copy of which is attached hereto as Exhibit 4. In that 23 memorandum agreement, Richter and his loan-out company agreed 24 to Metro-Goldwyn-Mayer Film Company’s “standard terms” for 25 directors. This memorandum agreement states that “[t]he parties 26 intend to enter into a formal agreement incorporating the terms 27 hereof and the parties shall negotiate in good faith with respect to Mitchell Silberberg & Knupp LLP 28 8 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 9 of 26 Page ID #:9 1 the standard terms. However, until such formal agreement is 2 signed, this deal memorandum shall be deemed a binding 3 agreement upon the parties.” 4 (b) Pursuant to the terms of the memorandum agreement, a “long- 5 form” “Director Contract – Loanout (Principal Agreement),” a 6 copy of which is attached hereto as Exhibit 5, was prepared. This 7 agreement, which specifically referenced the right to make a 8 “television sequel” based on Buckaroo Banzai, was entered into 9 between Sherwood Productions, the successor-in-interest to Metro- 10 Goldwyn-Mayer Film Company, and HBP and Richter. Consistent 11 with the April 10, 1981 memorandum agreement, it incorporated 12 the Standard Terms as Exhibit A. 13 (c) Paragraph A(1) of the Standard Terms states that Sherwood 14 Productions “shall be the sole and exclusive owner of all the 15 results and proceeds of [Richter’s] services hereunder, including 16 acts, poses, plays and appearances of [Richter] and all literary, 17 dramatic and musical material, as well as inventions, designs and 18 photographs, drawings, plans, specifications and sound recordings 19 containing all or any part of any of the foregoing written, supplied 20 or improvised by [Richter], whether or not in writing. The 21 foregoing shall constitute works prepared by [Richter] as an 22 employee of [Sherwood Productions] within the scope of 23 [Richter’s] employment hereunder, and accordingly, the parties 24 agree that each and all of the foregoing are and shall be considered 25 ‘works made for hire’ for [Sherwood Productions].” Mitchell Silberberg & Knupp LLP 26 27 28 (d) Paragraph A(1) of the Standard Terms also states that Sherwood Productions “is and shall be considered the author of said material 9 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 10 of 26 Page ID #:10 1 for all purposes and the owner of all of the rights comprised of the 2 copyright in and to said material …. [HBP] hereby grants to 3 [Sherwood Productions] all rights which [it] may have in and to all 4 such materials as [Richter’s] general employer.” 5 (e) Paragraph A(2) of the Standard Terms states as follows: “Without 6 limiting the generality of the foregoing, [HBP] and [Richter] 7 expressly acknowledge that [Sherwood Productions] is, and will 8 remain, the owner of all now or hereafter existing rights of every 9 kind and character whatsoever throughout the world, whether or 10 not such rights are now known, recognized or contemplated ….” 11 That Paragraph also states that Sherwood Productions “may add to, 12 subtract from, arrange, rearrange, revise and adapt all such material 13 in any manner….” 14 (e) Paragraph S(6) of the Standard Terms states that Sherwood 15 Productions “shall have final approval over all artistic and 16 production elements in connection with the pre-production, 17 production and post production of the Picture….” 18 (f) Paragraph S(7) of the Standard Terms states that Sherwood 19 Productions “reserves the complete and unconditional right to cut, 20 edit, add to, subtract from, arrange, rearrange and revise the Picture 21 in any manner [Sherwood Productions] may, in its sole discretion, 22 determine.” 23 (g) Because Richter also served as a co-producer of the Buckaroo 24 Banzai motion picture, he also signed a memorandum agreement 25 dated April 10, 1981 as to those services, a copy of which is 26 attached hereto as Exhibit 6. The parties to the agreement were 27 Metro-Goldwyn-Mayer Film Company, Sidney Beckerman Mitchell Silberberg & Knupp LLP 28 10 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 11 of 26 Page ID #:11 1 Productions Inc., and Atlantic Films. Richter signed the contract 2 on behalf of himself and Atlantic Films. This contract 3 incorporated Metro-Goldwyn-Mayer Film Company’s “standard 4 terms” for producers. This memorandum agreement states that 5 “[t]he parties intend to enter into a formal agreement incorporating 6 the terms hereof and the parties shall negotiate in good faith with 7 respect to the standard terms. However, until such formal 8 agreement is signed, this deal memorandum shall be deemed a 9 binding agreement upon the parties.” (h) 10 Pursuant to the terms of the memorandum agreement, a “long- 11 form” “Producer Contract – Loanout (Principal Agreement),” a 12 copy of which is attached hereto as Exhibit 7, was prepared. This 13 agreement, which specifically referenced the right to make a 14 “television sequel” based on Buckaroo Banzai, was entered into 15 between Sherwood Productions (the successor-in-interest to Metro- 16 Goldwyn-Mayer Film Company), HBP (Richter’s loan-out 17 company), and Lakoda Productions, Inc. (the loan-out company of 18 Richter’s producing partner, Neil Canton). Consistent with the 19 April 10, 1981 memorandum agreement, it incorporated the 20 Standard Terms as Exhibit A. These terms use the same language 21 quoted above from the Standard Terms for directors. 22 14. The Buckaroo Banzai screenplay was registered on October 28, 1983 23 with the United States Copyright Office in the name of Sherwood Productions, Inc. 24 as the employer for hire of Rauch. The registration certificate is attached hereto as 25 Exhibit 8. Mitchell Silberberg & Knupp LLP 26 15. The Buckaroo Banzai motion picture was registered on September 19, 27 1984 with the United States Copyright Office in the name of Sherwood 28 11 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 12 of 26 Page ID #:12 1 Productions, Inc. as the author. The registration certificate is attached hereto as 2 Exhibit 9. 3 16. Plaintiffs are the successors-in-interest to Metro-Goldwyn-Mayer 4 Film Company, Sherwood Productions, Inc., and Days Picture Corporation with 5 respect to all rights in and to Buckaroo Banzai and all contracts executed or 6 entered in relation to Buckaroo Banzai, including the contracts referenced above. 7 17. As the successors-in-interest to the contracting parties that hired 8 Rauch and Richter to perform services in connection with Buckaroo Banzai, 9 Plaintiffs are the legal and beneficial owners of all exclusive rights under copyright 10 to Buckaroo Banzai, including the characters, plots, themes, dialogue, mood, 11 settings, pace, sequence of events, and other protected elements therein. 12 18. At all relevant times, Plaintiffs’ predecessors-in-interest and 13 subsequent assignees had creative control over the Buckaroo Banzai project. They 14 contributed copyrightable elements directly in addition to authoring the motion 15 picture and screenplay as works made for hire. 16 17 18 Defendants’ Knowledge That Plaintiffs Claimed Copyright Ownership 19. As discussed above, Defendants agreed in their contracts that 19 Plaintiffs’ predecessors-in-interest owned all rights in Buckaroo Banzai, and the 20 copyright registrations were made in the name of Plaintiffs’ predecessor-in21 interest, not in the Defendants’ names. Defendants did not act at that time or for 22 decades thereafter to claim any ownership of Buckaroo Banzai. 23 20. Consistent with Plaintiffs’ ownership of Buckaroo Banzai, Defendants 24 were aware no later than 2008 that Plaintiffs were pursuing a television series 25 based on Buckaroo Banzai. However, Defendants did not assert any supposed Mitchell Silberberg & Knupp LLP 26 ownership rights or bring any claims. Plaintiffs thereafter justifiably relied on 27 Defendants’ silence and inaction. 28 12 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 13 of 26 Page ID #:13 1 21. In August 2011, Defendants’ agent, Mark Lichtman, communicated 2 with Plaintiffs, asserting that Defendants had ownership rights in Buckaroo Banzai. 3 Plaintiffs expressly repudiated that claim and specifically informed Mr. Lichtman 4 that Plaintiffs possessed all such rights. A copy of certain correspondence from 5 2011 is attached hereto as Exhibit 10. Defendants did not file any claims. 6 Plaintiffs thereafter continued to justifiably rely on Defendants’ silence and 7 inaction. 8 22. On September 13, 2016, Defendants’ counsel implicitly admitted in a 9 letter to Plaintiffs’ counsel that his clients had prior knowledge of Plaintiffs’ 10 position regarding their ownership of Buckaroo Banzai as alleged above. A copy 11 of this letter is attached hereto as Exhibit 11. 12 13 14 Defendants’ Attempts to Interfere With MGM’s Television Series Project 23. On July 25, 2016—following nearly five years of silence after 15 Plaintiffs informed Defendants that Plaintiffs owned all rights in Buckaroo Banzai, 16 including the right to create a television series—Defendants’ agent, Mark 17 Lichtman, contacted MGM about the new television series, asserting that he 18 thought that Defendants may control certain rights relating to Buckaroo Banzai. 19 24. On July 27, 2016, Defendants’ counsel sent a letter to MGM, asserting 20 that “MGM has no significant rights in BUCKAROO” and claiming that 21 Defendants owned all “underlying rights in the concept, ideas, characters, sequels, 22 remakes or television [series]” for Buckaroo Banzai. 23 25. Defendants’ counsel sent a follow-up email on August 3, 2016, again 24 asserting that his clients owned Buckaroo Banzai and that they “are moving 25 forward with their projects regarding Buckaroo Banzai.” Plaintiffs responded that Mitchell Silberberg & Knupp LLP 26 day to inform Defendants’ counsel that his assertions were incorrect. Nevertheless, 27 that same day, Defendants’ counsel contacted Amazon Studios, a company that 28 13 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 14 of 26 Page ID #:14 1 MGM planned to work with in connection with MGM’s new Buckaroo Banzai 2 television series, and WME Entertainment, the talent agency that represents Kevin 3 Smith, the acclaimed anticipated director of the new television series. Defendants, 4 through their counsel, engaged in these actions in an attempt to interfere with 5 MGM’s relationships with these key players in the project by falsely claiming that 6 Defendants, not Plaintiffs, own the rights to create a Buckaroo Banzai television 7 series. 8 26. On August 10, 2016, Plaintiffs wrote a letter to Defendants’ counsel 9 to demand that Defendants cease and desist from engaging in such interference. 10 The next day, August 11, 2016, Defendants’ counsel replied, once again asserting 11 that Defendants own Buckaroo Banzai and that “[w]hile MGM might have been 12 entitled to produce a photoplay based upon that screenplay,” the agreement did not 13 “give MGM any rights to create any other work based on any other rights, themes, 14 concepts, or characters of BUCKAROO BANZAI.” He threatened that “[i]f MGM 15 continues with this project, [his] clients will be forced to consider all available 16 legal options and remedies to confirm their rights.” 17 27. The following day, August 12, 2016, Defendants’ counsel sent 18 another letter to MGM admitting that he had sent emails to Amazon Studios and 19 WME Entertainment and stating that “[t]o the extent, MGM is attempting to 20 develop a project with Amazon based upon the world of BUCKAROO BANZAI, 21 MGM does not have the rights to do so. I would hope MGM would advise 22 Amazon and anyone else with whom they have been working on such a project of 23 my clients[’] rights in BUCKAROO BANZAI. If you do not do so, then we will 24 need to provide WME and Amazon with all of our correspondence on this rights 25 issue.” Mitchell Silberberg & Knupp LLP 26 28. On August 18, 2016, Plaintiffs’ outside counsel sent a letter to 27 Defendants’ counsel rejecting Defendants’ claims, explaining the source of 28 14 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 15 of 26 Page ID #:15 1 MGM’s rights, and also reminding Defendants’ counsel that his clients had sat on 2 their purported rights for at least five years, thereby causing their meritless claims 3 to be time-barred. 4 29. On September 13, 2016, Defendants’ counsel responded, but rather 5 than acknowledging MGM’s rights and agreeing to cease and desist with 6 contacting MGM’s business associates, he continued to assert that “Mr. Rauch 7 owns the copyright in the Buckaroo Banzai world and its characters, themes and 8 elements,” and that “[i]f MGM continues forward with any such development 9 without my clients’ permission, they will be forced to consider all legal options to 10 protect their rights.” 11 30. In this letter, Defendants’ counsel also asserted that Rauch had written 12 “five stories” involving the Buckaroo Banzai character prior to writing the 13 screenplay commissioned by Plaintiffs’ predecessor-in-interest. Although he 14 asserted that Rauch owned all of the rights to these stories and the characters 15 described therein, including Buckaroo Banzai, Defendants’ counsel admitted that 16 Rauch and Richter had submitted all five of the stories as well as related literary 17 materials, in what he referred to as “A Buckaroo Banzai Sampler,” to Plaintiffs’ 18 predecessor-in-interest at the time they “pitched” the motion picture project in 19 1981. Even assuming that is true, as discussed above, Rauch executed a 20 “Certificate of Authorship” in connection with the production of the motion 21 picture, certifying that Plaintiffs’ predecessor-in-interest owned “all literary 22 material (the “Material”) submitted, and to be submitted, by [Rauch] in connection 23 with a motion picture tentatively titled ‘Shields Against the Devil’ aka ‘Buckaroo 24 Banzai.’” 25 Mitchell Silberberg & Knupp LLP 26 27 28 15 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 16 of 26 Page ID #:16 Defendants’ Statements to the Media 1 2 31. Defendants not only sent maligning emails to MGM’s business 3 associates, they orchestrated a publicity campaign to intentionally interfere with 4 MGM’s Buckaroo Banzai project. 5 32. On or about October 4, 2016, Richter gave an interview to “Film Buff 6 Online.” In the interview, he asserted that the “Buckaroo Banzai Sampler” had 7 been submitted to Plaintiffs’ predecessor-in-interest. He also made multiple false 8 statements. These statements include, without limitation, that “David Begelman 9 [of MGM] basically commissioned a screenplay based on a piece of literary 10 material that MGM didn’t own and then David Begelman went off and made and 11 released a movie based on it. It’s the equivalent of releasing a movie based on a 12 Stephen King book but forgetting to buy the book from Stephen.” 13 33. On or about October 13, 2016, Richter and Rauch published more 14 false statements, this time on the “Banzai Institute” Facebook website page. Their 15 intent was to poison the relationship between Plaintiffs and fans of the original 16 movie. On the Facebook website page, Defendants admitted that “[f]or over thirty 17 years we’ve sat back and watched the ostensible ‘ownership rights’ to ‘THE 18 ADVENTURES OF BUCKAROO BANZAI ACROSS THE 8TH DIMENSION’ 19 bounce around the entertainment and financial industries, unloved in libraries thick 20 with more commercially successful films.” 21 34. All of these statements were made in breach of Defendants’ contracts 22 with Plaintiffs’ predecessors-in-interest, which provide that Defendants shall not 23 circulate, publish or otherwise disseminate any news stories, articles, books, or 24 other publicity containing their names and relating directly or indirectly to their 25 employment, the subject matter of those agreements, or the Buckaroo Banzai Mitchell Silberberg & Knupp LLP 26 picture, unless first approved in writing by Plaintiffs’ predecessors-in-interest. 27 28 16 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 17 of 26 Page ID #:17 1 CLAIMS FOR RELIEF 2 COUNT I 3 (DECLARATORY JUDGMENT OF COPYRIGHT OWNERSHIP) 4 35. Plaintiffs incorporate by reference each and every allegation set forth 5 in paragraphs 1-34. 6 36. An actual and justiciable controversy exists between the parties as to 7 whether Defendants have a right to prevent the production, reproduction, 8 distribution, display, performance, and authorization of a television series based on 9 the Buckaroo Banzai screenplay and motion picture, and the characters, plots, 10 themes, dialogue, mood, settings, pace, sequence of events, and other protected 11 elements therein, using any and all media whether now known or hereafter 12 devised, as well as any merchandising rights in connection with any such series. 13 37. Plaintiffs are entitled to a declaratory judgment, pursuant to 28 U.S.C. 14 §§ 2201 and 2202 and Federal Rule of Civil Procedure 57, that under Defendants’ 15 agreements and the Copyright Act of 1976, Defendants cannot prevent the 16 production, reproduction, distribution, display, performance, and authorization of a 17 new television series based on the Buckaroo Banzai screenplay and motion picture, 18 and the characters, plots, themes, dialogue, mood, settings, pace, sequence of 19 events, and other protected elements therein, using any and all media whether now 20 known or hereafter devised, as well as any merchandising rights in connection with 21 any such series. 22 38. Plaintiffs are entitled to their attorney’s fees and full costs, including 23 under 17 U.S.C. § 505. 24 25 Mitchell Silberberg & Knupp LLP 26 27 28 17 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 18 of 26 Page ID #:18 1 COUNT II 2 (DECLARATORY JUDGMENT OF COPYRIGHT OWNERSHIP) 3 39. Plaintiffs incorporate by reference each and every allegation set forth 4 in paragraphs 1-34. 5 40. An actual and justiciable controversy exists between the parties as to 6 whether Plaintiffs are the legal and beneficial owners of all exclusive rights under 7 copyright to Buckaroo Banzai, including the exclusive right to develop, produce, 8 and distribute a new television series based on Buckaroo Banzai. 9 41. Defendants’ services on Buckaroo Banzai were on a “work-made-for- 10 hire” basis. Thus, Plaintiffs’ predecessor-in-interest—not Defendants—qualifies 11 as the author of the screenplay and motion picture, and the characters, plots, 12 themes, dialogue, mood, settings, pace, sequence of events, and other protected 13 elements therein. 14 42. In the alternative, Defendants assigned to Plaintiffs’ predecessors-in- 15 interest all exclusive rights under copyright to the screenplay and motion picture, 16 and the characters, plots, themes, dialogue, mood, settings, pace, sequence of 17 events, and other protected elements therein. 18 43. At all relevant times, Plaintiffs and their predecessors-in-interest had 19 creative control over the Buckaroo Banzai project. They contributed copyrightable 20 elements directly in addition to authoring the motion picture and screenplay as 21 works made for hire. 22 44. Plaintiffs are entitled to a declaratory judgment, pursuant to 28 U.S.C. 23 §§ 2201 and 2202 and Federal Rule of Civil Procedure 57, that Plaintiffs, and not 24 Defendants, own all exclusive rights under copyright to Buckaroo Banzai, 25 including without limitation, the right to make derivative works using any and all Mitchell Silberberg & Knupp LLP 26 media whether now known or hereafter devised. 27 28 18 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 19 of 26 Page ID #:19 1 45. Plaintiffs are entitled to their attorney’s fees and full costs, including 2 under 17 U.S.C. § 505. 3 4 COUNT III 5 (DECLARATORY JUDGMENT OF COPYRIGHT OWNERSHIP) 6 46. Plaintiffs incorporate by reference each and every allegation set forth 7 in paragraphs 1-34. 8 47. An actual and justiciable controversy exists between the parties as to 9 whether Defendant Rauch signed away all rights to all literary materials submitted 10 in connection with his services and writing of the Buckaroo Banzai screenplay. 11 48. Rauch and his counsel have asserted that Rauch submitted and relied 12 on preexisting written works involving Buckaroo Banzai in connection with the 13 motion picture project. Rauch and his counsel have also asserted that Plaintiffs do 14 not own the copyrights to said works, even though he signed a “Certificate of 15 Authorship” agreeing that Days Picture Corporation (at that time the successor to 16 Metro-Goldwyn-Mayer Film Company) owned all literary materials submitted in 17 connection with Buckaroo Banzai. Specifically, the “Certificate of Authorship” 18 that Rauch signed provided that Days Picture Corporation owned “all literary 19 material (the ‘Material’) submitted, and to be submitted, by Artist in connection 20 with a motion picture tentatively titled ‘SHIELDS AGAINST THE DEVIL’ aka 21 ‘BUCKAROO BANZAI’” and that all such literary works “were written and/or 22 will be written by [Rauch] as an employee for hire of [Days Picture Corporation] 23 and that the Material was written or created and will be written or created by 24 [Rauch] as a work made for hire specially ordered or commissioned by [Days 25 Picture Corporation] for use as part of a motion picture, with [Days Picture Mitchell Silberberg & Knupp LLP 26 Corporation] being deemed the author of the Material and entitled to the copyrights 27 (and all extensions and renewals of copyrights) therein and thereto, with the right 28 19 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 20 of 26 Page ID #:20 1 to make such changes therein and such uses thereof as [Days Picture Corporation] 2 may from time to time determine as such author.” 3 49. As Rauch and his counsel have stated, Rauch submitted in connection 4 with the motion picture project all of the materials he had previously written 5 relating to Buckaroo Banzai. Accordingly, as agreed by Rauch, all such materials 6 were works for hire authored and owned by Days Picture Corporation, Plaintiffs’ 7 predecessor-in-interest. 8 50. Furthermore, in Paragraph 8 of Exhibit A to the April 9, 1981 long- 9 form agreement signed by Rauch, between JBG, which was the alter ego of Rauch, 10 and Metro-Goldwyn-Mayer Film Company, Rauch represented and warrantied that 11 use of Buckaroo Banzai “in any form, adaptation or version” would not “infringe 12 any copyright, literary, dramatic, photo-play or common law rights of any person, 13 firm or corporation….” Rauch also represented and warrantied “that no incident 14 therein or part thereof is or shall be taken or copied from or based upon any other 15 source….” Rauch further “agree[d] to indemnify [Metro-Goldwyn Mayer Film 16 Company], its successors, assigns, licensees, officers and employees, and hold 17 them harmless from and against any and all liability, losses, damages, costs, 18 expenses (including but not limited to attorneys’ fees), judgments and penalties 19 arising out of, resulting from, based upon or incurred because of the breach of any 20 warranty made by [JBG] or [Rauch].” 21 51. In the memorandum agreement of that same date, Rauch personally 22 agreed that the deal would include Metro-Goldwyn-Mayer-Film Company’s 23 Standard Terms (i.e., Exhibit A to the long-form agreement). Furthermore, 24 attached to the long-form agreement, behind the Standard Terms, was an 25 “Agreement of Writer” signed personally by Rauch on or about September 9, Mitchell Silberberg & Knupp LLP 26 1981. In this document, Rauch agreed that JBG had “the right to enter into said 27 agreement and to grant all rights therein granted…” Rauch also agreed “to 28 20 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 21 of 26 Page ID #:21 1 perform said agreement in all respects.…” Rauch also agreed that he was “bound 2 by all of the provisions [of the agreement] related to [Rauch].” 3 52. Plaintiffs own the copyrights to all literary materials written by Rauch 4 related to Buckaroo Banzai and relied on by Rauch to create the screenplay for the 5 motion picture. In the alternative, if Rauch relied on preexisting works to which 6 Plaintiffs do not own the rights, Rauch did so in breach of his warranties, and must 7 indemnify Plaintiffs from and against all liability, losses, damages, costs, expenses 8 (including but not limited to attorney’s fees), judgments and penalties arising out 9 of, resulting from, based upon or incurred because of such breaches. 10 53. Plaintiffs are entitled to a declaratory judgment, pursuant to 28 U.S.C. 11 §§ 2201 and 2202 and Federal Rule of Civil Procedure 57, that: a. 12 Rauch signed away all rights to all literary materials submitted 13 in connection with his services and the Buckaroo Banzai 14 screenplay and motion picture, and Plaintiffs own the 15 copyrights to all such literary materials; or b. 16 in the alternative, Rauch breached his warranties in Paragraph 8 17 of the Standard Terms, and must indemnify Plaintiffs from and 18 against all liability, losses, damages, costs, expenses (including 19 but not limited to attorney’s fees), judgments and penalties 20 arising out of, resulting from, based upon or incurred because 21 of such breaches. 22 54. Plaintiffs are entitled to their attorney’s fees and full costs, including 23 under 17 U.S.C. § 505. 24 25 Mitchell Silberberg & Knupp LLP 26 27 28 21 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 22 of 26 Page ID #:22 COUNT IV 1 2 (DECLARATORY JUDGMENT THAT THE STATUTE OF LIMITATIONS BARS DEFENDANTS’ OWNERSHIP CLAIMS) 3 4 55. Plaintiffs incorporate by reference each and every allegation set forth 5 in paragraphs 1-34. 6 56. Plaintiffs and their predecessors-in-interest openly asserted ownership 7 of the copyrights at issue, including the right to make derivative works of 8 Buckaroo Banzai, and Defendants were aware that Plaintiffs and their 9 predecessors-in-interest were making such works more than three years before the 10 filing of this lawsuit. 11 57. Accordingly, the statute of limitations, 17 U.S.C. § 507(b), bars 12 Defendants from asserting that Plaintiffs do not own the copyright to the Buckaroo 13 Banzai motion picture and screenplay, and the characters, plots, themes, dialogue, 14 mood, settings, pace, sequence of events, and other protected elements therein, and 15 from asserting that Plaintiffs do not own all rights to exploit the same or to make 16 derivative works, including without limitation, a television series and merchandise. 17 58. Plaintiffs are entitled to a declaratory judgment, pursuant to 28 U.S.C. 18 §§ 2201 and 2202 and Federal Rule of Civil Procedure 57, that Defendants are 19 barred by the statute of limitations, 17 U.S.C. § 507(b), from asserting that 20 Plaintiffs do not own the copyright to the Buckaroo Banzai motion picture and 21 screenplay, and the characters, plots, themes, dialogue, mood, settings, pace, 22 sequence of events, and other protected elements therein, and from asserting that 23 Plaintiffs do not own all rights to exploit the same or make derivative works, 24 including without limitation, a television series and merchandise. 25 59. Plaintiffs are entitled to their attorney’s fees and costs, including Mitchell Silberberg & Knupp LLP 26 under 17 U.S.C. § 505. 27 28 22 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 23 of 26 Page ID #:23 1 COUNT V 2 (DECLARATORY JUDGMENT THAT ESTOPPEL BARS DEFENDANTS’ 3 OWNERSHIP CLAIMS) 4 60. Plaintiffs incorporate by reference each and every allegation set forth 5 in paragraphs 1-34. 6 61. Plaintiffs and their predecessors-in-interest openly asserted ownership 7 of the copyrights at issue, including the right to make derivative works of 8 Buckaroo Banzai, and Defendants were aware that Plaintiffs and their 9 predecessors-in-interest were making such works more than three years before the 10 filing of this lawsuit. 11 62. Plaintiffs justifiably relied on Defendants’ silence and inaction in the 12 face of Defendants’ actual knowledge of Plaintiffs’ position that they owned all 13 rights to Buckaroo Banzai. As a result, Defendants are estopped from asserting 14 any ownership rights to the Buckaroo Banzai motion picture and screenplay, or the 15 characters, plots, themes, dialogue, mood, settings, pace, sequence of events, and 16 other protected elements therein, and from asserting that Plaintiffs do not own all 17 rights to exploit the same or to make derivative works, including without 18 limitation, a television series and merchandise. 19 63. Plaintiffs are entitled to a declaratory judgment, pursuant to 28 U.S.C. 20 §§ 2201 and 2202 and Federal Rule of Civil Procedure 57, that Defendants are 21 estopped from asserting any ownership rights to Buckaroo Banzai motion picture 22 and screenplay, or the characters, plots, themes, dialogue, mood, settings, pace, 23 sequence of events, and other protected elements therein, and from asserting that 24 Plaintiffs do not own all rights to exploit the same or to make derivative works, 25 including without limitation, a television series and merchandise. Mitchell Silberberg & Knupp LLP 26 64. Plaintiffs are entitled to their attorney’s fees and costs, including 27 under 17 U.S.C. § 505. 28 23 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 24 of 26 Page ID #:24 1 PRAYER FOR RELIEF 2 3 WHEREFORE, Plaintiffs pray that this Court enter judgment in their favor 4 and against Defendants, and each of them, as follows: 5 1. On Count I, issuing a declaration that under Defendants’ agreements 6 and the Copyright Act of 1976, Defendants cannot prevent the production, 7 reproduction, distribution, display, performance, and authorization of a new 8 television series based on the Buckaroo Banzai screenplay and motion picture, and 9 the characters, plots, themes, dialogue, mood, settings, pace, sequence of events, 10 and other protected elements therein, using any and all media whether now known 11 or hereafter devised, as well as any merchandising rights in connection with any 12 such series; 13 2. On Count II, issuing a declaration that Plaintiffs, not Defendants, own 14 all exclusive rights under copyright to the Buckaroo Banzai screenplay, the 15 Buckaroo Banzai motion picture, and all characters, plots, themes, dialogue, mood, 16 settings, pace, sequence of events, and other protected elements therein, including 17 without limitation, the right to make derivative works using any and all media 18 whether now known or hereafter devised; 19 20 3. On Count III, issuing a declaration that: a. Rauch signed away all rights to all literary materials submitted 21 in connection with his services and the Buckaroo Banzai 22 screenplay and motion picture, and Plaintiffs own the 23 copyrights to all such literary materials; or 24 b. in the alternative, Rauch breached his warranties in Paragraph 8 25 of the Standard Terms, and must indemnify Plaintiffs from and 26 against all liability, losses, damages, costs, expenses (including 27 but not limited to attorney’s fees), judgments and penalties Mitchell Silberberg & Knupp LLP 28 24 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 25 of 26 Page ID #:25 1 arising out of, resulting from, based upon or incurred because 2 of such breaches; 3 4. On Count IV, issuing a declaration that Defendants are barred by the 4 statute of limitations, 17 U.S.C. § 507(b), from asserting that Plaintiffs do not own 5 the copyright to the Buckaroo Banzai motion picture and screenplay, and the 6 characters, plots, themes, dialogue, mood, settings, pace, sequence of events, and 7 other protected elements therein, and from asserting that Plaintiffs do not own all 8 rights to exploit the same or make derivative works, including without limitation, a 9 television series and merchandise; 10 5. On Count V, issuing a declaration that Defendants are estopped from 11 asserting any ownership rights to Buckaroo Banzai motion picture and screenplay, 12 or the characters, plots, themes, dialogue, mood, settings, pace, sequence of events, 13 and other protected elements therein, and from asserting that Plaintiffs do not own 14 all rights to exploit the same or to make derivative works, including without 15 limitation, a television series and merchandise; and 16 17 6. On all Counts: a. including pursuant to 17 U.S.C. § 505; 18 19 b. a speedy hearing pursuant to Federal Rule of Civil Procedure 57; and 20 21 an award to Plaintiffs of their attorney’s fees and full costs, c. all such further relief as the Court may deem just and proper. 22 23 24 25 Mitchell Silberberg & Knupp LLP 26 27 28 25 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1 Case 2:16-cv-08775 Document 1 Filed 11/23/16 Page 26 of 26 Page ID #:26 1 DATED: November 23, 2016 2 3 4 5 6 ROBERT H. ROTSTEIN ELAINE K. KIM MITCHELL SILBERBERG & KNUPP LLP /s/ Robert H. Rotstein__________________ ROBERT H. ROTSTEIN Attorneys for Plaintiffs MGM Television Entertainment Inc., Orion Pictures Corporation, and PFE Library Acquisition Company, Inc. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mitchell Silberberg & Knupp LLP 26 27 28 26 COMPLAINT FOR DECLARATORY JUDGMENT 8397672.1