Case 2:18-cv-O7298 Document 1 Filed 08/20/18 Page 1 of 9 Page ID PAUL N. SORRELL (BAR NO. 126346) LAVELY SINGER PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400 Los Angeles, California 90067?2906 Telephone: (310) 556-3501 Facsimile: (310) 556-3615 Attorneys for Plaintiffs OUR HOUSE FILMS, LLC and KICKBOXER II RETALIATION, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA OUR HOUSE FILMS LLC, a Colorado limited com an and KICKBOXER TAL AT ON, LLC, a Colorado limited liability company, Plaintiffs, V. TUNNEL, INC., a California corporation, Defendant. CASE NO. COMPLAINT FOR: 1 COPYRIGHT 2 AND 3 AN ACCOUNTING FOR JURY Plaintiffs Our House Films, LLC and Kickboxer II Retaliation, LLC (collectively sometimes referred to herein as ??Plaintiff?) allege as follows: JURISDICTION AND VENUE 1. This is an action based on copyright infringement arising under the Copyright Act of 1976, 17 U.S.C. 101 et seg., which also alleges pendent claims for negligence and an accounting. Jurisdiction lies with this Court pursuant to 28 U.S.C. 1331, 1332 and 1338(a) and Venue lies within this Court pursuant to 28 U.S.C. 1391 and 1400(a) because Plaintiffs claims arose within this district. COMPLAINT Case 2:18-cv-O7298 Document 1 Filed 08/20/18 Page 2 of 9 Page ID THE PARTIES 2. Plaintiff Our House Films, LLC (?Our House?) is now and at all times material hereto has been a limited liability company organized and existing under the laws of the State of Colorado and conducting business in, among other places, the Central District of California. 3. Plaintiff Kickboxer ll Retaliation, LLC (?Kickboxer?) is now and at all times material hereto has been a limited liability company organized and existing under the laws of the State of Colorado and conducting business in, among other places, the Central District of California. Kickboxer is a Special Purpose Vehicle entity that was set up by Our House to produce the motion picture at issue in this case. 4. Plaintiff is informed and believes, and thereon alleges, that Defendant Tunnel, Inc. (?Tunnel?) is now and at all times material hereto has been a corporation organized and existing under the laws of the State of California, with its principal place of business in the Central District of California. Plaintiff is further informed and believes, and thereon alleges, that Tunnel previously operated as and/or is or was affiliated with an entity known as ?Tunnel Post a California limited liability company. ALLEGATIONS COMMON TO ALL CLAIMS 5. Plaintiff is the producer and owner of the copyright of a motion picture completed in 2016 entitled ?Kickboxer: Retaliation? (?the Picture?). Plaintiff is entitled to bring a copyright infringement action concerning the Picture because, among other things, Plaintiff has registered its copyright on the Picture with the Copyright Office pursuant to the Copyright Act. 6. Tunnel is a motion picture post?production service with Of?ces in Santa Monica, California. Tunnel and Plaintiff entered into a written agreement dated as of September 13, 2016, a copy of which is attached as Exhibit 1 hereto, providing for Tunnel to provide speci?ed post~production services to Plaintiff with 2 COMP LAINT Case 2:18-cv-O7298 Document 1 Filed 08/20/18 Page 3 of 9 Page ID respect to the Picture, as well as to assist in distributing the Picture to the sales agent retained by Plaintiff (?the ?Agreement?). 7. The. final cut ofthe Picture was possessed by Tunnel and delivered pursuant to the Agreement in or about October 2017. 8. The understanding between Plaintiff and Tunnel was, consistent with custom and practice in the entertainment industry, that the final cut of the Picture would be delivered to no one without Plaintiffs express authorization. As Tunnel knew, this was critical in order to avoid unauthorized dissemination of the Picture prior to its release. If the Picture was provided to unauthorized third parties, unlawful dissemination of the Picture would be likely, resulting in dissipation ofthe market value of the Picture. A Laboratory Agreement entered into between Plaintiff, Tunnel and others further limited access of third parties to materials associated with the Picture. 9. Following delivery of the final cut ofthe Picture, Plaintiff scheduled January 26, 2018 as the date for theatrical release of the Picture in North America. However, weeks prior to that date, Plaintiff discovered that the final cut of the Picture had been disseminated to various locations and territories throughout the world and been seen without authorization by literally millions of consumers via pay per view services and the internet, among other places. Plaintiff is informed and believes, and thereon alleges, that the Picture has been available for unauthorized viewing on a worldwide basis since approximately December 2017. Plaintiffis further informed and believes, and thereon alleges, that dissemination of the Picture occurred through and as a result of unauthorized actions and/or omissions of Tunnel. 10. At no time did Plaintiff authorize Tunnel to provide a copy ofthe final cut of the Picture to anyone other than Plaintiff or Plaintiffs sales agent. The unauthorized distribution of the final cut of the Picture did not occur from or through Plaintiff or its sales agent. COMPLAINT Case 2:18-cv-O7298 Document 1 Filed 08/20/18 Page 4 of 9 Page ID 1 1. Tunnel has failed to respond to Plaintiffs requests for substantive information concerning the parties to whom the final cut was disseminated. Meanwhile, Plaintiff has suffered literally millions of dollars in damages, the specific amount of which will be determined and proven at trial, as a result of unlawful and unauthorized distribution of the Picture resulting from Tunnel?s actions and omissions. Plaintiff brings this action against Tunnel for redress. FIRST CLAIM FOR RELIEF (For Copyright Infringement) 12. Plaintiff repeats, realleges and incorporates by reference each and every allegation contained in Paragraphs 1 through 1 1, inclusive, ofthis Complaint as if fully set forth herein. l3. Plaintiffis the owner of all right, title and interest in and to the copyright in the Picture and has the right to bring an action against Tunnel for copyright infringement by virtue of Plaintiffs standing as exclusive holder of all rights to distribute and exploit the Picture, and its registration of copyright with the US. Copyright Office. 14. Plaintiffis informed and believes and thereon alleges that, notwithstanding Plaintiffs exclusive ownership of the copyright and exclusive right to exploit the Picture, Defendants willfully infringed on Plaintiffs copyright by distributing, disseminating, copying and/or providing copies of the final cut ofthe Picture to third parties or otherwise exploiting the Picture in the United States and elsewhere without obtaining a license from Plaintiff or providing Plaintiff with compensation. 15. The acts of Defendants complained of herein were done without the agreement or consent of Plaintiff, and constitute acts of copyright infringement under Title 17 of the United States Code. 16. As a direct and proximate result of Defendants? infringement of Plaintiffs copyright and exclusive rights under the Copyright Act, Plaintiff is 4 COMPLAINT Case 2:18-cv-O7298 Document 1 Filed 08/20/18 Page 5 of 9 Page ID entitled to damages as well as any profits realized by Defendants from the exploitation ofthe Picture pursuant to 17 U.S.C. 504(b), which Plaintiff is informed and believes will exceed $5 Million. 17. Alternatively, Plaintiff is entitled to the maximum statutory damages pursuant to 17 U.S.C. 504(c), in the amount of One Hundred Fifty Thousand. Dollars ($150,000) for each instance of infringement or for such other amount as may be proper pursuant to 17 U.S.C. 504(c). 18. in addition to the foregoing, Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining and restraining Tunnel and all persons acting in concert with it from infringing Plaintiffs copyright in the Picture. 19. in accordance with 17 U.S.C. 505, as a result of Tunnel?s willful and intentional infringement of Plaintiff 5 copyright in the Picture, Plaintiff has incurred and will continue to incur attorneys? fees and is, therefore, entitled to recover from Tunnel an award of reasonable attorneys? fees and costs. SECOND CLAIM FOR RELIEF (For Negligence) 20. Plaintiff repeats, realleges and incorporates by reference each and every allegation contained in Paragraphs 1 through 11 and 13 through 15, inclusive, ofthis Complaint as if fully set forth herein. 21. Tunnel accepted and owed Plaintiff a duty of care to the effect that Tunnel would perform its work with respect to the Picture in a timely, competent and professional manner and, among other things, would take necessary steps to ensure that the final cut of the Picture would not be infringed, disseminated or distributed to the general public in a manner that would result in copyright infringement and loss of exploitation value of the Picture. 22. Plaintiffis informed and believes and thereon alleges that, as a result of negligent acts and omissions of Tunnel, the final cut of the Picture was 5 COMPLAINT Case 2:18-cv-O7298 Document 1 Filed 08/20/18 Page 6 of 9 Page ID disseminated and distributed to locations within the United States and various territories throughout the world and was seen by literally millions of consumers via pay per view services and the internet, among other places. Plaintiff is informed and believes and thereon alleges that the final cut ofthe Picture has been available for unauthorized viewing on a worldwide basis since approximately December 2017, thereby depriving Plaintiff of all or a substantial portion of the exploitation value of the Picture. 23. As a direct and proximate result of Tunnel?s negligence, Plaintiff has sustained damages in an amount subject to proof at the time of trial, but which is expected to exceed $5 Million. THIRD CLAIM FOR RELIEF (For An Accounting) 24. Plaintiff repeats, realleges and incorporates by reference each and every allegation contained in Paragraphs 1 through ll and 13 through 15, inclusive, of this Complaint as if fully set forth herein. 25. Tunnel breached its duty of due care to Plaintiff by engaging or allowing the wrongful dissemination ofthe Picture. By virtue of Tunnel?s wrongful infringement ofthe Picture and negligent conduct as described above, Plaintiffis entitled to an accounting of any and all proceeds obtained by Tunnel as a result of its wrongful conduct. Specifically, the Court should order an accounting of all monies obtained by Tunnel from the distribution, dissemination, copying, providing or other exploitation ofthe Picture in violation of Piaintiffs exclusive rights. 26. Plaintiff requests that this Court order such accounting to be conducted at Tunnel?s sole expense. COMPLAINT Case 2:18-cv-O7298 Document 1 Filed 08/20/18 Page 7 of 9 Page ID PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Tunnel as follows: AS TO THE FIRST CLAIM FOR RELIEF: 1. That judgment be entered against Tunnel in an amount determined at trial equal to either: Actual damages sustained. by Plaintiff and pro?ts derived by Tunnel as a result of Tunnel?s infringing conduct as alleged herein, pursuant to 17 U.S.C. 504(b) and other applicable law; or Statutory damages in the maximum amount of $150,000 for each act of infringement with respect to the Picture pursuant to 17 .S.C. 504(0), whichever is greater; 2. For a temporary restraining order and preliminary and permanent injunctive relief enjoining and restraining Tunnel and all persons acting in concert with it from manufacturing, reproducing, selling, renting, offering for sale or rent, or otherwise providing the Picture or any portion or element thereof, and to deliver to the Court for destruction or other reasonable disposition all such materials in Tunnel?s possession or control; and 3. That Plaintiff be awarded attorneys? fees pursuant to 17 .S.C. ?505; AS TO THE SECOND CLAIM FOR RELIEF: 4. For compensatory damages in an amount according to proof at the time of trial; AS TO THE THIRD CLAIM FOR RELIEF: 5. For an accounting (and return to Plaintif? of all profits and monies obtained by Tunnel in connection with any distribution, dissemination, copying or other exploitation of the Picture; AS TO ALL CLAIMS FOR RELIEF: 6. For recovery of attorneys? fees and costs pursuant to the Agreement, federal copyright law, and/or other applicable law; 7 COMPLAINT Case 2:18-cv-O7298 Document 1 Filed 08/20/18 Page 8 of 9 Page ID 7. For costs of suit incurred herein; and 8. For such other and further relief as the Court deems to be just and proper. DATE: August 20, 2018 LAVELY SINGER PROFESSI NAL CORPORATION SORR Attorneys for Plaintiffs HOUSE FILMS, LLC and KICKBOXER II RETALIATION, LLC COMPLAINT Case 2:18-cv-O7298 Document 1 Filed 08/20/18 Page 9 of 9 Page ID DEMAND FOR JURY TRIAL Plaintiff demands trial by jury. DATE: August 20, 2018 LAVELY SINGER PROFESSIONAL CORPORATION PAUL SORRELL I Attorneys for Plaintiffs OUR HOUSE FILMS LLC and KICKBOXER II RETALIATION LLC COMPLAINT