Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 1 of 32 Page ID #:1 1 2 3 4 5 6 7 8 BOREN, OSHER & LUFTMAN LLP Jeremy J. Osher (SBN 192109) josher@bollaw.com Saba Zafar (SBN 271963) szafar@bollaw.com 222 North Pacific Coast Highway, Suite 2222 El Segundo, CA 90245 Telephone: (310) 322-2021 Facsimile: (310) 322-2228 Attorneys for Plaintiffs IRISH ROVER ENTERTAINMENT, LLC 9 UNITED STATES DISTRICT COURT 10 11 CENTRAL DISTRICT OF CALIFORNIA 12 WESTERN DIVISION 13 14 15 IRISH ROVER ENTERTAINMENT, LLC, a California limited liability company, 16 COMPLAINT FOR DAMAGES FOR: Plaintiffs, 17 18 vs. 19 20 21 22 23 24 25 26 Case No.: AARON SIMS, an individual; MATT DUFFER, an individual; ROSS DUFFER, an individual; NETFLIX, INC., a Delaware corporation; NETFLIX STREAMING SERVICES, INC., a Delaware corporation; 21 LAPS ENTERTAINMENT, a business entity, form unknown; and DOES 1 through 50, inclusive, 1. COPYRIGHT INFRINGEMENT (SCREENPLAY); 2. COPYRIGHT INFRINGEMENT (CONCEPT ART AND LIVE ACTION DEMO); 3. CONTRIBUTORY COPYRIGHT INFRINGEMENT; 4. VICARIOUS COPYRIGHT INFRINGEMENT; AND 5. DECLARATORY RELIEF. DEMAND FOR JURY TRIAL Defendants. 27 28 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 2 of 32 Page ID #:2 1 COMES NOW Plaintiff IRISH ROVER ENTERTAINMENT, LLC and hereby 2 requests a trial by jury and complains and alleges as against Defendants AARON SIMS, 3 MATT DUFFER, ROSS DUFFER, NETFLIX, INC., NETFLIX STREAMING 4 SERVICES, INC., 21 LAPS ENTERTAINMENT, and DOES 1 through 50, and each 5 of them, as follows: NATURE OF THE ACTION 6 7 1. This is an action for copyright infringement arising of Defendants’ 8 unauthorized exploitation of the copyrighted screenplay Totem, written by Jeffrey 9 Kennedy, in connection with Defendants’ creation of the hit television series Stranger 10 Things. 11 2. Defendants brazenly have infringed upon and incorporated numerous 12 protectible elements from Totem into Stranger Things, including plot, sequence, 13 characters, theme, dialogue, mood, and setting, as well as copyrighted concept art 14 developed by Defendant Aaron Sims for Totem, including key art work, promotional 15 artwork, first class storyboards, creatures, visual effects, and design and creation of CGI 16 characters. 17 3. Throughout the period 2009 to 2015, Sims repeatedly was provided access 18 to numerous versions of the Totem screenplay by Kennedy and worked closely with 19 Kennedy during his development of the script. 20 4. To assist Sims with his creative process, Kennedy shared information 21 regarding the backstory, involved Sims in discussions about story ideas and script 22 revisions, and even proposed the formation of a new production company, through 23 which Kennedy, in partnership with Sims and his producing partner John Norris, would 24 bring Totem to the screen. Unfortunately, and unbeknownst to Kennedy, Sims decided 25 to go in a different direction. 26 5. Specifically, shortly after receiving another version of Totem from Kennedy 27 in or around Spring 2013, Sims began work with Defendants Matt and Ross Duffer on 28 an unrelated project. Within months of Sims meeting the Duffer Brothers, they created 1 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 3 of 32 Page ID #:3 1 a skeleton outline for what was to become Stranger Things, which incorporated various 2 elements from Totem. 3 6. Notably, the Duffer Brothers repeatedly have claimed to have 4 independently come up with the idea for Stranger Things in 2010. However, in reality, 5 it was not until late 2013—and only after teaming up with Sims—that the Duffer 6 Brothers actually “create” their outline. Shortly thereafter, the Duffer Brothers created 7 the pilot for Stranger Things and in March 2015, the show was sold to Netflix and 8 distributed by the Netflix Entities. For his part, Sims was hired to create the concept art 9 for Stranger Things, Seasons 1 and 2. 10 7. It is no small coincidence that Sims, who was given direct access to the 11 copyrighted Totem screenplays and was intimately involved in the development of the 12 story and the creation of concept art, went to work with the Duffer Brothers in 2013 and 13 that in that same year, the Duffer Brothers created the outline for Stranger Things, 14 which incorporated numerous protected elements from the Totem screenplays as well 15 as from the concept art. 16 8. Plaintiff believes that Sims shared the copyrighted Totem screenplays and 17 related concept art to the Duffer Brothers, who then infringed on Plaintiff’s exclusive 18 rights in and to these protected works. 19 9. There are substantial similarities between the Totem copyrighted 20 screenplays and related concept art, on the one hand, and the television series Stranger 21 Things, on the other hand, in terms of plot, sequence of events, theme, characters, 22 setting, mood, pace, and dialogue. 23 10. When Defendants realized they were producing a derivative work based on 24 the Totem copyrighted work, or were at least incorporated protected elements from the 25 screenplays and concept art, they were obligated to obtain a license from Plaintiff, the 26 owner of the Totem copyrighted works, and to give credit to Kennedy as the author of 27 the Totem screenplays. 28 2 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 4 of 32 Page ID #:4 1 11. Instead, Defendants did nothing, necessitating the filing of this action to 2 vindicate Plaintiff’s rights and to prevent Defendants from exploiting those rights 3 without just compensation and due creative credit. THE PARTIES 4 5 12. Plaintiff IRISH ROVER ENTERTAINMENT, LLC (hereafter, “Plaintiff”) 6 is, and at all times mentioned herein was, a limited liability company with its principal 7 place of business in the County of Los Angeles, State of California. Plaintiff’s 8 Managing Member is Jeffrey Kennedy, the author of the Totem copyrighted 9 screenplays. 10 13. Upon information and belief, Defendant AARON SIMS (hereafter, “Sims”) 11 is, and at all times mentioned herein was, an individual residing in the County of Los 12 Angeles, State of California 13 14. Upon information and belief, Defendant MATT DUFFER (hereafter, “M. 14 Duffer”) is, and at all times mentioned herein was, an individual residing in the County 15 of Los Angeles, State of California. 16 15. Upon information and belief, Plaintiff ROSS DUFFER (hereafter, “R. 17 Duffer”) is, and at all times mentioned herein was, an individual residing in the County 18 of Los Angeles, State of California. 19 20 21 16. Defendants M. Duffer and R. Duffer are sometimes referred to collectively herein as the “Duffer Brothers”. 17. Upon information and belief Defendant NETFLIX, INC. (hereafter, 22 “Netflix”) is, and at all times mentioned herein was, a corporation organized under the 23 laws of the State of Delaware and authorized to transact business in the County of Los 24 Angeles, State of California. 25 18. Upon information and belief, Defendant NETFLIX STREAMING 26 SERVICES, INC. (hereafter, “NSSI”) is, and at all times mentioned herein was, a 27 corporation organized under the laws of the State of Delaware and authorized to 28 transaction business in the State of California. 3 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 5 of 32 Page ID #:5 1 19. 2 Entities”. 3 20. Netflix and NSSI are sometimes referred to collectively as the “Netflix Upon information and belief, Defendant 21 LAPS ENTERTAINMENT 4 (“21 Laps”) is, and at all times mentioned herein was, an entity, form unknown, that is 5 authorized to transact business in the County of Los Angeles, State of California. 6 21. The true names, identities and capacities, whether individual, corporate, 7 associate or otherwise, of defendants Does 1 through 50 are unknown to Plaintiff at this 8 time, who therefore sues said defendants by such fictitious names pursuant to California 9 Code of Civil Procedure Section 474. Upon ascertaining the true and correct names, 10 titles, capacities and/or identities of the defendants designated herein as Does, Plaintiff 11 will amend this Complaint accordingly. Karma, Thurner and Does 1 through 50 are 12 sometimes referred to collectively herein as “Defendants”. 13 22. Plaintiff is informed and believes, and thereon alleges, that each of the 14 Defendants herein, however designated, whether by real or fictitious name, were and 15 are in some manner responsible for the events, happenings, occurrences and 16 instrumentalities upon and about which complaint is hereinafter made. 17 23. Plaintiff is further informed and believes, and thereon alleges, that each of 18 the Defendants herein, whether designated by real or fictitious names, are, and at all 19 times relevant hereto, were, the agent, servant, employee and hireling of each of the 20 Defendants and in doing the things and acts herein alleged and complained of or in 21 failing to do that which they should have done, were acting within the course and scope 22 of such employment, agency and hiring with the full knowledge, consent, approval and 23 ratification of each of the other Defendants. JURISDICTION AND VENUE 24 25 26 24. This is a civil action seeking damages and declaratory and injunctive relief for copyright infringement arising under 17 U.S.C. section 101 et seq. 27 28 4 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 6 of 32 Page ID #:6 1 25. This Court has original subject matter jurisdiction over this action under 28 2 U.S.C. §1331 and § 1338(a), as this action asserts copyright claims arising under the 3 laws of the United States. 4 26. This Court has personal jurisdiction over Defendants because some or all 5 of them reside in this state, and because all Defendants conduct continuous, systematic, 6 and routine business within this state and this District. 7 27. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400 in 8 that Plaintiff’s claims arose in this District and because Defendants reside or may be 9 found in this District. STANDING 10 11 28. Plaintiff has standing to bring this action as the current owner of the 12 copyrighted works upon which the claims in this action are based. More specifically, 13 Plaintiff is the assignee of the exclusive rights in and to the copyrighted works by virtue 14 an assignment of all rights from Jeffrey Kennedy, the author of the works. GENERAL ALLEGATIONS 15 16 17 29. Plaintiff Irish Rover Entertainment, LLC (“Plaintiff”) is the exclusive owner of all copyright rights in and to the following original screenplays: 18 • Lightning Shower in Jackson Hole, Copyright Reg. No. Pau3-133-215 19 (6/19/07). A true and correct copy of this Copyright Registration Certificate 20 is attached as Exhibit “1”. 21 • Chain of Being, Copyright Reg. No. Pau3-454-906 (5/1/08). A true and 22 correct copy of this Copyright Registration Certificate is attached as Exhibit 23 “2”. 24 • Totem: The Story of a Wounded Warrior, Copyright Reg. No. Pau3-771-261 25 (3/19/2015). A true and correct copy of this Copyright Registration Certificate 26 is attached as Exhibit “3”. 27 28 • Totem, Copyright Reg. No. TXu2-193-423 (5/7/20). A true and correct copy of this Copyright Registration Certificate is attached as Exhibit “4”. 5 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 7 of 32 Page ID #:7 1 30. These screenplays collectively are referred to herein as the “Totem 2 Screenplays”. Each of these screenplays constitute original works of authorship by 3 Jeffrey Kennedy (hereafter, “Kennedy”). These artistic works represent a years-long 4 progression and evolution of the same basic story, with each successive screenplay 5 building upon the prior version. Kennedy also registered many of these screenplays with 6 the Writers Guild of America. 7 31. In addition to the Totem Screenplays, Plaintiff also is the owner of the 8 copyright in and to certain concept art that was created by Defendant Aaron Sims for 9 the Totem project. This concept art includes, without limitation, key art work, 10 promotional artwork, first class storyboards, creatures, visual effects, design and 11 creation of CGI characters, and at least one 3D test shoot for which Sims created the 12 concept art and storyboard. The Concept Art is registered as Copyright Reg. No. PA1- 13 762-543 (12/27/10). A true and correct copy of the Copyright Registration Certificate 14 is attached hereto as Exhibit “5”. Sims also worked on the 3D test shoot, the effects, 15 and the CGI character for the shoot (collectively, the “Concept Art”). 16 17 18 32. For ease of reference, the Totem Screenplays and the Concept Art are collectively referred to herein as the “Totem Copyrighted Works”. 33. Plaintiff is the owner of all rights in the Totem Copyrighted Works, in all 19 of their advancing, original, unique, and protected permutations and derivations, and 20 neither Plaintiff nor Kennedy has ever assigned, licensed, or otherwise transferred the 21 rights in the Totem Copyrighted Works to any of the Defendants or, with the exception 22 of Kennedy’s assignments of rights to Plaintiff, to any other third party. 23 34. Kennedy was inspired to write and develop the screenplay Totem (f/k/a 24 Lighting Shower in Jackson Hole and Chain of Being) following the tragic death of his 25 childhood friend Clint Osthimer (hereafter, “Osthimer”). 26 35. Kennedy’s story was based on his 1980s childhood in a town that was 27 reminiscent of the 1980’s small town feel, in the same type of everyday, middle class, 28 rural town in which he and Osthimer grew up in South Bend, Indiana, with a grander 6 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 8 of 32 Page ID #:8 1 outdoor setting. As children, the two enjoyed spending time in nature and Osthimer 2 enjoyed jumping off cliffs into lakes. In this regard, Totem is an homage to Osthimer, 3 to growing up in the 1980s, and to Kennedy and Osthimer’s love of the outdoors. 4 36. Notably, from a very early age, Osthimer suffered from epilepsy. During 5 their childhood together in rural Indiana, Osthimer and Kennedy dealt with the constant 6 threat of Osthimer’s “personal demon”, epilepsy, which created “lightning showers” in 7 his brain. These lightning showers or seizures would send him to an alternate 8 supernatural plane where the demon resided. 9 37. Osthimer died on September 8, 2005 in a tragic car accident. Kennedy has 10 described in countless industry pitch meetings that the Totem story was born in the last 11 moment of Osthimer’s life—the moment he was hanging upside down in his vehicle 12 and journeyed to the alternative supernatural plane one final time to conquer his 13 personal demon. A number of these ideas and elements were incorporated into the 14 Totem story and concept art. 15 38. On or about March 23, 2007, Kennedy created a treatment for what later 16 was to become Totem. At that time, the working title for the project was “Lighting 17 Shower in Jackson Hole” (hereafter, “LSJH”). On or about June 19, 2007, Kennedy 18 obtained a copyright for the screenplay by this same name. 19 20 21 39. After further development of the screenplay on or about November 18, 2008, Kennedy copyrighted the updated version with new working title Chain of Being. 40. On November 18, 2008, Kennedy, together with his partners Machiel 22 Kennedy (also his father) and Charles Brink formed Irish Rover Entertainment, LLC, 23 the plaintiff in this action. 24 41. On or about February 4, 2009, Plaintiff entered into an agreement with 25 Evergreen Films, Inc. (“Evergreen”) whereby Evergreen was to provide development 26 services in relation to the project. Thereafter, in or around June 2009, Evergreen 27 subcontracted concept artist Aaron Sims and The Aaron Sims Company to create key 28 art work, promotional artwork, first class storyboards, creatures, visual effects, design 7 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 9 of 32 Page ID #:9 1 and creation of CGI characters, and work on at least one 3D test shoot for which Aaron 2 Sims did ultimately create the concept art and the CGI character. 3 42. Sims was provided with a copy of the copyrighted Chain of Being 4 screenplay and contributed to the project throughout the period 2009 and 2010. During 5 the period, Sims was privy to Kennedy’s marketing pitch, participated in producer note 6 sessions, was privy to Kennedy’s casting choices, was provided with Kennedy’s designs 7 and physical drawings of set pieces, and photographs showcasing the project’s physical 8 imagery. 9 43. In or around July 2009, Kennedy provided Sims with a folder containing 10 photographs for imagery as well as a drawing of the backyard for one of the main 11 character’s homes. Based on this, Sims provided the first round of Concept Art to 12 Plaintiff and Evergreen in July 2009 and continued to provide weekly updates for, and 13 revisions to, the Concept Art. 14 44. In or around August 2009, Kennedy met with Sims and John Norris 15 (hereafter, “Norris”), Sims’ producing partner, during which they discussed script notes 16 and Kennedy disclosed detailed information regarding the background for his 17 screenplay, Kennedy and Osthimer’s full backstory, including the backdrop he wanted 18 to for the project (i.e., similar to South Bend, Indiana but set in a grander outdoor 19 setting). 20 45. In January 2010, Kennedy completed further revisions to the screenplay, 21 now titled Totem, based on development notes he received from his meetings with Sims 22 and others. Between January and July of 2010, Sims finalized the concept art, 23 storyboard, and live action demo while Kennedy, Sims, and Norris continued to discuss 24 story ideas, Kennedy’s backstory, and the script. Kennedy subsequently copyrighted 25 the live action demo and concept art created by Sims on or about December 27, 2010 26 27 46. Importantly, throughout Totem’s script development, including multiple revisions of the screenplay, Kennedy developed and worked with a significant number 28 8 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 10 of 32 Page ID #:10 1 of story ideas and concepts, all of which he shared with Sims and all of which are 2 included in the various copyrighted versions of the Totem screenplay. 3 47. In or around August 2010, Plaintiff ended its business relationship with 4 Evergreen. Following Plaintiff’s termination of Evergreen, Kennedy continued to meet 5 with and correspond with Sims and Norris regarding the Totem project and continued 6 to provide Sims with updated versions of the screenplay. Impressed with Sims’ talent 7 and vision, Kennedy also offered Sims the opportunity to direct Totem and to co- 8 produce it with Kennedy and Norris. 9 48. During the Summer of 2011, Kennedy met with Sims to discuss the most 10 recent version of the screenplay. In November 2011, Kennedy further revised the Totem 11 screenplay while continuing to raise funding and partnerships for the project. He also 12 continued to revise the screenplay in 2012 and 2013. 13 49. In the Spring of 2013, Kennedy provided the latest version of the screenplay 14 for the Totem to Sims. This version of the Totem screenplay incorporated the various 15 concepts, ideas, and elements that Kennedy had developed over the preceding several 16 years, including during the years that he had worked closely with Sims. 17 50. Plaintiff is informed and believes, and thereon alleges, that in the Fall of 18 2013, Warner Brothers Studios hired Sims to assist the Duffer Brothers with the motion 19 picture Hidden, which they had written and were directing. This was the first time Sims 20 met the Duffer Brothers. In an interview entitled, “Making the Monster with Aaron 21 Sims”, Sims confirmed that he first met the Duffer Brothers when he worked with them 22 on Hidden. 23 51. Plaintiff is informed and believes, and thereon alleges, that after Hidden 24 wrapped in 2013, the Duffer Brothers began development of a skeleton outline for the 25 precursor to Stranger Things, which at that time was titled The Montauk Project. A 26 version of the outline was completed in October 2013, and a close review of the outline 27 reveals that the Duffer Brothers had incorporated numerous elements from Totem. 28 9 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 11 of 32 Page ID #:11 1 52. Plaintiff is informed and believes, and thereon alleges that before teaming 2 up with Sims in 2013, and before drafting the skeleton outline in October 2013, the 3 Duffer Brothers had not created any original content for what later would become 4 Stranger Things. This is consistent with sworn declarations the Duffer Brothers 5 submitted in connection with prior litigation involving Stranger Things, i.e., Kessler v. 6 Duffer et al., LASC Case No. BC700197. In these declarations, the Duffer Brothers 7 contend that in November 2010, they exchanged emails about several film projects, 8 including one they called “The Montauk Experiments”, which “reflected elements of 9 the Montauk Urban Legends”. A true and accurate copy of these declarations are 10 11 attached here to as Exhibit “6.” 53. However, a review of the Duffer Brothers’ emails reveals that they do not 12 contain any original ideas; instead, these emails simply summarize information 13 regarding Preston Nichols’ book “The Montauk Project: Experiments in Time”. The 14 ideas that the Duffer Brothers claim are their own original ideas, and which they claim 15 they developed in November 2010, actually come directly from the Nichols book. 16 Moreover, Matt Duffer’s November 23, 2010 email suggests that their idea was to create 17 a “gritty and intensely realistic found footage presentation of the lost film, following 18 the experiments from their inception to blood-soaked finale.” See Exhibit “6” (and 19 attached 11/19/10 and 11/23/10 emails attached thereto). This has absolutely nothing in 20 common—and shares no elements with—Stranger Things. 21 54. Even more telling is that the sworn Declarations do not include evidence 22 of, or reference to, any efforts by the Duffer Brothers to develop their “Montauk 23 Experiments” concept throughout the period November 2010 through October 2013. 24 Notably, at a May 2019 Closing Convocation Speech at Chapman University, Ross 25 Duffer recounted how he and his brother were “crushed” when Warner Brothers 26 “dumped” Hidden, which went “straight to video” in 2013. He said they decided in 2013 27 to “pretend we knew how to write television” and then decided to “create our own 28 show”, i.e., Stranger Things. 10 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 12 of 32 Page ID #:12 1 55. This is consistent with the timing of the skeleton outline from October 2013, 2 which is attached to the Duffer Brothers’ sworn Declarations in the Kessler case—and 3 it suggests that they came up with Stranger Things in 2013, not November 2010, and 4 only after they met Sims, who by that time had been working on Totem with Kennedy 5 for years, had received numerous versions of the Totem screenplay, and was intimately 6 familiar with the Totem story, having worked with Kennedy on the script and concept 7 art. 8 9 10 56. After Hidden, Sims and the Duffer Brothers teamed up again on the show Wayward Pines, with Sims serving as a concept artist. 57. In or around March 2015, the Duffer Brothers met with the Netflix Entities 11 and sold Stranger Things with a look book, pilot script, teaser trailer, and endorsement 12 from Shawn Levy of Defendant 21 Laps Entertainment. 13 58. Stranger Things went straight-to-series, and Aaron Sims Creative, Sims’s 14 company, was hired to develop the Stranger Things creatures and world. Within 15 approximately one years’ time, the Duffer Brothers wrote, directed, produced, edited, 16 cast, and distributed 8 single camera episodes of Stranger Things, when in the three 17 years between the time they claim to have developed their idea for Stranger Things until 18 they met Sims in the fall of 2013, they had not taken any steps to develop Stranger 19 Things. 20 21 22 23 24 59. The first season of Stranger Things was released by the Netflix Entities on July 15, 2016. Sims was credited as one of the concepts artists for the show. 60. The second season of Stranger Things was released by the Netflix Entities on October 27, 2017. Again, Sim was credited as one of the concept artists for the show. 61. The third season of Stranger Things was released by the Netflix Entities on 25 July 4, 2019. A fourth season was announced in September 2019 and is expected to be 26 released in 2020. 27 28 62. There are substantial and articulable similarities between the Totem Screenplays and Stranger Things in terms of plot, theme, dialogue, mood, setting, pace, 11 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 13 of 32 Page ID #:13 1 characters, and sequence of events. Moreover, there are substantial similarities between 2 the Concept Art developed by Sims for Totem and the concept art that he went on to 3 develop in connection with Seasons 1 and 2 of Stranger Things. 4 63. The similarities between the television series Stranger Things and the 5 Totem Copyrighted Works are so substantial that it seems unlikely that the former could 6 possibly have been created independently from the latter. These similarities include, but 7 are not limited to, the following: 8 9 1) Plot / Sequence of Events 10 Totem Stranger Things 11 Totem takes place in an everyday, middle class, rural town surrounded by a sprawling landscape of wood and nature (based on author’s home town of South Bend, Indiana). Season One: Takes place in an everyday, middle class, rural town (Hawkins, Indiana) surrounded by a sprawling landscape of woods and nature. When a portal gate between the earthly plane and an alternate supernatural plane is opened, a monster and his army enter the earthly plane and capture Jackson Chance’s wife Autumn Chance, from the shed in the backyard. Autumn is believed to be dead. When a portal gate between the earthly plane and an alternate supernatural plane is opened, a supernatural being—the Demogorgon enter the earthly plane and capture Joyce Byers’ son Will Byers, from the shed in the backyard. Will is believed to be dead. Knowing that time is short, Jackson and his longtime friend Dr. William Nerowe must uncover the mysteries behind Autumn’s disappearance, which takes them on a perilous journey into the alternate supernatural plane to rescue her. Knowing that time is short, Joyce and her longtime friend Jim Hopper must uncover the mysteries behind Will’s disappearance, which takes them on a perilous journey into the alternate supernatural plane to rescue him. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Along the way, they encounter supernatural creatures (wolves and grims controlled by the supernatural being Azrael), corrupt government agents, and a young girl (named Along the way, they encounter supernatural creatures (shadow monsters and demogorgons controlled by the supernatural being the Mind Flayer), corrupt government agents, and a young girl (named Eleven) with the power to 12 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 14 of 32 Page ID #:14 1 2 3 4 5 6 7 8 9 10 11 12 13 Kimimela) with the power to defeat the defeat the monster and his army, close the monster and his army, close the portal portal gate, and to rescue Will. gate, and to rescue Autumn. Jackson Chance attempts to resume a normal life, despite medically diagnosed neurological “spells/seizures” that cause him to see the alternate supernatural plane and its inhabitants. While in the alternate supernatural plane, Jackson encounters a monster called Azrael. Prior to her kidnapping by Azrael, Autumn Chance also sees the supernatural beings due to which she is viewed as mentally ill and is diagnosed with schizophrenia. Season 2: Will Byers attempts to resume a normal life, despite medically diagnosed neurological “spells/seizures” that cause him to see the alternate supernatural plane and its inhabitants. While in the alternate supernatural plane, Will encounters a monster called the Shadow Monster (later known as the Mind Flayer). Azrael connects itself to Jackson The Shadow Monster connects itself to Will Byers to serve its purpose. Chance to serve its purpose. 14 15 16 17 18 19 20 21 22 23 24 Jackson Chance and Dr. William Nerowe use drawings created by Autumn to locate a series of bluish toned tunnels in the alternate supernatural plane that lead to Azrael. They evade the attacking army of Blackwolf and defeat Azrael by breaking its grip on Jackson with heat lighting. Joyce Byers, Jim Hopper, and friends use drawings created by Will to locate a series of bluish toned tunnels in the alternate supernatural plane that lead to the Shadow Monster. They evade the attacking army of Demogorgon and defeat the Shadow Monster by breaking its grip on Will with heat. Sam Miller crashes his car in an industrial area. Azrael then attacks Sam and forces him to do its bidding in order to kill Kimimela and her friends. Season 3: Billy Hargrove crashes his car in an industrial area. The Shadow Monster (Mind Flayer) then attacks Billy and forces him to do its bidding, in order to kill Eleven and her friends. Sam helps Azrael capture and take possession of human souls in the earthly plane which are then called “The Watchers”. Sam and Azrael Billy and the Shadow Monster capture and take possession of human souls in the earthly plane, which are then called “The Flayed”. Billy and the Shadow Monster 25 26 27 28 13 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 15 of 32 Page ID #:15 1 pursue Kimimela and her friends to a pursue Eleven and her friends to a mall, cave, where a final battle ensues. where a final battle ensues. 2 3 4 5 6 Thunderbear uses memories from Sam’s childhood to try and turn him back to the right path. Sam is subsequently killed by the Red Elk, another creature controlled by Kimimela, but Azrael is defeated. Eleven uses memories from Billy’s childhood to try and turn him back to the right path. Billy is subsequently killed by the Shadow Monster, but the Shadow Monster is defeated. In Totem, being upside down signifies the moment that one enters into the alternate supernatural plan controlled by Azrael. Notably, the Concept Art as well as the storyboard art created by Sims includes storyboard art with Azrael reaching out to boy named Iron Lighting, who hangs upside down on a totem. Sims was well aware that Kennedy had created the concept of a “carbon copy” universe, for which the Duffer Brothers attempt to take credit by naming it the “upside down”. This “upside down” imagery however, appears repeatedly in the Totem Copyrighted Works and, of course, Sims was aware of the connection that Kennedy had drawn between being upside down and the final moments of Osthimer’s life, when he was hanging upside down in his car after a tragic accident. In Stranger Things, the alternate plane is signified by an upside copy of the earthly plane similar to Kennedy’s concept of being upside down signifying that moment a character enters the earthly plane, and also based on his concept of a “carbon copy” universe. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2) Themes Totem Stranger Things Totem centers around supernatural Stranger Things also centers around beasts, its armies, and Kimimela’s supernatural beasts, its armies, and magical ability to defeat Azrael and his Eleven’s magical ability to defeat the 14 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 16 of 32 Page ID #:16 1 2 3 4 5 army. Shadow Monsters and its army. Totem centers around strong friendship Stranger Things also centers around bonds between the protagonists to work strong friendship bonds between the protagonists to work together and defeat together and defeat Azrael. the Shadow Monster. 11 Totem closely examines the themes of love, death or loss of an intimate family member, mental illness, dreams, family, power and corruption, courage and heroism, facing darkness, female roles, epilepsy, funerals, being an outsider, redemption, man versus himself, man versus wilderness, and man versus the supernatural. 12 Love/Resilience: 13 16 In Totem, Jackson Chance’s love for his wife Autumn takes him on a perilous journey into the alternate supernatural plane to uncover the mystery behind her disappearance and to rescue her. 17 Death of a Close Family Member 18 In Totem, Autumn Chase appears to have died. Dr. William Nerowe appears to have died in the alternative supernatural plane, but is miraculously brought back to life using mouth-to-mouth resuscitation. 6 7 8 9 10 14 15 19 20 21 22 23 24 25 26 27 28 Stranger Things also examines the themes of love, death or loss of a close family member, mental illness, dreams, family, power and corruption, courage and heroism, facing darkness, female roles, epilepsy, funerals, being an outsider, redemption, man versus himself, man versus wilderness, and man versus the supernatural. In Stranger Things, Joyce Byers’ love for her son Will takes her on a perilous journey into the alternate supernatural plane to uncover the mystery behind his disappearance and to rescue him. In Stranger Things, Will Byers appears to have died in the alternative supernatural plane, but is miraculously brought back to life using mouth-tomouth resuscitation. Mental Illness: In Totem, Autumn Chance can see an alternate supernatural plane and the dark spirit Azrael within it. She is perceived to be mentally ill by society. Thus, she is required to be evaluated by doctors who assess her mental health. Transitively, because her husband In Stranger Things, Will Byers can see an alternate supernatural plane and the Shadow Monster within it. He is perceived to be mentally ill by society. Thus, he is required to be evaluated by doctors who assess his mental health. His mother Joyce Byers is also 15 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 17 of 32 Page ID #:17 1 2 3 Jackson Chance who believes her, he is perceived to be mentally ill when she also seen as potentially mentally ill by refuses to believe that Will has died and frantically searches for him. society. Dreams and Visions: 4 5 6 7 8 9 10 11 In Totem, dreams and visions are used to see into the alternate supernatural plane by those on the earthly plane who have “Mystic Visions”. In Stranger Things, dreams and visions are used to see into the alternate supernatural plane by those on the earthly plane who can “Shadow Walk”. Family: In Totem, the Chance family is seen as In Stranger Things, the Byers family is small and broken, but it is filled with love seen as small and broken, but it is filled with love for and belief in each other. for and belief in each other 12 13 14 15 16 17 18 19 20 Power and Corruption: In Totem, corrupt government agents In Stranger Things, corrupt government abuse their power and even commit agents abuse their power and even murder in order to capture Kimimela. commit murder in order to capture Eleven. Courage and Heroism: In Totem, Jackson Chance’s courage takes him on a perilous journey into the alternate supernatural plane to rescue his wife. In Stranger Things, Joyce Byers’ courage takes her on a perilous journey into the alternate supernatural plane to rescue her son. 21 22 Facing Darkness: 23 In Stranger Things, Joyce Byers enters In Totem, Autumn Chance enters her her house and faces a supernatural shed and faces a supernatural creature creature because she knows it is the only because she knows it is the only way to way to save her son Will. save her husband Jackson. 24 25 26 27 Epilepsy 28 In Totem, Jackson Chance violently In Stranger Things, Will Byers violently 16 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 18 of 32 Page ID #:18 1 2 3 seizures in the grass. Seizures are used to seizures in the grass. Seizures are used show Jackson’s connection tithe dark to show that he is connected to the spirit Azrael. Shadow Monster. Female Roles with Magical Powers: 4 5 6 7 8 9 In Totem, one of the characters is a little girl named Kimimela or “Kimi” for short who has supernatural powers. Kimimela helps her friends find the portal gate to an alternate supernatural plane and helps them battle the plane’s inhabitants; a dark spirit named Azrael and his army of Blackwolf. In Stranger Things, one of the characters is a little girl name Eleven or “El” for short who has supernatural powers. Eleven helps her friends find the portal gate to an alternate supernatural plane and helps them battle the plane’s inhabitants; a Shadow Monster and his army of Demogorgon. 10 11 Reuniting with Loved Ones: 12 In Totem, Jackson Chance loses his wife In Stranger Things, Joyce Byers loses Autumn in the earthly plane but finds her her son Will in the earthly plane but again in the alternate supernatural plane. finds him again in the alternate supernatural plane. 13 14 15 16 17 18 19 20 Man v. Supernatural: In Totem, Jackson Chance and Dr. William Nerowe must go on a perilous journey into the supernatural plane to uncover the mystery behind Autumn’s disappearance. In Stranger Things, Joyce Byers and Jim Hopper must go on a perilous journey into the supernatural plane to uncover the mystery behind Will Byer’s disappearance. 21 22 3) Characters Totem 23 Stranger Things 24 Sam Miller Billy Hargrove 25 Sam Miller is an FBI agent who is involved in a crash near an industrial area. This is when Azrael takes control of Sam. Billy Hargrove also is involved in an accident in an industrial area. This is when the Shadow Monster takes control of Billy’s mind and forces him to do his bidding. 26 27 28 17 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 19 of 32 Page ID #:19 Kimimela Eleven Eleven is also a young girl who has super powers. She ultimately uses her powers to battle the Shadow Monster in the alternate plane. The butterfly is a symbolic device used to reinforce Eleven’s character, belief system, and connection to the supernatural. 7 Kimimela is a young girl who turns out to have supernatural powers as she is a great spirit. She ultimately uses her powers to battle and defeat Azrael in the alternate plane. The butterfly is a symbolic device used to reinforce Kimimela’s character, belief system, and connection to the supernatural. 8 Azrael The Shadow Monster 9 In Totem, the dark spirit Azrael comes from an alternate supernatural plane and is the leader of an army of Blackwolf aka Black Wolves. Azrael has multiple appendages and often appears surrounded by lightning, as his powers are connected to electricity, and lightning storms are used as a symbolic device to announce Azrael. Azrael enters the earthly plane through a portal in a cave. In Stranger Things, the Shadow Monster (aka the Mind Flayer) comes from an alternate supernatural plane and is the leader of an army of Demogorgon aka Demo Dogs. The Shadow Monster has multiple appendages and often appears surrounded by lightning, as his powers are connected to electricity, and lightning storms are used as a symbolic device to announce the Shadow Monster. The Shadow Monster enters the earthly plane through a portal in a cave. 19 The Blackwolf Demogorgon 20 In Totem, Azrael uses an army of supernatural creatures called Blackwolf to do his bidding. The Blackwolf come from an alternate supernatural plane. Initially, the Blackwolf stand up like men, but later run on all four legs like a dog and are referred to in dialog as Black Wolves. The Blackwolf come from an alternative plane through a portal. In Stranger Things, the Shadow Monster uses an army of supernatural creatures called Demogorgon to do his bidding. The Demogorgon come from an alternate supernatural plane. Initially, the Demogorgon stand up like men, but later run on all four legs like a dog and are referred to in dialog as Demo Dogs. The Demogorgon an alternative plane through a portal. 1 2 3 4 5 6 10 11 12 13 14 15 16 17 18 21 22 23 24 25 26 27 28 The Watchers The Flayed In Totem, Azrael takes possession of In Stranger Things, the Shadow Monster 18 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 20 of 32 Page ID #:20 3 human souls. These captured human takes possession of human souls. These souls under Azrael’s control are called captured human souls under the Shadow “The Watchers”. Monster’s control are called “The Flayed”. 4 Jackson Chance 5 Jackson Chance is the strong-willed husband of Autumn Chance. Jackson believes his wife was alive and taken by Azrael when no one else believed him. His belief leads him on a search for his wife and ultimately into the alternate plane. 1 2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Joyce Byers Joyce Byers is the strong-willed mother of Will Byers. Despite everyone treating Joyce as if she is constantly having a mental breakdown, she pushes through her often-unfortunate life circumstances and continues to believe the impossible is possible for her beloved son Will. In the process, similar to Jackson Chance, she Similar to Joyce, no one believes uses Will’s drawings to try to find Jackson at first. He also becomes answers. obsessed with finding Autumn, and scatters her sketches all over his family Similar to Jackson Chance, no one room to find answers. believes Joyce when she says that Will Byers is not dead. Her belief leads her on a search for Will Byers in the alternate plane. Autumn Chance Will Byers Autumn Chance can see the alternate plane during her spells. She uses drawings as a way of communicating what she sees in the alternate supernatural plane to the inhabitants of the earthly plane. Azrael abducts her from the she and makes her a Grim. Will can see the earthly plane. However, during his “spells/seizures”, he can also see the alternate supernatural plane. He uses drawings as a way of communicating what he sees in the alternate supernatural plane to the inhabitants of the earthly plane. In Season 1, Will was abducted by the Demogorgon from the shed and in Season 2 the Shadow Monster takes hold of Will. Dr. William Nerowe Jim Hopper 23 24 25 26 27 28 Dr. William Nerowe is one of Stranger Things has a character who is a Jackson’s best friends. He supports small-town police officer named Jim 19 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 21 of 32 Page ID #:21 1 2 3 him through Autumn’s disappearance and ultimately helps Jackson uncover the mysteries behind Autumn’s disappearance. 4 5 Hopper. Hopper has a haunted past and a long history/friendship/potential love interest in Joyce Byers. Hopper helps Joyce uncover the mystery behind Will’s disappearance. 4) Dialogue 6 Totem Stranger Things In Totem, the tag line “promise?” is used as a literary device in the dialogue throughout the script. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition. In Stranger Things, the tag line “promise?” is used as a literary device in the dialogue throughout the series. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition. In Totem, Dr. William Nerowe explains to Jackson Chance that Jackson has Post Traumatic Stress Disorder (PTSD). In Stranger Things, Dr. Sam Owens explains to Joyce Byers in dialog that Will has Post Traumatic Stress Disorder (PTSD). In Totem, Jackson Chance believes there is a chance his wife Autumn may still be alive, even after her funeral. In his dialog, he screams this to Dr. William Nerowe despite Nerowe’s belief he is delusional and mentally ill. Autumn was in fact caught in the alternate supernatural plane. In Stranger Things, Joyce Byers believes there is a chance her son Will may still be alive, even after his funeral. In her dialog, she screams this to Lonnie Byers despite Lonnie’s belief she is delusional and mentally ill. Will was in fact caught in the alternate supernatural plane. 27 In Totem, Dr. William Nerowe tell Jackson “find me if you need anything” while leaving the parking lot of the Psychiatric Hospital with Autumn. In Stranger Things, Jim Hopper tells Joyce Byers “call me if things get worse” while leaving the parking lot of the Hawkins Laboratory with Will. 28 In Totem, corrupt government agents In Stranger Things, corrupt government 7 8 9 10 11 12 13 14 Promise 15 16 17 18 19 20 21 22 23 24 25 26 20 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 22 of 32 Page ID #:22 1 2 3 are trying to track down and capture Kimimela because of her special abilities. These men are referred to as “bad men” in character dialogue. agents are trying to track down and capture Eleven because of her special abilities. These men are referred to as “bad men” in character dialogue. 4 5 6 7 8 9 10 11 12 13 14 5) Mood Totem Stranger Things The town’s pace and mood are consistent with small town America. People go about the business of living their life but are not overly rushed about things. They are generally friendly and do what they can to help each other but can sometimes be a tad bit judgmental. For the most part, the mood is relaxed, communal, happy, and optimistic; unless an emergency arises. The town in Stranger Things ’s pace and mood are consistent with small town America. People go about the business of living their life but are not overly rushed about things. They are generally friendly and do what they can to help each other but can sometimes be a tad bit judgmental. For the most part, the mood is relaxed, communal, happy, and optimistic; unless an emergency arises. 15 16 6) Setting/Place 17 18 19 20 21 22 23 24 25 26 27 28 Totem Stranger Things Totem takes place in an everyday, middle class, rural town surrounded by a sprawling landscape of woods and nature, which is based on Kennedy’s home town of South Bend, Indiana. Stranger Things also takes place in an everyday, middle class, rural town surrounded by a sprawling landscape of woods and nature, more specifically, in Hawkins, Indiana. Characters interact with Azrael in an Characters interact with the Shadow alternate plane. The interaction is Monster in an alternate plane is also marked by Lightning. marked by lightning. Jackson’s Chance’s house is a small quaint house with a shed in the back, which becomes a key location. The shed in the backyard where Azrael attacks Autumn Chase and takes her Joyce Byer’s house is also a small quaint house, with a shed in the back that becomes a key location. Will Byers also disappears in the shed when the Demogorgon abducts him into the 21 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 23 of 32 Page ID #:23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 into the alternate plane. alternative plane. Some of the events in Totem take place Similarly, in Stranger Things, Eleven is in the woods where Agent Sam Miller, also pursued by the “Bad Men” through under Azrael’s control, chases the woods. Kimimela. In Totem, Kimimela and her friends follows train tracks while on a train on their journey to find Autumn in the alternate supernatural plane. The railroad tracks are a symbolic device used to illustrate the journey between the earthly plane and the alternate supernatural plane. In Stranger Things, Eleven and her friends follow train tracks on their journey to find Will in the alternate supernatural plane. The railroad tracks are a symbolic device used to illustrate the journey between the earthly plane and the alternate supernatural plane. In Totem, Dr. William Nerowe is brought to a Lynx Sweat Lodge in the “Village at the End of the World” and forced to sweat out his illness, to avoid certain death. In Stranger Things, Will Byers is brought to a make shift sweat lodge and forced to sweat out the Shadow Monster, to avoid certain death. 15 16 64. There are numerous other similarities between the Totem Screenplays and 17 Stranger Things, including similarities between protected elements as well as instances 18 where both the Totem Screenplays and Stranger Things contain a significant number of 19 similar events together belie any claim of literary accident. Examples of such events 20 include: 21 • In Totem, after Autumn Chance is abducted, Jackson Chance destroys his 22 home with an axe. Similarly, in Stranger Things, after Will Byers is 23 abducted, Joyce Byers destroys her home with an axe. 24 • In Totem, there a number of dream catchers strung throughout the Chance 25 home and Autumn speaks to them when they glow as a means of 26 communicating with people in the alternate supernatural plane. Similarly, 27 in Stranger Things, when Will disappears, Joyce hangs Christmas lights 28 22 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 24 of 32 Page ID #:24 1 around the house and speaks to them when they glow as a means of 2 communicating to people in the alternate supernatural plane. 3 • In Totem, the Lynx tribe covertly delivers mystics to a secrete “Village at 4 the End of the World”. In Stranger Things, a company called “Lynx 5 Transportation” covertly delivers materials to a secret underground 6 Russian base. 7 • In Totem, Sam Miller discusses “Garden Gnomes” with Jackson Chance. 8 Similarly, in Stranger Things, Jim Hopper discusses Garden Gnomes with 9 Flo. • In Stranger Things, there is an actual totem hanging on the wall in Will 10 Byers’ room as well as a dreamcatcher. 11 12 65. In addition to these substantial similarities between the Totem Screenplays 13 and the television series Stranger Things, there also are substantial similarities between 14 the Concept Art, which was created by Aaron Sims for the Totem project, and the 15 concept art for Stranger Things. 16 17 66. There are numerous examples of infringement by Defendants on the Concept Art including, without limitation: 18 • In the 2010 Totem storyboards, there are twin 10-year old brothers with 19 supernatural powers, who have matching tattoos of butterflies. In Stranger 20 Things, Eleven and her sister Nine have matching tattoos and the butterfly 21 is used as a symbolic device reinforce Eleven’s character, belief system, 22 and connection to the supernatural. One brother, Rivershadow, makes a 23 butterfly appear from his hand, and Nine makes a butterfly appear from her 24 hand. 25 • The creatures created by Sims as part of the Concept Art for Totem are 26 substantially similar to the creatures in Stranger Things. A comparison of 27 the concept art and storyboards created by Sims for Totem reveals that the 28 23 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 25 of 32 Page ID #:25 1 concepts/drawings for the creatures Azrael and Blackwolf are substantially 2 similar to the Demogorgon created by Sims for Stranger Things. 3 • In the 2010 Live-Action Demo, Lynx is electrocuted by a supernatural 4 creature. In Stranger Things, there is a scene in which Joyce Byer is 5 electrocuted by a supernatural creature. 6 • In Totem concept art there are instances of characters wielding glowing 7 “silversticks”, which are similar to scenes in Stranger Things where 8 characters wield electrified cattle prods. 9 67. As if all of these similarities were not egregious enough, there is a scene in 10 Totem, which Jackson Chance is speaking with Dr. William Nerowe regarding Autumn 11 Chance and whether she is a mystic. Dr. Nerowe asks whether Autumn has taken her 12 medicine because without it “she can’t distinguish between what’s real and what isn’t”. 13 In response, Jackson says: “But how can we really know what is real? I mean, 14 sometimes I see things. Strange things.” 15 68. Stranger Things is clearly derivative of the Totem Screenplays and 16 incorporates numerous protected elements that appear in both the screenplays and the 17 related Concept Art created by Sims. There is no dispute that Sims had access to the 18 screenplays; indeed, he was working with Kennedy as the Totem story was being 19 developed and was himself involved in the creative process. 20 69. Again, it is no small coincidence that after Sims started work with the 21 Duffer Brothers in 2013, they suddenly were “inspired” to create the October 2013 22 skeleton outline that would become Stranger Things and which incorporates numerous 23 elements from the Totem Copyrighted Works. The level of access that Sims had to the 24 Totem Copyrighted Works and the proximity between his commencing work with the 25 Duffer Brothers and their “creation” of Stranger Things certainly gives rise to the 26 presumption that the Duffer Brothers infringed on Plaintiff’s valid copyrights. 27 28 70. It is more than just a mere possibility that Sims, who created the Concept Art for Totem and was involved in the development of the screenplays, disclosed the 24 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 26 of 32 Page ID #:26 1 Totem Copyrighted Works to the Duffer Brothers, who then incorporated elements from 2 those works without permission or authorization from Kennedy or Plaintiff. 3 FIRST CAUSE OF ACTION 4 (Copyright Infringement—Totem Screenplays) 5 (As Against all Defendants) 6 71. Plaintiff hereby repeats, realleges, and incorporates by this reference each 7 and every allegation from each and every paragraph before and after this paragraph, as 8 though said paragraphs were set forth in full herein. 9 10 11 72. The Totem Screenplays constitute copyrightable subject matter under the Copyright Act, 17 U.S.C. sections 101 et seq. 73. Plaintiff is the owner of valid copyrights in and to the Totem Screenplays 12 and has the exclusive right to develop, create, and/or produce televisions shows based 13 on the Totem Screenplays, including but not limited to the characters, themes, plots, 14 dialogue, settings, sequences, situations, and incidents therein. 15 16 74. Plaintiff is entitled to all of the protections and remedies for the Totem Screenplays accorded to a copyright owner. 17 75. At no time did Plaintiff license the Totem Screenplays to Defendants. 18 76. Upon information and belief, in direct violation of Plaintiff’s exclusive 19 rights, Defendants have directly infringed, and unless enjoined by this Court, will 20 continue to infringe the copyrights in the Totem Screenplays by, among other things: 21 • Preparing unauthorized derivative works of the Totem Screenplays in the 22 23 24 25 26 form of the television series Stranger Things; • Reproducing copyrighted elements of the Totem Screenplays in the television series Stranger Things; • Publicly performing the television series Stranger Things, which contain copyright elements of the Totem screenplays. 27 28 25 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 27 of 32 Page ID #:27 1 77. As a direct, legal, and proximate result of Defendants’ infringement on 2 Plaintiff’s copyrights in and to the Totem Screenplays, Plaintiff has been damages in an 3 amount according to proof at trial. 4 SECOND CAUSE OF ACTION 5 (Copyright Infringement—Totem Concept Art) 6 (As Against all Defendants) 7 78. Plaintiff hereby repeats, realleges, and incorporates by this reference each 8 and every allegation from each and every paragraph before and after this paragraph, as 9 though said paragraphs were set forth in full herein. 10 11 12 79. The Concept Art constitutes copyrightable subject matter under the Copyright Act, 17 U.S.C. sections 101 et seq. 80. Plaintiff is the owner of valid copyrights in and to the Concept Art and has 13 the exclusive right to develop, create, and/or produce televisions shows based on the 14 Totem screenplays, including but not limited to the characters, themes, plots, dialogue, 15 settings, sequences, situations, and incidents therein. 16 17 81. Plaintiff is entitled to all of the protections and remedies for the Totem screenplays accorded to a copyright owner. 18 82. At no time did Plaintiff license the Concept Art to Defendants. 19 83. Upon information and belief, in direct violation of Plaintiff’s exclusive 20 rights in the Concept Art, Defendants have directly infringed, and unless enjoined by 21 this Court, will continue to infringe the copyrights in the Concept Art by, among other 22 things: 23 24 25 26 27 28 • Preparing unauthorized derivative works of the Concept Art that have been incorporated into the television series Stranger Things. • Reproducing copyrighted elements of the Totem screenplays in the television series Stranger Things; • Publicly performing the television series Stranger Things, which contain copyright elements of the Totem screenplays. 26 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 28 of 32 Page ID #:28 1 84. As a direct, legal, and proximate result of Defendants’ infringement on 2 Plaintiff’s copyrights in and to the Totem Screenplays, Plaintiff has been damages in 3 an amount according to proof at trial. 4 THIRD CAUSE OF ACTION 5 (Contributory Copyright Infringement) 6 (As Against All Defendants) 7 85. Plaintiff hereby repeats, realleges, and incorporates by this reference each 8 and every allegation from each and every paragraph before and after this paragraph, as 9 though said paragraphs were set forth in full herein. 10 86. On information and belief, Defendants knew or had reason to know that 11 Stranger Things is an unauthorized derivative work based on the Totem Copyrighted 12 Works, including the Totem Screenplays and Concept Art, that are, at least in part, 13 substantially similar to the copyright elements in copyrighted Totem screenplays. 14 87. On information and belief, Defendants induced, caused, and materially 15 contributed to the unauthorized preparation, duplication, distribution, and public 16 performance of the infringing Stranger Things television series, and are continuing to 17 do so. 18 88. In violation of Plaintiff’s exclusive rights, Defendants have contributed to 19 the infringement and, unless enjoined by this Court, will continue to contribute to the 20 infringement of the copyrights in the copyrighted Totem copyrighted works. 21 89. As a direct, legal, and proximate result of Defendants’ contributory 22 infringement on Plaintiff’s copyrights in and to the Totem Copyrighted Works, Plaintiff 23 has been damages in an amount according to proof at trial. 24 FOURTH CAUSE OF ACTION 25 (Vicarious Copyright Infringement) 26 (As Against All Defendants) 27 28 27 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 29 of 32 Page ID #:29 1 90. Plaintiff hereby repeats, realleges, and incorporates by this reference each 2 and every allegation from each and every paragraph before and after this paragraph, as 3 though said paragraphs were set forth in full herein. 4 91. On information and belief, Defendants have the right and ability to 5 supervise the other Defendants, and on information and belief, did supervise them in 6 their unlawful preparation, duplication, and distribution of the Stranger Things 7 television series. 8 9 10 11 92. On information and belief, Defendants enjoy a direct financial benefit from the preparation, duplication, and distribution of the infringing Stranger Things television series. 93. In direction violation of Plaintiff’s exclusive rights and as a consequence of 12 the foregoing, Defendants have vicariously infringed the copyrights in the Totem 13 Copyrighted Works. 14 94. As a direct, legal, and proximate result of Defendants’ contributory 15 infringement on Plaintiff’s copyrights in and to the Totem Copyrighted Works, Plaintiff 16 has been damages in an amount according to proof at trial. 17 FIFTH CAUSE OF ACTION 18 (Declaratory Relief) 19 (As Against All Defendants) 20 95. Plaintiff hereby repeats, realleges, and incorporates by this reference each 21 and every allegation from each and every paragraph before and after this paragraph, as 22 though said paragraphs were set forth in full herein. 23 24 25 96. An actual controversy has arisen and now exists relating to the rights and duties of Plaintiff and Defendants under the United States copyright laws. 97. Plaintiff contends that it is the sole owner of the Totem Copyrighted Works, 26 including the Totem Screenplays and related Concept Art, and that Stranger Things 27 infringes on Plaintiff’s rights in and to the Totem Copyrighted Works. 28 28 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 30 of 32 Page ID #:30 1 98. Plaintiff further contends that it is entitled to compensation based on 2 Defendants’ infringement on Plaintiff’s rights in and to the Totem Copyrighted Works 3 and that Kennedy is entitled to credit as a writer of Stranger Things. 4 5 6 7 99. Plaintiff is informed and believes and thereon alleges that Defendants dispute Plaintiff’s contentions. 100. Plaintiff therefore desires a judicial determination and declaration of the respective rights and obligations of the parties. 8 PRAYER FOR RELIEF 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, Plaintiff IRISH ROVER ENTERTAINMENT, LLC prays for the following relief against Defendants AARON SIMS, MATT DUFFER, ROSS DUFFER, NETFLIX, INC., NEFLIX STREAMING SERVICES, LLC, 21 LAPS ENTERTAINMENT, and DOES 1 through 25, as follows: 1. For a preliminary and permanent injunction enjoining Defendants from inverting the copyrights of Plaintiff in any manner. 2. For an award of all gains, profits, and advantages derived by Defendants by their infringement of Plaintiff’s copyrights or such damages as the Court shall deem proper within the provisions of the copyright statute, in an amount determined at trial, together with interest thereon as provided by law. 3. For an order requiring that Defendants provide a complete accounting and for the restitution to Plaintiff of all monies, gains, profits and advantages Defendants have derived from their production, distribution and exploitation of the infringing television series Stranger Things, and ancillary products based thereon, and from their copyright infringement the Totem Copyrighted Works. 4. For an order imposing a constructive trust over all monies, gains, and profits Defendants derive from their production, distribution and exploitation of the infringing television series, and ancillary products based thereon, and from their copyright infringement of the Totem Copyright Works. 29 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 31 of 32 Page ID #:31 1 2 3 4 5 5. For statutory damages, costs, and attorney’s fees with respect to television series Stranger Things and any derivative works. 6. For such other and further relief and remedies available under the Copyright Act, 17 U.S.C. §§ 101 et seq., which the Court may deem just and proper. 7. For a judicial declaration that: (a) Stranger Things infringes on Plaintiff’s 6 rights in and to the Totem Copyrighted Works, including the Totem Screenplays and 7 Concept Art; (b) Plaintiff is entitled to compensation based on Defendants’ 8 infringement on Plaintiff’s rights in and to the Totem Copyrighted Works; and (c) 9 Kennedy is entitled to credit as a writer of Stranger Things. 10 8. For such other and further relief as the Court deems just and proper. 11 12 Dated: July 15, 2020 BOREN, OSHER & LUFTMAN LLP 13 14 15 16 By: /s/ Jeremy J. Osher Jeremy J. Osher Saba Zafar Attorneys for Plaintiff IRISH ROVER ENTERTAINMENT, LLC 17 18 19 20 21 22 23 24 25 26 27 28 30 COMPLAINT FOR DAMAGES Case 2:20-cv-06293-CBM-PLA Document 1 Filed 07/15/20 Page 32 of 32 Page ID #:32 DEMAND FOR JURY TRIAL 1 2 3 Plaintiff IRISH ROVER ENTERTAINMENT, LLC hereby demands a trial by jury in this action on all issues so triable. 4 5 Dated: July 15, 2020 BOREN, OSHER & LUFTMAN LLP 6 7 8 9 10 By: /s/ Jeremy J. Osher Jeremy J. Osher Saba Zafar Attorneys for Plaintiff IRISH ROVER ENTERTAINMENT, LLC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31 COMPLAINT FOR DAMAGES