United States District Court Northern District of California
United States District Court Northern District of California
United States District Court Northern District of California
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JAMES E. THOMAS and JOHN C. THOMAS
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COMPLAINT
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6 “Copyright Act”), and under the Declaratory Judgment Act, 28 U.S.C. §§ 2201
7 and 2202.
8 2. This Court has subject matter jurisdiction over the claims set forth in
9 this Complaint pursuant to the Copyright Act, 17 U.S.C. § 101 et seq., 28 U.S.C.
10 §§ 1331, 1332 and 1338(a) and (b), and the Declaratory Judgment Act, 28 U.S.C.
11 §2201.
14 district and maintain contacts within the State of California and this district.
15 4. Venue is proper in the United States District Court for the Northern
16 District of California pursuant to 28 U.S.C. §§ 1391 (b) and (c) and 1400(a),
17 because Defendants are conducting business in this district and are subject to
27 finally secure the financial benefits of their work, sold inevitably before its value
28 could be fairly tested in the marketplace. See H.R. Rep. No. 94-1476, at 124
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COMPLAINT
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1 (1976) (emphasizing that the termination right was enacted to give authors a
3 longer conjectural.)
7 Film Corporation and was the basis for the iconic hit film Predator (1987),
11 literary material by serving and recording with the U.S. Copyright Office within
13 termination date of April 17, 2021. This is a civil action seeking declaratory relief
14 that the Thomases’ termination is valid and effective under the Copyright Act.
15 PARTIES
16 9. Plaintiff JAMES E. THOMAS is an individual and a citizen of and
17 resides in the State of California, in the County of Santa Barbara, and is and at all
21 in the State of California, in the County of Santa Barbara, and is and at all times
23 11. Plaintiffs are informed and believe and based thereon allege that
24 Defendant TWENTIETH CENTURY FOX FILM CORPORATION (“TCFFC”)
28 12. Plaintiffs are informed and believe and based thereon allege that
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2 maintaining its principal place of business in Los Angeles County, California, and
4 this district.
5 13. Plaintiffs are informed and believe and based thereon allege that
6 Defendant TFCF ENTERTAINMENT GROUP, LLC is a Delaware limited
7 liability company maintaining its principal place of business in in New York, New
12 principal place of business in New York, New York, and that TFCF
15 15. Plaintiffs are informed and believe and based thereon allege that
16 Defendant THE WALT DISNEY COMPANY (“DISNEY”) is a Delaware
19 district. Plaintiffs are further informed and believe and based thereon allege that
21 16. Plaintiffs are informed and believe and based thereon allege that the
22 fictitiously named Defendants captioned hereinabove as Does 1 through 10,
23 inclusive and each of them, were in some manner responsible or legally liable for
24 the actions, damages, events, transactions, and circumstances alleged herein. The
27 and Plaintiffs will amend this Complaint to assert the true names and capacities
28 of such fictitiously named Defendants when the same have been ascertained. For
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COMPLAINT
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1 convenience, each reference herein to a named Defendant shall also refer to the
3 17. Plaintiffs are informed and believe and based thereon allege that
4 Defendants TCFFC, TFCF CORPORATION, TFCF ENTERTAINMENT
6 collectively, “Defendants”) are the alter-egos of each other and there exists a unity
7 of interest and ownership among the Defendants such that any separateness has
8 ceased to exist with respect to the Screenplay co-authored by Plaintiffs that is the
9 subject hereof.
10 18. Plaintiffs are informed and believe and based thereon allege that each
11 of the Defendants was the agent, partner, servant, employee, or employer of each
12 of the other Defendants herein, and that at all times herein mentioned, each of the
13 Defendants was acting within the course and scope of such employment,
14 partnership, and/or agency and that each of the Defendants is jointly and severally
16 STATUTORY BACKGROUND
17 19. The U.S. Copyright Act of 1976, 17 U.S.C. § 101 et seq. (the
18 “Copyright Act”), provides an author with the inalienable right to recapture the
22 original grantee or its successors and filing the notice with the U.S. Copyright
26 thirty-five (35) years after the date the rights were transferred. Id. § 203(a)(3).
27 The requisite notice of termination sets forth the “effective date” of termination,
28 within the five-year termination “window,” when the previously transferred rights
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2 served by the author at any time between ten (10) and two (2) years before the
4 21. “Works for hire” are the sole exemption from the Copyrights Act’s
5 termination provisions. Id. § 203(a).
6 22. The termination right is the most important authorial right provided
7 by the Copyright Act, short of copyright itself. Congress was therefore very
8 protective of the termination right and, to that end, enacted a number of provisions
14 of . . . section [203(a)] of title 17, U.S.C. . . . shall not render the notice invalid.”
18 (such as TCFFC). To that end, Congress provided “the original grantee” with the
20 notice or termination has been served,” but before “the effective date of the
25 of the U.S. copyright to their Screenplay therefore does not prevent Defendants or
26 their licensees from continuing to exploit prior derivative works, including the
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3 a result, after the effective date of Plaintiffs’ termination, new derivative Predator
4 works would simply require a license from Plaintiffs, thereby enabling the authors
5 to fairly participate with others at a level reflective of their work’s market value.
7 prevent the exploitation of the Predator franchise; it simply allows its original
8 creators to, at long last, participate in the financial rewards of their creation, just
13 1984. Plaintiffs created the Screenplay “on spec,” on their own volition, with no
16 28. On April 16, 1986, Plaintiffs transferred their rights under copyright
17 in the Screenplay to Defendant TCFFC (the “1986 Grant”), pursuant to an Option
18 Agreement for Literary Material between Plaintiffs and TCFFC dated January 22,
19 1985.
26 defined time window (April 16, 2014 to April 16, 2024), a notice of termination
27 regarding the 1986 Grant, and filing that notice with the U.S. Copyright Office
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4 Corporation (formerly known and served as Twenty-First Century Fox, Inc.), and
6 Entertainment Group, LLC), statutorily terminating the 1986 Grant of rights under
11 33. The June 9, 2016 Termination Notice was served on TCFFC (and
12 related Defendants) well in advance of the April 17, 2021 termination date. The
13 Termination Notice was drafted, served, and accepted for recordation by the U.S.
14 Copyright Office on June 28, 2016—all in full compliance with the Copyright
17 34. For four and one-half (4½) years after the Termination Notice was
18 served, Defendants did not object to it in any respect. Then, in early January 2021,
20 Termination Notice as supposedly untimely, based on a theory that the 1986 Grant
21 of the Screenplay underlying their Predator films allegedly qualified for the
26 contradicted both Nimmer and the legislative history of the statutory provision (§
27 203(a)(3)) they purported to rely on. Copyright Reg. Supp. Rep., pp. 74-75.
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3 June 14, 2022 (hereinafter, the “Second Termination Notice”), and the other with
6 the Alternate Notices were mailed to the U.S. Copyright Office for recordation.
8 merit, the Alternate Notices were served as a “belt and suspenders” precaution.
21 and the parties’ respective rights to the Screenplay, for which Plaintiffs desire a
22 declaration of rights.
28 Screenplay to TCFFC and that, as of said date, Plaintiffs recovered the U.S.
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4 valid, with effective termination dates of June 14, 2022 or January 13, 2023,
5 respectively.
8 respective rights and obligations as to the Termination Notices and when the
12 U.S.C. § 2202, enjoining Defendants, their officers, agents and employees, and all
13 persons acting in concert with them, from exploiting after April 17, 2021 (the
14 effective termination date), new derivative works based on the Screenplay and
15 derivative Predator film franchise, without first obtaining at arms’ length a new
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3 with them, from exploiting after April 17, 2021 new derivative works based on
4 the Screenplay and derivative Predator franchise, without first obtaining a new
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By /s/ Marc Toberoff
13 Marc Toberoff
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Attorneys for Plaintiffs JAMES E. THOMAS
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DATED: April 15, 2021 TOBEROFF & ASSOCIATES, P.C.
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