Case 2:20-cv-06255 Document 1 Filed 07/14/20 Page 1 of 10 Page ID #:1
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`RASHEED M. McWILLIAMS (SBN 281832)
`rmcwilliams@zuberlawler.com
`ZUBER LAWLER & DEL DUCA LLP
`350 S. Grand Avenue, 32nd Floor
`Los Angeles, California 90071
`Telephone: (213) 596-5620
`Facsimile:
`(213) 596-5621
`Attorneys for Plaintiff
`Zelus Film Holding Company, LLC
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
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`ZELUS FILM HOLDING COMPANY,
`LLC, a Delaware limited liability
`company,
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`Plaintiff,
`
`v.
`AMAZON.COM, INC., a Delaware
`corporation, AMAZON DIGITAL
`SERVICES LLC, a Delaware limited
`liability company, and Does 1-5,
`inclusive,
`
`Defendant.
`
`
`Case No.
`COMPLAINT FOR:
`1. COPYRIGHT INFRINGEMENT;
`2. CONTRIBUTORY COPYRIGHT
`INFRINGEMENT; and
`3. VICARIOUS COPYRIGHT
`INFRINGEMENT
`[DEMAND FOR JURY TRIAL]
`
`Plaintiff, Zelus Film Holding Company, LLC, by and through its attorneys,
`Zuber, Lawler & Del Duca LLP, as and for the complaint against Defendants
`Amazon.com Inc., and Amazon Digital Services LLC, allege as follows:
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`Case 2:20-cv-06255 Document 1 Filed 07/14/20 Page 2 of 10 Page ID #:2
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`NATURE OF THE ACTION
`This is a civil action for damages against Defendants for violations of the
`1.
`United States Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. (the "Copyright Act").
`This action arises out of Defendants’ direct and contributory infringement of the
`copyright in a motion picture, Spellbound (hereafter the “Motion Picture”), to which
`Plaintiff owns or controls copyright and/or exclusive distribution rights.
`Defendants violated Plaintiff's copyright by streaming, broadcasting,
`2.
`renting, selling and distributing the Motion Picture in the United States without
`Plaintiff’s permission. Plaintiff seeks damages for Defendants' infringements and an
`injunction to prevent further unlawful use.
`PARTIES
`Plaintiff ZELUS FILM HOLDINGS LLC, is, and at all times relevant
`3.
`hereto was, a limited liability company organized and operating under the laws of the
`State of Delaware, with its principal place of business in this district in the County of
`Los Angeles.
`Upon information and belief, Defendant AMAZON.COM, INC.
`4.
`(“Amazon”) is a corporation organized and operating under the laws of the State of
`Delaware, with its principal place of business in Seattle, Washington.
`Upon information and belief, Defendant AMAZON DIGITAL
`5.
`SERVICES LLC (“Amazon Digital”) is a limited liability company organized and
`operating under the laws of the State of Delaware, with its principal place of business
`in Seattle, Washington.
`Upon information and belief, Amazon Digital owns and operates the
`6.
`Prime Video website and service, and the Prime Video App, described below.
`Upon information and belief, Amazon Digital is completely controlled in
`7.
`every manner by Defendant Amazon.
`Amazon and Amazon Digital may hereafter be referred to collectively as
`8.
`the Amazon Defendants.
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`Case 2:20-cv-06255 Document 1 Filed 07/14/20 Page 3 of 10 Page ID #:3
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`Plaintiff is presently unaware of the true names and capacities of
`9.
`Defendants sued herein as DOES 1 through 5 (hereafter, “Doe Defendants”),
`inclusive, and therefore sues said Defendants by such fictitious names. Plaintiff will
`amend this Complaint to allege the true names and capacities of such fictitiously
`named Defendants when the same have been ascertained. Plaintiff is informed and
`believes and based thereon alleges that each of the fictitiously named Defendants is
`responsible in some manner for the occurrences, acts and omissions alleged herein and
`that Plaintiff’s damages were proximately caused by their conduct.
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`10. Hereinafter all Defendants including Doe Defendants will sometimes be
`referred to collectively as “Defendants.”
`JURISDICTION AND VENUE
`11. The jurisdiction of this Court is based upon 28 U.S.C. §§ 1331 and 1338
`in that this controversy arises under the Copyright Act and Copyright Revision Act of
`1976 (17 U.S.C § 101 et seq.). This action is a civil action over which this court has
`original jurisdiction.
`12. Personal jurisdiction over Defendants is proper in this Court, among
`other reasons, on the grounds that Defendants, through their interactive web-based
`subscription service, caused the unlicensed streaming, rental, sale, broadcast and
`distribution of the Plaintiff's Motion Picture throughout the State of California,
`including within this judicial district.
`13. This Court has personal jurisdiction over Defendants pursuant to CCP §
`410.10 (California’s long-arm statute) due to their continuous and systematic business
`activities within California as described below. Defendants have conducted and do
`conduct business within California. Defendants, directly or through intermediaries
`(including distributors, retailers, and others), ship, distribute, offer for sale, sell, and
`advertise products in the United States, and specifically to California. Defendants
`purposefully and voluntarily streamed, rented, sold, broadcast and distributed
`Plaintiffs' Motion Picture in California.
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`Case 2:20-cv-06255 Document 1 Filed 07/14/20 Page 4 of 10 Page ID #:4
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`14. Venue is proper within this District pursuant to 28 U.S.C. §1400, and is
`also proper in this District pursuant to 28 U.S.C. §§ 1391 (b) and (c) because
`Defendants, and each of them, are subject to personal jurisdiction in this District as a
`substantial part of the events or omissions giving rise to the claims herein
`occurred in this District.
`GENERAL AND FACTUAL ALLEGATIONS
`15. All distribution and exploitation rights under copyright in the Motion
`Picture were granted to Plaintiff’s predecessor in interest, ThinkFilm LLC
`(“ThinkFilm”), by a Distribution Agreement dated September 18, 2002 by and
`between ThinkFilm and Alphabet City Pictures, a sole proprietorship run by Jeffrey
`Blitz.
`16. The copyright in the Motion Picture, PA0001209296, was registered to
`Jeffrey Blitz, who does business as Alphabet City Pictures, and Sean Welch on
`March 18, 2003.
`17. Plaintiff became the successor-in-interest to the rights of ThinkFilm on
`or about December 16, 2015, pursuant to a foreclosure of certain assets ThinkFilm
`pledged as collateral for repayment of various loans, which assets included, without
`limitation, all of Think's right, title and interest in and to the Motion Picture under the
`Distribution Agreement.
`18. The Amazon Defendants own and operate an internet video on demand
`and digital distribution service called Prime Video or Amazon Prime Video
`(hereafter, “Prime Video”) through which they offer films and television shows for
`rent or purchase, and in addition, to stream on demand - as part of the Prime Video
`subscription included with any membership (free trial and paid monthly or yearly) to
`Amazon Prime. Prime Video is accessible through Amazon.com.
`19. Prime Video is also accessible via a Prime Video "app" which is
`available for download on a range of smart televisions, Amazon branded devices,
`mobile devices, Blu-ray players, game consoles and streaming media devices.
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`Case 2:20-cv-06255 Document 1 Filed 07/14/20 Page 5 of 10 Page ID #:5
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`In the period of time between July 7, 2017 and February 4, 2019,
`20.
`Defendants, without authorization or license, exploited the Motion Picture in both
`video on demand (“VOD”) and subscription video on demand (“SVOD”) streaming
`formats on the Prime Video streaming platform.
`21. Upon information and belief, collectively, during the period of time
`between July 7, 2017 and February 4, 2019, the Motion Picture was collectively
`streamed on demand, rented or purchased hundreds of times or more by Prime Video
`subscribers.
`22. Because information regarding Defendants' full distribution and
`exploitation of the Motion Picture remains incomplete or in Defendants' sole
`possession, the full and complete scope of Defendants' infringing activities and
`infringing uses of the Motion Picture has not yet been fully ascertained.
`23. On February 4, 2019, Plaintiff sent the Amazon Defendants a notice of
`copyright infringement. Defendants subsequently removed the Motion Picture from
`Prime Video.
`24. Plaintiff has sent Amazon two (2) separate letters requesting information
`relating to the unauthorized exploitation prior to bringing this action. To date,
`Amazon has not responded to either letter.
`25. This action is solely based on the unauthorized exploitation of the
`Motion Picture that occurred on Prime Video between July 7, 2017 and February 4,
`2019.
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`FIRST CAUSE OF ACTION
`Copyright Infringement
`(All Defendants)
`26. Plaintiff incorporates by reference each and all prior allegations in
`Paragraphs 1-25 as if set forth herein.
`27. On information and belief, the Doe Defendants violated the exclusive
`rights of Plaintiff by agreeing to the distribution and exploitation of the Motion
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`Case 2:20-cv-06255 Document 1 Filed 07/14/20 Page 6 of 10 Page ID #:6
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`Picture in the United States by the Amazon Defendants without authorization or
`license from Plaintiff from a date presently unknown, but to be confirmed through
`discovery, through at least February 4, 2019.
`28. The Amazon Defendants violated the exclusive rights of Plaintiff by
`distributing the Motion Picture in the United States via streaming on demand, and/or
`for rent or sale on its Prime Video service from a date presently unknown, but to be
`confirmed through discovery, through at least February 4, 2019.
`29. The Amazon Defendants’ distribution of the Motion Picture in the
`United States via streaming on demand, and/or for rent or sale on its Prime Video
`service was done without obtaining Plaintiff's license, approval or authorization.
`30. The acts of infringement by Defendants have been willful, intentional,
`and with disregard and indifference to the rights of Plaintiff.
`31. As a direct and proximate result of Defendants' infringement of
`Plaintiff’s exclusive rights under copyright in the Motion Picture, Plaintiff is entitled
`to maximum statutory damages, pursuant to 17 U.S.C. § 504(c), in the amount of
`$150,000 with respect to each work infringed, or such other amounts as may be
`proper under 17 U.S.C. § 504(c). Alternatively, at Plaintiff’s election, pursuant to 17
`U.S.C. § 504(b), Plaintiff shall be entitled to its actual damages, including
`Defendants' profits from infringement, as will be proven at trial.
`32. Plaintiff is entitled to its costs, including reasonable attorney's fees,
`pursuant to 17 U.S.C. § 505.
`SECOND CAUSE OF ACTION
`Contributory Copyright Infringement
`(The Doe Defendants)
`33. Plaintiff incorporates by reference each and all prior allegations in
`Paragraphs 1-32 as if set forth herein.
`34. The Doe Defendants, by facilitating, managing or directing unauthorized
`distributions of the Motion Picture, to which Plaintiff holds the exclusive rights,
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`Case 2:20-cv-06255 Document 1 Filed 07/14/20 Page 7 of 10 Page ID #:7
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`materially contributed to the violation of the copyright laws by the Amazon Defendants
`in that the Doe Defendants have offered to, and entered into agreements with the
`Amazon Defendants, resulting in the unauthorized and unlicensed distribution of the
`Motion Picture by the Amazon Defendants, and the unauthorized and unlicensed
`streaming, rental and/or purchase of the Motion Picture by Prime Video subscribers,
`either through the Amazon.com website or the Prime Video App.
`35. The acts of contributory infringement by the Doe Defendants have been
`committed willfully and with the knowledge that their conduct aided and abetted the
`Amazon Defendants’ violations of the exclusive rights of Plaintiff to distribute the
`Motion Picture.
`36. Each unlawful distribution of the Motion Picture, whether by on demand
`stream, rental and/or sale, constitutes a separate act of contributory infringement for
`which Plaintiff is entitled to actual damages.
`37. As a direct and proximate result of the Doe Defendant’s infringement of
`Plaintiff’s exclusive rights under copyright in the Motion Picture, Plaintiff is entitled
`to maximum statutory damages, pursuant to 17 U.S.C. § 504(c), in the amount of
`$150,000 with respect to each work infringed, or such other amounts as may be
`proper under 17 U.S.C. § 504(c). Alternatively, at Plaintiff’s election, pursuant to 17
`U.S.C. § 504(b), Plaintiff shall be entitled to its actual damages, including
`Defendants' profits from infringement, as will be proven at trial.
`38. Plaintiff is entitled to its costs, including reasonable attorney's fees,
`pursuant to 17 U.S.C. § 505.
`THIRD CAUSE OF ACTION
`Vicarious Copyright Liability
`(All Defendants)
`39. Plaintiff incorporates by reference each and all prior allegations in
`Paragraphs 1-32 as if set forth herein.
`40. The Doe Defendants have a right and ability to supervise the Amazon
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`Defendants and their video streaming service, Prime Video, through the agreement
`signed by the Doe Defendants and the Amazon Defendants for the exploitation of the
`Motion Picture.
`41. The Doe Defendants also had a direct financial interest in the
`exploitation of the Motion Picture by the Amazon Defendants via the Prime Video
`service based on the license payments from the Amazon Defendants either paid or due
`to be paid the Doe Defendants.
`42. Amazon has a right and ability to supervise Amazon Digital and its video
`streaming service, Prime Video, based on Amazon’s control of its subsidiary Amazon
`Digital.
`43. Amazon also has a direct financial interest in the exploitation of the
`Motion Picture by Amazon Digital via the Prime Video service.
`44. As a direct and proximate result of the Doe Defendant’s infringement of
`Plaintiff’s exclusive rights under copyright in the Motion Picture, Plaintiff is entitled
`to maximum statutory damages, pursuant to 17 U.S.C. § 504(c), in the amount of
`$150,000 with respect to each work infringed, or such other amounts as may be
`proper under 17 U.S.C. § 504(c). Alternatively, at Plaintiff’s election, pursuant to 17
`U.S.C. § 504(b), Plaintiff shall be entitled to its actual damages, including
`Defendants' profits from infringement, as will be proven at trial.
`45. Plaintiff is entitled to its costs, including reasonable attorney's fees,
`pursuant to 17 U.S.C. § 505.
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`PRAYER
`Plaintiff Zelus Film Holding Company LLC prays that this Court enter
`judgment against Defendants Amazon.com, Inc., Amazon Digital Services LLC, and
`Does 1-5, inclusive, as follows:
`That Defendants be held to have infringed upon Plaintiff's exclusive
`1.
`rights under copyright in violation of the Copyright Act of 1976, 17 U.S.C. §§ 501 et
`seq.;
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`Case 2:20-cv-06255 Document 1 Filed 07/14/20 Page 9 of 10 Page ID #:9
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`That Defendants be held to have willfully infringed upon Plaintiff's
`2.
`copyrights in violation of the Copyright Act of 1976, 17 U.S.C. §§ 501 et seq.;
`That the Doe Defendants be held to have contributed to the infringement
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`of Plaintiff’s exclusive rights in a copyrighted work;
`That the Defendants be held vicariously liable for the infringement of
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`Plaintiff’s exclusive rights in a copyrighted work;
`For actual damages suffered by Plaintiff and any profits made by
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`Defendants, pursuant to 17 U.S.C. § 504(b);
`For statutory damages, upon Plaintiff's election, pursuant to 17 U.S.C. §
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`504(c);
`For exemplary and punitive damages as provided by law because of the
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`willful and deliberate nature of Defendants' actions;
`For costs and attorney’s fees pursuant to 17 U.S.C. § 505;
`8.
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`For post-judgment interest on any amounts awarded; and
`10. For all such other and further relief as the Court may deem just and
`proper.
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`Dated: July 14, 2020
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`Respectfully submitted,
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`By: /s/Rasheed McWilliams
`RASHEED M. MCWILLIAMS
`ZUBER LAWLER & DEL DUCA LLP
`Attorneys for Plaintiff
`Zelus Film Holding Company, LLC
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`Case 2:20-cv-06255 Document 1 Filed 07/14/20 Page 10 of 10 Page ID #:10
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`DEMAND FOR JURY TRIAL
`Plaintiff Zelus Film Holding Company, LLC hereby demands trial by jury on
`each and every issue, claim, and/or cause of action set forth in this Complaint which
`is so triable.
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`Dated: July 14, 2020
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`Respectfully submitted,
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`By: /s/ Rasheed McWilliams
`RASHEED M. MCWILLIAMS
`ZUBER LAWLER & DEL DUCA LLP
`Attorneys for Plaintiff
`Zelus Film Holding Company, LLC
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`3153-1004 / 1645395.1
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