`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
`
`CASE NO. 1:17-cv-02635-CAB
`
`JUDGE CHRISTOPHER A. BOYKO
`
`FOURTH AMENDED COMPLAINT
`
`JAMES HAYDEN,
`
`Plaintiff,
`
`v.
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`2K GAMES, INC., a Delaware corporation,
`
`and
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., a Delaware corporation,
`
`Defendants.
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`JAMES HAYDEN (“HAYDEN“), by and through undersigned counsel, for his Fourth
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`Amended Complaint 1 against Defendants, 2K GAMES, INC, (“2K”), and TAKE-TWO
`
`INTERACTIVE SOFTWARE, INC, (“TAKE-TWO”), states as follows:
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`NATURE OF ACTION, JURISDICTION, AND VENUE
`
`1.
`
`2.
`
`This is a civil action for copyright infringement pursuant to 17 U.S.C. § 501 et seq.
`
`This case is about the unauthorized use of HAYDEN’s registered tattoos in
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`Defendants’ highly successful video games, known as NBA 2K16, NBA 2K17, NBA 2K18, NBA
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`2K19, NBA 2K20, and NBA2K Mobile (herein the “Infringing Games”) and Defendants’ resulting
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`ongoing willful violation of HAYDEN’s rights.
`
`1 Plaintiff files this Fourth Amended Complaint with Defendants’ consent, by and through
`counsel, under Federal Rule of Civil Procedure 15(a)(2).
`1
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`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 2 of 26. PageID #: 963
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`3.
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`HAYDEN seeks preliminary and permanent injunctive relief and appropriate
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`damages from the Court.
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`4.
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`This Action is proper under the Copyright Act of 1976, as amended, 17 U.S.C. §§
`
`101 et seq. (the “Copyright Act”).
`
`5.
`
`The Court has original subject matter jurisdiction over HAYDEN’s Copyright
`
`claims pursuant to 17 U.S.C. §§ 101 et seq. and 28 U.S.C. §§ 1331 and 1338.
`
`6.
`
`The Court has personal jurisdiction over Defendants under, inter alia, O.R.C. §
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`2307.382.
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`7.
`
`Upon information belief, each of the Defendants has transacted business in this
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`state.
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`8.
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`Further, each of Defendants have acted in concert to develop, promote, distribute
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`and market the Infringing Games, and to contract to supply the Infringing Games in this State.
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`9.
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`10.
`
`Each of the Infringing Games has been sold in this State.
`
`By infringing HAYDEN’s copyrights and/or inducing others to infringe
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`HAYDEN’s copyrights, each of the Defendants has caused injury in this state.
`
`11.
`
`Venue is proper in this District under 28 U.S.C. § 1391(b)(2), as a substantial part
`
`of the events that gave rise to this Complaint occurred in this District.
`
`12.
`
`13.
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`For example, HAYDEN created the tattoos in issue in Cleveland, Ohio.
`
`In the alternative, venue is also proper under 28 U.S.C. § 1391(b)(1) and 1391(c).
`
`PARTIES
`
`14.
`
`HAYDEN is a tattoo artist who does business as FOCUSED TATTOOS, having an
`
`address at 12745 Cedar Road, Cleveland Heights, Ohio, 44118.
`
`2
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`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 3 of 26. PageID #: 964
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`15.
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`Upon information and belief, Defendant 2K is a Delaware corporation with a
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`principal address at 10 Hamilton Landing, Novato, CA 94949. According to public records, the
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`registered office address is 2710 Gateway Oaks Drive, Suite 150N, Sacramento, CA 95833.
`
`16.
`
`Upon information and belief, Defendant, TAKE-TWO is a Delaware corporation
`
`with a principal address at 622 Broadway, New York, NY 10012. According to public records, the
`
`registered office address is 2710 Gateway Oaks Drive, Suite 150N, Sacramento, CA 95833.
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`17.
`
`Upon information and belief, TAKE-TWO is a major developer, publisher and
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`marketer of interactive entertainment and video games around the globe, including the Infringing
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`Games.
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`18.
`
`Upon information and belief, 2K sells and ships video games around the globe,
`
`including the Infringing Games.
`
`19.
`
`Upon information and belief, each of the named Defendants has a direct financial
`
`interest in the creation and sale of the Infringing Games.
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`20.
`
`Upon information and belief, each of the named Defendants is connected with the
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`matters alleged herein and is liable to HAYDEN.
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`21.
`
`Upon information and belief, each Defendant was the agent, servant, employee,
`
`partner and/or joint venturer of each of the other Defendants; the acts of each Defendant were
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`within the scope of such agency, service, employment, partnership or joint venture; in committing
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`the acts and omissions alleged herein, each Defendant acted with knowledge, permission and/or
`
`consent of every other Defendant; and each Defendant aided, abetted, and/or conspired with the
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`other Defendants in the acts and omissions alleged herein.
`
`FACTUAL ALLEGATIONS
`
`22.
`
`HAYDEN is an established visual artist and lifelong resident living in this District.
`
`3
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`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 4 of 26. PageID #: 965
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`23.
`
`Among HAYDEN’s artistic creations are original tattoos for the most recognized
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`basketball players in the world. HAYDEN’S clients include superstars such as LeBron James,
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`Shaquille O’Neal, Kyrie Irving, Danny Green, Dion Waiters, Mo Williams and Tristan Thompson.
`
`24.
`
`25.
`
`26.
`
`27.
`
`HAYDEN’S tattoos are original and expressive.
`
`HAYDEN’S tattoos are reduced to a tangible medium.
`
` HAYDEN is recognized as one of the world’s most talented tattoo artists.
`
`For example, among tattoo artists around the world, the publication “Complex”
`
`named HAYDEN as one of “50 Tattoo Artists You Need to Know.” See Exhibit A, 1/05/15
`
`Article.
`
`28.
`
`In addition, HAYDEN has been commissioned to create art by some of the most
`
`successful companies in the world. For example, Nike, Inc. commission HAYDEN to create the
`
`limited edition Artist Series Nike Air Max LeBron VII sneakers, and since then, has repeatedly
`
`recognized and sought out HAYDEN’s artistic talent. See Exhibit B, 8/22/09 Article.
`
`HAYDEN’s Original Designs
`
`29.
`
`LeBron James is a star player for the Los Angeles Lakers, a former star player for
`
`the Cleveland Cavaliers, and one of the most popular NBA players of all time.
`
`30.
`
`31.
`
` Mr. James has several tattoos.
`
`Over approximately the past decade, HAYDEN has created many tattoos for
`
`LeBron James.
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`32.
`
`Danny Green is a player for the Los Angeles Lakers and a former player for the
`
`Cleveland Cavaliers.
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`33. Mr. Green also has several tattoos.
`
`4
`
`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 5 of 26. PageID #: 966
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`34.
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`Over approximately the past decade, HAYDEN has created various tattoos for Mr.
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`Green.
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`35.
`
`Tristan Thompson is a player for the Cleveland Cavaliers.
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`36. Mr. Thompson also has several tattoos.
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`37.
`
`Over approximately the past decade, HAYDEN has created various tattoos for Mr.
`
`Thompson.
`
`HAYDEN’s Works
`
`Gloria
`
`38.
`
`For example, in 2007 HAYDEN created the design below (herein the “Gloria
`
`Design”) which appears on Mr. James’s right shoulder:
`
`39.
`
`40.
`
`41.
`
`42.
`
`HAYDEN is the author of the Gloria Design.
`
`The Gloria Design is an original work of authorship by HAYDEN.
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`The Gloria Design is expressive.
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`The copyright in the Gloria Design is registered, having the Registration Number
`
`VAu 1-263-888.
`
`5
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`
`
`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 6 of 26. PageID #: 967
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`43.
`
`44.
`
`HAYDEN has not transferred the copyright to the Gloria Design.
`
`HAYDEN owns a valid and enforceable copyright in the Gloria Design.
`
`Lion
`
`45.
`
`In addition, HAYDEN created the following design that appears on Mr. James’s
`
`chest (herein the “Lion Design”):
`
`46.
`
`47.
`
`48.
`
`49.
`
`HAYDEN is the author of the Lion Design.
`
`The Lion Design is an original work of authorship by HAYDEN.
`
`The Lion Design is expressive.
`
`The copyright in the Lion Design is registered, having the Registration Number
`
`VAu 1-271-044.
`
`50.
`
`51.
`
`HAYDEN has not transferred the copyright to the Lion Design.
`
`HAYDEN owns a valid and enforceable copyright in the Lion Design.
`
`Shoulder Stars
`
`52.
`
`In addition, HAYDEN created the following design on the shoulder of Mr. James
`
`(herein the “Shoulder Stars Design”):
`
`6
`
`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 7 of 26. PageID #: 968
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`53.
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`54.
`
`55.
`
`56.
`
`HAYDEN is the author of the Shoulder Stars Design.
`
`The Shoulder Stars Design is an original work of authorship by HAYDEN.
`
`The Shoulder Stars Design is expressive.
`
`The copyright in the Shoulder Stars Design is registered, having the Registration
`
`Number VAu 1-270-802.
`
`57.
`
`58.
`
`HAYDEN has not transferred the copyright to the Shoulder Stars Design.
`
`HAYDEN owns a valid and enforceable copyright in the Shoulder Stars Design.
`
`Fire
`
`59.
`
`In addition, HAYDEN created the flames on Mr. Green in the following photograph
`
`(herein the “Fire Design”):
`
`60.
`
`61.
`
`62.
`
`HAYDEN is the author of the Fire Design.
`
`The Fire Design is an original work of authorship by HAYDEN.
`
`The Fire Design is expressive.
`
`7
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`
`
`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 8 of 26. PageID #: 969
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`63.
`
`The copyright in the Fire Design is registered, having the Registration Number VAu
`
`1-287-552.
`
`64.
`
`65.
`
`HAYDEN has not transferred the copyright to the Fire Design.
`
`HAYDEN owns a valid and enforceable copyright in the Fire Design.
`
`Scroll
`
`66.
`
`In addition, HAYDEN created the designs surrounding the scroll on Mr. Green in
`
`the following photograph (herein the “Scroll Design”):
`
`67.
`
`68.
`
`69.
`
`70.
`
`HAYDEN is the author of the Scroll Design.
`
`The Scroll Design is an original work of authorship by HAYDEN.
`
`The Scroll Design is expressive.
`
`The copyright in the Scroll Design is registered, having the Registration Number
`
`VAu 1-287-545.
`
`71.
`
`72.
`
`HAYDEN has not transferred the copyright to the Scroll Design.
`
`HAYDEN owns a valid and enforceable copyright in the Scroll Design.
`
`Brother’s Keeper
`
`73.
`
`In addition, HAYDEN created the following design on Mr. Thompson (herein the
`
`“Brother’s Keeper Design”):
`
`8
`
`
`
`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 9 of 26. PageID #: 970
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`74.
`
`75.
`
`76.
`
`77.
`
`HAYDEN is the author of the Brother’s Keeper Design.
`
`The Brother’s Keeper Design is an original work of authorship by HAYDEN.
`
`The Brother’s Keeper Design is expressive.
`
`The copyright in the Brother’s Keeper Design is registered, having the Registration
`
`Number VAu 1-292-453.
`
`78.
`
`79.
`
`HAYDEN has not transferred the copyright to the Brother’s Keeper Design.
`
`HAYDEN owns a valid and enforceable copyright in the Brother’s Keeper Design.
`
`HAYDEN’s Copyright Registrations
`
`80.
`
`HAYDEN has secured Registration No. VAu 1-263-888 for the Gloria Design,
`
`(herein the “‘888 Registration”).
`
`81.
`
`82.
`
`83.
`
`84.
`
`The ‘888 Registration has an Effective Date of Registration of September 6, 2016.
`
` The ‘888 registration certificate is attached hereto as Exhibit C.
`
`The ‘888 Registration is a valid registration.
`
`HAYDEN has secured Registration No. VAu 1-271-044 for the Lion Design,
`
`(herein the “‘044 Registration”).
`
`85.
`
`86.
`
`87.
`
`The ‘044 Registration has an Effective Date of Registration of September 6, 2016.
`
` The ‘044 registration certificate is attached hereto as Exhibit D.
`
`The ‘044 Registration is a valid registration.
`
`9
`
`
`
`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 10 of 26. PageID #: 971
`
`88.
`
`HAYDEN has secured Registration No. VAu 1-270-802 for the Shoulder Stars
`
`Design, (herein the “‘802 Registration”).
`
`89.
`
`90.
`
`91.
`
`92.
`
`The ‘802 Registration has an Effective Date of Registration of September 6, 2016.
`
` The ‘802 registration certificate is attached hereto as Exhibit E.
`
`The ‘802 Registration is a valid registration.
`
` HAYDEN has secured Registration No. VAu 1-287-552 for the Fire Design,
`
`(herein the “‘552 Registration”).
`
`93.
`
`94.
`
`95.
`
`96.
`
`The ‘552 Registration has an Effective Date of Registration of August 11, 2017.
`
` The ‘552 registration certificate is attached hereto as Exhibit F.
`
`The ‘552 Registration is a valid registration.
`
`HAYDEN has secured Registration No. VAu 1-287-545 for the Scroll Design,
`
`(herein the “‘545 Registration”).
`
`97.
`
`98.
`
`99.
`
`The ‘545 Registration has an Effective Date of Registration of August 11, 2017.
`
` The ‘545 registration certificate is attached hereto as Exhibit G.
`
`The ‘545 Registration is a valid registration.
`
`100. HAYDEN has secured Registration No. VAu 1-292-453 for the Brother’s Keeper
`
`Design, (herein the “‘453 Registration”).
`
`101.
`
`102.
`
`103.
`
`The ‘453 Registration certificate is attached hereto as Exhibit H.
`
`The ‘453 Registration is a valid registration.
`
`The works discussed in paragraphs 38 through 102 are herein collectively referred
`
`to as “HAYDEN’s Works:”
`
`10
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`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 11 of 26. PageID #: 972
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`Defendants Had Access to HAYDEN’S Works and Knew HAYDEN Was the Author
`
`104.
`
`Prior to the launch of the Infringing Games, Defendants had access to each of
`
`HAYDEN’s Works.
`
`105.
`
`Prior to the launch of the Infringing Games, Defendants knew or should have
`
`known that HAYDEN’s Works were original works of authorship.
`
`106.
`
`Prior to the launch of the Infringing Games, Defendants knew or should have
`
`known that, as original works of authorship, one or more of HAYDEN’s Works were entitled to
`
`copyright protection.
`
`107.
`
`Prior to the launch of the Infringing Games, Defendants knew or should have
`
`known that HAYDEN owned the rights to HAYDEN’s Works.
`
`108.
`
`Prior to the launch of the Infringing Games, Defendants did not seek or obtain
`
`permission from HAYDEN to use any of HAYDEN’s Works in the Infringing Games.
`
`The Infringing Games
`
`109. On or around September 29, 2015, 2K released a basketball video game titled
`
`“NBA 2K16.”
`
`110.
`
`Since September 29, 2015, NBA 2K16 has been available for sale throughout the
`
`United States, including throughout this District.
`
`111.
`
`112.
`
`LeBron James, Danny Green, and Tristan Thompson are featured in NBA 2K16.
`
`The tattoos on the LeBron James, Danny Green, and Tristan Thompson avatars
`
`that appear in NBA 2K16 are the same or substantially similar to HAYDEN’s Works.
`
`113. On information and belief, tattoos are a significant area of interest for 2K16 players.
`
`114. On social media, 2K promoted the improved tattoo customization in NBA 2K16 as
`
`a major feature in the game.
`
`11
`
`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 12 of 26. PageID #: 973
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`115.
`
`For example, 2K highlighted a tattoo customization feature in multiple tweets:
`
`12
`
`
`
`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 13 of 26. PageID #: 974
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`116.
`
`Indeed, 2K offers its players custom tattoos for purchase and promotes such sales
`
`on its social media:
`
`117. On or around September 20, 2016, 2K released another basketball video game titled
`
`“NBA 2K17.”
`
`118.
`
`Since then, NBA 2K17 has been available for sale throughout the United States,
`
`including throughout this District.
`
`119. NBA 2K17 prominently features LeBron James, Danny Green, and Tristan
`
`Thompson.
`
`120.
`
`The tattoos on the LeBron James, Danny Green, and Tristan Thompson avatars that
`
`appear in NBA 2K17 are the same or substantially similar to HAYDEN’s Works.
`
`121. On information and belief, tattoos are a significant area of interest for 2K17 players.
`
`122. NBA 2K17 includes a customizable “MyPlayer” feature that includes over 3,000
`
`customizable tattoos that can be moved, scaled, rotated, and placed on a MyPlayer player.
`
`123. NBA 2K17 features many improvements and additions over 2K’s prior basketball
`
`games. To name a few: improved graphics, new player animations, improved gameplay, new in-
`
`game commentary, and significant additions and improvements to game modes. For example,
`
`NBA 2K17 features many improvements and additions to the MyTeam, MyLeague, and MyGM
`
`modes. NBA 2K17 also features “entirely new” game features called “League Expansion.” (See
`
`Exhibit I.)
`
`13
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`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 14 of 26. PageID #: 975
`
`124.
`
`The new improvements and additions to NBA 2K17 make this game significantly
`
`different than 2K’s prior basketball games.
`
`125. On or around September 19, 2017, 2K released another basketball video game titled
`
`“NBA 2K18.”
`
`126.
`
`Since then, NBA 2K18 has been available for sale throughout the United States,
`
`including throughout this District.
`
`127. NBA 2K18 also prominently features LeBron James, Danny Green, and Tristan
`
`Thompson.
`
`128.
`
`The tattoos on the LeBron James, Danny Green, and Tristan Thompson avatars that
`
`appear in NBA 2K18 are the same or substantially similar to HAYDEN’s Works.
`
`129. Additionally, the default teams featured on the Play Now Team Select Page include
`
`the Cavaliers and, particularly, LeBron James, as illustrated below. Thus, it is even more likely
`
`that players will select and play with one or more of LeBron James and Tristan Thompson.
`
`130. NBA 2K18 includes clear, detailed, and unauthorized reproductions of HAYDEN’s
`
`Works. The improvements and additions to NBA 2K18 make this game significantly different than
`
`NBA 2K16.
`
`131. On information and belief, tattoos are a significant area of interest for 2K18 players.
`
`14
`
`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 15 of 26. PageID #: 976
`
`132. On or around September 7, 2018, 2K released another basketball video game titled
`
`“NBA 2K19.”
`
`133.
`
`Since then, NBA 2K19 has been available for sale throughout the United States,
`
`including throughout this District.
`
`134. NBA 2K19 also prominently features LeBron James, Danny Green, and Tristan
`
`Thompson avatars.
`
`135.
`
`The tattoos on the LeBron James, Danny Green, and Tristan Thompson avatars that
`
`appear in NBA 2K19 are the same or substantially similar to HAYDEN’s Works. NBA 2K19
`
`includes clear, detailed, and unauthorized reproductions of HAYDEN’s Works, as depicted below:
`
`15
`
`
`
`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 16 of 26. PageID #: 977
`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 17 of 26. PageID #: 978
`
`136.
`
`The improvements and additions to NBA 2K19 make this game significantly
`
`different than NBA 2K16.
`
`137. Upon information and belief, tattoos are a significant area of interest for 2K19
`
`players.
`
`138. During or around the first week in August 2019, Defendants began advertising for
`
`another basketball video game titled “NBA 2K20.”
`
`139. NBA 2K20 is advertised as being available for sale in the United States, including
`
`throughout this District, beginning September 6, 2019.
`
`140. Upon information and belief, NBA 2K20 will also prominently feature LeBron
`
`James, Danny Green, and Tristan Thompson avatars.
`
`141. Upon information and belief, the tattoos on the LeBron James, Danny Green, and
`
`Tristan Thompson avatars that will appear in NBA 2K20 are the same or substantially similar to
`
`HAYDEN’s Works.
`
`17
`
`
`
`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 18 of 26. PageID #: 979
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`142. Upon information and belief, the improvements and additions to NBA 2K20 make
`
`this game significantly different than NBA 2K16 and NBA 2K17.
`
`143. Upon information and belief, tattoos are a significant area of interest for 2K20
`
`players.
`
`144. Upon information and belief, in early 2019, Defendants made available a mobile
`
`application called NBA2K Mobile, which is available for download on mobile devices, such as
`
`cell phones and iPads.
`
`145. Upon information and belief, NBA2K Mobile also prominently features LeBron
`
`James, Danny Green, and Tristan Thompson avatars.
`
`146. Upon information and belief, the tattoos on the LeBron James, Danny Green, and
`
`Tristan Thompson avatars that appear in NBA2K Mobile are the same or substantially similar to
`
`HAYDEN’s Works.
`
`147. Upon information and belief, NBA2K Mobile includes clear, detailed, and
`
`unauthorized reproductions of HAYDEN’s Works
`
`148. Upon information and belief, players of NBA 2K16, NBA 2K17, NBA 2K18, NBA
`
`2K19, and NBA 2K Mobile often choose, and players of NBA 2K20 will often choose, to play
`
`with LeBron James or the Cleveland Cavaliers.
`
`149. Although Defendants knew or should have known that HAYDEN was the author
`
`and owner of each of HAYDEN’S Works, Defendants never asked or obtained permission to use,
`
`reproduce, or create derivative works based on HAYDEN’s Works in the Infringing Games. Nor
`
`has HAYDEN ever been asked or agreed to the distribution of HAYDEN’s Works in the Infringing
`
`Games, or to the use of any of his other exclusive rights.
`
`18
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`
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 19 of 26. PageID #: 980
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`Defendants’ Widespread Copying
`
`150. Defendants distribute the Infringing Games throughout the United States including
`
`in this District through several channels, including video games stores, and online retailers, such
`
`as Amazon.com.
`
`151. When a customer purchases an Infringing Game, they commonly receive a plastic
`
`case containing a plastic disc.
`
`152.
`
`Each disc contains a copy of one or more computer programs containing the
`
`instructions for the video game console (e.g., an Xbox One) to operate the game.
`
`153. One or more of the computer programs within the Infringing Games reproduce
`
`HAYDEN’s Work on the user’s screen.
`
`154.
`
`The tattoos that appear on the players in the Infringing Games are the same, or
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`substantially similar to, HAYDEN’s Works.
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`155. As such, each copy of the Infringing Games contains a copy of HAYDEN’s Works
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`and/or one or more unauthorized derivative works.
`
`156.
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`Further, each time a customer plays an Infringing Game, the computer programs on
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`the disc are loaded in the random access memory (RAM) of the customer’s video game console,
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`resulting in yet another copy and/or unauthorized derivative work of HAYDEN’s Works being
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`made each and every time an Infringing Game is played.
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`157. As the user plays the Infringing Games, the NBA players move on the screen. As
`
`the NBA players move, the display of tattoos is constantly adapted on the screen. The foregoing
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`adaptation results in the creation of derivative works of HAYDEN’s Works.
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`158.
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`The foregoing copying, distribution, and creation of derivative works of
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`HAYDEN’s Works is not authorized.
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`159. Defendants’ unauthorized copying, distribution, and creation of derivative works
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`of HAYDEN’s Works violates HAYDEN’s rights and harms HAYDEN.
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`Defendants’ Sales
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`160. Upon information and belief, each of the Defendants has received significant
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`revenues in connection with the Infringing Games.
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`161. On October 2, 2015, 2K announced that it had shipped more than four million
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`copies of NBA 2K16 within its first week of sales.
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`162.
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`2K also announced that the sales of digital downloads had more than doubled from
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`the prior year’s basketball video game.
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`163. Upon information and belief, for the second financial quarter in 2015, the quarter
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`in which 2K released NBA 2K16, TAKE-TWO’s revenue rose to $364.9 million, a 169 percent
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`increase over the same quarter of the previous year.
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`164. Upon information and belief, as of November 3, 2016, 4.5 million copies of NBA
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`2K17 were sold.
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`165. Upon information and belief, TAKE-TWO’s net revenue grew 21 percent after the
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`release of NBA 2K17 to $420 million.
`
`COUNT I
`DIRECT COPYRIGHT INFRINGEMENT
`17 U.S.C. §§ 106(5) AND 501
`
`166. HAYDEN incorporates by reference and restates each of the allegations in the
`
`preceding paragraphs of this Complaint as though fully set forth herein.
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`167. HAYDEN owns valid and enforceable copyrights in HAYDEN’s Works.
`
`168. Defendants infringed HAYDEN’s copyrights by reproducing HAYDEN’s Works,
`
`in whole or in part, without authorization from HAYDEN, in violation of 17 U.S.C. §106.
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`20
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`169. Defendants infringed HAYDEN’s copyrights by distributing copies of HAYDEN’s
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`Works, in whole or in part, without authorization from HAYDEN, in violation of 17 U.S.C. § 106.
`
`170. Defendants infringed HAYDEN’s copyrights by creating derivative works from
`
`HAYDEN’s Works without authorization from HAYDEN, in violation of 17 U.S.C. § 106.
`
`171.
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`Through their conduct averred in the previous paragraphs, Defendants have
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`knowingly and willfully infringed HAYDEN's copyrights in their works by publicly displaying
`
`HAYDEN’s Works without authorization and in violation of 17 U.S.C. §§106(5) and 501.
`
`172. Defendants knew or should have known that their conduct infringed HAYDEN’s
`
`copyrights and are thereby liable for willful infringement.
`
`173. Defendants have obtained a direct financial benefit from the foregoing infringing
`
`activities while declining or failing to exercise their right and ability to stop or limit same.
`
`174. HAYDEN is entitled to damages for Defendants’ infringement in an amount to be
`
`proven at trial, including both the actual damages suffered by HAYDEN and Defendants’ profits
`
`attributable to the infringement. See 17 U.S.C. § 504.
`
`175. Alternatively, upon election before final judgment is entered, HAYDEN is entitled
`
`to recover statutory damages. Id.
`
`176.
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`Further, Defendants’ past and continuing infringement of HAYDEN’s copyrights
`
`has caused and will continue to cause irreparable injury to HAYDEN. Unless restrained and
`
`enjoined, Defendants will continue to commit such acts of infringement. Monetary damages are
`
`not adequate to compensate HAYDEN for such inflicted and threatened injuries, entitling him to
`
`additional remedies, including temporary and permanent injunctive relief, pursuant to 17 U.S.C. §
`
`502, and an order impounding and destroying any and all infringing materials, pursuant to 17
`
`U.S.C. § 503.
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`21
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 22 of 26. PageID #: 983
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`COUNT II
`INDIRECT COPYRIGHT INFRINGEMENT
`
`177. HAYDEN incorporates by reference and restates each of the allegations in the
`
`preceding paragraphs of this Complaint as though fully set forth herein.
`
`178.
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`In addition to directly infringing HAYDEN’s copyrights, Defendants have
`
`contributorily infringed and/or are vicariously liable for infringing or inducing the infringement of
`
`HAYDEN’s exclusive rights in HAYDEN’s Works by knowingly controlling, supervising,
`
`directing, causing, encouraging, inducing and/or materially contributing to the copying or
`
`distribution of copies of or creation of derivative works of HAYDEN’s Works. For example, when
`
`Defendants market and sell the Infringing Games to customers, Defendants are vicariously or
`
`contributorily liable for the resulting direct copyright infringement by people who play the
`
`Infringing Games.
`
`179. Defendants have obtained a direct financial benefit from the foregoing infringing
`
`activities while declining or failing to exercise their right and ability to stop or limit same.
`
`180. HAYDEN is entitled to damages for Defendants’ infringement in an amount to be
`
`proven at trial, including both the actual damages suffered by HAYDEN and Defendants’ profits
`
`attributable to the infringement. See 17 U.S.C. § 504.
`
`181. Alternatively, upon election before final judgment is entered, HAYDEN is entitled
`
`to recover statutory damages. Id.
`
`182.
`
`Further, Defendants’ past and continuing infringement of HAYDEN’s copyrights
`
`has caused and will continue to cause irreparable injury to HAYDEN. Unless restrained and
`
`enjoined, Defendants will continue to commit such acts of infringement. Monetary damages are
`
`not adequate to compensate HAYDEN for such inflicted and threatened injuries, entitling him to
`
`additional remedies, including temporary and permanent injunctive relief, pursuant to 17 U.S.C. §
`
`22
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 23 of 26. PageID #: 984
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`502, and an order impounding and destroying any and all infringing materials, pursuant to 17
`
`U.S.C. § 503.
`
`WHEREFORE, HAYDEN demands that:
`
`PRAYER FOR RELIEF
`
`A. Defendants, their agents, servants, employees, attorneys, representatives, successors and
`
`assigns and all persons, firms, or corporations in active concert or participation with
`
`Defendants be enjoined and restrained preliminarily and permanently from:
`
`i.
`
`copying, distributing, publicly displaying, publicly performing, using, or creating
`
`derivative works from HAYDEN’s Works in any way, including for any purpose;
`
`ii.
`
`facilitating, enabling or inducing the copying, distributing, publicly displaying,
`
`publicly performing, using or creating of derivative works of any of HAYDEN’s
`
`Works by, for, or on behalf of, any videogame consumers;
`
`B. An order be issued impounding or destroying any and all infringing materials pursuant to
`
`17 U.S.C. § 503;
`
`C. An accounting be directed to determine Defendants’ profits resulting from its activities and
`
`that such profits be paid over to HAYDEN, increased as the Court finds to be just under
`
`the circumstances of this case;
`
`D. HAYDEN recover all damages he has sustained as a result of Defendants’ activities;
`
`E. An order be issued awarding HAYDEN punitive damages in a sum to be determined at
`
`trial;
`
`F. HAYDEN recover exemplary damages;
`
`G. HAYDEN recover maximum statutory damages pursuant to 17 U.S.C. § 504;
`
`23
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 24 of 26. PageID #: 985
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`H. HAYDEN recover from Defendants HAYDEN’s costs of this action, reasonable counsel
`
`fees, and prejudgment and post-judgment interest; and
`
`I. HAYDEN have all other and further relief as the Court may deem just and proper under
`
`the circumstances.
`
`Dated: August 19, 2019
`
`Respectfully submitted,
`
`By: /s/ Georgia E. Yanchar
`Daniel McMullen (Ohio Bar No. 0034380)
`Georgia E. Yanchar (Ohio Bar No. 0071458)
`Andrew Alexander (Ohio Bar No. 0091167)
`CALFEE, HALTER & GRISWOLD LLP
`The Calfee Building
`1405 East Sixth Street
`Cleveland, Ohio 44114-1607
`Telephone: (216) 622-8200
`Facsimile: (216) 241-0816
`E-mail: dmcmullen@calfee.com
`gyanchar@calfee.com
`aalexander@calfee.com
`
`Of Counsel
`
`Kimberly A. Pinter (Ohio Bar No. 0084277)
`CALFEE, HALTER & GRISWOLD LLP
`The Calfee Building
`1405 East Sixth Street
`Cleveland, Ohio 44114-1607
`Telephone: (216) 622-8200
`Facsimile: (216) 241-0816
`E-mail: kpinter@calfee.com
`
`24
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 25 of 26. PageID #: 986
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`PLAINTIFF’S DEMAND FOR JURY TRIAL
`
`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands
`
`a jury trial.
`
`Dated: August 19, 2019
`
`Respectfully submitted,
`
`By: /s/ Georgia E. Yanchar
`Daniel McMullen (Ohio Bar No. 0034380)
`Georgia E. Yanchar (Ohio Bar No. 0071458)
`Andrew Alexander (Ohio Bar No. 0091167)
`CALFEE, HALTER & GRISWOLD LLP
`The Calfee Building
`1405 East Sixth Street
`Cleveland, Ohio 44114-1607
`Telephone: (216) 622-8200
`Facsimile: (216) 241-0816
`E-mail: dmcmullen@calfee.com
`gyanchar@calfee.com
`aalexander@calfee.com
`
`Of Counsel
`
`Kimberly A. Pinter (Ohio Bar No. 0084277)
`CALFEE, HALTER & GRISWOLD LLP
`The Calfee Building
`1405 East Sixth Street
`Cleveland, Ohio 44114-1607
`Telephone: (216) 622-8200
`Facsimile: (216) 241-0816
`E-mail: kpinter@calfee.com
`
`25
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`Case: 1:17-cv-02635-CAB Doc #: 33 Filed: 08/19/19 26 of 26. PageID #: 987
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 19, 2019, a copy of the foregoing was filed electronically.
`
`Notice of this filing was sent by operation of the Court’s electronic filing system to all parties
`
`indicated on the electronic filing receipt, and parties may access this filing through the Court’s
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`system.
`
`Dated: August 19, 2019
`
`/s/ Georgia E. Yanchar
`One of the attorneys for Plaintiff
`
`26
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`