Case 2:21-cv-00176-JRG Document 1 Filed 05/20/21 Page 1 of 13 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No.: __________________
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`WALTER L. LOWE, JR.,
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` Plaintiff,
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` v.
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`WARNER MEDIA LLC, WARNER
`BROS. ENTERTAINMENT INC., WB
`STUDIO ENTERPRISES, INC.,
`WARNER BROS. ANIMATION,
`HOME BOX OFFICE, INC., REDBOX
`AUTOMATED RETAIL LLC,
`AMAZON.COM, INC., WALMART,
`INC., and BEST BUY CO., INC.,
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` Defendants.
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`COMPLAINT AND
`DEMAND FOR JURY TRIAL
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`This is a civil action for damages and injunctive relief in which it is alleged Defendants
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`Warner Media LLC, Warner Bros. Entertainment Inc., WB Studio Enterprises, Inc., Warner Bros.
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`Animation (altogether, “Warner Bros.” or the “Warner Bros. Defendants”), Home Box Office,
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`Inc., Redbox Automated Retail LLC, Amazon.com, Inc., Walmart, Inc., and Best Buy Co. Inc.,
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`have committed, and continue to commit, copyright infringement in violation of the Copyright Act
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`(17 U.S.C. § 101 et. seq.) in connection with their unauthorized exploitation of a motion picture
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`entitled Space Jam, which is derived from Plaintiff’s copyrighted work, “The Devil and Doodazzle
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`Dakins” (the “Story” or “Work”). This Court has subject matter jurisdiction pursuant to 28 U.S.C.
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`§§ 1331, 1338(a), and 17 U.S.C. § 501(b). Plaintiff states and alleges, on personal knowledge as
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`to himself and information and belief as to others, as follows:
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`INTRODUCTION
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`1.
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`Plaintiff Walter L. Lowe, Jr. (“Lowe”) is the author and copyright holder of “The
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`Devil and Doodazzle Dakins”, a fictional short story that was published in Playboy magazine April
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`of 1984. On April 17, 1989, Lowe received a copyright registration for “The Devil and Doodazzle
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`Dakins”. The copyright registration number is V2453P022. Attached as Exhibit 1 is a true and
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`correct copy of “The Devil and Doodazzle Dakins” (the “Story” or “Work”).
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`2.
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`Lowe is a native Chicagoan who had a 21-year career in newspaper and magazine
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`journalism that began in 1971 at the Chicago Sun-Times. He is among the first full-time African
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`American reporters at the Chicago-Sun Times and he is the first African American editor to join
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`Playboy.
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`3.
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`Lowe received his Master’s Degree in Marriage and Family Therapy (“MFT”) from
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`Purdue Calumet University, after his career in journalism, and his Ph.D. in MFT from Purdue
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`University, West Lafayette. The Purdue MFT graduate program was considered the best in the
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`country—the “Harvard” of MFT programs. At the time of his graduation, Lowe was the only
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`African American male to graduate from the Purdue MFT program in its more than 50-year history.
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`Lowe received his Ph.D. when he was 60, before taking his professorship at Antioch University
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`New England. He is passionate about social justice causes, and writing (both fiction and essays) is
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`one of Dr. Lowe’s favorite hobbies.
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`4.
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`Lowe spent significant time with James Baldwin on the Atlanta Child Murders,
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`which culminated in “The Evidence of Things Not Seen”, an essay that was written by Baldwin
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`and edited by Lowe and that won Playboy’s award for the Best Essay of the Year. Lowe is also
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`the winner of Playboy’s Article of the Year Award for his 1980 article, “Bad Dreams in the Future
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`Tense”. His work made him a presence in African American artistic and social justice circles. That
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`work included interviews with the literary and civil rights giants in African American history,
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`including Alex Haley (author of Roots), two-time Pulitzer Prize winning playwright August
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`Wilson, Chicago’s first Black Mayor, Harold Washington, and Ralph Ellison, author of the
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`National Book Award winning novel, Invisible Man. He also brought international attention to the
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`work of Ernie Barnes, who is today one of the most famous and recognized African American
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`visual artists of the 20th century.
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`5.
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`At Lowe’s insistence, Playboy commissioned Ernie Barnes to illustrate the Story
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`as well as two other of Lowe’s short stories published in Playboy (“Galahad”, 1978, “An Ounce
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`of Luck”, 1989). Mr. Barnes was the first African American illustrator used by Playboy. Mr.
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`Barnes, whose achievements include being named the Official Artist of the 1984 Olympics, later
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`thanked Lowe for bringing him on at Playboy—acknowledging the exposure to being chosen as
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`the “first Sport Artist of
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`the Year” ((http://www.asama.org/awards-of-sport/medallion-
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`series/sport-artist-of-the-year/ernie-barnes/).
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`6.
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`Lowe’s short stories (including the Story) were the first submissions from an
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`African American author that Playboy elected to publish, and he may be the only African American
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`author who had 4 stories selected for publication by Playboy.
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`7.
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`The Story describes a “cosmic duel of good [as represented by angels] and evil [as
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`represented by demons, including Lucifer].” But rather than traditional elements of combat and
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`the associated horrors, a game of “astral basketball” is used to decide the fate of mankind. On
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`information and belief, the Story reflects the first instance where a basketball game is used to
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`decide the fate of mankind’s soul.
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`8.
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`The games use “a luminous transparent sphere” as the ball, and the face of the
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`person whose fate is to be decided by a given shot would be reflected in the sphere, and the astral
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`players absorbed the skills of human basketball players.
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`9.
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`The Story goes on to describe “a tall, lanky, dark-brown figure wearing the colors
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`of the Chicago Bulls.” This player, a young African American athlete named Danny Doodazzle
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`Dakins, is able to dribble down-court “through a full-court press applied by the Boston Celtics”,
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`weaving “through the defenders with a nifty combination of dribbling techniques. Then, as he
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`approached the basket, he soared into the air like a black falcon, arms outspread, the ball held
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`firmly in his right hand”, and sinking the shot after drawing an “ill-timed leap” from the defender.
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`By the end of the Bulls v. Celtics game, Dakins had scored 48 points and won the game, including
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`a shot where he “leap[ed] over [Larry] Bird’s outstretched arms, dumping the shot and Bird in one
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`motion.” His game-winning shot at the buzzer “left Celtics forward Larry Bird sprawled on the
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`floor.”
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`10. With the benefit of hindsight, it is easy to think Doodazzle Dakins was based on
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`Michael Jordan—one of the most dominant players in the history of the National Basketball
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`Association. But that association would be an invention. The Story was published April of 1984,
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`approximately 2 months before Jordan was drafted by the Bulls. The Dakins character could not
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`have been based on Mr. Jordan. It is a work of pure fiction, and the description of him—along with
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`the rest of the Story—reflect an original Work.
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`11.
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`As told in the Story, the devils (and Lucifer in particular) wanted Dakins’ basketball
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`playing abilities. Dakins, on the other hand, wanted to save the soul of a character under Lucifer’s
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`control. To settle this dispute, Dakins challenged Lucifer to a basketball game and Lucifer
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`accepted. If Lucifer won, Dakins’ soul would have headed for hell, and Lucifer would absorb
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`Dakins’ basketball abilities; if Dakins won, he would have saved the soul of Yvonne Brown, who
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`was under Lucifer’s control. Nothing in the Story compelled Dakins to risk his soul for another.
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`But under Lowe’s direction, Dakins chose to put himself on the line for the greater good.
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`12.
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`Lowe is a Native Chicagoan. Many of the references he makes in the Story (Soul
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`Queen restaurant, Belmont towers, and the Chicago Bulls) have personal significance to him as an
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`African American man that was born and raised in Chicago. His Story, which incorporated his
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`personal background, and the illustration by Mr. Barnes made the Story a significant work for the
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`Black arts community, especially in the Chicago and Los Angeles areas (Barnes’ home).
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`13.
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`After the publication of the Story Messrs. Timothy Harris (“Harris”) and Herschel
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`Weingrod (“Weingrod”) approached Lowe to option the movie rights for the Story. They reached
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`Lowe on a weekend evening, by phone, at his home.
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`14.
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`Both Harris and Weingrod were on the initial call. They introduced themselves as
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`the writers for the movie Trading Places and expressed interest in optioning the Story for a
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`screenplay. In particular, Harris and Weingrod explained that Eddie Murphy, the star in Trading
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`Places, was interested in making another movie and they thought the Story would be a good fit.
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`15.
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`Harris and Weingrod twice optioned the movie rights for the Story. Each option
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`period was for 6 months, and Lowe was paid approximately $3,000 for each option.
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`16.
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`Harris and Weingrod later explained that Eddie Murphy decided to make a movie
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`called Beverly Hills Cop, and was not presently available to take on the Story as another project.
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`After the options expired, Lowe did not hear from Harris or Weingrod again.
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`17.
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`One or more of the Warner Defendants later made, released and distributed Space
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`Jam, a movie starring Michael Jordan and characters from Looney Tunes. Defendants have
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`profited and continue to profit from the copyright infringement of the Story.
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`18.
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`19.
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`The screenplay for Space Jam was written, among others, by Harris and Weingrod.
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`As in the Story, Space Jam focuses on a battle between the forces of good (Looney
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`Tunes) and evil (the Monstars); and as in the Story, that battle is resolved over a game of basketball.
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`20.
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`In both the Story and Space Jam, a luminous/glowing basketball is used. The glow
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`represents the soul of basketball players in the Story, and the powers of basketball players in Space
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`Jam. It is through the luminous/glowing basketball that the astral players in Space Jam absorb the
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`powers of professional basketball players—as did the astral players in the Story. In the Story, the
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`glow in the basketball represented the fate of a soul; in Space Jam, the basketball-playing abilities
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`of NBA stars. And in both the Story and Space Jam, a basketball player’s skills are absorbed before
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`that player dies.
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`21.
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`In both the Story and Space Jam, the basketball game is played on a court that is
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`not on earth.
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`22.
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`As with the Dakins character in the Story, Space Jam featured an African American
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`basketball player that played for the Chicago Bulls (Michael Jordan), and that dominated the
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`league.
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`23.
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`In the Story Dakins’ on-court prowess resulted in his opponent (Larry Bird) being
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`sprawled on the floor. This too was featured in Space Jam’s final sequence during Jordan’s game-
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`deciding shot, where a Monstar laid sprawled on the floor. And in that same sequence, Jordan
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`“soared into the air like a black falcon, arms outspread, the ball held firmly in his right hand”—
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`just like Dakins in the Story.
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`24.
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`In both the Story and Space Jam, the lead character (Dakins and Jordan,
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`respectively) placed his soul / freedom on the line in a bet with the forces of evil. In both, the lead
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`character had nothing to gain personally from the bet. And the stakes were similar in both, the lead
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`character’s soul / freedom.
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`25.
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`Although Space Jam is largely a cartoon movie that presumably targeted kids, the
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`movie made sure the Swackhammer character evoked images of the devil. His saliva was acid, his
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`grin “malevolent,” his laugh “wicked,” and his description of Jordan’s fate is a depiction of hell—
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`complete with ball and chain. In addition, although his minions were initially cuddly and miniature
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`creatures, they took on the appearance and abilities of demons once they absorbed the powers of
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`basketball players. In the final scene of the Story, Lucifer “cursed” and exploded in a black cloud
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`of acrid smoke, and Space Jam depicts Swackhammer being stuffed into a cartoon rocket and sent
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`deep into space. These too are elements that were copied from the Story.
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`PARTIES
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`26.
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`Plaintiff Walter L. Lowe, Jr. is an individual residing in Keene, New Hampshire.
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`He is the present owner of the copyrighted written work (the Story) which is the subject of this
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`action.
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`27.
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`Upon information and belief, Defendant Warner Media LLC is organized under the
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`laws of the state of Delaware with its headquarters located in New York, New York. Defendant
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`Warner Media LLC is a subsidiary of AT&T Inc.
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`28.
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`Upon information and belief, Defendant Warner Bros. Entertainment Inc. is
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`organized under the laws of the state of Delaware with its headquarters in Burbank, California.
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`Warner Bros. Entertainment Inc. is a subsidiary of Warner Media LLC.
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`29.
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`Upon information and belief, Defendant WB Studio Enterprises Inc. is organized
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`under the laws of the state of Delaware with its headquarters in Burbank, California. WB Studio
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`Enterprises Inc. is a subsidiary of Warner Bros. Entertainment Inc. and, upon information and
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`belief, contains the Warner Bros. Pictures division.
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`30.
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`Upon information and belief, Defendant Warner Bros. Animation Inc. is organized
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`under the laws of the state of Delaware with its headquarters in Burbank, California. Warner Bros.
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`Animation Inc. is a subsidiary of Warner Bros. Entertainment Inc.
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`31.
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`Upon information and belief, Defendant Home Box Office Inc. is organized under
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`the laws of the state of Delaware with its headquarters in New York, New York. Home Box Office
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`Inc. is a subsidiary of Warner Media LLC.
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`32.
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`Upon information and belief, Defendant Redbox Automated Retail LLC is
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`organized under the laws of the state of Delaware with its headquarters in Oakbrook Terrace,
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`Illinois. Redbox Automated Retail LLC is a subsidiary of Coinstar, Inc.
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`33.
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`Upon information and belief, Defendant Amazon.com, Inc. is organized under the
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`laws of the state of Delaware with its headquarters in Seattle, Washington.
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`34.
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`Upon information and belief, Defendant Walmart, Inc. is organized under the laws
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`of the state of Delaware with its headquarters in Bentonville, Arkansas.
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`35.
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`Upon information and belief, Defendant Best Buy Co., Inc. is organized under the
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`laws of Minnesota with its headquarters in Richfield, Minnesota.
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`JURISDICTION & VENUE
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`36.
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`This Court has subject matter jurisdiction over this Complaint pursuant to 28 U.S.C.
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`§§ 1331, 1338(a), and 17 U.S.C. § 501(b).
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`37.
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`This Court has personal jurisdiction over Defendants. Defendants have committed
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`copyright infringement within Texas and caused injuries in this State. Defendants have transacted
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`business directly with Texas consumers and through resellers that operate in Texas. Defendants
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`have continuous and systematic contacts with the state of Texas. Such minimum contacts have
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`included targeting movie watchers and subscribers in Texas, selling copies of the infringing work
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`in Texas, as well as public performance of Space Jam to consumers in Texas.
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`38.
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`The cause of action in this lawsuit arises out of Defendants’ contacts with Texas.
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`Personal jurisdiction over the non-resident Defendants is proper because this lawsuit arises from
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`and relates to the purposeful acts of the non-resident Defendants directed to the forum state. Each
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`Defendant has invoked the rights, benefits and privileges of Texas law.
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`39.
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`The assumption of jurisdiction by this Court over the non-resident Defendants does
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`not offend traditional notions of fair play and substantial justice.
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`40.
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`Venue is proper under 28 U.S.C. §§ 1391(b) and (c) and 1400(a) because all
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`Defendants are subject to personal jurisdiction in this District and can be found here.
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`BACKGROUND FACTS
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`41. Walter L. Lowe, Jr. authored the short story at issue in this Complaint, “The Devil
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`and Doodazzle Dakins”, which was originally published in Playboy Magazine in April of 1984.
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`Lowe was an editor for Playboy at the time.
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`42.
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`Lowe registered the work with the United States Copyright Office and obtained the
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`registration number V2453P022 on April 17, 1989.
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`43.
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`Lowe received a phone call from screenwriters Tim Harris and Herschel Weingrod
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`seeking to discuss a possible motion-picture adaptation of the Story. Harris and Weingrod
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`explained the idea of having Eddie Murphy play Danny Dakins, the lead character in the Story.
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`Lowe and Harris and Weingrod then executed two successive option agreements, each for six
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`months, where Lowe was paid approximately $3,000 per agreement. The option agreements were
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`never exercised, and Lowe did not hear from the screenwriters from that point forward.
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`44.
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`In November of 1996, Warner Bros. released its newest production, Space Jam,
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`which is an unauthorized derivative work of the Story, as explained in the Introduction above.
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`Space Jam’s screenwriters included, among others, Tim Harris and Herschel Weingrod. Space
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`Jam was an immediate box-office hit. Since its original release, the Warner Bros. Defendants have
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`widely distributed Space Jam through VHS cassettes, DVDs, and Blu-ray through traditional
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`retailers such as Walmart and Best Buy, and, more recently, have made the film available for
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`viewing on Video On Demand (“VOD”) streaming platforms such as Amazon Prime Video,
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`Redbox, and HBO Max.
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`45.
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`Harris and Weingrod’s knowing and willful copy and misappropriation of the Story
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`were done on behalf of and imputable to the Warner Bros. Defendants. The Warner Bros.
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`Defendants knowingly and willfully infringed Lowe’s registered copyright by writing, producing,
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`and releasing an unauthorized derivative of Lowe’s original work. Their infringement began
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`decades ago and continues today through, inter alia, Warner Bros.’ persistent marketing of Space
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`Jam, licensing of the infringing work to streaming platforms, and other widespread distribution of
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`the unauthorized derivative. Moreover, Warner Bros. has even begun marketing its sequel to Space
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`Jam, Space Jam 2: A New Legacy, set to release in July of 2021.
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`46.
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`Additionally, the remaining Defendants, Home Box Office, Inc., Redbox
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`Automated Retail LLC, and Amazon.com Inc. (altogether, the “VOD Defendants”) as well as
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`Walmart Inc. and Best Buy Co., Inc. infringe Lowe’s exclusive reproduction and public
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`performance rights by offering Space Jam through their VOD platforms and retail stores. With
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`respect to the VOD Defendants, customers either (1) purchase subscriptions to the VOD platforms
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`whereby video content is made available to them after paying a subscription fee, or (2) customers
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`can elect to purchase or rent a particular film or item on a per-item basis.
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`47.
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`None of the Defendants have ever obtained a license for the exclusive rights held
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`by Lowe for the Story.
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`COUNT I – COPYRIGHT INFRINGEMENT
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`Lowe re-alleges and incorporates by reference Paragraphs 1-47 as if fully set forth
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`48.
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`herein.
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`49.
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`Plaintiff is the owner of all rights, titles, and interests, including the copyrights, in
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`and to “The Devil and Doodazzle Dakins”.
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`50.
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`Plaintiff has the exclusive right to prepare derivative works based upon the
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`copyrighted Story.
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`51.
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`By their production and release of Space Jam, a motion picture based on and
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`derived from Plaintiff’s Story, as well as their subsequent licensing of the same, the Warner Bros.
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`Defendants knowingly and willfully infringed, and continue to infringe, Plaintiff’s protected rights
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`of distribution, reproduction and the right to authorize derivative works.
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`52.
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`Additionally, Defendants Home Box Office, Inc., Redbox Automated Retail LLC,
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`Amazon.com, Inc., Walmart, Inc., and Best Buy Co., Inc. likewise directly infringe Plaintiff’s
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`protected rights of performance, distribution, and reproduction.
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`53.
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`At no time has Plaintiff authorized any Defendant to create, release, produce, or
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`distribute derivative works or otherwise exploit all or any portion of the Story in connection with
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`the copying, sale, distribution, or display of Space Jam.
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`54.
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`Plaintiff placed Defendants on notice of his copyright by registering his work with
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`the United States Copyright Office. At least the Warner Bros. Defendants were actually aware of
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`Plaintiff’s copyrighted work as is evidenced by the multiple option agreements entered into
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`between Plaintiff and Messrs. Harris and Weingrod (the screenwriters for Space Jam) for a
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`possible motion-picture adaptation.
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`55.
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`As a direct and proximate result of Defendants’ copyright infringement, Plaintiff
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`has suffered, and will continue to suffer, severe financial harm, much of which cannot be
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`reasonably or adequately measured or compensated in money damages and certainly if such
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`wrongful conduct is allowed to continue unabated. Plaintiff’s damages include, but are not limited
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`to, injury to his reputation as an author and diminution of the value of his intellectual property.
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`56.
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`Pursuant to 17 U.S.C. § 502, Plaintiff is entitled to a preliminary injunction during
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`the pendency of this action and to a permanent injunction enjoining Defendants, their officers,
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`agents, and employees, and all persons acting in concert with them, from engaging in such further
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`violations of the Copyright Act.
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`57.
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`Plaintiff is further entitled to recover from Defendants the damages sustained as a
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`direct and proximate result of Defendants’ acts of copyright infringement within the limitations
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`period prescribed by law. Plaintiff is at present unable to ascertain the full extent of the monetary
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`damages he has suffered by reason of Defendants’ act of copyright infringement, but Plaintiff is
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`informed and believes, and on the basis of such information and belief alleges, that Plaintiff has
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`sustained such damage in amount to be proven at trial.
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`58.
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`Plaintiff is further entitled to recover from Defendants the gains, profits, and
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`advantages they have obtained as a result of Defendants’ acts of copyright infringement. Plaintiff
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`is at present unable to ascertain the full extent of the gains, profits and advantages Defendants have
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`obtained by reason of their acts of copyright infringement, but Plaintiff is informed and believes,
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`and on the basis of such information and belief alleges, that Defendants have obtained such gains,
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`profits, and advantages in an amount to be proven at trial.
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`JURY DEMAND
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`59.
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`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands a
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`trial by jury on all issues triable as such.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff Lowe prays for judgment against Defendants as follows:
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`a.
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`An adjudication that one or more Defendants have infringed Plaintiff’s
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`copyright;
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`b.
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`An adjudication that one or more Defendants have infringed Plaintiff’s
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`copyright willfully and any associated enhanced damages;
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`c.
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`An award of damages to Plaintiff to be proven at trial for Defendants’
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`copyright infringement;
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`d.
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`For attorneys’ fees and costs pursuant to Section 505 of the Copyright Act
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`e.
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`f.
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`of 1976, 17 U.S.C. § 505;
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`Prejudgment interest;
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`For interim and permanent injunctive relief restraining future violations of
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`Plaintiff’s copyrights; and
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`g.
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`For such other and further relief as the Court deems just and appropriate.
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`Dated: May 20, 2021
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`
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`
`
`
`/s/ Li Chen
`Li Chen
`State Bar No. 24001142
`Nicole Burleson
`State Bar No. 24116148
`CHEN LEFTWICH LLP
`Office: 214.627.9950
`Fax: 214.627.9960
`lchen@chenleftwich.com
`nburleson@chenleftwich.com
`
`ATTORNEYS FOR PLAINTIFF WALTER
`L. LOWE, JR.
`
`