anthony@mcnamerlaw.com MCNAMER AND COMPANY P.c. 920 S.W. Third Avenue, Suite 100 Portland, Oregon 97204 Telephone: (503) 727-2500 Facsimile: (503) 727-2501 Attorneys for Plaintiffs Fl LED22 FEB J 12 IN THE UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION SIMON TAM, an individual, and AARON MOXLEY, an individual, Case No. CV '12 - 031 2 - HU PLAINTIFFS, PLAINTIFFS' COMPLAINT FOR COPYRIGHT INFRINGEMENT v. 17 U.S.c. 101 et seq. NAMCO BANDAI GAMES AMERICA INC., a Delaware corporation, NAMCO AND DEMAND FOR JURY TRIAL BANDAI HOLDINGS (USA) INC., a Delaware corporation, and TOEI ANIMATION INCORPORATED, a California corporation, DEFENDANTS. COMPLAINT Plaintiffs Simon Tam and Aaron Moxley for their complaint against defendants NAMCO BANDAl Games America Inc., BANDAl Holdings (USA) Inc., and TOEI Animation Incorporated allege as follows: Page 1- PLAINTIFFS' COMPLAINT MCNAMER AND COMPANY P.c. 920 S.W. Third Avenue' Suite 100 Portland, Oregon 97204 . (503) 7272500 Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 1 of 5 Page ID#: 1 1 THE PARTIES 1. Plaintiffs Simon Tam and Aaron Moxley (collectively hereinafter "Plaintiffs") are individuals residing in Portland, Oregon and performing as the musical group The Slants. 2. Defendant NAMCQ BANDAI Games America Inc. is a Delaware corporation with offices in San Jose, California. 3. Defendant NAMCO BANDA! HOLDINGS (USA) INC. is a Delaware corporation with offices in Cypress, California. 4. Defendant TOE! Animation Incorporated is a California corporation with offices in Los Angeles, California. .JURISDICTION AND VENUE 5. This is a civil action seeking damages and injunctive relief for copyright infringement under the Copyright Act, 17 U.S.c. 101 et seq., and for state law claims. 6. This Court has original subject matter jurisdiction pursuant to 28 U.S.c. 1331 and 1338(a) and supplemental jurisdiction pursuant to 28 U.S.c. 1367. The Court has pendant jurisdiction over the state law claims in that such claims flow from a common nucleus of operative facts. 7. Venue is proper in this District pursuant to 28 U.S.c. 1391(b), (c) and (d) and 1400(a), in that all Defendants reside for venue purposes in this District, and are subject to personal jurisdiction in this District, and that a substantial part of the events giving rise to this claim occurred in this District. GENERAL ALLEGATIONS 8. Plaintiffs are a popular musical group who perform locally and throughout the United States as The Slants. Plaintiffs are also very well known in the anime community and have performed and participated at various anime conferences on panels with representatives of each of the Defendants. Page 2 - PLAINTIFFS' COMPLAINT MCNAMER AND COMPANY P.C. 920 S.W. Third Avenue' Suite 100 Portland, Oregon 97204' (503) 727-2500 Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 2 of 5 Page ID#: 2 9. In 2007, Plaintiffs authored a song entitled "Kokoro," which consists of wholly original copyrightable matter under the law of the United States. A claim of copyright in the musical composition for "Kokoro" was registered and recorded in favor of Plaintiffs. The copyright registration for "Kokoro" (among other works) is dated January 26, 2009 and identified as follows: Slanted Eyes, Slanted Hearts, Registration No. PA0001639886. The copyright is for music. A true and correct copy of the relevant copyright office record is attached hereto as Exhibit A. 10. In or about 2011, Defendants released the video game Dragon Ball Z Ultimate Tenkaichi for PS3 and Xbox 360 players (hereinafter "Dragon Ball Z"). Dragon Ball Z is based upon one of the most successful anime series and manga series of all time "Dragon Ball," which has spawned a multitude of merchandise and products, including the above-referenced game. 11. Soon after Dragon Ball Z's release, Plaintiffs' fans began alerting Plaintiffs to the fact that Dragon Ball Z uses music substantially similar to Plaintiffs' copyrighted song "Kokoro." Indeed upon investigation, it appears that Defendants used the main riff of "Kokoro" in its entirety in Dragon Ball Z. 12. Defendants have copied, created a derivative sound recording of, and publicly performed Plaintiffs' copyrighted work "Kokoro," without any right or license therefore. CLAIM FOR RELIEF Direct Copyright Infringement - All Defendants 13. Plaintiffs incorporate by reference each of the allegations in the preceding paragraphs of the Complaint as though fully set forth here. 14. Defendants, without Plaintiffs' consent or permission, and without authority: i) made, have caused to be made, and have purported to authorize the making of copies of the Plaintiffs' copyrighted work; ii) made, have caused to be made, and purported to authorize the making of unauthorized derivative works of Plaintiffs' copyrighted work; iii) publicly performed and purported to authorize the public performance of Plaintiffs' copyrighted work; and iv) made, have caused to be made, and purported to authorize the making of a synchronization of Page 3 - PLAINTIFFS' COMPlAINT MCNAMER AND COMPANY P.C. 920 S. W. Third Avenue Suite 100 Portland, Oregon 97204' (503) 727-2500 Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 3 of 5 Page ID#: 3 Plaintiffs' copyrighted work with an animated sequence in Dragon Ball Z. Defendants' conduct constitutes direct infringement of Plaintiffs' exclusive rights under 17 U.S.c. 106. 15. Defendants' acts of infringement have been negligent and/or intentional, purposeful, willful, and in disregard of Plaintiffs' rights. 16. Pursuant to 17 U.S.c. 504(c), Plaintiffs are entitled to statutory damages for willful infringement in the amount of $150,000 17. Alternativel y, as a direct and proximate result of Defendants' infringement of Plaintiffs' copyright and exclusive rights under the Copyright Act, Plaintiffs are entitled, pursuant to 17 U.S.c. 504, to their actual damages including lost profits, plus Defendants' profits from infringement, in an amount to be proven at trial. 18. Defendants' conduct is causing and, unless enjoined by this Court, will continue to cause Plaintiffs significant and irreparable injury that cannot be fully compensated or measured in monetary terms. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.c. 502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ reasonable methods to prevent or limit infringement of Plaintiffs' copyrights. 19. Pursuant to 17 U.S.c. 505, Plaintiffs are also entitled to their costs and attorneys' fees. PRAYER WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as follows: A. For a declaration that Defendants have infringed Plaintiffs' copyrights; B. For a preliminary and permanent injunction, pursuant to 17 U.S.c. 502, requiring that Defendants, their officers, agents, attorneys, servants, employees, partners, and assigns, and those acting in active concert or participation with any of them, cease directly or indirectly infringing, or causing, enabling, facilitating, promoting, encouraging and inducing, or participating in the infringement of, any of Plaintiffs' rights protected under the Copyright Act, whether now in existence or hereafter created; C. For statutory damages, pursuant 17 U.S.c. 504(c), in the amount of $150,000; Page 4 - PLAINTIFFS' COMPLAINT MCNAMER AND COMPANY P.e. 920 S.W. Third Avenue' Suite 100 Portland, Oregon 97204 . (503) 7272500 Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 4 of 5 Page ID#: 4 D. Alternatively, for actual damages, pursuant to 17 U.S.c. 504, including lost profits, plus Defendants' profits from infringement, as will be proven at trial; E. For recovery of costs and attorneys' fees pursuant to 17 U.S.c. 505; F. For restitution and disgorgement; G. For compensatory and punitive damages; H. For pre- and post-judgment interest according to law; and I. For such other and further relief as the Court deems just and proper. DEMAND FOR .JURY TRIAL Plaintiffs hereby demand a trial by jury of all issues so triable. DATED: February 17, 2012 _tt-t----t1hcmANY P.C. By ______~ ~ - - - - - - ~ ~ - - - - - - - - - - - - - - - - - Anthony . McNamer, OSB #00138 Deborah Gumm, OSB#040646 MCNAM AND COMPANY P.e. 920 SW Third Avenue, Suite 100 Portland, Oregon 97204 Telephone: (503) 727-2500 Facsimile: (503) 727-2501 Attorneys for Plaintiffs Page 5 - PLAINTIFFS' COMPLAINT MCNAMER AND COMPANY P.C. 920 S.W. Third Avenue' Suite 100 Portland, Oregon 97204' (503) 727-2500 Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 5 of 5 Page ID#: 5