Court File No.

FEDERAL COURT
BETWEEN: EMIL M A L A K Plaintiff -andJAMES CAMERON, TWENTIETH CENTURY FOX FILM CORPORATION, DUNE ENTERTAINMENT III LLC, INGENIOUS FILM PARTNERS LLP, INGENIOUS FILM PARTNERS 2 LLP, FUTURE SERVICE, INC., and LIGHTSTORM ENTERTAINMENT INC. Defendants

STATEMENT OF CLAIM TO THE DEFENDANTS

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are required to prepare a statement of defence in Form 17 IB prescribed by the Federal Courts Rules serve it on the plaintiffs solicitor or, where the plaintiff does not have a solicitor, serve it on the plaintiff, and file it, with proof of service, at a local office of this Court, WITHIN 30 DAYS after this statement of claim is served on you, i f you are served within Canada. I f you are served in the United States of America, the period for serving and filing your statement of defence is forty days. I f you are served outside Canada and the United States of America, the period for serving and filing your statement of defence is sixty days. Copies of the Federal Court Rules information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office. IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against you in your absence and without further notice to you.

MAR 01 2012
Date:

Address of local office: Pacific Centre P.O. Box 10065 701 West Georgia Street Vancouver, British Columbia V7Y 1B6

AMANDA DUNN REGISTRY OFFICER AGENT DU GREFFE

TO:

James Cameron 3201 Retreat Ct Malibu, CA 90265 USA Twentieth Century Fox Film Corporation 10201 West Pico Boulevard Los Angeles, California 90035 USA Dune Entertainment III L L C 5851 W. Charleston Blvd. Las Vegas, N V 89146 USA Ingenious Film Partners L L P 15 Golden Sq. London, UK W1F 9JG Ingenious Film Partners 2 L L P 12 New Fetter Lane London, U K EC4A 1AG Future Service, Inc. C/o Stacy Grossman 1211 Avenue of the Americas New York, New York 10036 USA Lightstorm Entertainment Inc. 919 Santa Monica Blvd. Santa Monica, CA 90401 USA

CLAIM
The plaintiff claims: a. A declaration that copyright subsists in Terra Incognita as defined herein and such copyright has been infringed by the Defendants by the Defendants' substantially reproducing, adapting, publicly presenting, distributing for sale, or in the alternative authorizing such acts, by the cinematographic work entitled Avatar, pursuant to sections 27 and 28 of the Copyright Act, R.S.C. 1985, c. C-42 (the "Act"); From the Defendant Mr. James Cameron an equitable tracing and disgorgement of the proceeds attributed to Mr. Cameron's wrongful activities into his assets, property and interest; An interim, interlocutory and permanent injunction to restrain the Defendants from: i. Infringing the Plaintiffs copyright in Terra Incognita, including the Plaintiffs exclusive right to reproduce same; Reproducing any of Terra Incognita or any substantial part of any of Terra Incognita in any material form including in Avatar or any sequels to Avatar, except as expressly permitted by the Act; Authorizing reproduction of any of Terra Incognita or Avatar or any substantial part of any of Terra Incognita or Avatar in any material form, except as expressly permitted by the Act;

b.

c.

ii.

iii.

iv. Distributing unauthorized copies of any of Terra Incognita, whether it be in the publication of Avatar or otherwise; d. The Plaintiffs election of either the Plaintiffs damages and a disgorgement of the Defendants' profits arising from the Defendants' infringing activities or alternatively, statutory damages; Damages against the Defendants James Cameron, Lightstorm Entertainment Inc. and Twentieth Century Fox Film Corporation, jointly and severally, for spoliation of evidence and in particular, of all original documents pertaining to the creation of the Avatar scriptment; The Plaintiffs costs of this action on a solicitor and client basis or alternatively, in an amount to be determined by this Honourable Court; Pre-judgment interest from the date any profits were made or the damage suffered to the date of judgment; Post-Judgment interest to the date of payment; Punitive and exemplary damages; and Such further and other relief as to this Honourable Court seems just.

e.

f.

g.

h. i. j.

The Plaintiff
2. Emil Malak is a businessman with an address for service at 1380-885 West Georgia Street, Vancouver, B.C., V6C 3E8 ("Malak").

The Defendants
3. The Defendant James Cameron is a Canadian-American film director, film producer and screenwriter who resides in Malibu, California ("Cameron"). 4. The Defendant Lightstorm Entertainment, Inc. is a production company with its principal place of business at 919 Santa Monica Blvd., Santa Monica, CA, 90401 ("Lightstorm"). Cameron is the director, CEO and directing mind of Lightstorm and at all material times had full control over the activities of Lightstorm.

5. The Defendant Twentieth Century Fox Film Corporation is a film studio founded on May 31, 1935 with its principal place of business at 10201 West Pico Boulevard, Los Angeles, California 90035 ("Fox"). Fox is listed as a Copyright Claimant through a transfer by written agreement for the Avatar motion picture registered with the United States Copyright Office on December 12, 2010 under registration number PA0001653536. 6. The Defendant Dune Entertainment I I I LLC is a motion picture financing company with its principal place of business at 5851 W. Charleston Blvd., Las Vegas, NV, 89146 ("Dune"). Dune is listed as a Copyright Claimant through a transfer by written agreement for the Avatar motion picture registered with the United States Copyright Office on December 12, 2010 under registration number PA0001653536. 7. The Defendants Ingenious Film Partners and Ingenious Film Partners 2 LLP are subsidiaries of Ingenious Media, a United Kingdom media investment and advisory group with respective principal places of business at 15 Golden Sq., London, UK, W1F 9JG and 12 New Fetter Lane, London, UK, EC4A1 AG. (collectively, "Ingenious"). Ingenious is granted Authorship for the Avatar motion picture registered with the United States Copyright Office on December 12, 2010 under registration number PA0001653536. 8. The Defendant Future Service, Inc. is a corporation with an address for service at 1211 Avenue of the Americas, New York, New York 10036, USA ("Future Service"). Future Service is granted Authorship for the Avatar motion picture registered with the United States Copyright Office on December 12, 2010 under registration number PA0001653536.

Terra Incognita
9. Malak initially developed and published the original literary and artistic work "Terra Incognita", also known as "Terra Incognito ", in or around the middle of 1997 in the Province of British Columbia. 10. Malak employed a team of three individuals, a co-writer, a graphic designer and a sketcher under "work made for hire" arrangements, whom collaborated on developing further story lines and detailed character designs in order to develop the concept into a major motion picture and a television series with the ability to create a line of merchandise, books and toy

action figures therefrom. 11. The initial treatment, screenplay and the 13-part television series treatments were all registered by Malak with the Writers Guild of Canada under the following registrations: a. b. c. d. e. f. gh. i. S98-1423 S98-1787 S99-2249 S99-2494 S99-2080 S00-3779 S01-5185 S03-6680 S03-7111 TERRA INCOGNITA TERRA INCOGNITA TWO TERRA INCOGNITA TERRA INCOGNITO TERRAINCOGNITA THREE TERRA INCOGNITA TERRA INCOGNITA TERRA INCOGNITO TERRA INCOGNITA

12. Pursuant to section 3 of the Act, Malak has and will have until the date of expiry of the copyright therein, the sole right to produce or reproduce Terra Incognita or any substantial part thereof in any material form whatever and to authorize such acts.

Provision of Terra Incognita to the Defendants Cameron, Lightstorm & Fox

13. In or around July 2001 through April 2002, the television series "Dark Angel" produced by Cameron and Lightstorm was filming on Hornby Street, across from Malak's restaurant "Bellaggio Cafe". 14. Due to the film crew's interference with the restaurant's view, Malak went to inquire as to the activities of the production company. Malak was advised that "Dark Angel" was a science fiction television show produced by Cameron and Lightstorm. Malak was given the local phone number of the production company, as well as a phone number for a representative at the Lightstorm office in California. 15. Upon speaking with the Lightstorm representative and informing her of Terra Incognita, a science film screenplay accompanied with detailed graphic designs, Malak was directed to contact Tom Cohen. 16. Tom Cohen, an agent of Lightstorm or in the alternative, of Cameron, advised Malak to send Terra Incognita to 919 Santa Monica Blvd., Santa Monica, CA, 90401. 17. In or around October of 2002, Malak sent the entirety of his Terra Incognita original work to the Defendants Cameron and Lightstorm. The package was never returned to Malak from Cameron and Lightstorm's possession. 18. In or around late 2002 or 2003, Malak sent Terra Incognita to various film studios, including Fox. The package was never returned to Malak from Fox's possession.

Copyright Infringement
19. On or about December 25, 2009, Malak was informed by Leigh Mortensen, the colorist employed by Malak for Terra Incognita, of the substantial similarities of the cinematographic work Avatar and Terra Incognita.

20. These substantial similarities included, but are not limited to, the premise, plot, themes, dialogue, mood, setting, pace, sequence, storyline, graphic design and characters, of which further particulars will be proven at trial. The substantial similarities between Avatar and Terra Incognita are substantial in both quality and quantity and alike in unique aspects. In or around late January 2010, Malak, through his solicitor, contracted Cameron, Lightstorm and Fox, through their representative solicitors to inform them that the Defendants had infringed upon Terra Incognita's copyright. Malak further informed Cameron, Lightstorm and Fox that Malak was the sole owner of Terra Incognita's copyright since 1997 and their production, distribution and sale of Avatar was an unauthorized use of Terra Incognita. Cameron, Lightstorm and Fox denied committing any unlawful act. Cameron and Lightstorm Entertainment at all material times were aware, or in the alternative, ought reasonably to have known that copyright subsisted in Terra Incognita. Cameron and Lightstorm further knew that their use of Terra Incognita was not done with the authorization or consent of Malak, as owner of the copyright in Terra incognita. Malak created a website for Terra Incognita in 2010 entitled T I U N I V E R S E , located at http://tiuniverse.com for the public to view and independently compare Terra Incognita and Avatar. Spoliation of Evidence 26. At all material times, the Defendants, their agents, servants or employees have represented to the public and to Malak that Avatar was initially created by Cameron in 1996. 27. Though James Cameron had registered other works with the U.S. Copyright Office, the Avatar scriptment was never registered with any authorized third party copyright entities. 28. On February 9, 2010, counsel for Fox wrote to counsel for Malak and represented that the scriptment for Avatar was completed in 1996. Counsel for Fox enclosed a redacted screenshot of a computer which allegedly depicted a file entitled "Avatar Treatment" which was allegedly created on March 25, 1996 and last modified on that date as shown on the screenshot. Counsel for Fox represented that the file on the computer illustrated by the screenshot was the original scriptment of Avatar, which counsel for Malak had in her possession. 29. In order to examine the scriptment's contents and independently verify the creation date to determine the viability of the copyright claim, on February 13, 2010 Malak, through counsel, wrote to Fox's counsel to request the particular computer file shown in the screenshot, along with names of parties who received the scriptment in 1996. 30. On February 17, 2010, Malak, through counsel, wrote to Fox's counsel to further request: a) a high-quality digital photo of the same computer screen as on the printed screenshot; b) a photo of the "More Info..." output for the file "AVATAR TREATMENT";

c) photos of the full content of the file "AVATAR TREATMENT"; d) photos of properties of all folders, parent to that " A V A T A R " folder, with Created and Modified dates; e) system properties of the computer the screenshot was taken on; f) g) event Log of the computer the screenshot was taken on; the name of the owner of the computer the screenshot was taken on; and

h) information on how the file "AVATAR TREATMENT" came to be on the computer the screenshot was taken on. 31. On February 22, 2010, Malak, through counsel, wrote to Fox's counsel to further request: a) The original data file(s) that were transferred from James Cameron and/or Lightstorm Entertainment to Twentieth Century Fox, specifically the "bit copy" of the Microsoft Word file called "AVATAR TREATMENT"; b) That same file "AVATAR TREATMENT" including the "volume" or disk that it was originally saved on and other files on that volume; c) The relative correspondence leading up to the receipt of files by Twentieth Century Fox or any other party that received the original file called "AVATAR TREATMENT"; d) Copies of all email correspondence (including message header information) regarding the scriptment; and e) Telephone call records, message records, personal notes and other writings regarding the scriptment. 32. The February 22, 2010 letter further set out that once litigation is reasonably anticipated, there arises a general obligation on parties to take reasonable and good faith steps to preserve potentially relevant communications, documents, electronic data and other tangible items. The letter formally requested that the parties and their counsel preserve all such documents within their possession, custody or control containing information that is potentially relevant to the allegations and defenses in the copyright infringment litigation, including such documents relating to the Avatar scriptment. 33. On February 26, 2010, counsel for Fox provided counsel for Malak with Lightstorm's Confidentiality and Non-Disclosure Agreement allegedly executed on March 26, 1996 by a Fox executive. The Agreement is a standard one-page Confidentiality and Non-Disclosure Agreement and aside from noting that Lightstorm was working on a project entitled "Avatar" does not set out what was to be disclosed. 34. On March 11, 2010, after failing to receive any of the requests made in the February 9, February 17 or February 22, 2010 letters, counsel for Malak wrote to state that Malak has been denied the concrete documentary evidence required to assure him of the content and date of the Avatar scriptment, which would have assisted him in determining whether to pursue the litigious route. 35. On March 18, 2010, counsel for Fox advised in a telephone conversation with Malak's

counsel that she would endeavor to find the individuals who allegedly received the Avatar scriptment in 1996 and would be able to provide a statement from those individuals. Malak's counsel questioned why this tactic would be undertaken when Malak specifically requested a copy of the computer file to be examined, which was in accordance with Fox's representations already in their possession, custody or control. Fox's counsel did not respond. 36. On March 24, 2010, counsel for Fox in an e-mail to Malak's counsel confirmed that she would endeavor to find those individuals and further stated that she was aware Malak believed that the screenshot had been digitally altered. 37. On March 25, 2010, Malak's counsel wrote to Fox's counsel to discuss the reasons why Malak holds that belief, including but not limited to the failure to send any conclusive irrefutable document that could be forensically examined by Malak's computer engineer experts. 38. On May 5, 2010, Fox's counsel wrote to Malak's counsel stating she was still seeking individuals who had received the scriptment in 1996. 39. On May 15, 2010, Fox's counsel wrote to Malak's counsel enclosing a four page watermarked document. The first page had a date stamp received November 12, 1998 by a Fox executive. The other pages were the cover page, first and last page of the Avatar scriptment. 40. On May 19, 2010, Malak's counsel wrote to Fox's counsel stating that the documents provided did not satisfy the requests for conclusive and reliable documentary evidence of the date and content of the Avatar scriptment. The letter further outlines the concerns Malak had in regards to the Defendants' silence and refusal to provide the computer file. 41. Despite the good faith efforts of Malak to resolve the disputes complained of herein and the evidentiary rules of court which would allow Malak to appoint an expert to forensically examine the file of the Avatar scriptment, the Defendants have refused to provide Malak with any evidence to support their representation of prior creation. 42. Full particulars of the dates and extent of the Defendants' activities with respect to Terra Incognita are best known to the Defendants. The Plaintiff claims relief in respect of all such acts. 43. Malak pleads that Cameron personally engaged in the infringing activities complained of herein. Further, at all material times, Cameron acted as the controlling mind of Lightstorm and personally, deliberately, willfully and knowingly caused, directed and authorized the acts of Lightstorm when he knew or was indifferent to the risk that such activities would or were likely to infringe Malak's rights.

mages
44. The Defendants unauthorized use of Terra Incognita by the production, distribution and sale of Avatar, which incorporates substantial aspects of Terra Incognita has infringed the Plaintiffs copyright and has further depreciated the Plaintiffs moral rights in his original work.

45. As a result of the activities described herein, the Plaintiff has suffered damage and the Defendants have profited and will continue to profit to the Plaintiffs considerable detriment unless restrained by Order or Judgment of this Honourable Court. 46. The Plaintiff pleads and relies on sections 3, 27, 28, 34, 35, & 38 of the Act. 47. The Plaintiff further relies on the common law relating to spoliation of evidence. The Plaintiff proposes that this action be tried in Vancouver, British Columbia.

February 29, 2012

Suzan E^Khatib S.E.K. Law Corporation 1380-885 West Georgia Street Vancouver, B.C. V6C 3E8 Ph: 604.558.0339 Fax: 604.259.0339