simon tam v. namco bandai holdings

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ANTHONY E. MCNAMER, OSB #[email protected] AND COMPANY P.c.920 S.W. Third Avenue, Suite 100Portland, Oregon 97204Telephone: (503) 727-2500Facsimile: (503) 727-2501

Attorneys for Plaintiffs

FlLED22 FEB J 12 2 ~ 2 6 U S D C { i R P

IN THE UNITED STATES DISTRICT COURTDISTRICT OF OREGONPORTLAND DIVISION

SIMON TAM, an individual, and AARONMOXLEY, an individual, Case No. CV '12 - 031 2 - HUPLAINTIFFS, PLAINTIFFS' COMPLAINT

FOR COPYRIGHT INFRINGEMENTv. 17 U.S.c. 101 et seq.

NAMCO BANDAI GAMES AMERICAINC., a Delaware corporation, NAMCO AND DEMAND FOR JURY TRIALBANDAI HOLDINGS (USA) INC., aDelaware corporation, and TOEIANIMATION INCORPORATED, aCalifornia corporation,

DEFENDANTS.

COMPLAINTPlaintiffs Simon Tam and Aaron Moxley for their complaint against defendants NAMCO

BANDAl Games America Inc., BANDAl Holdings (USA) Inc., and TOEI AnimationIncorporated allege as follows:

Page 1 - PLAINTIFFS' COMPLAINTMCNAMER AND COMPANY P.c.920 S.W. Third Avenue' Suite 100Portland, Oregon 97204 . (503) 7272500

Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 1 of 5 Page ID#: 1
mailto:[email protected]:[email protected]


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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 copyrightinfringement 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. 1331and 1338(a) and supplemental jurisdiction pursuant to 28 U.S.c. 1367. The Court has pendantjurisdiction over the state law claims in that such claims flow from a common nucleus ofoperative facts.

7. Venue is proper in this District pursuant to 28 U.S.c. 1391(b), (c) and (d) and1400(a), in that all Defendants reside for venue purposes in this District, and are subject topersonal jurisdiction in this District, and that a substantial part of the events giving rise to thisclaim occurred in this District.

GENERAL ALLEGATIONS8. 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 andhave performed and participated at various anime conferences on panels with representatives ofeach of the Defendants.

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9. In 2007, Plaintiffs authored a song entitled "Kokoro," which consists of whollyoriginal copyrightable matter under the law of the United States. A claim of copyright in themusical composition for "Kokoro" was registered and recorded in favor of Plaintiffs. Thecopyright registration for "Kokoro" (among other works) is dated January 26, 2009 andidentified as follows: Slanted Eyes, Slanted Hearts, Registration No. PA0001639886. Thecopyright is for music. A true and correct copy of the relevant copyright office record is attachedhereto as Exhibit A.

10. In or about 2011, Defendants released the video game Dragon Ball Z UltimateTenkaichi for PS3 and Xbox 360 players (hereinafter "Dragon Ball Z"). Dragon Ball Z is basedupon one of the most successful anime series and manga series of all time "Dragon Ball," whichhas 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 thefact 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 publiclyperformed 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 thePlaintiffs' copyrighted work; ii) made, have caused to be made, and purported to authorize themaking of unauthorized derivative works of Plaintiffs' copyrighted work; iii) publicly performedand 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 ofPage 3 - PLAINTIFFS' COMPlAINT

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Plaintiffs' copyrighted work with an animated sequence in Dragon Ball Z. Defendants' conductconstitutes 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 forwillful infringement in the amount of $150,000

17. Alternatively, as a direct and proximate result of Defendants' infringement ofPlaintiffs' 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 continueto cause Plaintiffs significant and irreparable injury that cannot be fully compensated ormeasured 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 employreasonable methods to prevent or limit infringement of Plaintiffs' copyrights.

19. Pursuant to 17 U.S.c. 505, Plaintiffs are also entitled to their costs andattorneys' fees.

PRAYERWHEREFORE, 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, andassigns, and those acting in active concert or participation with any of them, cease directly orindirectly infringing, or causing, enabling, facilitating, promoting, encouraging and inducing, orparticipating 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

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D. Alternatively, for actual damages, pursuant to 17 U.S.c. 504, including lostprofits, 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; andI. For such other and further relief as the Court deems just and proper.

DEMAND FOR .JURY TRIALPlaintiffs hereby demand a trial by jury of all issues so triable.

DATED: February 17, 2012

_tt-t----t1hcmANY P.C.By ______ ~ ~ - - - - - - ~ ~ - - - - - - - - - - - - - - - - - Anthony . McNamer, OSB #00138Deborah Gumm, OSB#040646MCNAM AND COMPANY P.e.

920 SW Third Avenue, Suite 100Portland, Oregon 97204Telephone: (503) 727-2500Facsimile: (503) 727-2501Attorneys for Plaintiffs

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simon tam v. namco bandai holdings

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