Fasoli Reply to Opp to PI

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

FRANCO FASOLI (A/K/A JAZ), ) NICOLAS SANTIAGO ROMERO ) ESCALADA (A/K/A EVER) AND ) DEREK SHAMUS MEHAFFEY (A/K/A ) OTHER), ) Plaintiffs, ) v. ) ) Case No. 1:14-cv-06206 - RWG VOLTAGE PICTURES, LLC, THE ) ZANUCK CO. D/B/A ZANUCK ) INDEPENDENT, MEDIAPRO PICTURES, ) WELL GO USA INC., AMPLIFY ) RELEASING, DAVID WARREN, ) TERENCE VANCE GILLIAM, AND JOHN ) DOES 1-10, ) Defendants. ) _______________________________________

PLAINTIFFS REPLY TO CERTAIN DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

FOLEY & LARDNER LLP Jami A. Gekas Kenneth K. Suh Diego Fernandez (Of Counsel) 321 N. Clark, Suite 2800 Chicago, IL 60654 Phone: (312) 832-4500 Fax: (312) 832-4700 Diego R. Figueroa Rodriguez (Of Counsel) One Biscayne Tower 2 South Biscayne Boulevard, Suite 1900 Miami, FL 33131 Phone: (305) 482-8400 Fax: (305) 482-8600 Attorneys for Plaintiffs

Case 2:15-cv-00889-R-JEM Document 39 Filed 12/02/14 Page 1 of 19 Page ID #:384

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TABLE OF CONTENTS

ARGUMENT .................................................................................................................................. 2

I. Defendants Recitation of the Facts is Inaccurate. .................................................. 2

II. The Berne Convention Allows Plaintiffs to Bring Suit Based on a

Argentinian Copyright. ........................................................................................... 4

III. Defendants are Wrong on the Merits. ..................................................................... 5

It is Undisputed that the Infringing Work is Substantially Similar A.

to the Copyrighted Artwork. ....................................................................... 5

Proof of Actual Viewing is not Required to Establish Access. ............... 7 B.

The Supreme Court has Rejected Defendants First Amendment C.

Irreparable Harm Argument. ....................................................................... 8

Defendants Private Harm Argument is Contrary to Seventh D.

Circuit Precedent. ........................................................................................ 9

The Supreme Court has Rejected Defendants Public Harm E.

Analysis....................................................................................................... 9

No Bond is Necessary. .............................................................................. 10 F.

This Court Has the Inherent Authority to Fashion an Appropriately G.

Tailored Injunction.................................................................................... 12

CONCLUSION ............................................................................................................................. 13


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TABLE OF AUTHORITIES

Page(s)

Cases

In re Aimster Copyright Litigation, 334 F. 3d 643 (7th Cir. 2003) ....................................................................................................9

Am. Promotional Events, Inc.--Nw. v. City & City. of Honolulu, 796 F. Supp. 2d 1261 (D. Haw. 2011) .......................................................................................8

Apple Inc. v. Psystar Corp., 673 F. Supp. 2d 943 (N.D. Cal.2009) ........................................................................................8

Boucher v. Sch. Bod. Of Sch. Dist. Of Greenfield, 134 F.3d 821 (7th Cir. 1998) .....................................................................................................6

City of Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 636 F.2d 1084 (5th Cir.1981) ..................................................................................................11

Dotster, Inc. v. Onternet Corp. for Assigned Names & Nos., 296 F.Supp.2d 1159 (C.D. Cal. 2003) .......................................................................................8

Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003) ..............................................................9

Graphic Design Mktg. v. Xtreme Enters., Inc. 772 F. Supp. 2d. 1029 (E.D. Wis. 2011) ..................................................................................10

Habitat Educ. Ctr. v. United States Forest Serv., 607 F.3d 453 (7th Cir.2010) ..............................................................................................10, 11

JCW Invs., Inc. v. Novelty, Inc., 222 F.Supp.2d 1030 (N.D.Ill.2002) .................................................................................7, 9, 10

Michigan v. U.S. Army Corps. of Engineers, 667 F.3d 765 (7th Cir. 2011) .....................................................................................................6

Microsoft Corp. v. Marturano, 2009 U.S. Dist. LEXIS 44450 (E.D. Cal. May 27, 2009)..........................................................8

MySpace, Inc. v. Sanford Wallace, 498 F.Supp. 2d 1293 1305 (C.D. Cal. 2007) .............................................................................8

Planned Parenthood of Indiana & Kentucky, Inc. v. Commr, Indiana State Dept of Health, 984 F. Supp. 2d 912 (S.D. Ind. 2013) ......................................................................................10


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Rent-A-Center, Inc. v. Canyon Tele. & Appliance Rental, Inc., 944 F.2d 597 (9th Cir. 1991) .....................................................................................................8

Sanhu Singh Hamdad Trust v. Ajut Newspaper Adver., Mktg. and Commcns., Inc., 503 F. Supp. 2d 557 (S.D.N.Y. 2007) ........................................................................................4

Scholle Corp. v. Rapak LLC, No. 13 C 3976, 2014 WL 3687734 (N.D. Ill. July 24, 2014) ..................................................10

Smith v. Bd. of Election Commrs for City of Chicago, 591 F. Supp. 70 (N.D. Ill. 1984) ..............................................................................................11

Spinmaster, Ltd. v. Overbreak LLC, 404 F. Supp. 2d 1097 (N.D. Ill. 2005) .......................................................................................7

Temple University v. White, 941 F.2d 201 (3d Cir.1991)......................................................................................................11

Ty, Inc. v. GMA Accessories, Inc., 959 F. Supp. 936 (N.D. Ill.) affd, 132 F.3d 1167 (7th Cir. 1997) ............................................7

People ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319 (9th Cir.1985) ..................................................................................................11

Wayne Chemical, Inc. v. Columbus Agency Services Corp., 567 F.2d 692 (7th Cir. 1977) ...................................................................................................10, 11

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008) ...............................................................7

Woodard v. Victory Records, Inc., No. 11-CV-7594, 2013 WL 5517926 (N.D. Ill. Oct. 4, 2013) ..................................................6

Zimnicki v. Gen. Foam Plastics Corp., No. 09-C2132, 2011 WL 5866267 (N.D. Ill. Nov. 22, 2011)....................................................5

Statutes

17 U.S.C, 101, 104, 411 ................................................................................................................4


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Four of seven named defendants have filed an opposition to Plaintiffs Motion for

Preliminary Injunction (Motion, Dkts. 8-13). These four Defendants (together, the U.S.

Defendants) represent the U.S. companies responsible for the current distribution and

promotion of The Zero Theorem (the Film) in the United States. The U.S. Defendants have,

by their own admission, made money off the Film and will continue to do so. Plaintiffs, three

international artists, filed suit because the Film set contains a blatant knockoff (the Infringing

Work) of Plaintiffs large-scale and famous Buenos Aires mural (the Copyrighted

Artwork). Plaintiffs now seek a narrowly-tailored injunction to prevent the U.S. Defendants

from continuing to use depictions of the Infringing Work to promote the Film in the U.S.

The U.S. Defendants Opposition (Opposition, Dkt. 36) relies on erroneous factual

assertions and unsupportable legal theoriesmany directly contradicting Seventh Circuit and

Supreme Court precedent. The law is clear and, as outlined in Plaintiffs Motion, the Court

should grant Plaintiffs Motion for Preliminary Injunction because:

(1) Plaintiffs Copyrighted Artwork is protected by a valid foreign copyright;

(2) Plaintiffs will likely succeed on the merits of their copyright allegations based on the knockoff of their work presented in the Film;

(3) Plaintiffs continue to suffer harm as long as the U.S. Defendants continue to use images of the knockoff to promote the Film, and therefore Plaintiffs have no adequate remedy at law; and

(4) the balance of harms and public interest support granting a preliminary injunction.

(Motion at Table of Contents).

At its heart, Defendants Opposition is nothing more than an improper attempt to run up

the cost of litigation and a classic case of deep-pocketed Goliaths attempting to prevent a few

Davids from enforcing their legitimate intellectual property rights.


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ARGUMENT

I. Defendants Recitation of the Facts is Inaccurate.

The U.S. Defendants have their facts wrong. Contrary to the vague representations in the

Opposition, Plaintiffs did not wait a year to bring suit. This case was filed on August 13, 2014

(Docket No. 3), shortly after Plaintiffs learned of the Film and its impending U.S. Distribution.

Plaintiffs copyright was registered in 2013; it is undisputed that the Film was first released in

U.S. theaters on September 19, 2014, and on-demand/online on August 19, 2014. Plaintiffs

waited a few weeks after filing the Complaint to serve the Defendants and bring the instant

Motion, but only because Plaintiffs were diligently working during that time to negotiate an

amicable resolution to this case. Regardless, and importantly for the purposes of Plaintiffs

Motion, the U.S. Defendants concede that they have continuing, ongoing plans to distribute and

promote the Film. (Opposition at 15).

Indeed, the Opposition completely ignores U.S. Defendants continued acts of

infringement, through the ongoing distribution and online streaming of the Film in the U.S., as

well as the reproduction and continued depiction of the Infringing Work in and on a variety of

printed Film marketing materials, Film trailers and Film stills used on websites and social media

properties controlled by the U.S. Defendants. As a result, Defendants Opposition is fixated on

the first instance of infringement (the original creation of the Infringing Work, on set in

Romania, allegedly by the non-U.S. Defendants), but fails to address the many ongoing

infringing activities currently occurring here in the United States. For example, it is indisputable

that as of the date of this filing, lead Defendant Voltage Pictures, LLC (Voltage) continues to

host a branded Youtube page with a version of the Official Trailer (2014) for the Film that

prominently features the Infringing Work, immediately following a large version of Voltages


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logo. This Youtube page (available at URL https://www.youtube.com/watch?v=rae7_O_6EtU)

directs consumers to the Films official site, also hosted by Voltage, and has received more

than 2.1 million views, nearly 5,000 thumbs up or thumbs down votes, and nearly 1000

comments:


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The U.S. Defendants contention that the Plaintiffs have ignored post-eBay caselaw is no

more than an attempt to distract the Court from U.S. Defendants own blatant, ongoing,

profitable copyright infringement in the United States. Plaintiffs Motion is consistent with the

law of the Seventh Circuit, addresses each factor for seeking a preliminary injunction and sets

forth undisputed facts that support the granting of an injunction. The U.S. Defendants have not

offered any credible explanation for why they continue to use the Infringing Work, and have

failed to raise any persuasive argument against a narrowly-tailored injunction here.

II. The Berne Convention Allows Plaintiffs to Bring Suit Based on a Argentinian Copyright.

The U.S. Defendants contend that Plaintiffs Argentinian Copyright registration does not

evidence ownership of a valid copyright and thus cannot be the basis to bring this suit. The U.S.

Defendants are wrong. They do not, and cannot, rebut Plaintiffs right to bring suit in the United

States under the Berne Convention. (Motion at 4 (citing 17 U.S.C, 101, 104, 411; Sanhu

Singh Hamdad Trust v. Ajut Newspaper Adver., Mktg. and Commcns., Inc., 503 F. Supp. 2d

557, 584 (S.D.N.Y. 2007)). Moreover, despite admitting that the analysis of Plaintiffs

ownership must be conducted under the law of the country where the work was created[,] U.S.

Defendants provide no legal authority to support their contention that Plaintiffs copyright

registration is invalid under the laws of Argentina.1

Likewise, U.S. Defendants contention that Plaintiffs failed to provide competent

evidence of their copyright ownership is frivolous. Plaintiffs Mehaffey and Escalada submitted

1 Opposing Defendants resort to citing U.S. law for the irrelevant proposition that the Argentinian copyright right registration is not entitled to the procedural benefits of Section 401(c). For the reasons stated in their own Opposition, Opposing Defendants arguments are not persuasive.


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uncontroverted sworn testimony that the facts alleged [in the complaint in this matter] are true

and correct[,] including the specific identification of the copyright filing, the co-authorship of

the Copyrighted Artwork, and co-ownership of the copyright. (Dkts. 3 at 21 and 22; 11 at 3

and 12 at 2). Defendants focus on the fact that Plaintiff Mehaffeywho is a Canadian citizen,

rather than a citizen of Argentinais not identified on the face of the relevant copyright

registration. But Defendants present no authority to support their contention that this invalidates

the registration, because none exists. There is clearly no dispute among the Plaintiffs as to the

ownership of the Copyrighted Artwork or the validity of the Argentinian copyright registration,

so U.S. Defendants cannot manufacture a dispute to avoid liability here. Similarly flawed are

U.S. Defendants evidentiary objections to the copyright filing, submitted as Exhibit D to the

complaint in this matter. U.S. Defendants had the opportunity to depose Plaintiffs or provide

contradictory evidence, but have failed to do so.

III. Defendants are Wrong on the Merits.

It is Undisputed that the Infringing Work is Substantially Similar to A.the Copyrighted Artwork.

The U.S. Defendants do not, and cannot credibly, contest that the Infringing Work

cop[ies] [the] constituent elements of the [Copyrighted] [W]ork that are original[,] Zimnicki v.

Gen. Foam Plastics Corp., No. 09-C2132, 2011 WL 5866267, at *2 (N.D. Ill. Nov. 22, 2011),

thus the Court should infer that [they] are unable to do so. (Opposition at 10, n. 10). Instead,

U.S. Defendants argue that their fair use defense, raised for the first time after Plaintiffs filed

their Motion, overcomes any copyright allegations. Here too, the U.S. Defendants arguments

are misplaced.

The U.S. Defendants cursory overview of their fair use defense is not sufficient to

overcome Plaintiffs strong likelihood of success on the merits. To the contrary, as stated in


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Plaintiffs Motion, the threshold for establishing the likelihood of success is low, and

requires merely establishing a better than negligible chance of succeeding on the merits.

(Motion at 3 (quoting Michigan v. U.S. Army Corps. of Engineers, 667 F.3d 765, 782 (7th Cir.

2011) and Boucher v. Sch. Bod. Of Sch. Dist. Of Greenfield, 134 F.3d 821, 824 (7th Cir. 1998)).

Thus, according to the Seventh Circuit, a movant satisfies this element so long as it

demonstrates a better than negligible chance of succeeding on the merits. Woodard v. Victory

Records, Inc., No. 11-CV-7594, 2013 WL 5517926, at *2 (N.D. Ill. Oct. 4, 2013) (quoting

Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 824 (7th Cir.1998) (internal

citations omitted)). Simply put, to avoid a preliminary injunction, the U.S. Defendants

purported fair use defense must be so strong that it gives Plaintiffs a less than negligible

chance of succeeding on the merits. (Id., emphasis added). It is not.

U.S. Defendants scant two-paragraph, unsupported conclusory assertions regarding their

fair use defense improperly puts the onus on Plaintiffs to disprove a defense that Defendants

have yet to establish, and worse, contains factual inaccuracies. (Opposition at 8). For example,

U.S. Defendants contention that Plaintiffs do not even speculate that the imagery in the Film

possibly injured their long-range commercial opportunities, is contrary to Plaintiffs discussion

of the long term harm they will continue to suffer as result of Defendants continued

infringement. (Id; Motion at 10-13). Moreover, the copyright fair use defense protects critical

commentary and transformative artistic uses of prior artwork that benefit the public. It does not

provide an after-the-fact excuse for an intentional infringer who gets caught.

Accordingly, Plaintiffs have demonstrated a better than negligible chance of succeeding

on the merits. Woodard., 2013 WL 5517926, at *2.


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Proof of Actual Viewing is not Required to Establish Access. B.

According to the U.S. Defendants, Plaintiffs must prove Defendants actual access to the

Copyrighted Work. (Opposition at 12 (stating Plaintiffs failed to show Defendants have been to

Buenos Aires or Argentina)). But here too, U.S. Defendants argument is contrary to the law.

U.S. Defendants interpretation of this factor would effectively eviscerate this Circuits

access standard. While U.S. Defendants admit that [b]road public display of a product may

give rise to an inference of access, they persist in arguing, without citing to authority, that no

such inference arises in this case. (Opposition at 12; Spinmaster, Ltd. v. Overbreak LLC, 404 F.

Supp. 2d 1097, 1104 (N.D. Ill. 2005) (quoting JCW Invs., Inc. v. Novelty, Inc., 222 F.Supp.2d

1030, 1034 (N.D.Ill. 2002)). Rather, U.S. Defendants argue that Plaintiffs must provide

evidence that Defendants have visited the street in Buenos Aires, been to Argentina, saw

the blogs and internet posts about the [Copyrighted] Work. (Opposition at 12). To the

contrary, courts are clear that [a] demonstration of access does not require proof of actual

viewing, but proof of the opportunity to view the copyrighted work. Further, a strong

inference of access arises when an accused work is virtually identical to the copyrighted work

Ty, Inc. v. GMA Accessories, Inc., 959 F. Supp. 936, 940 (N.D. Ill.) affd, 132 F.3d 1167 (7th

Cir. 1997) (emphasis added).

In addition to the public nature of the Copyrighted Artwork and the broad industry

coverage of the Copyrighted Artwork, U.S. Defendants do not contest that the Infringing Work

(and its mechanical reproductions) are virtually identical to the copyrighted work[,] thus, under

this Circuits precedent, there exists a strong inference of access, that U.S. Defendants cannot

rebut. Id.


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The Supreme Court has Rejected Defendants First Amendment C.Irreparable Harm Argument.

The U.S. Defendants misapprehend the irreparable harm factor. U.S. Defendants

contention that Plaintiffs must provide evidence of actual loss of goodwill or reputation,

Opposition at 6 (emphasis in original), directly conflicts with the Supreme Courts frequently

reiterated [standard that] plaintiffs seeking preliminary relief [need only] demonstrate that

irreparable injury is likely in the absence of an injunction. Winter v. Natural Res. Def. Council,

Inc., 555 U.S. 7, 8, 129 S. Ct. 365, 367, 172 L. Ed. 2d 249 (2008) (emphasis in original).

As courts recognize, damage to reputation and goodwill would be difficult, if not

impossible, to quantify. Apple Inc. v. Psystar Corp. ,673 F. Supp. 2d 943 at 948-950 (N.D. Cal.

2009); id. at 948 (In run-of-the-mill copyright litigation, however, proof of such harm stemming

from infringementsuch as harm to business reputation and market shareshould not be

difficult to establish) (emphasis added); see also MySpace, Inc. v. Sanford Wallace, 498

F.Supp. 2d 1293 1305 (C.D. Cal. 2007) (citing Rent-A-Center, Inc. v. Canyon Tele. & Appliance

Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (Intangible injuries, such as damage to ongoing

recruitment efforts and goodwill, qualify as irreparable harm)). This is particularly the case

when the infringer causes confusion as to the source of the infringing material. As in the Apple,

MySpace, and Microsoft cases, cited in Plaintiffs Motion, here the Defendants overt

representation that the Infringing Work belongs to them weighs this factor heavily toward

granting injunctive relief. Id. (further citations omitted); Motion at 12 (citing Microsoft Corp. v.

Marturano, 2009 U.S. Dist. LEXIS 44450, at *8-8 (E.D. Cal. May 27, 2009); Complaint at

42-44 (This is our worldThe graffiti is ours.)).

Cases cited by the U.S. Defendants do not change the analysis. For example, in Dotster,

the plaintiff submitted affidavits that merely stated it will suffer irreparable harm as a result of


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loss of business. Dotster, Inc. v. Onternet Corp. for Assigned Names & Nos., 296 F.Supp.2d

1159, 1163-64 n. 2 (C.D. Cal. 2003); Am. Promotional Events, Inc.--Nw. v. City & City. of

Honolulu, 796 F. Supp. 2d 1261, 1284 (D. Haw. 2011) (same). Here, Plaintiffs went far beyond

such conclusory assertions. (See Motion at 9-13; Dkts. 11 and 12). Plaintiffs Motion and

supporting declarations articulate the bases for the irreparable harm they face, none of which are

substantively addressed by U.S. Defendants. Thus, the irreparable harm weighs in favor of

Plaintiffs.

Defendants Private Harm Argument is Contrary to Seventh Circuit D.Precedent.

The U.S. Defendants contention that the balance of harms between the parties disfavors

granting a preliminary injunction is contrary to well-established law. U.S. Defendants complain

that Plaintiffs offer no actual evidence to support [the assertion that damages from copyright

infringement cannot be readily estimated,] whereas they would suffer financial harm.

(Opposition at 12). Ironically, in doing so, U.S. Defendants quote and dismiss, without

explanation, binding Seventh Circuit case law. (Id. (citing Motion at 14); Motion at 14 (quoting

In re Aimster Copyright Litigation, 334 F. 3d 643, 655 (7th Cir. 2003); infra; and supra).

Accordingly, this factor supports granting a preliminary injunction.

The Supreme Court has Rejected Defendants Public Harm Analysis. E.

U.S. Defendants argue that the public interest disfavors preliminary injunctive relief

because movies are a form of expression protected by the First Amendment. (Opposition at 13-

14). U.S. Defendant argument has already been rejected by the Seventh Circuit and the

Supreme Court. In re Aimster, 334 F. 3d at 656 (quoting Eldred v. Ashcroft, 537 U.S. 186, 123

S.Ct. 769, 788-89, 154 L.Ed.2d 683 (2003) (copyright law contains built-in First Amendment


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accommodations[the First Amendment] bears less heavily when speakers assert the right to

make other peoples speeches.)).

U.S. Defendants misapply this factor and fail to cite any authority relevant to the

preliminary injunction standard. Notably, [i]n balancing the harms to the parties and the public,

the court uses a sliding scale approach, so that the more likely it is the movant will succeed on

the merits, the less the balance of irreparable harms need weigh toward its side. JCW Invs.,

Inc., 222 F. Supp. 2d at 103. U.S. Defendants ignore this balancing test for two reasons. First,

courts have held that there is no countervailing public interest at risk that would outweigh [a

plaintiffs] interest in preventing continued, blatant copyright infringement. Graphic Design

Mktg. v. Xtreme Enters., Inc. 772 F. Supp. 2d. 1029, 1035 (E.D. Wis. 2011). Second, when, as

here, Plaintiffs likelihood of success on the merits is high, the sliding scale test requires that

less of the balance of the irreparable harmweigh in favor of the Plaintiff. JCW Invs., Inc.,

222 F. Supp. 2d at 103. Accordingly, the public harm factor indisputably favors Plaintiffs

No Bond is Necessary. F.

U.S. Defendants request for a bond should be denied, as a bond is unnecessary in this

case and, given the disparity between the parties financial resources, would actually impede

justice rather than further it.

First, in this Circuit, [a] bond is not necessary for a preliminary injunction to take

effect. Scholle Corp. v. Rapak LLC, No. 13 C 3976, 2014 WL 3687734, at *2 (N.D. Ill. July 24,

2014) (citing Wayne Chemical, Inc. v. Columbus Agency Services Corp., 567 F.2d 692, 701 (7th

Cir. 1977) (Finally, it was not error for the District Court to issue the preliminary injunction

without a bond. Under appropriate circumstances bond may be excused, notwithstanding the

literal language of Rule 65(c).) (emphasis added). [T]he Seventh Circuit has recognized that


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there is no reason to require a bond in cases where the Court is satisfied that there is no danger

that the opposing party will incur any damages from the injunction. Planned Parenthood of

Indiana & Kentucky, Inc. v. Commr, Indiana State Dept of Health, 984 F. Supp. 2d 912, 931

(S.D. Ind. 2013) (citing Habitat Educ. Ctr. v. United States Forest Serv., 607 F.3d 453, 458 (7th

Cir.2010)). In Habitat, the Seventh Circuit recognized that when, like in this case, the

injunction would exceed the applicants ability to pay, and the district court balances (often

implicitly) the relative cost to the opponent of a smaller bond against the cost to the applicant of

having to do without a preliminary injunction that he may need desperately. Habitat Educ. Ctr.

v. U.S. Forest Serv., 607 F.3d 453, 458 (7th Cir. 2010) (citing Wayne Chemical, Inc. v.

Columbus Agency Service Corp., 567 F.2d 692, 701 (7th Cir.1977); Temple University v. White,

941 F.2d 201, 220 (3d Cir.1991); People ex rel. Van De Kamp v. Tahoe Regional Planning

Agency, 766 F.2d 1319, 132526 (9th Cir.1985); City of Atlanta v. Metropolitan Atlanta Rapid

Transit Authority, 636 F.2d 1084, 1094 (5th Cir.1981)).

The current case presents the precise situation described by Habitat. Based on their

erroneous understanding of this Circuits law, U.S. Defendants have asked for a bond amount

that three independent street artists simply cannot pay so as to condition the exercise of

plaintiffs constitutional rights upon their financial status. Smith v. Bd. of Election Commrs for

City of Chicago, 591 F. Supp. 70, 71-72 (N.D. Ill. 1984). Plaintiffs are successful in their chosen

field, but their financial resources are simply not in the same universe as the U.S. Defendants, all

movie-industry insiders who have admittedly already made close to one million dollars on the

Film. Further, conclusory language aside, Defendants Opposition fails to expressly identify any

specific harm a single Defendant would suffer should the Court enter an injunction. U.S.

Defendants do not identify any specific third-party contracts, or the activities associated with


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those contracts, that would be impacted by an injunction. Thus, the Court, at its discretion, may

excuse any bond.

Second, U.S. Defendants request for a $2,000,000 bond constitutes nothing more than an

improper attempt to run up the cost of litigation, making it impossible for three independent

artists to enforce their Constitutional rights. See Id. (We decline, however, to order plaintiffs to

post this bond. To do so, we believe, would condition the exercise of plaintiffs constitutional

rights upon their financial status. Indeed, only a wealthy defendant could post such bond in most

instances.). U.S. Defendants appear to have conjured up this bond amount based on less than a

million dollars in total revenue because of concerns about their international distribution. Such

worries are unwarranted as the Courts order would only affect infringing activity within the

United States.2

This Court Has the Inherent Authority to Fashion an Appropriately G.Tailored Injunction.

The Court can address U.S. Defendants concerns that a preliminary injunction will be

overly broad. U.S. Defendants do not contest that a preliminary injunction is the only way to

stop continued and further use of the Infringing Work in the United States on promotional and

marketing materials, particularly websites and social media, or that a preliminary injunction is

the only way to prevent the U.S. Defendants from continuing to repeat the false representations

that Defendants Gilliam and/or Warren conceived of the Infringing Work.

2 At a minimum, should the Court decide that a bond of some amount is appropriate in this case, that amount should not be based on the highly speculative $2 million figure U.S. Defendants have thrown out. Instead, Plaintiffs respectfully request that they be given the opportunity to take some targeted discovery, and have further briefing on the appropriate amount, after a preliminary injunction has been entered.


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The U.S. Defendants argue that an injunction should be denied because the non-

infringing portions of the Film should not be disrupted pending a decision on the merits, and

Defendants will have to expend substantial resources to remove the Infringing Work from the

Film. Notably, however, lead defendant Voltage makes absolutely no effort to quantify or

explain what it means by substantial resources. (See Docket 36-1, 12). Even if it would be

expensive to remove the Infringing Work from physical copies of the Film currently in U.S.

theaters, Defendants do not explain why they cannot immediately (and cheaply) remedy the

online infringements, i.e., by pulling down infringing trailers, photos, Film stills, and streaming

copies of the Film. In any event, this Court has the inherent authority to craft an injunction that

will balance any potential for harm to the U.S. Defendants against Plaintiffs right to a remedy

against ongoing infringement.

CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully renew their request that the Court

GRANT Plaintiffs Motion for Preliminary Injunction, and enter a narrowly-tailored injunction

to prevent the U.S. Defendants from continuing to make money off of the Infringing Work.


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Dated: December 2 , 2014

Respectfully submitted,

By: /s/ Jami A. Gekas ____________________ Jami A. Gekas (IL# 6275196) Kenneth K. Suh (TX # 24070701) Diego R. Figueroa Rodriguez (Of Counsel) Diego Fernandez (Of Counsel, Licensed to Practice in Argentina) FOLEY & LARDNER LLP 321 North Clark Street, Suite 2800 Chicago, IL 60654-5313 Phone: 312.832.4500 Fax: 312.832.4700 Attorneys for Plaintiffs


4818-5479-7856.3

CERTIFICATE OF SERVICE

The undersigned certifies that all counsel of record who are deemed to have consented to

electronic service are being served with a copy of this document via the Courts CM/ECF system

on this December 2, 2014. Copies of this document are being served to those Defendants who

have not yet appeared via electronic mail.

/s/Jami A. Gekas_________________ Jami A. Gekas, Attorney for Plaintiffs


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