DEADLINE.com UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA. BRAD WIGOR, an individual, Plaintiff,

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1 . 0 z U 0 cl.0 ) 0 L) OL) 0 BONNIE E. ESKENAZI (SBN 0 ) BEskenazi GreenbergGlusker. corn JAMES R.MOLEN (SBN 0) H - 0 JMoen(GreenbergGlusker.com.. GREENIERG GLUSKER FIELDS CLAMAN & CLERK u.s. ;J:Lr MACHTINGER LLP CEJTc L LU 00 Avenue of the Stars, st Floor Los Angeles, California 00-0 Telephone: 0..0 Fax: 0..0 Attorneys for Plaintiff Brad Wigor BRAD WIGOR, an individual, kv Plaintiff, HALLMARK HALL OF FAME PRODUCTIONS, INC., a Delaware corporation; MCGEE STREET PRODUCTIONS, INC., a California corporation; and DOES -0, inclusive, Defendants. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ascv."0 COMPLAINT FOR: () COPYRIGHT INFRINGEMENT; () BREACH OF IMPLIED CONTRACT; () FRAUD; and () UNFAIR BUSINESS PRACTICES (Cal. B&P 00); () UNJUST ENRICHMENT DEMAND FOR JURY TRIAL -0000/00. COMPLAINT

2 00 Avenue of the Stars, st Floor Los Angeles, California Plaintiff Brad Wigor ( Wigor or plaintiff ) alleges as follows: INTRODUCTION. This case arises from defendants usurpation of plaintiff s valuable intellectual property rights. For more than 0 years, defendant Hallmark Hall of Fame Productions ( Hallmark ) has produced an anthology program on American television sponsored by Hallmark Cards, Inc., the well-known greeting card company. Whether due to changing tastes, evolving technology or both, recent years have not been kind to Hallmark. Faced with declining viewership and languishing interest, Hallmark has become desperate for quality original content. Unfortunately, Hallmark has apparently decided it is more valuable to it to obtain ideas and copyrighted works by theft and deception rather than to develop and pay for truly original programming.. In an effort to reverse its ailing fortune for the lowest cost possible, Hallmark and defendant McGee Street Productions, Inc. ( McGee ) fraudulently lured plaintiff Wigor into submitting and developing his original idea into a television movie treatment and partial script ( Wigor s Work ) for them over a period of months. Then, just weeks before the television movie was green-lit for pre-production, defendants refused to engage Wigor. Instead, defendants simply unilaterally misappropriated Wigor s Work, using it as a basis for the television movie they planned all along ( Infringing Project ). Even more reprehensibly, and in a devious attempt to cover their unlawful conduct, defendants scrambled to find an obscure literary work with some superficial similarities to Wigor s Work so that they could pretend the Infringing Project was based on something other than Wigor s Work. Defendants attempted deception is unavailing. It is clear that defendants stole Wigor s Work for their family television movie without paying him, deliberately infringed his copyrights, and undertook production of Wigor s movie as if it were their own /00. COMPLAINT

3 00 Avenue of the Stars, st Floor Los Angeles, California THE PARTIES. Plaintiff is an individual residing in Ontario, Canada.. Plaintiff is informed and believes, and based thereon alleges, that defendant Hallmark is a Delaware corporation with its principal place of business in Los Angeles County, California.. Plaintiff is informed and believes, and based thereon alleges, that defendant McGee is a California corporation with its principal place of business in Los Angeles County, California. Plaintiff is further informed and believes, and based thereon alleges, that McGee is an affiliate of Hallmark.. The true names and capacities, whether individual, corporate, associate or otherwise, of the defendants named herein as Does through 0, inclusive, are unknown to plaintiff at the present time who therefore sues such defendants by such fictitious names. Plaintiff will amend this complaint to show the true names and capacities of the Doe defendants when they have been ascertained. Plaintiff is informed and believes, and based thereon alleges, that Does through 0, inclusive, were responsible in some manner for the acts and transactions hereinafter alleged and are liable to plaintiff therefor.. Plaintiff is informed and believes, and based thereon alleges, that in doing the acts alleged herein, each of the defendants was the agent, principal, employee, co-conspirator and/or alter ego of one or more of the other defendants, and acted with one or more of the other defendants knowledge, consent and approval and/or within the course and scope of such agency, employment or conspiracy and/or as one or more of the other defendants alter ego. As such, each of the defendants is responsible for the liabilities of the other defendants, as alleged herein /00. COMPLAINT

4 00 Avenue of the Stars, st Floor Los Angeles, California VENUE AND JURISDICTION. Venue in this Judicial District is proper under U.S.C. (b) and (c) and U.S.C. 00(a) as the defendants are located in Los Angeles County and a substantial part of the acts and circumstances giving rise to this Complaint occurred in Los Angeles County.. This Court has jurisdiction over this matter in that one of the causes of action arises under the United States Copyright Act, U.S.C. 0 et seq. Jurisdiction is based upon U.S.C. and. Further, this Court has jurisdiction over this matter based on diversity of citizenship, U.S.C. (a)(), because there is complete diversity between plaintiff and defendants, and the matter in controversy exceeds $,000, exclusive of interest and costs. ALLEGATIONS COMMON TO ALL CLAIMS 0. Wigor is a professional screenwriter, director and producer. In or about March 00, Wigor conceived of an idea for a family movie about a troubled teenage boy who lives in Los Angeles and meets an angel. The boy obtains the power to fly by sprouting angelic wings, and after a few false starts, ultimately uses his power for good during the Christmas season. As a result of his holiday epiphany, the boy finds redemption and discovers the good within himself. Wigor s idea was entitled The Night Flyer and he wrote a treatment embodying his idea (the Treatment ).. In or about 00, Wigor first provided the Treatment to Hallmark s agent and head of development, Cameron Johann. Although nothing specific came of the initial submission, later in or about April 0, Wigor was contacted by another Hallmark agent, Jessica Callahan, who, on behalf of Johann, requested that Wigor send another copy of the Treatment, which he promptly did.. Thereafter, on about July, 0 Wigor met with Johann and Linda Carolei, Hallmark s Director of Development, at Hallmark s office in Studio City, California to discuss development and production of The Night Flyer. Among -0000/00. COMPLAINT

5 00 Avenue of the Stars, st Floor Los Angeles, California other things, Johann told Wigor that he wanted Hallmark to develop The Night Flyer for production into a made-for-television movie. Johann and Wigor discussed that if Hallmark produced The Night Flyer, Wigor would be brought on as the writer and director of the project. At that time, Wigor told Johann that he was in the process of writing a script (the Script ) based on the Treatment. Johann requested Wigor to submit the Script to Hallmark. In addition, Johann requested Wigor to write and submit a one-page synopsis of the story to assist in the development and production of the project (the First One-Pager ). Thereafter, Wigor completed a portion of the Script and the First One-Pager and submitted the materials to Hallmark pursuant to Johann s request.. In or around mid-0, Hallmark agreed to work with Wigor to develop The Night Flyer for production into a made-for-television movie in time for the 0 Christmas holiday. From April 0 through February 0, Wigor engaged in extensive communications with various Hallmark agents regarding development and production of The Night Flyer into a made-for-television movie. The Hallmark agents repeatedly requested Wigor s detailed input and advice for developing the project. Pursuant to these requests, Wigor provided Hallmark with extensive and invaluable development ideas and suggestions, including without limitation, general and specific ideas on thematic through-lines, character development, plot devices, settings, and more. Hallmark s agents repeatedly told Wigor that they hoped to produce The Night Flyer for release in late 0. Based on Hallmark s promises and representations, Wigor refrained from actively pursuing other opportunities to sell The Night Flyer to other producers.. In or around October 0, to further assist in the development and promotion of The Night Flyer, Hallmark asked Wigor to draft an additional onepage synopsis of the story (the Second One-Pager ), which Wigor wrote and submitted as requested /00. COMPLAINT

6 00 Avenue of the Stars, st Floor Los Angeles, California By December 0, Hallmark had requested and obtained at least four original works of authorship from Wigor relating to The Night Flyer, namely the Treatment, the Script and the First and Second One-Pagers (collectively the Creative Works ), in addition to Wigor s extensive and invaluable development ideas and suggestions.. In mid-december 0, seemingly out of nowhere, Johann told Wigor that Hallmark s executives intended to restructure The Night Flyer. Further, Johann told Wigor that Hallmark had already created a pitch document based on Wigor s concept and that Johann was hopeful that the top level Hallmark executives would green light The Night Flyer on the basis of these documents. These derivative works were created without Wigor s permission or approval. Moreover, although the revisions and modifications of Wigor s Work were unauthorized, Johann continued to lead Wigor to believe that Wigor would be the writer and director of the Night Flyer production should it be green-lit by the Hallmark executives.. Shortly thereafter, in February 0, Hallmark advised Wigor that it intended to move forward with production of The Night Flyer and that, to this end, it had prepared numerous drafts of the project (again, without Wigor s permission or approval). Unbelievably, however, and for the first time, Hallmark simultaneously demanded Wigor to step aside as a writer and director of the project. Instead, Hallmark told Wigor that he could either take a valueless executive producer credit or be cut out of the project entirely.. Of course, Hallmark s demand was unacceptable. From the outset and at all material times, Wigor made absolutely clear that if The Night Flyer were ever produced, he would write and direct it. Hallmark s conduct and communications with Wigor prior to February 0 demonstrated that this understanding was mutual. Were it not for this mutual understanding, Wigor would have never imparted his creative ideas and works of authorship to the significant extent that he did /00. COMPLAINT

7 00 Avenue of the Stars, st Floor Los Angeles, California Unfortunately, Hallmark apparently decided it was more valuable to cut Wigor out and take Wigor s ideas and copyrighted works for its own rather than provide Wigor the compensation and credit to which he was entitled. When Wigor refused to step aside from writing and directing The Night Flyer, Hallmark instead unilaterally proceeded with the project and misappropriated Wigor s work for itself, depriving Wigor of control over his creative endeavor, as well as depriving him of the significant fees to which he was entitled and the residuals, back-end participation and invaluable screen credit to which he would have been entitled upon The Night Flyer s release. 0. On or about April, 0, McGee sent Wigor a letter brazenly admitting to defendants wrongful conduct. In particular, McGee told Wigor that it and Hallmark were in the process of developing and producing of a Christmas film project (the Infringing Project ) containing many significant and striking similarities to The Night Flyer. Disgracefully, in a thinly-veiled attempt to disguise their wrongful conduct, defendants asserted that the Infringing Project was not based on The Night Flyer, but rather on a book published in entitled Black and Blue Magic, which has nothing to do with Christmas. The defendants belated and ill-conceived assertion was contrary to the overwhelming evidence, including their continuous negotiations and discussions with Wigor, the Christmas theme and timing of the Infringing Project, and the admission that it was strikingly similar to The Night Flyer. To add insult to injury, defendants had the audacity to demand that Wigor himself restrain further exploitation of The Night Flyer, notwithstanding his manifest authorship and ownership of the work.. Plaintiff Wigor is informed and believes, and based thereon alleges, that the Infringing Project is based upon, and is substantially similar to, The Night Flyer. Plaintiff is further informed and believes, and based thereon alleges, that the Infringing Project steals many central creative components and elements from The Night Flyer. Plaintiff is further informed and believes, and based thereon alleges, -0000/00. COMPLAINT

8 00 Avenue of the Stars, st Floor Los Angeles, California that the Infringing Project is based upon, incorporates, and/or was materially assisted by the ideas and suggestions provided by plaintiff in his discussions with defendants regarding The Night Flyer.. In or about May 0, Wigor demanded that defendants cease and desist further development or production of the Infringing Project. Defendants refused Wigor s demand.. Plaintiff Wigor is informed and believes, and based thereon alleges, that at all material times executives of Hallmark and/or Hallmark Cards, Inc., including members of the Hall family, consented to, authorized, ratified, and/or had knowledge of all the material acts alleged herein. FIRST CLAIM FOR RELIEF (By Plaintiff Against All Defendants for Copyright Infringement). Plaintiff realleges and incorporates by reference paragraphs through above as though fully set forth herein.. Wigor is the exclusive owner of the copyrights in and to The Night Flyer (including the rights infringed by defendants). Wigor has registered the copyrights in the original works of authorship provided to Hallmark concerning The Night Flyer, namely the Treatment, the Script and the two One-Pagers, with the United States Copyright Office (Registration Nos. PAu --,,, and 0). Wigor has complied in all respects with the copyright laws of the United States, and all other laws governing copyright with respect to The Night Flyer.. Defendants have infringed Wigor s copyrights in and to The Night Flyer by, without limitation, adapting, reproducing, distributing, exhibiting, and otherwise exploiting portions of The Night Flyer in connection with the Infringing Project and/or by authorizing, inducing, participating, causing or materially contributing to the foregoing, with knowledge thereof /00. COMPLAINT

9 00 Avenue of the Stars, st Floor Los Angeles, California At no time did defendants seek or obtain Wigor s permission or consent to use The Night Flyer in connection with the Infringing Project.. Wigor is informed and believes, and based thereon alleges, that defendants infringing acts were, and continue to be, committed willfully and knowingly.. As a direct and proximate result of defendant s copyright infringement alleged above, plaintiff Wigor has suffered and will continue to suffer injury and damage in an amount to be determined according to proof, but which plaintiff is informed and believes will exceed $ million. In the alternative, plaintiff reserves the right to seek statutory damages for defendants infringement of his copyrights. 0. Defendants infringement of plaintiff s copyrights has caused and will cause irreparable harm to plaintiff for which there is no adequate remedy at law. Plaintiff is therefore entitled to preliminary and permanent injunctive relief restraining and enjoining defendants from further infringing plaintiff s copyrights in and to The Night Flyer.. Plaintiff has incurred and will continue to incur attorneys fees in pursuing this action, which Plaintiff is entitled to recover from defendants pursuant to U.S.C. 0. SECOND CLAIM FOR RELIEF (By Plaintiff Against Hallmark and Does -0 for Breach of Implied Contract). Plaintiff realleges and incorporates by reference paragraphs through above as though fully set forth herein.. An implied in fact contract was created between Wigor and Hallmark when Hallmark agreed to work with Wigor to develop The Night Flyer for production as a made-for-television movie. Specifically, under the circumstances at the time of the agreement, Wigor made clear to Hallmark, and Hallmark understood, that if The Night Flyer were ever produced as a movie, Wigor would -0000/00. COMPLAINT

10 00 Avenue of the Stars, st Floor Los Angeles, California write the script and direct it. Moreover, under the circumstances at the time of the agreement, it was mutually understood that Wigor was entitled to money, including his customary fees, residuals and back-end participation, as well as credit if The Night Flyer was ever produced.. Wigor imparted his creative ideas and works of authorship to Hallmark pursuant to the implied contract. Further, in reliance on the implied contract, Wigor refrained from actively pursuing other opportunities to sell The Night Flyer to other producers. But for the implied contract, Wigor would not have imparted to Hallmark his creative ideas and works of authorship to the significant extent that he did, nor would Wigor have refrained from actively pursuing other opportunities to sell The Night Flyer to other producers.. Hallmark breached the implied contract by, among other things: () demanding that Wigor step aside as a writer and director of The Night Flyer; () taking Wigor s ideas for The Night Flyer and proceeding to produce its own, nearly identical, film project; () failing and refusing to pay Wigor his customary fees or his share of any proceeds that have been or will be received for either The Night Flyer or defendants rip-off version; and () refusing to provide credit to Wigor for either The Night Flyer or defendants misappropriated version.. Plaintiff has performed all of his obligations under the implied contract, except as such obligations have been excused by defendants conduct or as a matter of law.. As a direct and proximate result of Hallmark s breach of contract, Plaintiff has been damaged in an amount to be determined according to proof, but which Plaintiff is informed and believes will exceed $ million /00. COMPLAINT

11 00 Avenue of the Stars, st Floor Los Angeles, California THIRD CLAIM FOR RELIEF (By Plaintiff Against Hallmark and Does -0 for Fraud). Plaintiff realleges and incorporates by reference paragraphs through above as though fully set forth herein.. On or around July, 0, Hallmark s agents fraudulently, intentionally and knowingly represented to Wigor that, among other things, if Hallmark produced The Night Flyer, Hallmark intended that Wigor would write and direct of the project. Hallmark s agents repeated this promise to Wigor on numerous occasions throughout 0 and early 0. Said representations were false and Hallmark s agents knew they were false at the time the representations were made. In fact, Hallmark never intended to use Wigor as the writer and/or director of The Night Flyer. To the contrary, in a classic bait-and-switch, at all material times Hallmark intended to effectively force Wigor off the project at the last-minute by giving Wigor a Hobson s choice of either taking an essentially worthless executive producer credit or be cut out of the project entirely. 0. Hallmark s statements and promises were made with intent to deceive Wigor into imparting his creative ideas and works of authorship to Hallmark and refraining from actively pursuing other opportunities to sell The Night Flyer to other producers.. Wigor reasonably and justifiably relied on Hallmark s representations in, among other things, imparting his creative ideas and works of authorship to Hallmark and refraining from actively pursuing other opportunities to sell The Night Flyer to other producers. But for these representations, Wigor would not have imparted to Hallmark his creative ideas and works of authorship to the significant extent that he did, nor would Wigor have refrained from actively pursuing other opportunities to sell The Night Flyer to other producers /00. 0 COMPLAINT

12 00 Avenue of the Stars, st Floor Los Angeles, California As a direct and proximate result of Hallmark s fraud, plaintiff Wigor has been damaged in an amount to be determined according to proof, but which plaintiff is informed and believes will exceed $ million.. Plaintiff is informed and believes, and on that basis alleges, that the wrongful and unconscionable conduct described herein was committed by Hallmark with a conscious disregard of plaintiff s rights and with the intent to vex, injure or annoy plaintiff, such as to constitute oppression, fraud or malice under California Civil Code section, entitling plaintiff to punitive damages in an amount appropriate to punish or set an example of Hallmark, based upon its fraudulent desire to harm the interests of plaintiff. FOURTH CLAIM FOR RELIEF (By Plaintiff Against All Defendants for Violation of Cal. Bus & Prof. Code 00, et seq.). Plaintiff realleges and incorporates herein by this reference paragraphs through above as though fully set forth herein.. By reason of the circumstances described above, defendants have been, and are, engaged in unlawful, unfair or fraudulent business practices in violation of sections 00 et seq. of the California Business and Professions Code.. As a direct and proximate result of its unlawful, unfair and/or fraudulent business practices, defendants unjustly obtained material benefits from plaintiff.. Plaintiff is informed and believes, and on that basis alleges, that the wrongful conduct described herein constitutes a pattern and practice of defendants.. By reason of the foregoing, plaintiff is entitled to equitable relief as provided for in California Business and Professions Code section /00. COMPLAINT

13 00 Avenue of the Stars, st Floor Los Angeles, California FIFTH CLAIM FOR RELIEF (By Plaintiff Against All Defendants for Unjust Enrichment). Plaintiff realleges and incorporates herein by this reference paragraphs through above as though fully set forth herein. 0. Defendants have received unjust benefits at the expense of plaintiff.. Defendants have unjustly retained these benefits and have improperly refused to return the benefits to plaintiff.. Under the circumstances described above, it would be inequitable for defendants to retain the benefits of their wrongful conduct without paying plaintiff the value of such benefits.. As a direct and proximate result of defendants wrongful conduct and actions, defendants have been unjustly enriched in an amount to be determined according to proof, but which plaintiff believes will exceed $ million, and plaintiff is entitled to recovery in that amount. WHEREFORE, plaintiff prays for judgment as follows: ON THE FIRST CLAIM FOR RELIEF. For damages according to proof but which plaintiff is informed and believes will exceed $ million, or in the alternative, statutory damages;. For permanent injunctive relief to be determined by the Court at trial;. For plaintiff s reasonable attorneys fees;. For costs of suit; and. For such other and further relief as the Court deems just and proper. ON THE SECOND CLAIM FOR RELIEF. For damages according to proof but which plaintiff is informed and believes will exceed $ million, plus interest thereon at the maximum legal rate; -0000/00. COMPLAINT

14 0 z C) L) - z 0. For costs of suit; and. For such other and further relief as the Court deems just and proper. ON THE THIRD CLAIM FOR RELIEF. For damages according to proof but which plaintiff is informed and believes will exceed $ million, plus interest thereon at the maximum legal rate;. For punitive damages reasonably related to the net worth of Hallmark;. For costs of suit; and. For such other and further relief as the Court deems just and proper.. For restitution; ON THE FOURTH CLAIM FOR RELIEF. For interest at the maximum allowable legal rate;. For reasonable attorneys fees as allowed by statute;. For an injunction restraining defendants from engaging in further unfair business practices;. For costs of suit; and. For such other and further relief as the Court deems just and proper ON THE FIFTH CLAIM FOR RELIEF. For equitable relief, including restitution;. For interest thereon at the maximum legal rate;. For costs of suit; and. For such other and further relief as the Court deems just and proper. DATED: August, 0 GREENBERG GLUSKER FIELDS CLAMAN & MACHT[NGER LLP By: BONNIE E. ES T) Attorneys for Plaintiff Brad Wigor -0000/00. COMPLA[NT

15 0 L) Ln - L DEMAND FOR JURY TRIAL Plaintiff Brad Wigor hereby demands a jury trial on all issues so triable. DATED: August, 0 GREENBERG GLUSKER FIELDS CLAMAN By: / BONNIE E. ESKENAZI (SlE N 0 Attorneys for Plaintiff Brad Wigor -0000/00. COMPLAINT