IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. v. No.

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO TIZE CLARK, BAU PUBLISHING GROUP Plaintiff, v. No. James Dashner, Random House LLC, Twentieth Century Fox, T. S. Nowlin, Noah Oppenheim, and Grant Pierce Myers Defendants. COMPLAINT FOR COPYRIGHT INFRINGEMENT PURSUANT TO SEVENTEEN U.S.C. 101 ET. SEQ. BREACH OF CONTRACT, UNFAIR TRADE PRACTICE, AND SEEKING INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C AND 17 U.S.C. 502 Plaintiffs Tize Clark, and Bau Publishing Group, by and through their attorneys, J. Douglas Compton, (Compton & Associates) who brings this civil Complaint for Copyright Infringement against Defendants James Dashner, T.S. Nowlin, Noah Oppenheim, Grant Pierce Myers, and Random House, and for Unfair Practices, and Breach of Contract. Bau Publishing Group first published The Maze written by Tize Clark, in June of Bau Publishing had a contract with Barnes & Noble for the sale of The Maze which was Mr. Clark s story about a giant Maze created by the founder of Robodyne Industries concerning teenage boys and 2 girls, led by a black teenager (Kevin), that fought to get out of the giant Maze. The Maze was reached by an elevator platform that rises up and opens from the top, with a Center Garden containing a graveyard, having the Maze surrounded by towering gray colored walls that moved and shifted

2 dangerously and continuously sideways, up and down, with half human /half machine robotic creatures chasing and killing maze runners.. The Plaintiff, pursuant to 28 U.S.C requests judgment enforcing the copyright of Tize Clark with the Library of Congress, U. S. Copyrights Office for his original work, THE MAZE, copyrighted in 2002 (TXU ). The Plaintiff declares that James Dashner and Random House have willfully infringed on the copyright of Tize Clark, and the publication of The Maze, originally in 2004 by Mr. Clark, and by Bau Publishing Group in June, 2005, under distribution contract with Barnes & Noble. Inc. and infringed on the contract rights and original ideas of Tize Clark from The Maze. The Plaintiff declares similar conduct by the screenrighters of The Movie, The Maze Runner, Mr. Nowlin, Noah Oppenheim, and Grant Pierce Myers. Finally, the Plaintiffs request that this honorable Court, pursuant to 17 U.S.C. 502 enter a temporary and a permanent injunctive order against the defendants Twentieth Century Fox, and Random House, restricting these defendants and their agents, domestically and abroad, from promoting, selling, marketing, advertising, shipping, transporting, (directly or indirectly) or otherwise moving in domestic or foreign commerce, 1) the text, The Maze Runner, published by Delacorte Press for Random House in 2009,and 2) The Movie, The Maze Runner, presented by Twentieth Century Fox on September 19, 2014, and any and all products which infringe upon Plaintiff, Tize Clark s work. Plaintiff requests immediate ordering of Defendants to forfeit (and/or recall) all books that infringe upon Plaintiffs works including The Maze, ordering Defendant Random House to recall or remove any and all of its books, or other material, which infringes upon Plaintiff s work, The Maze, published in the spring of 2005 (hereinafter The Maze ) and or ordering the defendants Random House and Twentieth Century Fox from showing and displaying the book The Maze Runner, or The Movie The Maze Runner without 2

3 credits for The Maze by Tize Clark, and/or order the Plaintiff to be remunerated for his work, The Maze, and any past works sold and future books sold pursuant to the contracts with Barnes & Noble and Baker & Taylor. This relief requests that all covers and advertizing on copies of The Maze Runner be modified to reflect the credit for Tize Clark for The Maze that he authored, whether the advertising or marketing concerns the Book, the Maze Runner, or The Movie, The Maze Runner. PARTIES 1. Mr. Tize Clark is a Sandoval County, New Mexico resident and an African American author best known for his horror novels including The Maze and QT. 2. James Dashner is a Boulder, Colorado resident who does business in New Mexico and may be served at his residence in Boulder, Colorado or wherever he may be found. 3. Random House is a Delaware Limited Liability Company registered to do business, and doing business in New Mexico and Random House may be served through its registered agent CT Corp. System at 123 E. Marcy, Santa Fe, New Mexico Twentieth Century Fox. is a California Corporation registered to do business, and doing business in New Mexico. Twentieth Century Fox may be served through its registered agent C.T. Corp. System at 123 E. Marcy, Santa Fe, New Mexico, The individual screenwriters, for the Movie, the Maze Runner, T. S. Nowlin, Noah Oppenheim and Grant Pierce Myers, are residents of Los Angeles California and may be served at Twentieth Century Fox Studios or wherever they may be found. 6. At all relevant and material times set forth in the herein Complaint, Random House, regularly and systematically conducts business in New Mexico by advertising, selling, 3

4 shipping and delivering books through interstate commerce in the State of New Mexico and this judicial district. 7. At all relevant and material times, Twentieth Century Fox regularly and systematically conducts business in New Mexico by advertising, selling, shipping, distributing, and delivering motion picture films and movies through interstate commerce in the State of New Mexico and in this judicial district. JURISDICTION AND VENUE 8. The Court s Jurisdiction over this controversy exists based on the diversity of citizenship of the parties, under 28 U.S.C. Sec (a) (2) as this case involves a dispute between plaintiff, Tize Clark, a citizen of the State of New Mexico, and Random House, a corporation organized under the laws of the State of New York and the matter in controversy exceeds the sum or value of $75, exclusive of interest and costs. Delecorte Press as a subsidiary and print and distribution center for Random House books is also organized and has its principal place of business in New York city. 9. This court s jurisdiction over this controversy exists pursuant to 28 U.S.C. Sec as the Plaintiff s copyright infringement actions arise under the Constitution of the United States and 17 U.S.C. Sec. 101 et seq. in particular. 10. This Court s jurisdiction over this controversy exists pursuant to 28 U.S.C. Sec. 1338(a) because the suit arises under 17 U.S.C. Sec. 101 et. Seq. 11. Venue is proper in Albuquerque, New Mexico because Mr. Clark is a Sandoval County resident, the acts and/or omissions giving rise to this suit occurred in Bernalillo County and Sandoval County, where the book, The Maze Runner, was sold and The Movie, The Maze Runner was shown. Venue is proper in this district pursuant to 28 U.S.C. Sec. 1391(c) in that 4

5 the defendants have substantial business contacts in this judicial district, and it has been advertising, selling, shipping, and delivering books, including The Maze Runner, through interstate commerce from its principal state to New Mexico as has Twentieth Century Fox been showing films. III. PLAINTIFFS ALLEGATIONS 12. Plaintiff Tize Clark is the original author for the first and succeeding editions of The Maze. In 2002,the manuscript, the Maze, was copyrighted by the Library of Congress, U.S. Copyright s Office for the author, Tize Clark with copyright number TXU Plaintiff Tize Clark is the original author for the first and succeeding editions of The Maze. In 2002,the manuscript, the Maze, was copyrighted by the Library of Congress, U.S. Copyright s Office for the author, Tize Clark with copyright number TXU The orignal book, The Maze, was published by the author in 2004, and thereafter by Bau Publiashing Group in June, Plaintiff entered into a Book distribution and sale agreement with Barnes & Noble, Inc. in June of 2005, and various other booksellers. 16 The concept for the Maze including the idea of a giant maze created by a multinational corporation, Robodyne Industries, and a story about teenage boys and a girl fighting to escape from the maze with giant moving walls and terrifying robotic creatures killing and chasing them through the maze, was entirely original to Tize Clark before he reduced the ideas to manuscript and the copyrighting of his work in Mr. Clark was the original creator of certain innovations and ideas about teenagers trapped in a Maze with 5

6 moving walls and dangerous and deadly robotic creatures chasing and killing the Maze runners attempting to escape from the maze. 17 James Dashner wrote The Maze Runner in 2006 over three years, and copyrighted the text of his work in His novel was published by Random House Books in James Dashner and Random House have infringed the copyright of Tize Clark by lifting concepts of setting, environment, character development, and teenagers escaping from a maze with dangerous moving walls, filled with terrifying robotic creatures. 19 As can be seen from several passages in the text of the Maze Runner by Mr. Dashner,, James Dashner substantially duplicated the concepts and ideas of suspense and horror from Mr. Clark s work The Maze from Chapters 8 to 14 in Mr. Clark s story about teenage boys and 1 girl attempting to escape from a Maze with giant moving walls that kill both teenages and robotic creatures. 20 This infringement of James Dashner with identical story development and language underlined in the text attached, used the original ideas and concepts of Tize Clark. This infringement of Tize Clarks concepts, original creative presentation and wording has infringed the copyright of Tize Clark through Random House publishing of The Maze Runner, without compensation, without payment of royalties, and without acknowledgement of The Maze Text. 21 The acknowledgment of James Dashner as sole author of The Maze Runner by Random House Books and absence of any acknowledgement of The Maze written and copyrighted long before The Maze Runner was written by James /Dashner gives false credit to only one author of the concepts of The Maze to the detriment of Plaintiff, Tize Clark. COUNT 1 6

7 COPYRIGHT INFRINGEMENT 17 U.S.C. 101 ET SEQ THE MAZE MANUSCRIPT 22 Plaintiffs incorporate herein by reference paragraphs 1 through 19 above as if they were fully set forth herein. 23 Plaintiff, Tize Clark, authored the Maze Manuscript in 2002 creating original copyrighted Book material titled The Maze. This story of The Maze with giant movable walls, robotic half human half machine terrifying creatures chasing teenage boys trying to escape from the death trap environment that is constantly changing shape is copyrightable subject matter under the laws of the United States. See 17 U.S.C. Sec. 101 et seq. 24 Plaintiff complied in all respects with the Copyright Act, 17 U.S.C. Sec. 101 et. Seq. and with all other laws governing copyrights. Since 2004, plaintiff has been the sole proprietor of all rights, title, and interest in and to the copyright for the giant moving walls story he created about teenagers running and escaping from the giant maze from terrifying mechanical creatures. See. 17 U.S.C. Secs. 106, Bau Publishing Group and Tize Clark registered its copyright interest in The Maze with the International Standard Book Number ISBN when it was published by Bau Publishing in June of 2005 in New York, New York. As the original creator of the manuscript, The Maze, Plaintiff is entitled to share in all royalties from sales of his work and any derivative work or modified work like The Maze Runner by James Dashner. 26 After the date of The Maze copyright registration, defendants James Dashner and Random House infringed plaintiff s copyright by publishing and placing on the market a book called The Maze Runner, which was copied largely from plaintiff s copyrighted book,the Maze, from Chapter Two, and Chapters Eight through Fourteen. Plaintiff has 7

8 attached these chapters from The Maze as Exhibit 1 and a copy of defendant s infringing material as Exhibit Tize Clark pursuant to a Contract for Distribution of his books with Barnes & Noble is a third party beneficiary to the contract with regard to the publishing rights related to the work, The Maze, and the borrowed text and copyrighted material extracted from the Maze into The Maze Runner. The plaintiff distribution contact from Barnes & Noble attached as Ex Defendant James Dashner and Random House failed to contact Mr. Clark at any time concerning the copy, display, and/or distribution of the work, The Maze Runner which included the copyright protected elements of The Maze from the Bau Publishing Group original edition, with partial chapters attached as Exhibit Plaintiffs did not give their consent, permission or license, in any way, to defendants James Dashner of Random House, to reproduce the copyrighted work, in any fashion for any use, however, Defendants reproduced and continues to reproduce the Plaintiffs copyrighted work in violation of 17 U.S.C. Sec. 106(1). 30 Defendant Dashner at all times material and relevant to the herein Complaint had access to the work, The Maze from which to copy the elements of the copyright work. The book, the Maze was sold actively beginning in the summer of 2005 through the end of the year by Barnes & Noble pursuant to its distribution Contract with Bau Publishing attached as Exhibit When comparing the text of The Maze and The Maze Runner, it is sufficiently clear that the two works are sufficiently similar for a fact finder to conclude that defendant 8

9 Dashner copied from The Maze to make the work The Maze Runner, or copied the substance, style, imagery and story of the teenage boys and one girl with impunity. 32 When comparing the text of The Maze and The Maze Runner it is sufficiently clear that the substantial similarities found in The Maze Runner are the result of unlawful or illicit copying of the Copyright protected work The Maze. 33 At all relevant and material times set forth in the Complaint, The defendants have failed to compensate the plaintiff in any fashion whatsoever for the copy and/or display and/or distribution of the copyrighted protected work The Maze in the infringing The Maze Runner and have continued this practice after the release of the Movie, the Maze Runner by Twentieth Century Fox. 34 The Defendants infringing behavior of copying and/or displaying and/or distributing the copyright protected work of the plaintiff, has produced great profits for the defendant Dashner and Random House as well as Twentieth Century Fox selling the Movie The Maze Runner having made over $230 million dollars in four (4) weeks since its release. 35 At all relevant times, the Defendant James Dashner, and by contract Random House, has knowingly and willfully directly and/or derivatively copied, and/or displayed and/or distributed without independent creation the Plaintiffs protected work, The Maze for the specific purpose of infringing upon the Plaintiff s contract rights and to unlawfully enrich the defendant at the Plaintiff s expense, as the Defendants never obtained consent, permission and/or license from the plaintiff to copy, display and/or distribute the plaintiff s protected work The Maze. WHEREFORE, Plaintiff demands judgment against the defendant, James Dashner 9

10 and Random House for all profits earned by these defendants from the unlawful copying,selling, displaying, and /or distributing of the plaintiff protected work The Maze and or all copyright protected elements therein and all actual consequential, indirect, incidental, and punitive damages or, in the alternative, any and all statutory damages in accordance with 17 U.S.C. 504 (c) in an amount greater than $75, together with costs, attorney fees, pre and post judgment interest and any other relief that this Court deems just and equitable. COUNT I I COPYRIGHT INFRINGEMENT DEMAND FOR INJUNCTIVE RELIEF PURSUANT TO 17 U.S.C. Sec Plaintiff incorporates herein by reference paragraphs 1 through 33 above as though fully set forth herein. 37 Defendants Dashner and Random House have infringed on the copyright work authored by Plaintiff, The Maze by its work, the Maze Runner, including text, content, imagery, settings of a giant maze with dangerously moving death walls which are also original concepts of the Plaintiff. 38 Defendants past, current, and future acts of copying, selling, displaying, and distributing plaintiff s work The Mazeand/or copyright protected elements therein has caused and continues to cause permanent and irreparable harm to the Plaintiff. 39 Unless this Court enters an Order enjoining the Defendants from performing further acts of copying, selling, displaying and distributing Plaintiff s copyright protected work, Plaintiff will continue to suffer ongong irreparable harm. 40 Plaintiff does not have an adequate remedy at law. 10

11 41 Based upon the facts averred herein, the evidence attached as Exhibits 1 and 2 and 3-4 herein, and Defendants willful infringement of the rights of the plaintiff with regard to The Maze, Plaintiff has a substantial likelihood of success on the merits. 42 Greater harm will befall the Plaintiff if this honorable Court fails to grant the injunctive relief requested as compared to the harm that would befall the Defendants if Plaintiff s injunctive relief was granted WHEREFORE, Plaintiff demands that this honorable Court enter an Order: (a) (b) Ordering and restraining Defendant from carrying out this copyright infringement; Restraining further publication of The Maze Runner, immediate payment of Ten Million ($10,000,000.00) dollars for the misrepresentation and lack of acknowledgment of a person s acknowledged work. (c) Order an accounting of all sales of The Maze Runner and properly acknowledge the original work The Maze by Tize Clark; (d) Pay for all royalties earned from The Maze Runner as would have been paid under a royalty agreement for The Maze for the use of the concepts, and original ideas of Tize Clark; (e) (f) Capture and recall all unsold copies of The Maze Runner; Move forward with changes to the acknowledgements and credits for The Maze by Tize Clark on reissue of The Maze Runner in the future; (g) Order that Plaintiffs work which has been copyrighted is entitled to protection from infringement by the Defendant. COUNT III UNFAIR TRADE PRACTICES & UNFAIR COMPETITION 11

12 43 Plaintiffs incorporate herein by reference paragraphs 1 through 40 above as if they were fully set forth herein. 44 The Maze by Tize Clark was in the public domain and was receiving healthy book sales and royalties to Tize Clark, in the summer of James Dashner stole the original copyrighted book material of The Maze when he wrote The Maze Runner from 2006 to 2008, and published his novel based on The Maze by Tize Clark without consent or acknowledgement of its source and copyrightable material from 2009 to 2013 with million dollar sales of his book. 46 From at least October 6 of 2009, and continuously since that date, defendant James Dashner and Random House (Delacorte Press) has been publishing, selling, and otherwise marketing the book, The Maze Runner by Dashner, to their profit and without credit and royalties to Tize Clark. Defendants have thus been engaging in unfair trade practices and unfair competition against plaintiff. 47. This conduct has caused plaintiff irreparable injury. See 28 U.S.C. Sec (b). WHEREFORE, Plaintiff demands judgment against defendants James Dashner,, Random House, Twentieth Century Fox and the screenwriters for all profits earned by these defendants from the unfair trade practice of using his original story of The Maze without credit or acknowledgement or permission, or consent, with their publication and display of The Maze Runner, in book form and for The Movie, and to pay all statutory damages under U.S.C. Sec (b) et seq., costs, attorney fees, pre and post judgment interest and any other relief that this court deems just and equitable. 12

13 COUNT IV COPYRIGHT INFRINGEMENT 17 U.S.C. 101 ET SEQ THE SCREENPLAY FOR THE MAZE RUNNER 48. Plaintiffs incorporate paragraphs 1-47 above by reference as if they were fully set forth herein. 49. Plaintiff Tize Clark sent a letter to Twentieth Century Fox in June of 2005 with two (2) copies of his book manuscript, The Maze, with a request that they consider the Book for use as a vehicle for a film, and to contract with Mr. Clark for the rights to make a movie out of the book. 50. In 2005,Twentieth Century Fox responded and declined to enter into a contract to make a movie out of the book, The Maze, or its original creative ideas as a giant Maze with constantly moving giant walls,, mechanical half human robotic creatures roaming the Maze to find teenagers trying to figure out the passage through the Maze. 51. In their response correspondence they returned only 1 copy of the Maze after two were sent for consideration. 52. Twentieth Century Fox did not seek permission or consent from Tize Clark to distribute and show The Maze Runner Movie first published and displayed, and distributed on September 19, 2014, with the Movie containing original ideas and story lines from The book, The Maze, sent to 20 th Century Fox in tieth Century Fox had their screenwriters write the screenplay for The Maze Runner with concepts taken out of the copyrighted material manuscript and work of Tize Clark, copyrighted in 2002, and published by Bau Publishing co. in 2005 and filmed a Movie with dialog and scenes that are the copyrighted material of The Maze by Tize Clark 13

14 without permission or consent or remuneration to Tize clark for his work in violation of 17 U.S.C. Sec. 106(1). 54. At all times material 20tieth Century fox had access to the material and the work, The Maze from which to copy and reproduce on film the concepts laid out in the novel, The Maze by Tize Clark. 55. Worldwide sales of the Maze Runner, The Movie, since September 19, 2014 have been over $230,000, dollars. 56. When comparing the text of The Maze with the screenplay of The Maze Runner, it is sufficiently clear that the substantial similarities found in the Maze Runner are the result of unlawful or illicit copying of the copyright protected work The Maze. WHEREFORE, Plaintiff demands Judgment against the Defendant Twentieth Century Fox and their employees, the screenwriters, who wrote the Maze Runner, for all profits earned by these defendants, 20tieth Century Fox and the screenwriters for the movie and for proper crediting of the work by Tize Clark as author of The Maze. Respectfully submitted, COMPTON & ASSOCIATES By: /S/ JDC J. Douglas Compton 6605 Uptown Blvd., Ste. 340 Albuquerque, NM (505) (505) Facsimile Attorneys for Tize Clark 14