Defs (Voltage, Gilliam) Opp to PI

IN THE UNITED STATES DISTRICT COURT FOR THE 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,

Case No. 1:14-cv-06206

v.

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.

Judge Robert W. Gettleman Magistrate Judge Young B. Kim

VOLTAGE PICTURES, LLC’S, AMPLIFY RELEASING’S, ZANUCK

INDEPENDENT’S AND WELL GO USA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs waited almost a year after the release of The Zero Theorem (the “Film”) to

assert their claims for infringement, and then, after filing this lawsuit, chose to wait over a month

before seeking injunctive relief. The Film was initially screened in early September 2013, at the

Venice Film Festival, was first screened in the United States later that same month and was

released through video-on-demand services and on DVD on August 19, 2014.1 It was not until

September 23, 2014 that Plaintiffs filed the motion now before the Court. While the motion

raises the specter of undue harm, Plaintiffs’ actions speak louder than words. Their delays in

1 [See Declaration of Nicholas Chartier (“Chartier Decl.”), ¶ 6, attached hereto as Exhibit 1.]

Case 2:15-cv-00889-R-JEM Document 36 Filed 11/14/14 Page 1 of 17 Page ID #:348

- 2 -

bringing the motion betray their assertion of imminent reputational injury if the Court does not

enjoin further distribution of the Film. This delay alone requires denial of the motion.

Other facts demonstrate that Plaintiffs do not face the irreparable injury necessary to

support injunctive relief. Indeed, Plaintiffs themselves confirm that any alleged injuries they

may suffer can be adequately compensated by monetary damages. Plaintiffs themselves proffer

evidence of their willingness to sell rights to the mural they seek to protect (the “Work”), even to

these Defendants for use in this Film.2 Plaintiffs’ concession is fatal to their motion.

Lack of imminent, irreparable injury is not the motion’s only failing. Plaintiffs cannot

establish that they are likely to prevail on the merits of their claim because they fail to offer

competent evidence that they are the registered owners of the Work, or that Defendants had

access to the Work. Plaintiffs also fail to even address Defendants’ fair use defense, which is

likely to succeed because, among other things, Plaintiffs provide no evidence that Defendants’

alleged use of the Work has had any negative market effect whatsoever on Plaintiffs.

Finally, Plaintiff’s requested injunction is overbroad because it seemingly seeks to halt

distribution of the Film in its entirety,3 and thus impermissibly seeks to restrain Defendants from

engaging in legal conduct. It also drastically and improperly curbs Defendants’ First

Amendment rights, and therefore creates an unconstitutional prior restraint.

For all of these reasons, as discussed below, Defendants Voltage Pictures, LLC,

GoDigital, Inc. d/b/a Amplify Releasing, DFZ Productions, Inc. d/b/a Zanuck Independent, and

Well Go USA, Inc. respectfully ask this Court to deny Plaintiffs’ Motion for preliminary

injunction.

2 [See Declaration of Nicolas Santiago Romero Escalada (“Escalada Decl.”), Dkt. No. 11, ¶ 11.] 3 Plaintiffs allege that “there is no way to cut the infringing work out of the Film.” [See Compl., Dkt. No. 3, ¶ 33.]


- 3 -

I. ARGUMENT

A. Plaintiffs Do Not Satisfy The Requirements For A Preliminary Injunction.

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

National Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). “[A] preliminary injunction is

an extraordinary and drastic remedy, one that should not be granted unless movant, by a clear

showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).

Plaintiffs contend this burden is easily met. [Memorandum In Support of Motion (“Pltf’s

Memo.”), 3, citing Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765 (7th Cir. 2011).]

Plaintiffs argue that they must only show a “better than negligible chance” of success in order to

garner an injunction. [Pltf’s Memo. at 4, citing Boucher v. Sch. Bd. of the Sch. Dist. of

Greenfield, 134 F.3d 821, 824 (7th Cir. 1998).] Plaintiffs misapprehend their burden.

Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), represents a shift from earlier, looser

standards for obtaining injunctive relief. Salinger, which drew its holdings from eBay, Inc. v.

MercExchange, LLC, 547 U.S. 388 (2006), did away with presumptions favoring the issuance of

preliminary injunctions, expressly holding that the court may issue an injunction only if the

plaintiff has demonstrated “that he is likely to suffer irreparable injury in the absence of an

injunction.” Salinger, 607 F.3d at 80, quoting Winter, 555 U.S. at 20. “The court must not adopt

a ‘categorical’ or ‘general’ rule or presume that the plaintiff will suffer irreparable harm.

Instead, the court “must actually consider the injury the plaintiff will suffer if he or she loses on

the preliminary injunction but ultimately prevails on the merits, paying particular attention to

whether the remedies available at law, such as monetary damages, are inadequate to compensate

for that injury.” Salinger, 607 F.3d at 80 (internal quotes omitted).


- 4 -

Other circuits, including the Seventh Circuit, have adopted Salinger’s holding in their

recent decisions and confirmed that the moving party must meet its burden on each necessary

element. See Flava Works, Inc. v. Gunter, 689 F.3d 754, 755 (7th Cir. 2012) (finding that

district court erred by presuming irreparable harm and focusing ruling on likelihood of success);

see also Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989, 998-99 (9th Cir.

2011) (holding that the long-standing practice of presuming irreparable harm upon the showing

of likelihood of success on the merits in a copyright infringement case is no longer good law).

Notably, the legal authorities Plaintiffs cite in their moving papers to address the

standards they must meet to obtain an injunction pre-date Salinger and do not reflect the current

state of the law. [Pltf’s Memo. at 3-4.] This is highlighted by Plaintiffs’ repeated citation to and

reliance upon Woods v. Universal City Studios, Inc., 920 F. Supp. 62 (S.D.N.Y. 1996). Woods

specifically held that the plaintiff was entitled to a presumption of irreparable harm when issuing

a preliminary injunction against Terry Gilliam and others, and that it was the defendants’ burden

to demonstrate that the matter was a “case of special circumstances” or that “a great public injury

would result from an injunction” to defeat the plaintiffs’ motion. See id. at 65. However, the

Woods holding provides no guidance to this Court in the wake of the Salinger opinion.

As explained below, Plaintiffs fail to meet their burden of proving each element

necessary for the issuance of a preliminary injunction.

B. Plaintiffs Have Not And Cannot Demonstrate That They Face Imminent, Irreparable Harm Unless The Film Is Enjoined.

An injunction is equitable and warranted only when a plaintiff has no adequate remedy at

law, such as monetary damages. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381,

(1992). For a preliminary injunction to issue, Plaintiffs must demonstrate that, in the absence of

a preliminary injunction, they are likely to suffer irreparable harm before a decision on the merits


- 5 -

can be rendered. See Winter, 555 U.S. at 22; Park Village Apartment Tenants Ass’n v. Mortimer

Howard Trust, 636 F.3d 1150, 1162 (9th Cir. 2011) (recognizing that a court cannot presume

harm “simply because a defendant violates a statute that authorizes injunctive relief”).

Indeed, Plaintiffs acknowledge that the threat of irreparable injury necessary to justify

preliminary injunctive relief must be “real and immediate, not conjectural or hypothetical.”

[Pltf’s Memo. at 9, citing Woodard v. Victory Records, Inc., 2013 U.S. Dist. LEXIS 144270 *9

(N.D. Ill. Oct. 4, 2013).] Plaintiffs are not entitled to any presumption in this regard, and must

establish immediate, irreparable injury with competent evidence. See Salinger, 607 F.3d at 80,

82; Flava Works, Inc., 689 F.3d at 755 (noting that perfunctory and conjectural contentions

regarding harm are not evidence of such); Ferring Pharmaceuticals, Inc. v. Watson

Pharmaceuticals, Inc., 765 F.3d 205, 219 (3d Cir. 2014) (speculative assertions in moving party’s

supporting declaration were insufficient to establish requisite harm). Undisputable historic facts

dictate that Plaintiffs cannot meet their burden here.

1. Plaintiffs Fail To Offer Competent Evidence Of Irreparable Harm.

Plaintiffs argue that, absent an injunction, their goodwill and reputation will be

irreparably harmed. 4 [Pltf’s Memo. at 10.] Plaintiffs’ argument is perfunctory, conjectural, and

is not supported by competent evidence. It therefore, cannot establish irreparable harm. See e.g.

Am. Passage Media Corp. v. Cass Commc’ns, Inc., 750 F.2d 1470, 1473 (9th Cir. 1985)

(declarations of plaintiff’s executives detailing the disruptive effect of defendant’s exclusive

contracts on plaintiff’s business could not support a preliminary injunction because they were

“conclusory and without sufficient support in facts”); Am. Promotional Events, Inc. – Northwest

4 Plaintiffs’ primary complaint seems to be that the Work is pictured in the Film adjacent to a “sex shop.” [See e.g. Declaration of Derek Shamus Mehaffey (“Mehaffy Decl.”), Dkt. No. 12, ¶ 8.] However, there is no evidence that the imagery in the Film is affiliated with or promotes “sex shops,” or that the imagery suggests that Plaintiffs endorse any sort of deviant behavior.


- 6 -

v. City & County of Honolulu, 796 F. Supp. 2d 1261, 1284 (D. Haw. 2011) (plaintiffs’ self-

serving statements cannot support a finding of irreparable injury for the issuance of a preliminary

injunction). “Although the loss of goodwill and reputation are important considerations in

determining the existence of irreparable injury, there must be credible and admissible evidence

that such damage threatens Plaintiff’s businesses with termination.” Dotster, Inc. v. Internet

Corp. For Assigned Names & Nos., 296 F. Supp. 2d 1159, 1163–64 (C.D. Cal. 2003).

Plaintiffs have not produced any evidence of actual loss of goodwill or reputation. They

speculate that they will suffer such loss if Defendants continue displaying the Work in the Film.

[Pltf’s Memo. at 14.] Such speculation is insufficient to demonstrate irreparable injury. See e.g.

Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984) (finding that mere

assertion of loss of reputation or goodwill was speculative and insufficient to prove harm).

2. Plaintiffs Do Not Offer Competent Evidence Of Any Imminent Harm.

Even if Plaintiffs could establish a risk of irreparable injury (they cannot), that would not

be enough to support the issuance of a preliminary injunction. The harm must be imminent. See

Church v. City of Huntsville, 30 F.3 1332, 1337 (11th Cir. 1994) (holding that, because

injunctions regulate future conduct, a party may seek injunctive relief only if it proves a real and

immediate, as opposed to merely conjectural or hypothetical, threat of future injury.)

Past harm does not equate to a present, immediate harm that will support injunctive relief.

See City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Am. Postal Workers Union v. Frank,

968 F.2d 1373, 1376 (1st Cir.1992) (explaining that a prospective remedy will provide no relief

for a past injury). For example, in the face of an unexplained delay in commencing suit, it is

inequitable to order “total destruction” of a book already printed, packed, and shipped. See New

Era Publ’s Int’l v. Henry Holt & Co., 873 F. 2d 576, 584–85 (2nd Cir. 1989). Likewise, where

owners of a copyrighted architectural design, although aware of an allegedly infringing housing


- 7 -

project, delayed suit until the project was substantially constructed and partially occupied, an

order mandating destruction of the project could not issue. See Chirco v. Crosswinds

Communities, Inc., 474 F. 3d 227, 236 (6th Cir. 2007).

Here, Plaintiffs’ delay in seeking equitable relief is fatal to their request. The Film was

released in 2013, and more widely distributed through all media (including video-on-demand)

earlier in 2014. [Chartier Decl., ¶¶ 4-6.] It was in release for over year before Plaintiffs filed

their motion. Plaintiffs admit that they were aware of the Film’s imminent video-on-demand

release before it occurred, and admit that they opted to forego efforts to enjoin that release for

tactical reasons. [Pltf’s Memo. at 1.] Plaintiffs’ delay negates the very idea of imminent harm,

and therefore a preliminary injunction should not issue. Should Plaintiffs ultimately prevail on

their claim at trial, monetary damages may be awarded to compensate them for their injuries.

C. Plaintiffs Fail To Demonstrate A Likelihood Of Success On The Merits.

A copyright infringement claim has two primary elements: “(1) ownership of a valid

copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns

v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). Plaintiffs’ Motion fails to establish either

of these elements with competent evidence and, therefore, Plaintiffs fail to demonstrate that they

are likely to succeed on the merits of their claim.

1. Plaintiffs’ Copyright Claim Is Barred By The Doctrine Of Fair Use.

Defendants’ plead as their third affirmative defense that Plaintiffs’ claims are barred by

the doctrine of fair use (17 U.S.C. §107). Although it is a defense, to obtain a preliminary

injunction Plaintiffs must demonstrate that Defendants are not likely to prevail on that defense.

See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1275, n.31 (11th Cir. 2001) (stating

that “where a prima facie fair use defense is presented,” the plaintiff must demonstrate that “the

fair use factors are insufficient to support such a defense” in order to meet his own burden of


- 8 -

proving a likelihood of success on the merits); see also Ty, Inc. v. Highland Publ’g, Inc., No. 98

C 4091, 1998 WL 698922, *9 (N.D. Ill. Oct. 5, 1998) (emphasizing that the court must

determine if there is a likelihood the plaintiff “can prevail notwithstanding [the] defenses”).

Plaintiffs fail to even address Defendants’ fair use defense in their moving papers.

The Copyright Act sets out four non-exclusive factors for determining whether an

allegedly infringing work makes fair use of a copyrighted work. See 17 U.S.C. §107. Of those

factors, the most important is usually the effect of the use upon the potential market for or value

of the copyrighted work. See Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 758 (7th Cir. 2014)

(finding fair use of copyrighted photograph where photographer did not show that defendants’

acts reduced the value of the work or inhibit commercial opportunities). This is because “[t]he

aim of the copyright laws is to stimulate artistic creativity for the benefit of the public, and this is

done by providing the artist with the financial motivation for creativity that flows from a limited

from of monopoly.” MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981). Where a claim of

fair use is made, a balance must sometimes be struck between the benefit the public will derive if

the use ifs permitted and the personal gain the copyright owner will receive if the use is denied.

Id. The less adverse effect that an alleged infringing use has on the copyright owner’s

expectation of gain, the less public benefit need be shown to justify the use. Id.

Here, Plaintiffs present no evidence of any expectation of monetary gain based on the

Work. Plaintiffs concede that the Work is displayed on a public street in Buenos Aires,

Argentina. [Compl., Dkt. No. 3, ¶ 21.] There is no evidence that Plaintiffs were financially

motivated to create the Work, or that they sought any financial gain whatsoever from the Work.

What’s more, Plaintiffs do not even speculate that the imagery in the Film even possibly reduced

the value of the Work, or that it even possibly injured their long-range commercial opportunities.


- 9 -

[See Mehaffey Decl. and Escalada Decl.] Simply put, there is no evidence that Defendants’

alleged use of the Work in the Film interferes with the marketability of Plaintiff’s Work, or that

it affects the value of the Work, or even that it may reduce the value or demand for other work

created by Plaintiffs. Accordingly, Defendants’ alleged use of the Work is fair use, and

precludes a finding that Plaintiffs are likely to prevail on the merits of their copyright claim.

The Court may also consider the motives of the parties and determine whether the use

was in good faith or with evasive motive. See MCA, Inc., 677 F.2d at 183. In this case,

Plaintiffs admit that they did not register their alleged copyright until November 15, 2013, after

the Film was completed and publically exhibited. [See Compl., Dkt. No. 3, ¶ 22; Pltf’s Memo.,

4; Chartier Decl., ¶¶ 2, 4, Ex. 1.] Notably, it is not clear from the face of the Work itself that it is

copyrighted or otherwise protected.5 These omissions necessarily prevented Defendants from

determining whether the Work was copyrighted or within the public domain, and support a

finding that Defendants’ alleged use of the Work was in good faith and a fair use.

2. Plaintiffs Fail To Provide Competent Evidence Of Their Ownership And Registration Of A Valid Copyright.

Registration of a copyright certificate constitutes a prima facie presumption of the

validity of a copyright in judicial proceedings, where “registration [is] made before or within five

years after first publication of the work.” See 17 U.S.C. § 410(c); see also United Fabrics Int’l,

Inc. v. C & J Wear, Inc., 630 F. 3d 1255, 1257 (9th Cir. 2011) (“A copyright registration is

‘prima facie evidence of the validity of the copyright and the facts stated in the certificate.’”). In

an attempt to demonstrate their ownership of the Work, Plaintiffs present an application form

5 On its face, the Work is untitled and does not identify the names of its authors. Rather, the phrase “xOTHERJAZEVERx” appears in the lower righthand corner of the Work, and years after its creation, Plaintiffs entitled it “Castillo,” although there is no evidence or indication that the title has ever been affixed to the Work itself. [Compl., Dkt. No. 3, ¶¶ 21-22.]


- 10 -

they purportedly submitted to a governmental office in Argentina, which purports to be effective

as of November 15, 2013.6 [Pltf’s Memo., 4, referencing Ex. D to the Complaint.] Whatever

else it is, this form cannot be used as evidence of Plaintiffs’ ownership of the Work.

First, the form lists only two of the three Plaintiffs as “authors.” Plaintiff Derek

Mehaffey is not mentioned on the form. Therefore, the form is not evidence of Mr. Mehaffey’s

ownership of the Work, and since he has not submitted any other evidence of valid copyright

ownership, there is no likelihood that he can prove his claims of infringement.7

Second, Plaintiffs cite to JCW Inv., Inc. v. Novelty, Inc., 222 F. Supp. 2d 1030 (N.D. Ill.

2002), for the proposition that the form is presumptively valid evidence of ownership. Indeed,

JCW does hold that an admissible certificate of registration of the work with the United States

Copyright Office may be used to evidence ownership. See id. at 1033-34, citing 17 U.S.C.

§410(c). However, this holding does not help Plaintiffs, because Plaintiffs do not claim to have

registered their copyright with the United States. They claim to have registered their work in

Argentina. They are not entitled to a presumption of validity or ownership under Section 410(c)

of the Copyright Act. See Kernal Records Oy v. Mosley, 794 F. Supp. 2d 1355, 1367 (S.D. Fla.

2011) (recognizing that registration is required “for foreign authors to gain the procedural

benefits of a prima facie presumption of the validity of a copyright”).

Finally, any analysis of Plaintiffs’ ownership must be conducted under the law of the

country where the work was created. See Itar-Tass Russian News Agency v. Russian Kurier, 6 Defendants object to the application form referenced in Plaintiff’s motion and attached to their Complaint as Exhibit D on the basis that the form lacks foundation, lacks authentication, and consists entirely of inadmissible hearsay. See FED. R. EVID. 801, 802, 901. 7 Mr. Mehaffy’s declaration in support of Plaintiffs’ Motion makes no mention of his alleged ownership or interest in the Work. As Mehaffy had the ability to offer evidence on the issue, but choose not to, the Court should infer that he is unable to do so. See U.S. for Use & Benefit of C.H. Benton, Inc. v. Roelof Const. Co., 418 F.2d 1328, 1332 (9th Cir. 1969) (presuming records would have been detrimental to party’s claim where party did not provide them).


- 11 -

Inc., 153 F.3d 82, 90-91 (2d Cir. 1998). Here, however, Plaintiffs offer no facts, law, or analysis

to support their position that they own a valid copyright in Argentina, thus undermining their

assertion that they are likely to prevail on the merits.

It is also worth noting that the purported “effective” date of Plaintiffs’ alleged Argentine

copyright “registration” is November 15, 2013. [Pltf’s Memo., 4.] Yet, the Film was released in

September 2013. Article 63 of Argentina’s intellectual property law (Law No. 11.723) provides:

The failure to register shall lead to the suspension of the right of the author until such time as the work is registered, and such rights shall be recovered by the actual act of registration, for the period and subject to the conditions appropriate, without prejudice to the validity of the reproductions, editions, performances and any other publication made during the period in which the work was not registered.

The plain reading of this statute indicates that, until the work is registered, an author’s rights are

suspended and there are no valid claims against third parties for copies of the author’s work that

were made prior to registration. This seems to eviscerate Plaintiffs’ infringement claims here.

In any event, Plaintiffs do not offer competent evidence of their ownership of the

copyright and therefore fail to demonstrate a likelihood of success on their infringement claim.

3. Plaintiffs Fail To Prove Defendants’ “Access” To The Work.

To prove the copying of constituent elements, a plaintiff must either prove “direct

copying,” or show that a defendant: (1) had access to the material; and (2) that the works at issue

are “substantially similar.” Bernal v. Paradigm Talent and Literary Agency, 788 F. Supp. 2d

1043, 1052 (C.D. Cal. 2010). Here, Plaintiffs argue that Defendants had access to the Work.

Citing JCW Invs., 482 F.3d 910, Plaintiffs argue that actual access is not necessary to

establish their claim; they need only show that the Defendants had the opportunity to view the

Work, and that such opportunity exists because the Work is displayed in public and received

“significant media coverage” and “international recognition and notoriety.” [Pltf’s Memo., 5.]


- 12 -

While broad public display of a product may give rise to an inference of access, Plaintiffs offer

nothing to support such an inference here. Plaintiffs present no evidence that Defendants have,

in fact, ever visited the street in Buenos Aires where the Work is exhibited or have ever even

been to Argentina, for that matter. And Plaintiffs offer nothing to show that Defendants saw the

obscure blogs and internet posts about the Work that Plaintiffs submit with their motion.

Accordingly, there is no evidence to find that Defendants had the requisite access to the Work.

D. The Balance Of The Hardships Favors Defendants.

Once a plaintiff establishes a likelihood of success on the merits and irreparable harm, the

court then balances the harm to the movant against the harm that would be suffered by the non-

movant, as well as non-parties, if preliminary injunctive relief were granted. See Publ’ns Int’l,

Ltd. v. Meredith Corp., 88 F.3d 473, 478 (7th Cir. 1996); Univ. of Haw. Prof'l Assembly v.

Cayetano, 183 F.3d 1096, 1108 (9th Cir. 1999) (“To determine which way the balance of the

hardships tips, a court must identify the possible harm caused by the preliminary injunction

against the possibility of the harm caused by not issuing it.”).

Here, the primary hardship alleged by Plaintiffs if the injunction is denied is speculative

harm to their reputation. [Pltf’s Memo., 14.] Plaintiffs also argue that the balance of equities

tips in their favor because “damages from copyright infringement cannot be readily estimated.”

[Pltf’s Memo., 14.] But Plaintiffs offer no actual evidence to support these assertions.

On the other hand, there is competent evidence to show that Defendants will have to

expend substantial resources to remove all material concerning the Film from public view, and

will suffer monetary losses if the Court enjoins the sale and distribution of the Film. [Chartier

Decl., ¶¶ 7-12, Ex. 1.] More importantly, enjoining distribution of the Film will necessarily

deprive Defendants their First Amendment right to express themselves through the Film. “The

loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes


- 13 -

irreparable injury” for purposes of the issuance of a preliminary injunction. See Elrod v. Burns,

427 U.S. 347, 373 (1976).

There is no question that Defendants will be irreparably injured by an injunction, while

Plaintiffs will not. The balance of hardships tips in Defendants’ favor.

E. An Injunction Is Adverse To The Public Interest.

“In exercising their sound discretion, courts of equity should pay particular regard for the

public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at

24 (internal citations omitted). In this case, to enjoin the film will have an adverse impact on the

public interest in having access to the Film and, indeed, upholding the First Amendment.8

Motion pictures are a significant medium for the communication of ideas. They may

affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a

political or social doctrine to the subtle shaping of thought which characterizes all artistic

expression. The importance of motion pictures as an organ of public opinion is not lessened by

the fact that they are designed to entertain as well as to inform. The United States Supreme

Court long ago acknowledged this fact:

The line between the informing and the entertaining is too elusive for the protection of that basic right (a free press). Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine.

Winters v. People of State of New York, 333 U.S. 507, 510 (1948). Therefore, there can be no

doubt that expression by means of motion pictures is included within the free speech and free

press guaranty of the First and Fourteenth Amendments. See e.g. Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495, 501-502 (1952).

8 Approximately 25 international distributors of the Film and certain of the Film’s financiers, who are not parties to this action, may also suffer significant financial harm if distribution of the Film is broadly enjoined. [Chartier Decl., ¶¶ 10-11, Ex. 1.]


- 14 -

Given Plaintiffs’ inadequate showing that any harm whatsoever will befall them if the

status quo is maintained until the merits of their claims can be adjudicated, the balance weighs

heavily in the public’s favor against the imposition of an injunction.

F. Plaintiffs’ Proposed Injunction Is Constitutionally Overbroad And Vague.

An injunction must be narrowly tailored to eliminate only the specific harm alleged, and

it may not be any more burdensome than necessary. See Columbia Pictures Indus., Inc. v. Fung,

710 F.3d 1020, 1049 (9th Cir. 2013) (requiring amendment of overbroad injunction). “An

injunction is overbroad when it seeks to restrain the defendants from engaging in legal conduct.”

City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir. 2011). Also, an

injunction cannot require any “guesswork” to determine the conduct to be enjoined. See Patriot

Homes, Inc. v. Forest River Housing, Inc., 512 F.3d 412, 415-16 (7th Cir. 2008).

In this case, Plaintiffs’ proposed injunction is overbroad and would restrain otherwise

legal conduct that is protected by the First Amendment. The allegedly infringing imagery

appears in a small portion of the Film, and Plaintiffs do not contend that other aspects of the Film

infringe on their rights. Nevertheless, Plaintiffs seek to enjoin all exhibition or distribution of

the Film, even if the offending material were to be cut from it. The United States Supreme Court

has consistently found that injunctions should not be used to prohibit speech or restrain

publication. See e.g. Org. For A Better Austin v. Keefe, 402 U.S. 415, 418-19 (1971). This, in

and of itself, is fatal to Plaintiffs’ request. See e.g. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546,

558-59 (1971) (noting that from the onset, any prior restraint is reviewed by the court “bearing a

heavy presumption of its constitutional invalidity”).

Also, Plaintiffs’ proposed injunction fails to provide clear directives about the conduct to

be enjoined. For example, it does not specify the infringing work, and Plaintiffs seek to enjoin at

least one defendant from conduct described only as “preparing to distribute” the Film.


- 15 -

G. If They Court Issues A Preliminary Injunction, The Court Must Determine The Amount Of An Appropriate Security Bond.

The Court must determine the amount of the bond Plaintiffs will post if an injunction

issues to protect Defendants from the harm an improper injunction will cause. See FED. R. CIV.

P. 65(c). The bond must cover all costs and damages Defendants may suffer. See Flag Fables,

Inc. v. Jean Ann’s Country Flags & Crafts, Inc., 753 F. Supp. 1007, 1019 (D. Mass. 1990).

“[C]ourts should err on the high side;” an “error in the other direction produces irreparable

injury” to Defendants. Mead Johnson & Co. v. Abbott Labs., 210 F.3d 883, 888 (7th Cir. 2000).

Here, any injunction preventing Defendants from distributing the Film will cause them

significant monetary damages. In its first month of commercial release, the Film grossed more

than $750,000 in revenue in the United States. [Chartier Decl., ¶ 8, Ex. 1.] The Film grossed

hundreds of thousands of dollars internationally, and Defendants expect the Film will gross

hundreds of thousands of dollars over the next several months. [Id., ¶¶ 8-9, Ex. 1.] Severing that

revenue stream will prevent Defendants and other non-parties from recouping the funds they

spent on the Film.9 [Id., ¶ 10, Ex. 1.] Defendants will also be in breach of contractual

obligations to others, and would face millions of dollars in damages claims from third parties.

[Id., ¶ 11, Ex. 1.] Accordingly, a bond in the amount of $2,000,000 would be the minimum

necessary to protect Defendants.

II. CONCLUSION

For the foregoing reasons, Defendants respectfully request that Plaintiffs’ motion for

preliminary injunction be denied.

9 The Film has not yet earned any net profits. [Id., ¶ 10, Ex. 1.] Also, monthly revenues are likely to decrease over time as interest in the Film wanes. Therefore, the next several months are important for the financial success of the Film.


- 16 -

Dated: November 14, 2014

Respectfully submitted, Defendants VOLTAGE PICTURES, LLC, GO DIGITAL, INC. d/b/a AMPLIFY RELEASING, DFZ PRODUCTIONS, INC. d/b/a ZANUCK INDEPENDENT, and WELL GO USA, INC. Thomas R. Dee Thomas R. Dee Joshua J. Orewiler VEDDER PRICE P.C. 222 North LaSalle Street Chicago, Illinois 60601 Telephone: (312) 609-7500 Facsimile: (312) 609-5005

Timothy J. Gorry Jon-Jamison Hill EISNER JAFFE GORRY CHAPMAN & ROSS 9601 Wilshire Boulevard, Suite 700 Beverly Hills, California 90210 Telephone: (310) 855-3200 Facsimile: (310) 855-3201


CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing VOLTAGE PICTURES,

LLC’S, AMPLIFY RELEASING’S, ZANUCK INDEPENDENT’S AND WELL GO USA,

INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

to the following:

Jami A. Gekas Kenneth K. Suh Foley & Lardner 321 North Clark Street Suite 2800 Chicago, IL 60654

on November 14, 2014.

/s/ Thomas R. Dee Thomas R. Dee


Documents

Defs (Voltage, Gilliam) Opp to PI