ANTHONY E.

MCNAMER, OSB #00138

anthony@mcnamerlaw.com
MCNAMER AND COMPANY P.c.
920 S.W. Third Avenue, Suite 100
Portland, Oregon 97204
Telephone: (503) 727-2500
Facsimile: (503) 727-2501
Attorneys for Plaintiffs
Fl LED22 FEB J 12
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
SIMON TAM, an individual, and AARON
MOXLEY, an individual,
Case No. CV '12 - 031 2 - HU
PLAINTIFFS, PLAINTIFFS' COMPLAINT
FOR COPYRIGHT INFRINGEMENT
v. 17 U.S.c. 101 et seq.
NAMCO BANDAI GAMES AMERICA
INC., a Delaware corporation, NAMCO AND DEMAND FOR JURY TRIAL
BANDAI HOLDINGS (USA) INC., a
Delaware corporation, and TOEI
ANIMATION INCORPORATED, a
California corporation,
DEFENDANTS.
COMPLAINT
Plaintiffs Simon Tam and Aaron Moxley for their complaint against defendants NAMCO
BANDAl Games America Inc., BANDAl Holdings (USA) Inc., and TOEI Animation
Incorporated allege as follows:
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MCNAMER AND COMPANY P.c.
920 S.W. Third Avenue' Suite 100
Portland, Oregon 97204 . (503) 7272500
Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 1 of 5 Page ID#: 1
1
THE PARTIES
1. Plaintiffs Simon Tam and Aaron Moxley (collectively hereinafter "Plaintiffs") are
individuals residing in Portland, Oregon and performing as the musical group The Slants.
2. Defendant NAMCQ BANDAI Games America Inc. is a Delaware corporation
with offices in San Jose, California.
3. Defendant NAMCO BANDA! HOLDINGS (USA) INC. is a Delaware
corporation with offices in Cypress, California.
4. Defendant TOE! Animation Incorporated is a California corporation with offices
in Los Angeles, California.
.JURISDICTION AND VENUE
5. This is a civil action seeking damages and injunctive relief for copyright
infringement under the Copyright Act, 17 U.S.c. 101 et seq., and for state law claims.
6. This Court has original subject matter jurisdiction pursuant to 28 U.S.c. 1331
and 1338(a) and supplemental jurisdiction pursuant to 28 U.S.c. 1367. The Court has pendant
jurisdiction over the state law claims in that such claims flow from a common nucleus of
operative facts.
7. Venue is proper in this District pursuant to 28 U.S.c. 1391(b), (c) and (d) and
1400(a), in that all Defendants reside for venue purposes in this District, and are subject to
personal jurisdiction in this District, and that a substantial part of the events giving rise to this
claim occurred in this District.
GENERAL ALLEGATIONS
8. Plaintiffs are a popular musical group who perform locally and throughout the
United States as The Slants. Plaintiffs are also very well known in the anime community and
have performed and participated at various anime conferences on panels with representatives of
each of the Defendants.
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MCNAMER AND COMPANY P.C.
920 S.W. Third Avenue' Suite 100
Portland, Oregon 97204' (503) 727-2500
Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 2 of 5 Page ID#: 2
9. In 2007, Plaintiffs authored a song entitled "Kokoro," which consists of wholly
original copyrightable matter under the law of the United States. A claim of copyright in the
musical composition for "Kokoro" was registered and recorded in favor of Plaintiffs. The
copyright registration for "Kokoro" (among other works) is dated January 26, 2009 and
identified as follows: Slanted Eyes, Slanted Hearts, Registration No. PA0001639886. The
copyright is for music. A true and correct copy of the relevant copyright office record is attached
hereto as Exhibit A.
10. In or about 2011, Defendants released the video game Dragon Ball Z Ultimate
Tenkaichi for PS3 and Xbox 360 players (hereinafter "Dragon Ball Z"). Dragon Ball Z is based
upon one of the most successful anime series and manga series of all time "Dragon Ball," which
has spawned a multitude of merchandise and products, including the above-referenced game.
11. Soon after Dragon Ball Z's release, Plaintiffs' fans began alerting Plaintiffs to the
fact that Dragon Ball Z uses music substantially similar to Plaintiffs' copyrighted song
"Kokoro." Indeed upon investigation, it appears that Defendants used the main riff of "Kokoro"
in its entirety in Dragon Ball Z.
12. Defendants have copied, created a derivative sound recording of, and publicly
performed Plaintiffs' copyrighted work "Kokoro," without any right or license therefore.
CLAIM FOR RELIEF
Direct Copyright Infringement - All Defendants
13. Plaintiffs incorporate by reference each of the allegations in the preceding
paragraphs of the Complaint as though fully set forth here.
14. Defendants, without Plaintiffs' consent or permission, and without authority: i)
made, have caused to be made, and have purported to authorize the making of copies of the
Plaintiffs' copyrighted work; ii) made, have caused to be made, and purported to authorize the
making of unauthorized derivative works of Plaintiffs' copyrighted work; iii) publicly performed
and purported to authorize the public performance of Plaintiffs' copyrighted work; and iv) made,
have caused to be made, and purported to authorize the making of a synchronization of
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MCNAMER AND COMPANY P.C.
920 S. W. Third Avenue Suite 100
Portland, Oregon 97204' (503) 727-2500
Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 3 of 5 Page ID#: 3
Plaintiffs' copyrighted work with an animated sequence in Dragon Ball Z. Defendants' conduct
constitutes direct infringement of Plaintiffs' exclusive rights under 17 U.S.c. 106.
15. Defendants' acts of infringement have been negligent and/or intentional,
purposeful, willful, and in disregard of Plaintiffs' rights.
16. Pursuant to 17 U.S.c. 504(c), Plaintiffs are entitled to statutory damages for
willful infringement in the amount of $150,000
17. Alternativel y, as a direct and proximate result of Defendants' infringement of
Plaintiffs' copyright and exclusive rights under the Copyright Act, Plaintiffs are entitled,
pursuant to 17 U.S.c. 504, to their actual damages including lost profits, plus Defendants'
profits from infringement, in an amount to be proven at trial.
18. Defendants' conduct is causing and, unless enjoined by this Court, will continue
to cause Plaintiffs significant and irreparable injury that cannot be fully compensated or
measured in monetary terms. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.c.
502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ
reasonable methods to prevent or limit infringement of Plaintiffs' copyrights.
19. Pursuant to 17 U.S.c. 505, Plaintiffs are also entitled to their costs and
attorneys' fees.
PRAYER
WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as follows:
A. For a declaration that Defendants have infringed Plaintiffs' copyrights;
B. For a preliminary and permanent injunction, pursuant to 17 U.S.c. 502,
requiring that Defendants, their officers, agents, attorneys, servants, employees, partners, and
assigns, and those acting in active concert or participation with any of them, cease directly or
indirectly infringing, or causing, enabling, facilitating, promoting, encouraging and inducing, or
participating in the infringement of, any of Plaintiffs' rights protected under the Copyright Act,
whether now in existence or hereafter created;
C. For statutory damages, pursuant 17 U.S.c. 504(c), in the amount of $150,000;
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MCNAMER AND COMPANY P.e.
920 S.W. Third Avenue' Suite 100
Portland, Oregon 97204 . (503) 7272500
Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 4 of 5 Page ID#: 4
D. Alternatively, for actual damages, pursuant to 17 U.S.c. 504, including lost
profits, plus Defendants' profits from infringement, as will be proven at trial;
E. For recovery of costs and attorneys' fees pursuant to 17 U.S.c. 505;
F. For restitution and disgorgement;
G. For compensatory and punitive damages;
H. For pre- and post-judgment interest according to law; and
I. For such other and further relief as the Court deems just and proper.
DEMAND FOR .JURY TRIAL
Plaintiffs hereby demand a trial by jury of all issues so triable.
DATED: February 17, 2012
_tt-t----t1hcmANY P.C.
By ______~ ~ - - - - - - ~ ~ - - - - - - - - - - - - - - - - -
Anthony . McNamer, OSB #00138
Deborah Gumm, OSB#040646
MCNAM AND COMPANY P.e.
920 SW Third Avenue, Suite 100
Portland, Oregon 97204
Telephone: (503) 727-2500
Facsimile: (503) 727-2501
Attorneys for Plaintiffs
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MCNAMER AND COMPANY P.C.
920 S.W. Third Avenue' Suite 100
Portland, Oregon 97204' (503) 727-2500
Case 3:12-cv-00312-HU Document 1 Filed 02/22/12 Page 5 of 5 Page ID#: 5