filed federal court claim terra incognita

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Court File No.

F E D E R A L COURT

BETWEEN:

EM I L M A L A K

Plaintif f

-and-

JAMES CAMERON, TWENTIETH CENTURY FOX F I LM CORPORATION, DUNE

ENTERTAINMENT I I I LLC, INGENIOUS F I LM PARTNERS LLP, INGENIOUS F I LM PARTNERS 2

LLP , FUTURE SERVICE, INC., and LIGHTSTORM ENTERTAINMENT INC.

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The

claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are required

to prepare a statement of defence in Form 17 I B prescribed by the Federal Courts Rules serve it on the

plaintiffs solicitor or, where the plaintif f does not have a solicitor, serve it on the plaintiff, and file it , wi th

proof of service, at a local office of this Court, WI TH I N 30 DAYS after this statement of claim is served

on you, i f you are served within Canada.

I f you are served in the United States of America, the period for serving and filing your statement

o f defence is forty days. I f you are served outside Canada and the United States of America, the period for

serving and filing your statement of defence is sixty days.

Copies of the Federal Court Rules information concerning the local offices o f the Court and othernecessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone

613-992-4238) or at any local office.

IF YOU F A I L TO DEFEND THIS PROCEEDING, judgment may be given against you in your

absence and without further notice to you.

Defendants

S TATEMENT OF CLA IM TO TH E DE F ENDANT S

Date:

MAR 01 2012

Address of local office:

Pacific Centre

P.O. Box 10065

701 West Georgia Street

Vancouver, British Columbia

V7Y 1B6

AMANDA DUNN

REGSTRY OFFICER

AGENTDUGREFFE



TO:

James Cameron

3201 Retreat Ct

Malibu, CA 90265

USA

Twentieth Century Fox Fi lm Corporation

10201 West Pico Boulevard

Los Angeles, California 90035

USA

Dune Entertainment I I I L L C

5851 W. Charleston Blvd .

Las Vegas, NV 89146

USA

Ingenious Film Partners L L P

15 Golden Sq.

London, UK

W1F 9JG

Ingenious Film Partners 2 L L P

12 New Fetter Lane

London, UK

EC4A 1AG

Future Service, Inc.

C/o Stacy Grossman

1211 Avenue o f the Americas

New York , New York 10036

USA

Lightstorm Entertainment Inc.

919 Santa Monica Blvd .

Santa Monica, CA 90401

USA



C L A I M

The pla in t i f f claims:

a. A declaration that copyright subsists in Terra Incognita as defined herein and such

copyright has been infringed by the Defendants by the Defendants' substantially

reproducing, adapting, publicly presenting, distributing for sale, or in the alternative

authorizing such acts, by the cinematographic work entitled Avatar, pursuant to

sections 27 and 28 o f the Copyright Act, R.S.C. 1985, c. C-42 (the "Ac t " ) ;

b. From the Defendant M r. James Cameron an equitable tracing and disgorgement of

the proceeds attributed to M r . Cameron's wrongful activities into his assets, property

and interest;

c. An interim, interlocutory and permanent injunction to restrain the Defendants f rom:

i . Infringing the Plaintiffs copyright in Terra Incognita, including the

Plaintiffs exclusive right to reproduce same;

i i . Reproducing any of Terra Incognita or any substantial part of any of Terra

Incognita in any material form including in Avatar or any sequels to Avatar,

except as expressly permitted by the Act;

i i i . Authorizing reproduction of any of Terra Incognita orAvatar or any

substantial part of any of Terra Incognita orAvatar in any material fo rm,

except as expressly permitted by the Act;

iv . Distributing unauthorized copies of any of Terra Incognita, whether it be in

the publication o f Avatar or otherwise;

d. The Plaintiffs election of either the Plaintiffs damages and a disgorgement o f the

Defendants' profits arising from the Defendants' infringing activities or alternatively,

statutory damages;

e. Damages against the Defendants James Cameron, Lightstorm Entertainment Inc. and

Twentieth Century Fox Fi lm Corporation, j o i n t l y and severally, for spoliation of

evidence and in particular, of a ll original documents pertaining to the creation o f the

Avatar scriptment;

f. The Plaintiffs costs of this action on a solicitor and client basis or alternatively, in an

amount to be determined by this Honourable Court;

g. Pre-judgment interest from the date any profits were made or the damage suffered to

the date o f judgment;

h. Post-Judgment interest to the date of payment;

i . Punitive and exemplary damages; and

j . Such further and other rel ief as to this Honourable Court seems just.



The Plaintiff

2 . E m i l Malak is a businessman wi t h an address for service at 1380-885 West Georgia Street,

Vancouver, B.C., V6C 3E8 ("Malak").

The Defendants

3. The Defendant James Cameron is a Canadian-American f i lm director, f i lm producer and

screenwriter who resides in Ma l ibu , California ("Cameron").

4. The Defendant Lightstorm Entertainment, Inc. is a production company wi t h its principal

place of business at 919 Santa Monica Bl v d . , Santa Monica, CA, 90401 ("Lightstorm").

Cameron is the director, CEO and directing mind of Lightstorm and at al l material times had

full control over the activities of Lightstorm.

5. The Defendant Twentieth Century Fox Fi lm Corporation is a f i lm studio founded on May 31,

1935 with its principal place of business at 10201 West Pico Boulevard, Los Angeles,California 90035 ("Fox"). Fox is listed as a Copyright Claimant through a transfer by written

agreement for the Avatar motion picture registered wi t h the United States Copyright Office

on December 12, 2010 under registration number PA0001653536.

6. The Defendant Dune Entertainment I I I L L C is a motion picture financing company wi t h its

principal place of business at 5851 W. Charleston Bl v d . , Las Vegas, N V , 89146 ("Dune").

Dune is listed as a Copyright Claimant through a transfer by written agreement for the Avatar

motion picture registered wi t h the United States Copyright Office on December 12, 2010

under registration number PA0001653536.

7. The Defendants Ingenious Fi l m Partners and Ingenious Fi l m Partners 2 LLP are subsidiaries

o f Ingenious Media, a United Kingdom media investment and advisory group wi t h respective

principal places of business at 15 Golden Sq., London, UK , W1F 9JG and 12 New Fetter

Lane, London, U K , EC4A1 A G . (collectively, "Ingenious"). Ingenious is granted Authorship

fo r the Avatar motion picture registered wi t h the United States Copyright Office on

December 12, 2010 under registration number PA0001653536.

8. The Defendant Future Service, Inc. is a corporation with an address for service at 1211

Avenue of the Americas, New Y o r k , New Y o r k 10036, USA ("Future Service"). Future

Service is granted Authorship for the Avatar motion picture registered wi t h the United States

Copyright Office on December 12, 2010 under registration number PA0001653536.

Terra Incognita

9. Malak ini t ial ly developed and published the original literary and artistic work "Terra

Incognita", also known as "Terra Incognito ", in or around the middle of 1997 in the

Province of Bri t i sh Columbia.

10 . Malak employed a team of three individuals, a co-writer, a graphic designer and a sketcher

under "work made for hire" arrangements, whom collaborated on developing further story

lines and detailed character designs in order to develop the concept into a major motion

picture and a television series with the abili ty to create a line of merchandise, books and toy



action figures therefrom.

11 . The init ia l treatment, screenplay and the 13-part television series treatments were all

registered by Malak wi t h the WritersGui ld of Canada under the fo l lowing registrations:

a. S98-1423 TERRA INCOGNITA

b. S98-1787 TERRA INCOGNITA TWO

c. S99-2249 TERRA INCOGNITA

d. S99-2494 TERRA INCOGNITO

e. S99-2080 TERRAINCOGNITA THREE

f. S00-3779 TERRA INCOGNITA

g- S01-5185 TERRA INCOGNITA

h. S03-6680 TERRA INCOGNITO

i . S03-7111 TERRA INCOGNITA

12 . Pursuant to section 3 of the Act, Malak has and w i l l have unt i l the date of expiry of the

copyright therein, the sole right to produce or reproduce Terra Incognita or any substantial

part thereof in any material form whatever and to authorize such acts.

Provision ofTerra Incognita to the Defendants Cameron, Lightstorm & Fox

13 . In or around July 2001 through Ap r i l 2002, the television series "Dark Angel" produced by

Cameron and Lightstorm was f i lming on Hornby Street, across from Malak's restaurant

"Bellaggio Cafe".

14 . Due to the f i lm crew's interference wi th the restaurant's view, Malak went to inquire as to the

activities of the production company. Malak was advised that "Dark Angel" was a science

f iction television show produced by Cameron and Lightstorm. Malak was given the local

phone number of the production company, as we l l as a phone number for a representative at

the Lightstorm office in California.

15 . Upon speaking wi th the Lightstorm representative and informing her of Terra Incognita, a

science f i lm screenplay accompanied wi th detailed graphic designs, Malak was directed to

contact Tom Cohen.

16 . Tom Cohen, an agent of Lightstorm or in the alternative, of Cameron, advised Malak to send

Terra Incognita to 919 Santa Monica Blvd . , Santa Monica, CA, 90401.

17 . In or around October of 2002, Malak sent the entirety of his Terra Incognita original work to

the Defendants Cameron and Lightstorm. The package was never returned to Malak from

Cameron and Lightstorm's possession.

18 . In or around late 2002 or 2003, Malak sent Terra Incognita to various f i lm studios, including

Fox. The package was never returned to Malak from Fox's possession.

Copyright Infringement

19 . On or about December 25, 2009, Malak was informed by Leigh Mortensen, the colorist

employed by Malak for Terra Incognita, o f the substantial similarities of the cinematographic

work Avatar and Terra Incognita.



20. These substantial similarities included, but are not limited to, the premise, plot, themes,

dialogue, mood, setting, pace, sequence, storyline, graphic design and characters, o f which

further particulars w i l l be proven at t r ia l . The substantial similarities between Avatar and

Terra Incognita are substantial in both quality and quantity and alike in uniqueaspects.

In or around late January 2010, Malak, through his solicitor, contracted Cameron, Lightstorm

and Fox, through their representative solicitors to inform them that the Defendants had

infringed upon Terra Incognita's copyright.

Malak further informed Cameron, Lightstorm and Fox that Malak was the sole owner of

Terra Incognita's copyright since 1997 and their production, distribution and sale o f Avatar

was an unauthorized use of Terra Incognita.

Cameron, Lightstorm and Fox denied committing any unlawful act.

Cameron and Lightstorm Entertainment at all material times were aware, or in the alternative,

ought reasonably to have known that copyright subsisted inTerra

Incognita. Cameron andLightstorm further knew that their use of Terra Incognita was not done w i t h the authorization

or consent of Malak, as owner of the copyright in Terra incognita.

Malak created a website for Terra Incognita in 2010 entitled T I U N I V E R S E , located at

http://tiuniverse.com for the public to view and independently compare Terra Incognita and

Avatar.

Spoliation of Evidence

26. At all material times, the Defendants, their agents, servants or employees have represented to

the public and to Malak that Avatar was init ially created by Cameron in 1996.

27. Though James Cameron had registered other worksw i t h the U.S. Copyright Office, the

Avatar scriptment was never registered w i t h any authorized th i rd party copyright entities.

28. On February 9, 2010, counsel for Fox wrote to counsel for Malak and represented that the

scriptment for Avatar was completed in 1996. Counsel for Fox enclosed a redacted

screenshot of a computer which allegedly depicted a file entitled "Avatar Treatment" which

was allegedly created on March 25, 1996 and last modified on that date as shown on the

screenshot. Counsel for Fox represented that the file on the computer illustrated by the

screenshot was the original scriptment o f Avatar, which counsel for Malak had in her

possession.

29. In order to examine the scriptment's contents and independently verify the creation date to

determine the viabi l i ty of the copyright claim, on February 13, 2010 Malak, through counsel,

wrote to Fox's counsel to request the particular computer file shown in the screenshot, along

w i t h names of parties who received the scriptment in 1996.

30. On February 17, 2010, Malak, through counsel, wrote to Fox's counsel to further request:

a) a high-quality digital photo o f the same computer screen as on the printed screenshot;

b) a photo o f the "More I n f o . . . " output for the f i l e " A V A T A R TREATMENT";



c) photos o f the fu l l content of the f i l e " A V A T A R TREATMENT";

d) photos of properties of a l l folders, parent to that " A V A T A R " folder, w i t h Created and

M o di f i e d dates;

e) system properties of the computer the screenshot was taken on;

f) event Log of the computer the screenshot was taken on;

g) the name o f the owner o f the computer the screenshot was taken on; and

h) information on how the f il e " A V A T A R TREATMENT" came to be on the computer the

screenshot was taken on.

3 1 . On February 22, 2010, Malak, through counsel, wrote to Fox's counsel to further request:

a) The original data file(s) that were transferred from James Cameron and/or Lightstorm

Entertainment to Twentieth Century Fox, specifically the "bit copy" o f the Microsoft

Word f i le called " A V A T A R TREATMENT";

b) That same f i l e " A V A T A R TREATMENT" including the "volume" or disk that it was

originally saved on and other files on that volume;

c) The relative correspondence leading up to the receipt of files by Twentieth Century Fox

or any other party that received the original file called " A V A T A R TREATMENT";

d) Copies of a l l email correspondence (including message header information) regarding the

scriptment; and

e) Telephone call records, message records, personal notes and other writings regarding the

scriptment.

32. The February 22, 2010 letter further set out that once l i t igation is reasonably anticipated,

there arises a general obligation on parties to take reasonable and good faith steps to preserve

potentially relevant communications, documents, electronic data and other tangible items.

The letter formally requested that the parties and their counsel preserve all such documents

w i t h in their possession, custody or control containing information that is potentially relevant

to the allegations and defenses in the copyright infringment l i t igat ion, including such

documents relating to theAvatar scriptment.

33. On February 26, 2010, counsel for Fox provided counsel for Malak w i t h Lightstorm's

Confidentiality and Non-Disclosure Agreement allegedly executed on March 26, 1996 by a

Fox executive. The Agreement is a standard one-page Confidentiality and Non-Disclosure

Agreement and aside from noting that Lightstorm was working on a project entitled "Avatar"

does not set out what was to be disclosed.

34. On March 1 1 , 2010, after fa i l ing to receive any o f the requests made in the February 9,

February 17 or February 22, 2010 letters, counsel for Malak wrote to state that Malak has

been denied the concrete documentary evidence required to assure him o f the content and

date o f theAvatar scriptment, which would have assisted him in determining whether to

pursue the litigious route.

35. On March 18, 2010, counsel for Fox advised in a telephone conversation w i t h Malak's



counsel that she would endeavor to f ind the individuals who allegedly received the Avatar

scriptment in 1996 and would be able to provide a statement from those individuals. Malak's

counsel questioned why this tactic would be undertaken when Malak specifically requested a

copy of the computer file to be examined, which was in accordance wi th Fox's

representations already in their possession, custody or control. Fox's counsel did not

respond.

36. On March 24, 2010, counsel for Fox in an e-mail to Malak's counsel confirmed that she

would endeavor to f ind those individuals and further stated that she was aware Malak

believed that the screenshot had been digital ly altered.

37. On March 25, 2010, Malak's counsel wrote to Fox's counsel to discuss the reasons why

Malak holds that belief, including but not l imited to the failure to send any conclusive

irrefutable document that could be forensically examined by Malak's computer engineer

experts.

38. On May 5, 2010, Fox's counsel wrote to Malak's counsel stating she was st i l l seeking

individuals who had received the scriptment in 1996.

39. On May 15, 2010, Fox's counsel wrote to Malak's counsel enclosing a four page

watermarked document. The first page had a date stamp received November 12, 1998 by a

Fox executive. The other pages were the cover page, first and last page of the Avatar

scriptment.

40. On May 19, 2010, Malak's counsel wrote to Fox's counsel stating that the documents

provided did not satisfy the requests for conclusive and reliable documentary evidence of the

date and content of the Avatar scriptment. The letter further outlines the concerns Malak had

in regards to the Defendants' silence and refusal to provide the computer f i le .

4 1 . Despite the good faith efforts of Malak to resolve the disputes complained of herein and theevidentiary rules of court which would allow Malak to appoint an expert to forensically

examine the file of the Avatar scriptment, the Defendants have refused to provide Malak wi th

any evidence to support their representation of prior creation.

42. Full particulars o f the dates and extent o f the Defendants' activitieswi th respect to Terra

Incognita are best known to the Defendants. The Plain t i f f claims re l i ef in respect of all such

acts.

43. Malak pleads that Cameron personally engaged in the infringing activities complained of

herein. Further, at all material times, Cameron acted as the controlling mind of Lightstorm

and personally, deliberately, wi l l fu l l y and knowingly caused, directed and authorized the acts

o f Lightstorm when he knew or was indifferent to the risk that such activities would or were

l i ke ly to infringe Malak's rights.

mages

44. The Defendants unauthorized use of Terra Incognita by the production, distribution and sale

o f Avatar, which incorporates substantial aspects of Terra Incognita has infringed the

Plaintiffs copyright and has further depreciated the Plaintiffs moral rights in his original

work.



45. As a result o f the activities described herein, the Plaintiff has suffered damage and the

Defendants have profited and w i l l continue to profit to the Plaintiffs considerable detriment

unless restrained by Order or Judgment o f this Honourable Court.

46. The Pla int i f f pleads and relies on sections 3, 27, 28, 34, 35, & 38 of the Act.

47. The Plaintiff further relies on the common law relating to spoliation of evidence.

The Plaintiff proposes that this action be tried in Vancouver, British Columbia.

February 29, 2012

Suzan E^Khatib

S.E.K. Law Corporation

1380-885 West Georgia Street

Vancouver,B.C.

V6C 3E8

Ph: 604.558.0339

Fax: 604.259.0339

filed federal court claim terra incognita

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