Krisko v. Marvel Entm't, LLC

Citation473 F.Supp.3d 288
Decision Date21 July 2020
Docket Number1:19-cv-9256-GHW
Parties Zoltan KRISKO, Plaintiff, v. MARVEL ENTERTAINMENT, LLC, Warner Chappell Music, Inc., the Walt Disney Co. Fox Corp., Buena Vista Television, LLC, Nbcuniversal Media, LLC,, Inc., Apple, Inc., Ronald Aaron Wasserman, Shuki Levy, Haim Saban, Defendants.
CourtU.S. District Court — Southern District of New York

Andras Erdei, New York, NY, Cody Hoesly, Hopi Ruplin, Larkins Vacura Kayser, Portland, OR, for Plaintiff.

Andrew Harrison Bart, Raphael Holoszyc-Pimentel, Jenner & Block LLP, New York, NY, for Defendants Marvel Entertainment, LLC, Warner Chappell Music, Inc., The Walt Disney Company, FOX Corporation, Buena Vista Television, LLC, Amazon.Com, Inc., Apple, Inc., NBCUniversal Media, LLC.

Barry Isaac Slotnick, Nathalie Russell, Tal Efriam Dickstein, Loeb & Loeb LLP, New York, NY, for Defendants Shuki Levy, Haim Saban.

David Milton Given, Phillips, Erlewine, Given & Carlin LLP, San Francisco, CA, for Defendant Ronald Aaron Wasserman.


GREGORY H. WOODS, United States District Judge:

Professor Xavier's School for Gifted Youngsters was built to defend the different. Mutants travel (or teleport) from all over the world to shelter within the institute's walls, and learn to cultivate their abilities to protect what makes them unique. For those of us who sadly lack the X-gene, copyright law provides something similar: it safeguards the rights of the unique and gifted by protecting their original creations.

This is a case about an alleged invasion of those rights. The question before the Court is whether Zoltan Krisko has adequately pleaded that two pieces of music—one written in Hungary and one in California—are so strikingly similar that he will be permitted to take discovery to try to prove his claims of copyright infringement. Because the Court finds that he has, and for the reasons that follow, the motions to dismiss are granted in part and denied in part.

I. Facts1

This case involves one very simple question: did the composers of a theme song featured in an allegedly famous American animated television show copy that theme song from an allegedly famous Hungarian cop drama?

The two television shows at the heart of this dispute are Linda and X-Men: The Animated Series (referred to as "X-Men" here for brevity). Linda is a 1980s-era Hungarian "comedy thriller," produced by MAFILM, a Hungarian film production company, that ran for seventeen episodes between 1984 and 1991, and was one of the most popular Hungarian television shows of its time. Second Amended Complaint ("SAC"), Dkt. No. 60¶¶ 17–18. Renowned for more than just its filmography, Linda boasted an "iconic" soundtrack authored by Gyorgy Vukan, a famous Hungarian composer and pianist who won numerous Hungarian and international awards and composed over a hundred and fifty film scores. See SAC ¶¶ 17–18, 20. According to Plaintiff's "information and belief," Linda also aired abroad; between 1984 and 1992, its seventeen episodes played in forty countries, slipping past the Iron Curtain and landing in places as far-flung as China and Japan. SAC ¶ 19.

X-Men is an animated television show created by a Marvel Entertainment, LLC ("Marvel") predecessor2 and launched in 1992, airing seventy-six episodes between 1992 and 1997. See SAC ¶¶ 30, 33. The music for X-Men's opening theme was created by Saban Entertainment and substantially contributed to the show's success. See SAC ¶¶ 31, 35. Marvel has used the music time and time again—to promote new episodes and sell other merchandise as recently as 2017. See SAC ¶ 36.

After discovering the X-Men theme song in 2017, Zoltan Krisko—a Florida resident and Linda ’s copyright holder—sued a bevy of individuals and entertainment companies, alleging that they infringed Linda ’s "primary melodic theme" that repeats in both songs. See SAC ¶¶ 5, 34. For clarity, this opinion will refer to these defendants in three groups—the "Media Defendants," comprising Marvel, Warner Chappell Music, Inc. ("Chappell"), The Walt Disney Company ("Disney"), FOX Corporation ("Fox"), Buena Vista Television, LLC ("BVT"), NBCUniversal Media, LLC ("NBC"), Amazon.Com, Inc. ("Amazon"), and Apple, Inc. ("Apple"); the "Saban Entertainment Defendants": Haim Saban and Shuki Levy; and Ronald Aaron Wasserman.

Need an introduction to the dramatis personae ? Haim Saban and Shuki Levy are the former owners and founders of Saban Entertainment. See SAC ¶¶ 27–28. Ronald Wasserman was a Saban Entertainment employee in the 1990s, and, along with Saban and Levy, has been credited with composing the X-Men theme song. See SAC ¶¶ 26–28. BVT is the successor of Saban Entertainment, the initial owner of the X-Men theme song copyright, and produces and distributes all X-Men related media. See SAC ¶ 10. Chappell is the currently registered copyright claimant of the X-Men theme song. See SAC ¶ 7.3 Fox is the successor of the original airing distribution companies of X-Men. SAC ¶ 9. Disney is the successor of X-Men ’s original production company. See SAC ¶ 8. And NBC, Amazon, and Apple are distributors (or the successors of distributors) of X-Men. See SAC ¶¶ 11–13. Defendants Disney, BVT, Fox, NBC, Amazon, and Apple have all distributed X-Men in various forms over the years. See SAC ¶¶ 40–41. Marvel has also used the X-Men theme song to promote merchandise such as action figures. See SAC ¶ 42.

The reader might be wondering how Haim Saban, Shuki Levy, and Ronald Wasserman could have possibly watched a Hungarian cop show that aired in a communist country during the Cold War. Good question. According to Krisko, Saban and Levy both lived in Paris in the early 1980s and maintained strong professional contacts with European professionals even after their move to Los Angeles in the mid-1980s. See SAC ¶ 21. Saban and Levy composed music for a number of cartoons and animated features, including the 1984 French film Le Secret des Selenites , directed by the Hungarian-French filmmaker Jean Image. See SAC ¶ 21.

Jean Image retained strong, active ties to the Hungarian film community and visited the country multiple times, including in 1983. See SAC ¶ 22. The protagonist of Le Secret des Selenites , Baron Munchausen, was also the protagonist of Image's 1979 film Les Fabuleuses Aventures du legendaire Baron du Munchausen , which was produced in collaboration with Pannonia Filmstudio, a MAFILM affiliate and world-class Hungarian animation workshop. See SAC ¶¶ 20, 22–23, 29. Le Secret des Selenites even premiered in Hungary at Pannonia in 1984, and was dubbed in Hungarian prior to its first showing. See SAC ¶ 22.

According to Krisko, producers and composers of animated films were typically invited to, and frequently attended, the Hungarian premieres of their work. See SAC ¶ 24. As such, he alleges, it would have been customary for Image, Saban, and Levy to have been invited to and attend the Hungarian premiere of Le Secret des Selenites at Pannonia. At that time, Pannonia was collaborating with MAFILM, creating Linda ’s opening animation sequence, over which its theme song plays. See SAC ¶ 23. It was one of Pannonia's highest-profile projects. See SAC ¶ 23. Krisko theorizes that while at Pannonia in 1984, Saban and Levy had a reasonable opportunity to hear Vukan's composition.

Krisko filed this case pro se in October 2019. See Dkt. No. 1. He acquired counsel soon thereafter,4 and amended his complaint once in January 2020 to add Defendant NBC, see Dkt. No. 32, and then, on consent, more substantially in March 2020, see Dkt. No. 60.

Since then, the defendants in this case filed a number of motions: the Media Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), see Dkt. No. 74 ("Media Defs.’ Mot."), the Saban Entertainment Defendants joined in the Media Defendants’ motion, see Dkt. No. 78, and Wasserman filed his own motion to dismiss, primarily alleging that the Court lacks jurisdiction over him, but also joining in the substantive portion of the Media Defendants’ briefing, see Dkt. No. 76. Krisko authored two oppositions—a jurisdictional one, see Dkt. No. 81 ("Jx Opp'n") and substantive one, see Dkt. No. 79 ("MTD Opp'n")—and all three groups of defendants replied, see Dkt. No. 84, Dkt. No. 85 ("Media. Defs.’ Reply"), and Dkt. No. 86.

II. Legal Standard
A. Jurisdiction

"A plaintiff bears the burden of demonstrating personal jurisdiction over a person or entity against whom it seeks to bring suit." Penguin Grp. (USA) Inc. v. Am. Buddha , 609 F.3d 30, 34 (2d Cir. 2010) (" Penguin I "); see also Troma Entm't, Inc. v. Centennial Pictures Inc. , 729 F.3d 215, 217 (2d Cir. 2013). To defeat a jurisdiction-testing motion, the plaintiff's burden of proof "varies depending on the procedural posture of the litigation."

Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A. , 722 F.3d 81, 84 (2d Cir. 2013) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A. , 902 F.2d 194, 197 (2d Cir. 1990) ). At the pleading stage—and prior to discovery—a plaintiff need make only a prima facie showing that jurisdiction exists. Id. at 84–85 ; see also Eades v. Kennedy, PC Law Offices , 799 F.3d 161, 167–68 (2d Cir. 2015) (" ‘In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists.’ " (quoting Licci ex rel. Licci v. Lebanese Canadian Bank, SAL , 732 F.3d 161, 167 (2d Cir. 2013) )).

If a court considers only pleadings and affidavits, the plaintiff's prima facie showing "must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant." In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013) (quoting Chloe v. Queen Bee of Beverly Hills, LLC , 616 F.3d 158, 163 (2d Cir. 2010) ). Courts may rely on materials outside the pleading in considering a motion to dismiss for lack of personal jurisdiction. See DiStefano v. Carozzi N. Am., Inc. , 286 F.3d 81, 84 (2d Cir. 2001)....

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