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Home , Harmony Gold USA, Macross, Robotech (comics), Studio Nue, Tatsunoko Production

Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 1 of 31

HONORABLE THOMAS S. ZILLY 1

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 ) 9 HARMONY GOLD U.S.A., INC., ) CASE NO. 2:17-CV-00327-TSZ ) 10 Plaintiff, ) PIRANHA’S SECOND MOTION FOR

11 ) SUMMARY JUDGMENT AS TO v. PLAINTIFF’S LACK OF STANDING ) 12 ) TO ASSERT COPYRIGHT HAREBRAINED SCHEMES LLC, INFRINGEMENT CLAIM HAREBRAINED HOLDINGS, INC., JORDAN ) 13 WEISMAN, PIRANHA GAMES INC. and DOES ) NOTE ON MOTION CALENDAR: 1–10, ) 14 MARCH 30, 2018 ) Defendants. 15 ) ) 16 ) ) 17 18 19 20 21 22 23 24 25

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT DORSEY & WHITNEY LLP AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT U.S. BANK BUILDING CENTRE 1420 FIFTH AVENUE, SUITE 3400 INFRINGEMENT CLAIM SEATTLE, WASHINGTON 98101 PHONE: (206) 903-8800 Case No. 2:17-cv-00327-TSZ FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 2 of 31

1 TABLE OF CONTENTS

2 I. INTRODUCTION AND RELIEF REQUESTED ...... 1 3 II. BACKGROUND ...... 2 A. Harmony Gold’s Second Amended Complaint Does Not Allege Any New 4 Facts Affecting Harmony Gold’s Lack of Standing ...... 2 5 B. Big West and Studio Nue Created the Big West Characters ...... 3 6 C. Tatsunoko Received Limited Rights in the Macross Motion Picture, But Not in the Big West Characters ...... 9 7 D. Tatsunoko Licensed Its Limited Rights to Harmony Gold ...... 9 8 E. The Japanese Courts Confirmed Big West’s Ownership of the Copyrights in the Characters ...... 10 9 F. The U.S. Litigation Confirmed Big West’s Ownership of the Copyrights in 10 the Characters...... 11 11 III. ARGUMENT ...... 12 12 A. The Legal Standard for a Motion for Summary Judgment ...... 13 B. Harmony Gold Lacks Standing Because It Is Not the Owner or Exclusive 13 Licensee of Any Copyright in the Characters ...... 13 14 1. Only the Legal or Beneficial Owner of an Exclusive Right Can Sue for Infringement ...... 13 15 2. Tatsunoko Never Owned Any Copyright in the Big West 16 Characters ...... 14 17 3. The Japanese Courts Confirmed that Tatsunoko Never Owned Any Copyright in the Big West Characters ...... 15 18 4. Big West’s Copyright Registration Is Prima Facie Evidence of the 19 Validity of Big West’s Copyrights ...... 16 5. Harmony Gold’s Copyright Registration for the “Motion Picture” 20 Does Not Give It Any Rights in the Big West Characters ...... 18 21 C. Collateral Estoppel Precludes Harmony Gold from Re-Litigating the Scope of Its Rights ...... 19 22 1. The Elements of Collateral Estoppel ...... 20 23 2. Determining the Scope of Harmony Gold’s Rights under the 24 License Agreement Was Critical and Necessary to the Judgment ...... 22 D. The Recent Amendments to the Complaint Do Not Prevent Summary 25 Judgment ...... 22

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - ii PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 3 of 31

1 IV. CONCLUSION ...... 24

2 3 4 5 6 7 8

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PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - iii PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 4 of 31

1 TABLE OF AUTHORITIES

2 Page(s)

3 Cases 4 Allen v. McCurry, 5 449 U.S. 90 (1980) ...... 20 6 Ashe v. Swenson, 397 U.S. 436 (1970) ...... 21 7 C.D. Anderson & Co., Inc. v. Lemos, 8 832 F.2d 1097 (9th Cir. 1987) ...... 20

9 Celotex Corp. v. Catrett, 10 477 U.S. 317 (1986) ...... 13 11 CJ Prods. LLC v. Snuggly Plushez LLC, 809 F. Supp. 2d 127 (E.D.N.Y. 2011) ...... 17 12 Clark v. Bear Stearns & Co., 13 966 F.2d 1318 (9th Cir. 1992) ...... 21

14 DC Comics v. Towle, 15 802 F.3d 1012 (9th Cir. 2015) ...... 3, 19 16 Emich Motors Corp. v. General Motors Corp., 340 U.S. 558 (1950) ...... 21 17 Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 18 122 F.3d 1211 (9th Cir. 1997) ...... 17

19 Harmony Gold, USA, Inc. v. Tatsunoko Production Co., Ltd., Case No. 2:17-cv-06034-PA-MRW (C.D. Cal. Aug. 23, 2017) ...... 2, 12, 17 20 21 Marya v. Warner/Chappell Music, Inc., 131 F. Supp. 3d 975 (C.D. Cal. 2015) ...... 14 22 Michael Grecco Photography, Inc. v. Everett Collection, Inc., 23 589 F. Supp. 2d 375 (S.D.N.Y. 2008)...... 17

24 North Coast Indus. v. Maxwell, 972 F.2d 1031 (9th Cir. 1992) ...... 13 25

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - iv PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 5 of 31

1 Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Cir. 2013) ...... 13, 14, 23 2 Russell v. Price, 3 612 F.2d 1123 (9th Cir. 1979) ...... 18 4 S. Cal. Darts Ass’n v. Zaffina, 5 762 F.3d 921 (9th Cir. 2014) ...... 13

6 Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008) ...... 13, 14 7 Town of N. Bonneville v. Callaway, 8 10 F.3d 1505 (9th Cir. 1993) ...... 20, 22 9 Trevino v. Gates, 10 99 F.3d 911 (9th Cir. 1996) ...... 20 11 Tri-Tron Intern. v. Velto, 525 F.2d 432 (9th Cir. 1975) ...... 22 12 U.S. v. King Features Entm’t, Inc., 13 843 F.2d 394 (9th Cir. 1988) ...... 15 14 Statutes 15 9 U.S.C. § 1, et seq...... 12 16 9 U.S.C. § 13(c) ...... 12, 19, 21 17 17 U.S.C. § 101 ...... passim 18 17 U.S.C. § 103(b) ...... 1, 15, 18 19 17 U.S.C. § 106 ...... 14, 23 20 17 U.S.C. § 201(a) ...... 15 21 22 17 U.S.C. § 201(d) ...... 14 23 17 U.S.C. § 410(c) ...... 16, 18 24 17 U.S.C. § 501(b) ...... 14, 23 25

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - v PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 6 of 31

1 Other Authorities

2 Fed. R. Civ. P. 52(a) ...... 21

3 Fed. R. Civ. P. 56 ...... 1 4 Nimmer on Copyright § 3.05 ...... 19 5 9C Wright & Miller, Federal Practice & Procedure, § 2579 (3d ed. 2008) ...... 21 6

7 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - vi PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 7 of 31

1 I. INTRODUCTION AND RELIEF REQUESTED 2 Pursuant to Fed. R. Civ. P. 56, defendant Piranha Games Inc. (“Piranha”) moves for 3 summary judgment dismissing the copyright infringement claim asserted by plaintiff Harmony 4 Gold U.S.A., Inc. (“Harmony Gold”) (Dkt. 83 at ¶¶ 39-45). Harmony Gold lacks standing. 5 Harmony Gold alleges that it owns an exclusive license to copyrights in certain robot warrior 6 characters, and that a video game created by Piranha infringes those copyrights. Piranha’s position 7 is simple: Harmony Gold is not the owner or exclusive licensee of the copyrights it seeks to 8 enforce. Therefore, Harmony Gold lacks standing to bring its copyright infringement claim, and

9 it should be dismissed. 10 Harmony Gold claims that it obtained copyrights in the characters through a license 11 agreement with a company called Tatsunoko. However, Tatsunoko never owned any copyright in 12 the characters, nor was it ever the exclusive licensee of any copyright in the characters. Therefore 13 Tatsunoko could not license those copyrights to Harmony Gold. The asserted copyrights are 14 owned by a company called Big West. Big West owns the copyrights because it created the robot 15 warrior characters (hereinafter “Big West Characters”). Big West’s ownership of the copyrights 16 is shown by the registration certificate it filed with the U.S. Copyright Office. Big West’s 17 ownership of the copyrights has been confirmed by court rulings in Japan and the United States. 18 Big West created the Big West Characters for an animated movie it was developing called 19 Macross (the “Macross Motion Picture”). For purposes of this motion, Piranha does not dispute 20 that Harmony Gold received certain rights to copy, distribute, display and commercialize the 21 Macross Motion Picture pursuant to its license agreement with Tatsunoko. However, under the 22 Copyright Act, a copyright in a “compilation or derivative work,” like a motion picture, does not 23 imply any exclusive right in “preexisting material,” such as characters, screenplays, musical 24 scores, etc. See 17 U.S.C. § 103(b). The Big West Characters are “preexisting material” created 25 and owned by Big West. Harmony Gold is improperly claiming copyrights in the Big West

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 1 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 8 of 31

1 Characters based on its limited commercialization rights for the Macross Motion Picture. 2 Big West’s ownership of the copyrights in the Big West Characters has been extensively 3 litigated, first in Japan, and most recently in a U.S. arbitration that resulted in a U.S. District Court 4 Judgment. See Amended Judgment Confirming Arbitration Award in Harmony Gold, USA, Inc. v. 5 Tatsunoko Production Co., Ltd., Case No. 2:17-cv-06034-PA-MRW, at 2 (C.D. Cal. Aug. 23, 6 2017) (the “federal court Judgment”) (copy attached as Exhibit 4 to the Meyer Decl.). Tatsunoko 7 tried—and failed—to convince two Japanese courts that it owned copyrights in the Big West 8 Characters as a result of work that Tatsunoko performed in animating the Macross Motion Picture.

9 The U.S. Judgment also confirmed that Tatsunoko could not, and did not, assign any copyrights in 10 the Big West Characters to Harmony Gold. The Judgment found that Harmony Gold received an

11 assignment of Tatsunoko’s copyrights in the Macross Motion Picture, but not in the Big West 12 Characters, which are owned “exclusively” by Big West. Meyer Decl., Ex. 4 at 6. 13 There is no genuine dispute of material fact as to Harmony Gold’s lack of standing. 14 Accordingly, Piranha requests that the Court grant summary judgment dismissing Harmony Gold’s 15 copyright infringement claim (Count I) with prejudice, and dismissing Piranha from this case. 16 This motion is supported by the concurrently filed Declaration of Ryan B. Meyer (“Meyer 17 Decl.”) and Exhibits 1-9 attached thereto. A proposed Order is filed herewith.

18 II. BACKGROUND

19 A. Harmony Gold’s Second Amended Complaint Does Not Allege Any New Facts 20 Affecting Harmony Gold’s Lack of Standing Piranha first moved for summary judgment on November 13, 2017. Dkt. 47. Piranha’s 21 motion focused on Harmony Gold’s allegation in the original and first Amended Complaints that 22 Piranha’s video game is a “derivative” work that allegedly incorporates certain features of the Big 23 West Characters. Piranha’s motion demonstrated that Harmony Gold has no derivative works 24 rights in the Big West Characters. This was acknowledged by Harmony Gold and Tatsunoko in a 25

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 2 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 9 of 31

1 2003 amendment to their license agreement (the “2003 Amendment”). See Meyer Decl., Ex. 7. 2 In response to Piranha’s motion, Harmony Gold requested leave to amend its Complaint a 3 second time, purportedly to explain that Harmony Gold has other exclusive copyrights in the Big 4 West Characters. The Second Amended Complaint deletes the word “derivative,” and substitutes 5 words like “copy,” “commercialize,” “distribute,” “display” and “merchandize” to describe 6 Harmony Gold’s alleged rights. But no amount of artful pleading can salvage Harmony Gold’s

7 copyright claim. Harmony Gold has never owned any exclusive copyright in the individual 8 characters, because Tatsunoko’s international distribution rights were always limited to the

9 completed Macross Motion Picture. Harmony Gold received an assignment of rights only in the 10 Macross Motion Picture as a whole, not in the individual characters. See DC Comics v. Towle, 802 11 F.3d 1012, 1023-25 (9th Cir. 2015) (holding that DC Comics “retained its rights to the underlying 12 Batmobile character” when it licensed the rights to produce a Batman movie and television series 13 which display the Batmobile character). 14 The following subsections explain the relevant chronology with respect to this motion. 15 Specifically, they explain: (1) how Big West created the Big West Characters; (2) how Tatsunoko 16 received limited rights to distribute the Macross Motion Picture outside Japan; (3) how Tatsunoko 17 subsequently assigned those rights to Harmony Gold; (4) how Tatsunoko and Big West litigated 18 their respective rights in the Japanese courts, which ruled that Big West owns the copyrights to the 19 Big West Characters; (5) how Big West registered its copyrights with the U.S. Copyright Office; 20 and (6) how the limited scope of Harmony Gold’s copyrights was recently litigated and confirmed 21 in an arbitration ruling that was confirmed as a U.S. District Court Judgment.

22 B. Big West and Studio Nue Created the Big West Characters 23 In 1981, a company called Studio Nue, in partnership with Big West, began development 24 of a story and 41 characters that would eventually be incorporated into the Macross Motion Picture. 25 Meyer Decl., Ex. 1 at 6-8. Employees of Studio Nue were responsible for creating and designing

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 3 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 10 of 31

1 the Big West Characters. Id. The characters created by Studio Nue (Meyer Decl., Ex. 5) include 2 the nine characters at issue in this litigation. See Dkt. 83 at ¶ 16. By agreement, Big West and 3 Studio Nue jointly own the copyrights to the Big West Characters. Meyer Decl., Ex. 1 at 10-11 4 (Japanese trial court decision). As held by the Japanese court: “… it is recognized that the 5 copyright for the designs belongs jointly to the plaintiffs [Studio Nue and Big West].” Id. at 11. 6 Because of their joint ownership, Studio Nue and Big West are referred to in the balance of this 7 brief as “Big West.” 8 As shown below, the allegedly infringed characters displayed in the Second Amended

9 Complaint are nine of the 41 Big West Characters. Compare Dkt. 83 at ¶ 16 (nine allegedly 10 infringed characters) with Meyer Decl., Ex. 5 (Big West Copyright Registration, Character Nos. 11 2, 11, 13, 14, 16, 19, 20 and 21) and Ex. 6 (characters displayed in Macross: Perfect Memory book 12 (© Big West, et al. 1983) at 154-57, 161, 163 and 170):

13 “Armored Valkyrie” from Character No. 13 from the Character from Macross: 14 the Second Amended Big West Copyright Perfect Memory book (© Big Complaint ¶ 16 at p. 6. Registration. West, et al. 1983) at 156 15 16 17 18 19 20 21 22 23

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 4 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 11 of 31

1 “Destroyed Defender” from Character No. 20 from the Character from Macross: 2 the Second Amended Big West Copyright Perfect Memory book (© Big Complaint ¶ 16 at p. 6. Registration. West, et al. 1983) at 161. 3 4 5 6 7 8

9 10 11 12

14 “Destroid Phalanx” from the Character No. 19 from the Character from Macross: Second Amended Complaint Big West Copyright Perfect Memory book (© Big 15 ¶ 16 at p. 7. Registration. West, et al. 1983) at 163. 16 17 18 19 20 21 22 23

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 5 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 12 of 31

1 “Destroid Spartan” from the Character No. 14 from the Character from Macross: 2 Second Amended Complaint Big West Copyright Perfect Memory book (© Big ¶ 16 at 7. registration. West, et al. 1983) at 163. 3 4 5 6 7 8

9 10 11 12

13 14 “Destroid Tomahawk” from Character No. 21 from the Character from Macross: the Second Amended Big West Copyright Perfect Memory book (© Big 15 Complaint ¶ 16 at p. 7. registration. West, et al. 1983) at 161. 16 17 18 19 20 21 22 23 24

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 6 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 13 of 31

1 “Officer’s Pod (Glaug)” Character No. 16 from the Character from Macross: from the Second Amended Big West Copyright Perfect Memory book (© Big 2 Complaint ¶ 16 at p. 8. Registration. West, et al. 1983) at 170. 3 4 5 6 7 8

9 10 11 12

13 “Super Valkyrie” from the Character No. 2 from the Big Character from Macross: 14 Second Amended Complaint West Copyright Registration. Perfect Memory book at 157 (© ¶ 16 at p. 8. Big West, et al. 1983) 15 16 17 18 19 20 21 22 23 24 25

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 7 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 14 of 31

1 “Valkyrie VF-1A” from the Character No. 11 from the “Valkyrie VF-1A” from 2 Second Amended Complaint Big West Copyright Macross: Perfect Memory book ¶ 16 at p. 9. Registration. (© Big West, et al. 1983) at 155 3 (with alternate helmet and antenna designs shown) 4 5 6 7 8

9 10 11 12

13 14

15 “Valkyrie VF-1S” from the Character No. 2 from the Big “Valkyrie VF-1S” from Second Amended Complaint West Copyright Registration. Macross: Perfect Memory book 16 ¶ 16 at p. 9. (© Big West, et al. 1983) at 154 17 18 19 20 21 22 23

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 8 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 15 of 31

1 C. Tatsunoko Received Limited Rights in the Macross Motion Picture, But Not in the Big West Characters 2 After creating the Big West Characters, Big West made arrangements with Tatsunoko to 3 assist in completing the animation for the Macross Motion Picture. As compensation for its work, 4 Tatsunoko received overseas commercialization rights for the completed Macross Motion Picture. 5 Meyer Decl., Ex. 1 at 8-9. Tatsunoko’s rights to distribute the Macross Motion Picture overseas 6 are set forth in two “Memorandum” agreements dated October 1, 1982 and December 1, 1984. 7 Meyer Decl., Ex. 3. Tellingly, those agreements do not transfer, or even mention, any rights in the 8 “characters” created and owned by Big West. The agreements also do not mention “copyrights.” 9 Tatsunoko received the overseas rights to distribute and commercialize the “television animation 10 movie” called Macross (Id. at HG00000082), which the agreements alternatively referred to as the 11 “Movie Version” and “Television Version” of Macross. Id. at HG00000084.1 12 D. Tatsunoko Licensed Its Limited Rights to Harmony Gold 13 In 1984, Tatsunoko entered into a license agreement which purported to grant Harmony 14 Gold an exclusive and irrevocable license to adapt and commercialize the Macross Motion Picture 15 in the United States. See Dkt. 83 at ¶¶ 12-13. In 1991, Tatsunoko entered into a new license 16 agreement which purported to grant Harmony Gold “the exclusive and irrevocable right to exploit 17 three Japanese animated television series” in the United States. Meyer Decl., Ex. 4 at 2 (Arbitration 18 Award).2 The license agreement was amended several times thereafter. Id. The license 19 agreements purported to assign various rights that Tatsunoko never owned, as shown by 20 Tatsunoko’s 1982 and 1984 Memorandum agreements with Big West. Meyer Decl., Ex. 3. 21

22 23 1 The Court should note that Tatsunoko is referred to as “B” in the 1982 agreement and referred to as “A” in the 1984 agreement. 24 2 Unless otherwise stated, page citations to Exhibit 4 of the Meyer Declaration, which is an 25 Amended Judgment Confirming Arbitration Award, refer to the page numbers of the Arbitration Award attached to the Amended Judgment as “EXHIBIT A.”

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 9 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 16 of 31

1 Pursuant to its license, Harmony Gold combined the Macross Motion Picture with two 2 unrelated animations, and re-named the compilation “Robotech.” Essentially, Harmony Gold 3 “repackaged” Macross to appeal to a U.S. audience, for example, by substituting an English 4 language soundtrack for the original Japanese soundtrack. Harmony Gold refers to the Big West 5 Characters as “Robotech” warrior robots, but both terms refer to the same set of characters which 6 were created by Big West.3

7 E. The Japanese Courts Confirmed Big West’s Ownership of the Copyrights in 8 the Characters Nearly 20 years after the Macross Motion Picture first aired, Big West and Studio Nue 9 filed a lawsuit against Tatsunoko in Japan to resolve a dispute over which company owned the 10 copyrights to the Big West Characters. Meyer Decl., Exs. 1-2. The Japanese trial court held that 11 the copyrights to the Big West Characters belong to Big West and Studio Nue. Id., Ex. 1 at 10-11. 12 The court held: “As mentioned above, it is recognized that the copyright for the Designs belongs 13 jointly to the Plaintiffs [Studio Nue and Big West].” Id. at 11. The trial court judgment was 14 affirmed on appeal. Meyer Decl., Ex. 2. The Japanese appellate court held: “the original judgment 15 was appropriate, and the appeal [by Tatsunoko] is revoked as unreasonable ….” Id. at 4. An exhibit 16 displaying the Big West Characters is attached to the 2002 Japanese district court decision (see 17 Meyer Decl., Ex. 1) and is also referenced in the appellate decision. Meyer Decl., Ex. 2 at 1.4 18 On May 17, 2002, after the Japanese district court decision, Big West registered its 19 copyrights in the Big West Characters with the U.S. Copyright Office. See Meyer Decl., Ex. 5 20 (Copyright Reg. No. Vau000534107). Along with its registration certificate, Big West deposited 21

22 23 3 The characters from the other two animated series are not at issue in this lawsuit. 4 A copy of the exhibit, which contains color pictures of the Big West Characters, is found after 24 the Japanese-language version of the decision at the end of Exhibit 1 to the Meyer Declaration. A 25 translation of the text contained in the Japanese court exhibit follows the certified English- language translation of the decision.

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 10 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 17 of 31

1 with the Copyright Office a set of drawings of the Big West Characters. Id. The drawings are the 2 same drawings that are attached to the Japanese trial court decision holding that Big West owns 3 the copyrights to the Big West Characters. Meyer Decl., Ex. 1. These “deposit copies” further 4 demonstrate that Harmony Gold does not own the copyrights to the Big West Characters. In 5 addition, Big West published a copyrighted fan book called Macross: Perfect Memory, which 6 displays each of the nine characters for which Harmony Gold claims copyrights.5 7 In sharp contrast to Big West’s copyright registration in the 41 Big West Characters, 8 Harmony Gold filed copyright registrations for a series of animated “MOTION PICTURES,”

9 including the 36 episodes of Macross.6 See Meyer Decl., Ex. 8; Dkt. 83-1. Harmony Gold may 10 have received from Tatsunoko certain rights to copy, commercialize, distribute, display, and 11 merchandize the Macross Motion Picture, but it did not receive any copyrights in the Big West 12 Characters.

13 F. The U.S. Litigation Confirmed Big West’s Ownership of the Copyrights in the 14 Characters Any rights Harmony Gold has in the Macross Motion Picture flow from its license 15 agreement with Tatsunoko, and can be no greater than the rights Tatsunoko obtained from Big 16 West. See Dkt. 83 at ¶¶ 12-13; Meyer Decl., Ex. 3. The U.S. Copyright registration certificate 17 that Harmony Gold filed for the Macross Motion Picture acknowledges that Harmony Gold’s 18 claimed copyrights were obtained by “Agreement” (i.e., not as a result of Harmony Gold creating 19 20 5 It appears that Harmony Gold copied all of the Macross drawings appearing in the Second 21 Amended Complaint from Macross: Perfect Memory. Macross: Perfect Memory has a 1983 copyright notice showing copyright ownership by Big West, along with the book’s publisher and 22 a broadcasting company, but not by Harmony Gold or Tatsunoko. Meyer Decl., Ex. 6. 23 6 The Second Amended Complaint identifies eight copyright registrations filed by Harmony Gold. See Dkt. 83 at ¶ 15. However, the Macross Motion Picture is the only work registered to Harmony 24 Gold at issue in this lawsuit. Five of Harmony Gold’s registrations do not contain any of the Big 25 West Characters, and the other two are duplicative of the Macross Motion Picture. Moreover, each copyright registration is directed to a “MOTION PICTURE,” not to the Big West Characters.

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 11 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 18 of 31

1 or authoring the Macross Motion Picture). Id., Ex. 8. 2 In a 2017 arbitration, Harmony Gold and Tatsunoko litigated various disputes concerning 3 their licensing agreement. Meyer Decl., Ex. 4. On June 27, 2017, the arbitrator issued a detailed, 4 21-page Arbitration Award which describes the creation of Macross, analyzes the various 5 agreements between Big West, Tatsunoko and Harmony Gold, and describes the outcome of the 6 Japanese litigation. Id. The arbitrator’s findings recognize the Japanese court rulings that Big West 7 owns the copyrights in the Big West Characters. Id. at 6 (finding that the Japanese courts ruled

8 that “Big West owned exclusively the original visual depictions of [the] 41 characters as used in 9 the Macross program”) (emphasis added). The arbitrator also found that the rights assigned by 10 Tatsunoko to Harmony Gold necessarily exclude “the visual depiction of the original 41 animated 11 graphic characters from the underlying Program.” Id. at 18. 12 Although disappointed by those aspects of the arbitrator’s ruling, Harmony Gold prevailed 13 on other claims, and filed a U.S. district court lawsuit to confirm the award under the Federal 14 Arbitration Act. See 9 U.S.C. § 1, et seq. On August 23, 2017, the U.S. District Court for the 15 Central District of California entered its Amended Judgment confirming the Arbitration Award in 16 its entirety. Meyer Decl., Ex. 4 at 2 (Amended Judgment Confirming Arbitration Award in 17 Harmony Gold, USA, Inc. v. Tatsunoko Production Co., Ltd., Case No. 2:17-cv-06034-PA-MRW, 18 at 2 (C.D. Cal. Aug. 23, 2017)). Having been confirmed, the Arbitration Award is now a Judgment 19 of the District Court “in all respects.” 9 U.S.C. § 13(c) (“The judgment so entered shall have the 20 same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a 21 judgment in an action; and it may be enforced as if it had been rendered in an action in the court 22 in which it is entered.”)

23 III. ARGUMENT 24 The undisputed evidence shows that Harmony Gold lacks standing to assert its copyright 25 infringement claim. Harmony Gold simply does not own or have an exclusive license to any

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1 copyright in the Big West Characters. Its copyright registration is for a “MOTION PICTURE” 2 (Meyer Decl., Ex. 8), not for the Big West Characters, which are registered to Big West. Meyer 3 Decl., Ex. 5. While Harmony Gold may have certain rights to reproduce, distribute, display and 4 merchandize the Macross Motion Picture, Harmony Gold does not have any copyright in the Big 5 West Characters.

6 A. The Legal Standard for a Motion for Summary Judgment 7 “Summary judgment is appropriate if the ‘movant shows that there is no genuine dispute 8 as to any material fact and the movant is entitled to judgment as a matter of law.’” S. Cal. Darts

9 Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014) (affirming grant of summary judgment), quoting 10 Fed. R. Civ. P. 56(a). The moving party is entitled to judgment as a matter of law if the nonmoving 11 party fails “to make a sufficient showing on an essential element of [its] case with respect to which 12 [it] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (reversing court 13 of appeals reversal of district court’s grant of summary judgment). It is Harmony Gold’s burden 14 to prove ownership of a valid copyright. See North Coast Indus. v. Maxwell, 972 F.2d 1031, 1033 15 (9th Cir. 1992).

16 B. Harmony Gold Lacks Standing Because It Is Not the Owner or Exclusive 17 Licensee of Any Copyright in the Characters 1. Only the Legal or Beneficial Owner of an Exclusive Right Can Sue for 18 Infringement 19 “Copyright is wholly a ‘creature of statute, and the only rights that exist under copyright 20 law are those granted by statute.’” Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1143- 21 44 (9th Cir. 2008) (affirming dismissal for lack of standing), quoting Silvers v. Sony Pictures 22 Entm’t, 402 F.3d 881, 883-84 (9th Cir. 2005) (reversing denial of motion to dismiss for lack of 23 standing); see Righthaven LLC v. Hoehn, 716 F.3d 1166, 1169 (9th Cir. 2013) (affirming dismissal 24 of copyright infringement suits for lack of standing), citing 17 U.S.C. § 106. 25 The Copyright Act identifies the exclusive rights that can provide standing to sue for

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1 infringement. 17 U.S.C. § 106. Each of the various exclusive rights to a copyrighted work can be 2 parceled out to different entities, as occurred with the three companies that developed Macross. 3 The Copyright Act states:

4 (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law…. 5 (2) Any of the exclusive rights comprised in a copyright, including any subdivision 6 of any of the rights specified by [17 U.S.C.] section 106 may be transferred as provided by clause (1) and owned separately. The owner of any particular 7 exclusive right is entitled, to the extent of that right, to all of the protection and 8 remedies accorded to the copyright owner by this title.

9 17 U.S.C. § 201(d). The only copyrights that Tatsunoko received were the overseas rights to adapt,

10 distribute and commercialize the completed Macross Motion Picture. Meyer Decl., Ex. 3. The 11 copyrights in the Big West Characters remained with the creators of those characters: Big West 12 and Studio Nue.

13 Only the “legal or beneficial owner of an exclusive right under a copyright is entitled … 14 to institute an action for any infringement of that particular right committed while he or she is the 15 owner of it.” 17 U.S.C. § 501(b) (emphasis added); see Sybersound, 517 F.3d at 1146; Righthaven, 16 716 F.3d at 1169 (“only the legal or beneficial owner of an exclusive right under a copyright has

17 standing to sue for infringement of that right”) (citations and internal quotation marks omitted) 18 (emphasis added). An exclusive licensee can sue to protect a particular right that it has been 19 granted, but cannot sue for infringement of rights outside of its exclusive license. See Marya v. 20 Warner/Chappell Music, Inc., 131 F. Supp. 3d 975, 1002 (C.D. Cal. 2015) (exclusive licensee of 21 piano arrangement for the song Happy Birthday was not the exclusive licensee of the lyrics, so it 22 could not sue for infringement of the lyrics).

23 2. Tatsunoko Never Owned Any Copyright in the Big West Characters 24 Harmony Gold’s rights can be no greater than the rights Tatsunoko received through its 25 1982 and 1984 “Memorandum” agreements with Big West. Meyer Decl., Ex. 3. The 1982

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1 Memorandum allocates various rights in the Macross “television animation movie.” Meyer Decl., 2 Ex. 3 at HG00000082 (emphasis added). With regard to overseas distribution of the movie, the 3 Memorandum states: “In connection with overseas program sales and general commercialization 4 rights overseas [Tatsunoko] shall have these rights, and the profits arising therefrom shall 5 completely belong to [Tatsunoko].” Id. at ¶ 5. Thus, Tatsunoko was given overseas

6 commercialization rights for the “television animation movie,” which it later assigned to 7 Harmony Gold, and which Harmony Gold registered with the U.S. Copyright Office. Meyer Decl., 8 Ex. 8. Under the Copyright Act, that registration implies no separate copyrights in the preexisting

9 character designs owned by Big West. See 17 U.S.C. § 103(b). 10 Similarly, the 1984 Memorandum states that Tatsunoko shall have the “overseas program

11 sales rights and general commercialization rights” for the “Television Version” and “Movie 12 Version” of Macross. Meyer Decl., Ex. 3 at HG00000084 (see Intro. Para. and Art. 1 and 2) 13 (emphasis added). Once again, there is no mention of any assignment of rights in the robot warrior 14 “characters” or the preexisting “designs” created and owned by Big West. See U.S. v. King 15 Features Entm’t, Inc., 843 F.2d 394, 398 (9th Cir. 1988) (“Summary judgment is appropriate when 16 the contract terms are clear and unambiguous, even if the parties disagree as to their meaning.”).7

17 3. The Japanese Courts Confirmed that Tatsunoko Never Owned Any 18 Copyright in the Big West Characters It is basic copyright law that the author of a work initially owns the copyrights to that work. 19 17 U.S.C. § 201(a). The Japanese courts found that the Big West characters were created by 20 employees of Studio Nue, and that Studio Nue originally owned all copyrights to the characters 21 before agreeing to joint ownership with Big West. The trial court held: 22 As established above, Kawamori et al. created the original designs for the 23 characters and mecha appearing in the story of the Television Animation Program

24 25 7 The Court should note that Tatsunoko is referred to as “B” in the 1982 agreement and referred to as “A” in the 1984 agreement.

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1 as employees or persons working for Plaintiff Studio Nue …. Therefore, because the Designs are works created by Kawamori et al. in the course of duty for the 2 Plaintiff Studio Nue based on the initiative of the Plaintiff Studio Nue, Plaintiff 3 Studio Nue owns the copyright to the Designs. Meyer Decl., Ex. 1 at 10. The court found that, by agreement, the copyrights are now jointly 4 owned by Studio Nue and Big West. Id. 5 The Japanese courts also held that cooperation between Studio Nue and Tatsunoko in 6 creating the animated TV series did not result in a transfer of any copyrights in the character 7 designs: “[J]oint production and participation by Plaintiff Studio Nue cannot be seen as displaying 8 an intention to grant permission to [Tatsunoko] and it cannot be presumed at all to be displaying 9 an intention to transfer the copyright of the Designs to [Tatsunoko]. Therefore, the claims of 10 [Tatsunoko] on these points cannot be accepted.” Meyer Decl., Ex. 1 at 10-11 (emphasis added). 11 12 4. Big West’s Copyright Registration Is Prima Facie Evidence of the Validity of Big West’s Copyrights 13 Big West registered its copyrights with the U.S. Copyright Office in 2002, after the 14 Japanese trial court confirmed Big West’s ownership. Meyer Decl., Ex. 5. Unlike Harmony Gold, 15 which registered U.S. copyrights in the Macross “MOTION PICTURE,” Big West registered its 16 copyrights in the 41 Big West Characters. Id. This Court has discretion to determine what 17 evidentiary weight should be given to a copyright registration that was filed more than five years 18 after the date of publication of the copyrighted work. 17 U.S.C. § 410(c).8 19 It is well established that a copyright registration filed more than five years after 20 publication may constitute prima facie evidence of the validity of the copyright. See CJ Prods. 21 LLC v. Snuggly Plushez LLC, 809 F. Supp. 2d 127, 143-44 (E.D.N.Y. 2011) (concluding that two 22

23 8 17 U.S.C. § 410(c) provides: “In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence 24 of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to 25 be accorded the certificate of a registration made thereafter shall be within the discretion of the court.”

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1 certificates filed more than five years after publication were considered prima facie evidence of a 2 valid copyright); Michael Grecco Photography, Inc. v. Everett Collection, Inc., 589 F. Supp. 2d 3 375, 382 (S.D.N.Y. 2008) (certificates of registration issued more than five years after publication 4 were prima facie evidence of valid copyrights because no evidence suggesting invalidity was 5 offered) (vacated on other grounds). 6 To refute prima facie evidence of copyright validity, Harmony Gold must provide “some 7 evidence or proof to dispute or deny the” validity of the copyright. Entm’t Research Grp., Inc. v. 8 Genesis Creative Grp., Inc., 122 F.3d 1211, 1217-18 (9th Cir. 1997). There is no admissible

9 evidence even suggesting that Big West is not the owner of the copyrights to the Big West 10 Characters. This issue has been fully litigated, and Big West’s copyright registration clearly 11 corresponds to the allegedly infringed characters that Harmony Gold displays in each version of 12 its Complaint. Compare Dkt. 83 at ¶ 16 (allegedly infringed characters) with Meyer Decl., Ex. 5 13 (Big West Characters). Moreover, the Memorandum agreements conveyed to Tatsunoko limited 14 rights in the Macross Motion Picture, and do not even mention the “characters” or any 15 “copyrights.” Meyer Decl., Ex. 3. Because the rights of Harmony Gold can be no greater than the 16 rights of its assignor, Tatsunoko, this fact alone is dispositive. 17 Multiple pieces of evidence confirm that Big West is the copyright owner. Meyer Decl., 18 Exs. 1-8. Big West’s copyright registration is consistent with the findings and conclusions of the 19 Japanese courts (Meyer Decl., Exs. 1-2), the Memorandum agreements (id., Ex. 3), the federal 20 court Judgment (id., Ex. 4), the Macross: Perfect Memory book (id., Ex. 6; see also footnote 5,

21 supra), and Harmony Gold’s own registration statement claiming copyrights in the Macross 22 “MOTION PICTURE,” and not in the characters. Id., Ex. 8. Big West’s registration should be 23 considered prima facie evidence that Big West owns the copyrights to the Big West Characters 24 (see 17 U.S.C. § 410(c)), which places the burden on Harmony Gold to rebut Big West’s claim of 25 ownership.

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1 5. Harmony Gold’s Copyright Registration for the “Motion Picture” Does Not Give It Any Rights in the Big West Characters 2 Harmony Gold filed a U.S. Copyright Registration for the 36-Episode animated series 3 entitled Macross. Meyer Decl., Ex. 8. The registration certificate identifies the work as a 4 “MOTION PICTURE” and as a “COMPILATION OR DERIVATIVE WORK.” Id. In other 5 words, the motion picture is a “compilation” of preexisting works (story, characters, screenplay, 6 music, etc.), which created a new work with different copyrights.9 7 Tatsunoko helped animate Macross, but that did not give Tatsunoko any rights in the 8 “preexisting material.” 17 U.S.C. § 103(b); Russell v. Price, 612 F.2d 1123, 1128 (9th Cir. 1979) 9 (“Thus, we reaffirm, without finding it necessary to repeat the rationale, the well-established 10 doctrine that a derivative copyright protects only the new material contained in the derivative work, 11 not the matter derived from the underlying work”). The “copyright in a compilation or derivative 12 work extends only to the material contributed by the author of such work, as distinguished from 13 the preexisting material employed in the work, and does not imply any exclusive right in the 14 preexisting material.” 17 U.S.C. § 103(b) (emphasis added). “The copyright in such work is 15 independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, 16 any copyright protection in the preexisting material.” Id. (emphasis added). Thus, any rights 17 Harmony Gold received in the Macross “MOTION PICTURE” did not affect Big West’s 18 copyrights in the preexisting characters. 19 The Ninth Circuit squarely addressed this issue in DC Comics v. Towle, 802 F.3d 1012 (9th 20 Cir. 2015). The defendant in that case was sued by DC Comics for making working replicas of 21 22 9 The Copyright Act defines a “derivative work” as “a work based upon one or more preexisting 23 works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which 24 a work may be recast, transformed, or adapted. A work consisting of editorial revisions, 25 annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’” 17 U.S.C. § 101 (emphasis added).

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1 the Batmobile, which Towle copied from a Batman movie and television series created by third 2 parties under license from DC Comics. Towle argued that DC Comics lost the ability to sue for

3 infringement of the Batmobile character when it assigned to third parties the rights to create a 4 Batman movie and television series which displayed that character. Id. at 1025-26. 5 The Court rejected Towle’s argument, holding that assigning copyrights for the Batman 6 movie and television series did not result in an assignment of copyrights in the preexisting 7 Batmobile character. Id. at 1026. The Ninth Circuit held: “This argument fails because DC 8 retained its rights to the underlying Batmobile character, and the creation of derivative works by

9 sublicensees cannot deprive DC of such rights. DC may sue any third party who infringes on that 10 work, even if the third party copies ‘indirectly via the derivative work.’” Id., quoting Nimmer on 11 Copyright § 3.05. Like DC Comics with the Batmobile character, Big West retained its copyrights 12 in the preexisting Big West Characters when it agreed that Tatsunoko would have limited rights in 13 the commercialization of the Macross Motion Picture.

14 C. Collateral Estoppel Precludes Harmony Gold from Re-Litigating the Scope of 15 Its Rights The scope of the rights assigned to Tatsunoko, and then to Harmony Gold, has been 16 litigated in Japan and in the United States. Meyer Decl., Exs. 1, 2, and 4. The U.S. arbitrator ruled 17 that Harmony Gold’s license excludes “the visual depiction of the original 41 animated graphic 18 characters from the underlying Program [Macross].” Meyer Decl., Ex. 4 at 18. The U.S. District 19 Court for the Central District of California confirmed the Arbitration Award. Id. By statute, the 20 Arbitration Award is now a Judgment of the District Court “in all respects.” 9 U.S.C. § 13(c) (“The 21 judgment so entered shall have the same force and effect, in all respects, as, and be subject to all 22 the provisions of law relating to, a judgment in an action; and it may be enforced as if it had been 23 rendered in an action in the court in which it is entered.”). 24 The arbitrator ruled that Tatsunoko licensed all of its limited rights to Harmony Gold, 25

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1 which necessarily excluded the rights to “the visual depictions of the 41 [Macross] characters” 2 which are owned by Big West. Meyer Decl., Ex. 4 at 6 and 18.10 Harmony Gold petitioned the 3 District Court to confirm the Arbitration Award, and the District Court did so. Having litigated 4 the scope of its rights under the license agreement, Harmony Gold is estopped from re-litigating 5 that issue here.

6 1. The Elements of Collateral Estoppel 7 “Federal law governs the collateral estoppel effect of a case decided by a federal court.” 8 Trevino v. Gates, 99 F.3d 911, 923 (9th Cir. 1996). “Under collateral estoppel, once a court has

9 decided an issue of fact or law necessary to its judgment, that decision may preclude litigation of 10 the issue in a suit on a different cause of action involving a party to the first case.” Allen v. 11 McCurry, 449 U.S. 90, 94 (1980). There are three requirements for collateral estoppel to apply: 12 (1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated [by the party against whom preclusion 13 is asserted] in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier 14 action. 15 Town of N. Bonneville v. Callaway, 10 F.3d 1505, 1508 (9th Cir. 1993). When these requirements 16 are met as to a particular issue, that issue cannot be re-litigated. The requirements are met here. 17 An arbitration award confirmed by a federal court can have a preclusive effect in 18 subsequent litigation. See, e.g., C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1100 (9th Cir. 19 1987) (affirming application of collateral estoppel based on arbitration award). To determine if 20 collateral estoppel applies, a Court must examine the record, including the findings of the 21

22 10 Indeed, the arbitrator found that Tatsunoko had breached its own representation and warranty that Harmony Gold would not be infringing any third party’s copyright when it exercised the rights 23 that Tatsunoko purported to assign to Harmony Gold. Meyer Decl., Ex. 4 at 6-7 (holding that the Japanese court decisions “left [Tatsunoko] in breach of its representations and warranties to 24 Claimant [Harmony Gold] in the Operative Agreements (as to the visual depictions of the 41 25 characters) wherein it had represented that the rights granted would not infringe in any way upon the rights of third parties”) (parentheses in original).

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1 arbitrator. See, e.g., Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569 (1950). The 2 Court must also determine whether a rational factfinder could have based its conclusion upon an 3 issue other than the issue to be precluded. Ashe v. Swenson, 397 U.S. 436, 444 (1970) (holding 4 that collateral estoppel applied). If the Court finds that the previous factfinder’s conclusion was 5 based on the issue to be precluded, then that issue is foreclosed from further litigation. Id. 6 A party may prove that collateral estoppel applies to a particular issue by pointing to an 7 arbitrator’s specific findings of fact and conclusions of law. Clark v. Bear Stearns & Co., 966 F.2d 8 1318, 1322 n.4 (9th Cir. 1992). In Clark, the record failed to “show with clarity and certainty what

9 issues were determined in the arbitration ….” Id., 966 F.2d at 1322. Importantly, the Ninth Circuit 10 held that “[s]uch a result could have been avoided if the arbitration panel had made specific 11 findings of fact and conclusions of law similar to those required of the district court under Fed. R. 12 Civ. P. 52(a).” Id. at 1322 n.4. In the present case, the arbitrator (and therefore the federal District 13 Court under 9 U.S.C. § 13(c)) clearly stated what issues were being decided, and made detailed 14 findings of fact and conclusions of law in a 21 page opinion. 15 Under Fed. R. Civ. P. 52(a), a court “should state separately its findings of fact and

16 conclusions of law without commingling them, but any error in this respect is unimportant if 17 the ruling of the [factfinder] is clearly understandable.” 9C Wright & Miller, Federal Practice 18 & Procedure, § 2579 (3d ed. 2008) (emphasis added). Findings of fact and conclusions of law 19 need not be labeled as such to provide sufficient clarity and certainty:

20 The fact that the district court intermingled some of its findings of fact with its conclusions of law is of no significance. We look at a finding or a conclusion in its 21 true light, regardless of the label that the district court may have placed on it. In 22 other words, the findings are sufficient if they permit a clear understanding of the basis for the decision of the trial court, irrespective of their mere form or 23 arrangement.

24 Tri-Tron Intern. v. Velto, 525 F.2d 432, 435-36 (9th Cir. 1975) (citations omitted). 25

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1 2. Determining the Scope of Harmony Gold’s Rights under the License Agreement Was Critical and Necessary to the Judgment 2 The Judgment necessarily included findings and conclusions regarding Harmony Gold’s 3 rights under the license agreement, because the litigation resolved a dispute between Tatsunoko 4 and Harmony Gold concerning the scope of those rights. Meyer Decl., Ex. 4 at 9-10. Specifically, 5 the parties disagreed about whether Harmony Gold’s license included the right to create a live 6 action sequel to the Macross Motion Picture. Id. at 7, 18. In order to resolve that dispute, it was 7 necessary for the arbitrator to decide what Harmony Gold’s license permitted, and what it 8 excluded. The arbitrator ruled that Harmony Gold “has been granted therein all of Respondent 9 [Tatsunoko’s] copyright rights in Macross, except for the visual depiction of the original 41 10 animated graphic characters ….” Id. at 18 (emphasis added).11 11 All of the required elements for collateral estoppel are present here. First, the issue at stake 12 in the instant case (the scope of Harmony Gold’s rights under its license agreement) is identical to 13 the one decided in the prior litigation. Second, that issue was actually litigated by the party 14 (Harmony Gold) against whom preclusion is asserted. And third, the determination of the issue in 15 the prior litigation was a critical and necessary part of the judgment in the earlier action, because 16 the parties litigated the scope of the rights assigned to Harmony Gold. See Town of N. Bonneville, 17 10 F.3d at 1508. Therefore, Harmony Gold is precluded from re-litigating those issues. 18 D. The Recent Amendments to the Complaint Do Not Prevent Summary 19 Judgment 20 Harmony Gold’s recent amendments do not prevent summary judgment, because the 21 undisputed evidence shows that Tatsunoko never owned any copyrights in the Big West 22 Characters, and therefore, could not assign any such rights to Harmony Gold. Harmony Gold 23

24 11 The broad language of this ruling shows that Harmony Gold has no rights in the visual depiction 25 of the Big West Characters apart from the Macross Motion Picture. The ruling is not limited to derivative works.

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1 admits that its agreement with Tatsunoko is the only source of any rights it has in the Macross 2 Motion Picture (Dkt. 83 at ¶¶ 12-13). This is also clear from the Federal Court Judgment.

3 Likewise, there is no genuine dispute that Tatsunoko’s limited rights in the “television animation 4 movie” originate with the 1982 and 1984 Memorandum agreements with Big West. Meyer Decl., 5 Ex. 3 (emphasis added). 6 Harmony Gold’s pre-litigation correspondence (Meyer Decl., Ex. 9), original Complaint 7 and first Amended Complaint repeatedly assert that Harmony Gold “has the exclusive right to

8 make derivative works of the Robotech warrior robots in the United States” (Dkt. 31 at ¶ 16) 9 (emphasis added) and that Piranha’s original artwork designs “are derivative of the copyrighted 10 Robotech warrior robots owned by Harmony Gold.” Id. at ¶ 37 (emphasis added). Harmony Gold 11 made these allegations despite the 2003 amendment to its license agreement stating that Harmony 12 Gold has no derivative works rights. Meyer Decl., Ex. 7. 13 In an attempt to defeat summary judgment, Harmony Gold has attempted to re-characterize 14 or redefine the derivative rights it admittedly does not have. The Second Amended Complaint 15 deletes the word “derivative,” and substitutes the allegation that Piranha’s designs “infringe upon 16 Harmony Gold’s exclusive rights to reproduce, distribute, display, and merchandize” the Big West 17 Characters. Dkt. 83 at ¶ 41.12 The fact remains that Harmony Gold does not own or have an

18 exclusive license to any copyrights in the Big West Characters, because Tatsunoko never owned 19 or had an exclusive license to such copyrights. 20 The law is clear that a plaintiff has no standing to assert a copyright of which it is not the 21 owner or exclusive licensee. See 17 U.S.C. § 501(b); Righthaven, 716 F.3d at 1169 (“the 22 assignment of the bare right to sue for infringement, without the transfer of an associated exclusive 23 right, is impermissible under the Copyright Act and does not confer standing to sue”), citing

24 25 12 “Merchandizing” rights are not one of the six exclusive rights recognized by the Copyright Act. 17 U.S.C. § 106.

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 23 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 30 of 31

1 Silvers, 402 F.3d at 890. Because Harmony Gold has no exclusive copyright in the Big West 2 Characters, it has no standing to prevent the alleged copying, reproduction, display, distribution,

3 or commercialization of those characters by Piranha or anyone else.

4 IV. CONCLUSION 5 There is no disputed material fact concerning Harmony Gold’s lack of standing. The 6 evidence shows that Harmony Gold is not the owner or exclusive licensee of any copyright in the 7 Big West Characters. Those copyrights are owned by Big West. The issue of what copyrights 8 were assigned to Harmony Gold was recently litigated. The federal court Judgment shows that

9 Harmony Gold does not own or have an exclusive license to the copyrights it seeks to enforce. 10 For the foregoing reasons, Piranha respectfully requests that this Court enter summary judgment 11 dismissing Harmony Gold’s copyright infringement claim (Count I), and enter judgment in favor 12 of Piranha. 13 Respectfully submitted this 8th day of March, 2018.

14 DORSEY & WHITNEY LLP 15 /s/ Ryan B. Meyer ______16 Paul T. Meiklejohn, WSBA No. 17477 J. Michael Keyes, WSBA No. 29215 17 Ryan B. Meyer, WSBA No. 37832 18 701 Fifth Avenue, Suite 6100 Seattle, WA 98104 19 Phone: (206) 903-8800 Fax: (206) 903-8820 20 Attorneys for Defendant Piranha Games Inc. 21

23 24 25

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 24 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87 Filed 03/08/18 Page 31 of 31

1 CERTIFICATE OF SERVICE 2 I hereby certify that true and correct copies of (1) PIRANHA’S SECOND MOTION FOR 3 SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT 4 COPYRIGHT INFRINGEMENT CLAIM; (2) DECLARATION OF RYAN B. MEYER IN 5 SUPPORT OF PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO 6 PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT INFRINGEMENT CLAIM; 7 and (3) [PROPOSED] ORDER GRANTING PIRANHA’S SECOND MOTION FOR 8 SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT

9 COPYRIGHT INFRINGEMENT CLAIM were served by ECF on the following parties on March 10 8, 2018: 11 Damon C. Elder, WSBA #46754 Warren J. Rheaume, WSBA No. 13627 12 [email protected] [email protected] 13 Andrew R.W. Hughes, WSBA #49515 James H. Corning, WSBA No. 45177 [email protected] [email protected] 14 CALFO EAKES & OSTROVSKY PLLC DAVIS WRIGHT TREMAINE LLP 1301 Second Avenue, Suite 2800 1201 Third Avenue, Suite 2200 15 Seattle, WA 98101-3808 Seattle, WA 98101 Phone: (206) 757-8265 16 Jessica Stebbins Bina (admitted pro hac Fax: (206) 757-7265 17 vice) [email protected] Attorneys for Defendants Harebrained 18 LATHAM & WATKINS LLP Schemes LLC, Harebrained Holdings, Inc., 10250 Constellation Blvd., 3rd Floor and Jordan Weisman 19 Los Angeles, CA 90067

20 Attorneys for Plaintiff Harmony Gold

21 U.S.A., Inc.

22 /s/ Ryan B. Meyer 23 Ryan B. Meyer 24 25

PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT COPYRIGHT DORSEY & WHITNEY LLP COLUMBIA CENTER INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ - 25 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87-1 Filed 03/08/18 Page 1 of 6

HONORABLE THOMAS S. ZILLY 1

6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 ) HARMONY GOLD U.S.A., INC., ) 9 ) CASE NO. 2:17-CV-00327-TSZ ) 10 Plaintiff, ) [PROPOSED] ORDER GRANTING PIRANHA’S 11 v. ) SECOND MOTION FOR ) SUMMARY JUDGMENT AS TO 12 HAREBRAINED SCHEMES LLC, ) PLAINTIFF’S LACK OF HAREBRAINED HOLDINGS, INC., JORDAN ) STANDING TO ASSERT 13 WEISMAN, PIRANHA GAMESGAMES INC. ) COPYRIGHT INFRINGEMENT and DOES 1–10, ) CLAIM

14 ) NOTE ON MOTION Defendants. ) CALENDAR: MARCH 30, 2018 15 ) 16 This matter came before the Court on the second motion of defendant Piranha Games Inc. 17 (“Piranha”) for summary judgment as to plaintiff Harmony Gold U.S.A., Inc.’s (“Harmony 18 Gold”) lack of standing to assert copyright infringement as alleged in Count 1 of the Second 19 Amended Complaint. See Dkt. 83 at ¶¶ 39-45. Piranha seeks summary judgment because 20 Harmony Gold is not the owner or exclusive licensee of the copyrights it seeks to enforce and, 21 therefore, has no standing to enforce those copyrights. Count I is the only count asserted against 22 Piranha. 23 The Court has reviewed all arguments and evidence submitted in support of, and in 24 opposition to, Piranha’s motion and has viewed the evidence in the light most favorable to

25 Harmony Gold as the non-moving party. The Court finds that there is no genuine issue of

26 [PROPOSED] ORDER GRANTING PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT DORSEY & WHITNEY LLP COLUMBIA CENTER COPYRIGHT INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ  1 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87-1 Filed 03/08/18 Page 2 of 6

1 material fact that would preclude summary judgment. See S. Cal. Darts Ass’n v. Zaffina, 762 F. th 2 3d 921, 925 (9 Cir. 2014). For the reasons set forth in Piranha’s motion and discussed below, the Court GRANTS Piranha’s motion, DISMISSES Count 1 with PREJUDICE, and 3 DISMISSES Piranha from this lawsuit. 4 A. Relevant Facts 5 Harmony Gold alleges that certain robot warrior characters in video games created by 6 Piranha infringe copyrights that are allegedly owned by, or licensed to, Harmony Gold. While 7 each of Harmony Gold’s asserted copyright registrations (Dkt. 83 at ¶ 15) is directed to a 8 “MOTION PICTURE” (see Dkt. 83-1), specifically an animated series called Macross (“the 9 Macross Motion Picture”), the Second Amended Complaint alleges infringement based on 10 Piranha’s alleged copying, reproduction, display, distribution, and merchandizing of particular 11 characters (“the Big West Characters”) that were created by a Japanese company called Studio 12 Nue Co., Ltd. (“Studio Nue”) before the Macross Motion Picture was created. The copyright to 13 the Big West Characters is co-owned by Studio Nue and a second Japanese company called Big 14 West Co., Ltd. (“Big West”) (collectively, “Big West”).

15 A third Japanese company, Tatsunoko Production Co., Ltd. (“Tatsunoko”), assisted with

16 the production of the Macross Motion Picture, but it was not involved in the creation of the Big

17 West Characters. As partial compensation for Tatsunoko’s efforts, it was granted certain rights to

18 commercialize the Macross Motion Picture overseas. Tatsunoko purported to grant its rights in the Macross Motion Picture to Harmony Gold in a 1991 license agreement as well as an earlier 19 version of this license agreement. The license agreement was subsequently amended several 20 times. 21 In the early 2000s, Tatsunoko and Big West were involved in litigation in Japan, which 22 resulted in a Japanese district court decision concluding that Big West, not Tatsunoko, is the 23 copyright owner of the Big West Characters. Following that decision, Big West registered the 24 Big West Characters with the U.S. Copyright Office and deposited a set of images of each 25 character.

26 [PROPOSED] ORDER GRANTING PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT DORSEY & WHITNEY LLP COLUMBIA CENTER COPYRIGHT INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ  2 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87-1 Filed 03/08/18 Page 3 of 6

1 The Japanese district court’s judgment was affirmed on appeal. In response to the

2 Japanese court’s decision, Tatsunoko and Harmony Gold executed an amendment to their license agreement which expressly states that Harmony Gold acknowledges that it was not granted the 3 right to create derivative works based on the Big West Characters. 4 In 2017, Harmony Gold and Tatsunoko engaged in arbitration to determine, inter alia, the 5 scope of the rights to Macross granted to Harmony Gold. On June 27, 2017, the arbitrator issued 6 an Arbitration Award which stated that Tatsunoko has granted to Harmony Gold all of the 7 copyrights it has in Macross except for the visual depiction of the Big West Characters. 8 Harmony Gold then petitioned the U.S. District Court for the Central District of California to 9 issue a judgment confirming the Arbitration Award, which the court did on August 23, 2017. 10 B. Analysis 11 Piranha contends that Harmony Gold lacks standing for its copyright claim for two 12 reasons: (1) Harmony Gold does not own or have an exclusive license to the copyrights it seeks 13 to enforce, because those copyrights are owned by Big West; and (2) the rights licensed to 14 Harmony Gold specifically exclude the rights it seeks to enforce. In addition, Piranha argues that

15 Harmony Gold is collaterally estopped from re-litigating whether Harmony Gold has an

16 exclusive licensee to the Big West Characters in view of an Arbitration Award expressly stating

17 that Harmony Gold does not have the copyrights asserted here.

18 1. Harmony Gold Does Not Own the Asserted Copyrights Only the “legal or beneficial owner of an exclusive right under a copyright is entitled … 19 to institute an action for any infringement of that particular right committed while he or she is the 20 owner of it.” 17 U.S.C. § 501(b). An exclusive licensee can sue to protect a particular right that 21 it has been granted, but it cannot sue for infringement of rights outside of its exclusive license. 22 See Marya v. Warner/Chappell Music, Inc., 131 F. Supp. 3d 975, 1002 (C.D. Cal. 2015). One 23 who is not the owner or exclusive licensee of a particular right has no standing to sue others for 24 infringement of that right. Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1143-44 (9th 25 Cir. 2008); see Righthaven LLC v. Hoehn, 716 F.3d 1166, 1169 (9th Cir. 2013). In a copyright

26 [PROPOSED] ORDER GRANTING PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT DORSEY & WHITNEY LLP COLUMBIA CENTER COPYRIGHT INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ  3 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87-1 Filed 03/08/18 Page 4 of 6

1 infringement case, the alleged copyright owner has the burden of showing that it is the owner of

2 a valid copyright. See North Coast Indus. v. Maxwell, 972 F.2d 1031, 1033 (9th Cir. 1992). Big West’s copyright registration and the deposit materials accompanying that registration 3 are prima facie evidence of the validity of Big West’s copyrights in the Big West Characters. If the 4 registration was not filed within five years of publication, the Court has discretion to decide what 5 evidentiary weight should be given to Big West’s registration. See 17 U.S.C. § 410(c). All of the 6 admissible evidence is consistent with Big West’s ownership of the Big West Characters. 7 Accordingly, the Court finds that Big West owns the copyrights to the Big West characters. 8 Harmony Gold has not met its burden of showing that Big West’s copyright registration is 9 invalid, and has not submitted admissible evidence to demonstrate a material issue of fact 10 regarding Big West’s ownership of those copyrights. 11 2. Harmony Gold Does Not Have an Exclusive License to the Big 12 West Characters 13 Whatever rights Harmony Gold may have in Macross, if any, were granted to it by 14 Tatsunoko. Tatsunoko cannot license to Harmony Gold any rights that Tatsunoko does not have.

15 Tatsunoko may have granted Harmony Gold certain rights in the Macross Motion Picture, as

16 suggested by Harmony Gold’s copyright registration to Episodes 1-36 of Macross, identified in the

17 registration as a “Motion Picture.” However, Harmony Gold’s copyright to the Macross Motion

18 Picture does not imply any copyrights in preexisting works that may appear in the Macross Motion Picture. See 17 U.S.C. § 103(b). Because the Big West Characters are such preexisting works, for 19 which the copyrights are owned by Big West, Tatsunoko could not convey, and Harmony Gold did 20 not receive, any copyrights in those characters. 21 3. Harmony Gold Is Collaterally Estopped from Re-Litigating the 22 Scope of Its License 23 Harmony Gold is collaterally estopped from re-litigating the scope of its license. There 24 are three requirements for collateral estoppel to apply: 25

26 [PROPOSED] ORDER GRANTING PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT DORSEY & WHITNEY LLP COLUMBIA CENTER COPYRIGHT INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ  4 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87-1 Filed 03/08/18 Page 5 of 6

(1) the issue at stake must be identical to the one alleged in the prior litigation; (2) 1 the issue must have been actually litigated [by the party against whom preclusion is asserted] in the prior litigation; and (3) the determination of the issue in the 2 prior litigation must have been a critical and necessary part of the judgment in the earlier action. 3 Town of N. Bonneville v. Callaway, 10 F.3d 1505, 1508 (9th Cir. 1993). When these 4 requirements are met as to a particular issue, that issue cannot be re-litigated. Each of these 5 requirements are met here. 6 At issue here is the scope of rights granted by Tatsunoko to Harmony Gold. This same 7 issue was already adjudicated during the arbitration, and the Arbitration Award was confirmed by a 8 federal district court last year. See Harmony Gold, USA, Inc. v. Tatsunoko Production Co., Ltd., 9 Case No. 2:17-cv-06034-PA-MRW (C.D. Cal. Aug. 23, 2017). In that arbitration, Harmony Gold 10 and Tatsunoko disputed, among other things, the scope of rights granted to Harmony Gold 11 through its license agreement with Tatsunoko. Tatsunoko challenged Harmony Gold’s right to 12 make a live action sequel to Macross, which required the arbitrator to determine the scope of

13 Harmony Gold’s license. The arbitrator ruled that Harmony Gold had been granted all of

14 Tatsunoko’s rights in Macross, which excluded the visual depiction of the Big West Characters.

15 Harmony Gold successfully petitioned the California district court to enter a judgment

16 confirming the Arbitration Award. The district court issued a judgment confirming the Arbitration Award, which is now a judgment of the district court in all respects. 9 U.S.C. § 13(c). 17 Accordingly, the scope of Harmony Gold’s copyrights has already been actually litigated, and 18 Harmony Gold is collaterally estopped from re-litigating the issue of whether it has any 19 copyrights in Big West Characters. 20 Harmony Gold has failed to demonstrate a genuine dispute of material fact with respect to 21 whether it has standing to assert its copyright infringement claim. 22 For the reasons discussed above, Harmony Gold lacks standing to assert its copyright 23 infringement claim, and the Court GRANTS Piranha’s motion for summary judgment. Harmony 24 Gold’s copyright infringement claim, Count I of the Second Amended Complaint, is hereby 25 DISMISSED WITH PREJUDICE. Because Count I is the only count asserted against Piranha,

26 [PROPOSED] ORDER GRANTING PIRANHA’S SECOND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING TO ASSERT DORSEY & WHITNEY LLP COLUMBIA CENTER COPYRIGHT INFRINGEMENT CLAIM 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WASHINGTON 98104 Case No. 2:17-cv-00327-TSZ  5 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-cv-00327-TSZ Document 87-1 Filed 03/08/18 Page 6 of 6

1 Piranha is hereby dismissed as a party to this lawsuit.

2 IT IS SO ORDERED. 3

4 DATED this ____ day of ______, 2017. 5

7 ______8 The Honorable Thomas S. Zilly UNITED STATES DISTRICT COURT JUDGE 9

11 Presented on this 8th day of March, 2018 by: 12

13 DORSEY & WHITNEY LLP

14 /s/ Ryan B. Meyer ______Paul T. Meiklejohn, WSBA No. 17477 15 J. Michael Keyes, WSBA No. 29215 Ryan B. Meyer, WSBA No. 37832 16 701 Fifth Avenue, Suite 6100 17 Seattle, WA 98104

18 Attorneys for Defendant Piranha Games Inc. 19