IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-M-1662 (MJW) ROBERT HUNTSMAN and CLEAN FLICKS OF COLORADO, L.L.C., Plaintiffs, v. STEVEN SODERBERGH, ROBERT ALTMAN, MICHAEL APTED, TAYLOR HACKFORD, CURTIS HANSON, NORMAN JEWISON, JOHN LANDIS, MICHAEL MANN, PHILLIP NOYCE, BRAD SILBERLING, BETTY THOMAS, IRWIN WINKLER, MARTIN SCORSESE, STEVEN SPIELBERG, ROBERT REDFORD and SYDNEY POLLACK, Defendants. [PROPOSED] AMENDED COUNTERCLAIM Defendants and Counterclaimants Robert Altman, Michael Apted, Taylor Hackford, Curtis Hanson, Norman Jewison, John Landis, Michael Mann, Phillip Noyce, Sydney Pollack, Robert Redford, Martin Scorsese, Brad Silberling, Steven Soderbergh, Steven Spielberg, Betty Thomas, and Irwin Winkler1 and Proposed Defendant-In-Intervention and Counterclaimant-In-Intervention the Directors Guild Of America (collectively, “Counterclaimants”), hereby allege against Plaintiffs and Counterdefendants Clean Flicks of Colorado, L.L.C. (“Clean Flicks of Colorado”) and Robert Huntsman, and Proposed 1 Counterclaimants Robert Altman, Michael Apted, Taylor Hackford, Curtis Hanson, Norman Jewison, John Landis, Michael Mann, Phillip Noyce, Sydney Pollack, Robert Redford, Martin Scorsese, Brad Silberling, Steven Soderbergh, Steven Spielberg, Betty Thomas and Irwin Winkler are collectively referred to herein as the “Director Counterclaimants.” LA\934828.9 Counterdefendants Video II, Glen Dickman (“Dickman”), J.W.D. Management Corporation (“J.W.D. Management”), Trilogy Studios Inc. (“Trilogy Studios”), CleanFlicks, MyCleanFlicks, Family Shield Technologies, LLC (“Family Shield”), ClearPlay Inc. (“ClearPlay”), Clean Cut Cinemas (“Clean Cut”), Family Safe Media (“Family Safe”), EditMyMovies, Family Flix, U.S.A L.L.C. (“Family Flix”) and Play It Clean Video (“Play It Clean”), as follows: SUMMARY OF THE CASE 1. This case deals with Counterdefendants’ unauthorized alteration of motion pictures directed by the Director Counterclaimants and other members of the Directors Guild of America (“DGA”). The Director Counterclaimants and DGA members are well-known and inextricably associated by the public with the films they create. Several Counterdefendants sell, rent or display edited products using the Directors’ names, and other Counterdefendants profit from products specifically intended to alter the motion pictures. Apparently, certain images or dialogue in the motion pictures are not to the Counterdefendants’ liking, and they have edited these films to remove such “objectionable” material. In doing so, the Counterdefendants create and commercially distribute unauthorized altered versions of motion pictures, without regard for the Director Counterclaimants’ vision, storytelling, and artistry. 2. Counterdefendants’ unauthorized conduct violates the Lanham Act and California law by wrongly associating the Director Counterclaimants and other DGA members with altered versions of their films. Accordingly, Counterclaimants seek a judicial declaration that Counterdefendants’ conduct is unlawful. Counterclaimants also seek injunctive relief to halt permanently Counterdefendants’ unauthorized distribution of versions of feature films that have 2 LA\934828.9 been altered by Counterdefendants, thereby substituting the vision and craft of the Director Counterclaimants with Counterdefendants’ own. JURISDICTION AND VENUE 3. This Court has jurisdiction over this Counterclaim pursuant to 28 U.S.C. § 1367(a) in that this proceeding arises and/or relates to a pending action over which this Court has subject matter jurisdiction. This Court also has original jurisdiction over the subject matter of Counterclaimants’ claims for false designation of origin and trademark dilution under the Lanham Act, 15 U.S.C. § 1051, et seq., pursuant to 28 U.S.C. § 1338. 4. Venue for this case is proper in this District and before this Court pursuant to 28 U.S.C. § 1391(b). THE COUNTERCLAIMANTS 5. Proposed Defendant-In-Intervention and Counterclaimant-In-Intervention DGA is, and at all times mentioned herein was, a nonprofit corporation organized under the laws of the State of California with its principal place of business at 7920 Sunset Boulevard, Los Angeles, California 90046. Pursuant to 29 U.S.C. § 159(a), the DGA is the exclusive collective bargaining representative for various persons employed in the motion picture and television industries. Among the DGA’s members are more than 1,000 directors of feature films. 6. Counterclaimant Robert Altman is an individual who resides in the State of New York. Mr. Altman’s directorial credits include Nashville, The Player, Gosford Park, The Long Goodbye and M*A*S*H. 3 LA\934828.9 7. Counterclaimant Michael Apted is an individual who resides in the State of California. Mr. Apted’s directorial credits include Coal Miner’s Daughter, Gorillas in the Mist, Thunderheart and Gorky Park. 8. Counterclaimant Taylor Hackford is an individual who resides in the State of California. Mr. Hackford’s directorial credits include Proof of Life, An Officer and a Gentleman and The Devil’s Advocate. 9. Counterclaimant Curtis Hanson is an individual who resides in the State of California. Mr. Hanson’s directorial credits include L.A. Confidential, Wonder Boys, The River Wild, The Hand that Rocks the Cradle and The Bedroom Window. 10. Counterclaimant Norman Jewison is an individual who resides in the State of California. Mr. Jewison’s directorial credits include In the Heat of the Night, The Hurricane, Agnes of God, Fiddler On the Roof, Moonstruck and And Justice For All. 11. Counterclaimant John Landis is an individual who resides in the State of California. Mr. Landis’s directorial credits include Coming to America, Trading Places, An American Werewolf in London and Animal House. 12. Counterclaimant Michael Mann is an individual who resides in the State of California. Mr. Mann’s directorial credits include The Insider, Ali and Heat. 13. Counterclaimant Phillip Noyce is an individual who resides in the State of California. Mr. Noyce’s directorial credits include The Bone Collector, Clear and Present Danger and Patriot Games. 4 LA\934828.9 14. Counterclaimant Sydney Pollack is an individual who resides in the State of California. Mr. Pollack’s directorial credits include Tootsie, The Firm, Out of Africa and Sabrina. 15. Counterclaimant Robert Redford is an individual who resides in the State of Utah. Mr. Redford’s directorial credits include Ordinary People, Quiz Show and The Legend of Bagger Vance. 16. Counterclaimant Martin Scorsese is an individual who resides in the State of New York. Mr. Scorsese’s directorial credits include Raging Bull, Taxi Driver, Casino, Cape Fear, Goodfellas and The Last Temptation of Christ. 17. Counterclaimant Brad Silberling is an individual who resides in the State of California. Mr. Silberling’s directorial credits include Moonlight Mile, Casper and City of Angels. 18. Counterclaimant Steven Soderbergh is an individual who resides in the State of New York. Mr. Soderbergh’s directorial credits include Traffic, Erin Brockovich and Ocean’s Eleven. 19. Counterclaimant Steven Spielberg is an individual who resides in the State of California. Mr. Spielberg’s directorial credits include Saving Private Ryan, Schindler’s List, E.T., Minority Report and Jurassic Park. 20. Counterclaimant Betty Thomas is an individual who resides in the State of California. Ms. Thomas’s directorial credits include 28 Days, The Brady Bunch Movie, Private Parts and Dr. Doolittle. 5 LA\934828.9 21. Counterclaimant Irwin Winkler is an individual who resides in the State of California. Mr. Winkler’s directorial credits include Night and the City, At First Sight and Life as a House. THE COUNTERDEFENDANTS 22. Plaintiff and Counterdefendant Clean Flicks of Colorado alleges in its complaint that it is a Colorado corporation. See Amended Complaint, ¶ 2. 23. On information and belief, Plaintiff and Counterdefendant Huntsman is an individual located in Idaho. 24. Counterclaimants seek leave to join Video II, Dickman, J.W.D. Management, Trilogy Studios, CleanFlicks, MyCleanFlicks, Family Shield, ClearPlay, Clean Cut, Family Safe, EditMyMovies, Family Flix and Play It Clean under Fed. R. Civ. P. 20. Concurrent with the filing of this pleading, Counterclaimants will move the Court for leave to join the Proposed Counterdefendants pursuant to Federal Rules of Civil Procedure 13(h) and 20. The Proposed Counterdefendants are proper parties and should be joined because, as set forth below, Counterclaimants’ claims against Clean Flicks of Colorado and Huntsman, on the one hand, and the Proposed Counterdefendants, on the other hand, arise out of the same transaction or series of transactions, and will require the adjudication of common issues of fact and law. Joinder of the Proposed Counterdefendants will not destroy the Court’s jurisdiction over this matter. 25. On information and belief, Counterdefendant Video II is an entity of unknown form or origin, operating in Sandy, Utah. Video II has purported to be an 18 year-old company; however, the Utah Secretary of State online records reflect no active or suspended 6 LA\934828.9 corporation in Utah by the name of Video II. Video II’s films are sold in retail stores nationwide. 26. On information and belief, Counterdefendant Dickman is an individual residing in Utah, who operates and/or controls Video II. In press accounts, Dickman claims that he is the president of Video II. 27. On information and belief, Counterdefendant J.W.D. Management is a Utah corporation with a principal place