Pokemon Company International Inc v Jones et al, No. 2:2015cv01372 - Document 20 (W.D. Wash. 2016)
Court Description: FINAL JUDGMENT AND PERMANENT INJUNCTION by Judge Richard A Jones granting 19 Joint Motion to Vacate Docket No. 18 and for Entry of Final Judgment and Permanent Injunction. (PM)
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Pokemon Company International Inc v Jones et al Doc. 20 The Honorable Richard A. Jones 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 11 THE POKÉMON COMPANY INTERNATIONAL, INC., a Delaware corporation, No. 2:15-cv-01372-RAJ 12 FINAL JUDGMENT AND PERMANENT INJUNCTION Plaintiff, 13 v. 14 15 RAMAR LARKIN JONES; ZACH SHORE; and RUCKUS PRODUCTIONS, 16 Defendants. 17 This matter comes before the Court on the Joint Motion of Plaintiff The Pokémon 18 Company International, Inc. (“TPCi”) and Defendants Ramar Larkin Jones and Ruckus 19 Productions (“Jones”) for entry of judgment against Jones. 1 20 FINDINGS OF FACT 21 Based on the parties’ Joint Motion, the Court finds the following: 22 1. TPCi manufactures, markets, and distributes a variety of entertainment products, 23 including trading card games, movies, television shows, and toys throughout the United States 24 and around the world. 25 26 27 1 TPCi has previously dismissed its claims against Defendant Zach Shore without prejudice. Dockets.Justia.com 1 2. At the center of TPCi’s business is the Pokémon trading card game (the 2 “Trading Card Game”). Each Pokémon trading card contains original artwork depicting a 3 Pokémon character, as well as a description of the character and its powers and abilities, and 4 other data indicating the card’s value. 5 3. TPCi also features the Pokémon characters in a wide variety of clothing, books, 6 toys, and other merchandise that TPCi sells, both directly and through a world-wide network of 7 licensees. The Pokémon characters are also featured in TPCi’s long-running televised series of 8 Pokémon cartoons and 17 full-length Pokémon animated motion pictures. 9 4. Pikachu, the most recognizable Pokémon within the Pokémon universe, has 10 become the principal mascot for TPCi as a company and for the Pokémon brand world-wide. 11 Pikachu appears on numerous cards in the Pokémon Trading Card Game, and is featured in or 12 around the branding for championship tournaments and other events that TPCi organizes with 13 respect to the Pokémon Trading Card Game. Pikachu has consistently featured in Pokémon 14 Merchandise since its introduction, and TPCi’s prominent use of Pikachu in such goods has 15 generated enormous consumer recognition. 16 5. Another Pokémon character is Snivy, which made its Pokémon Trading Card 17 Game debut in 2011 and has since appeared on over five cards. Since that time, Snivy has also 18 been featured on consumer goods, including books, toy figures and plush, games, apparel, and 19 accessories. 20 21 22 23 6. Additional characters among the over 700 Pokémon characters include Bulbasaur, Charmander, Ditto, Gengar, Meowth, Oshawott, and Squirtle. 7. TPCi owns the copyrights in the artwork for the Pokémon characters that TPCi has used in thousands of trading cards for more than a decade. 24 8. Jones is a resident of Seattle, Washington. 25 9. Jones is in the business of organizing parties, which he does under the trade 26 27 names Ruckus Productions and Revolution Thursdays. 1 10. Jones organized and produced Pokémon-themed parties in 2012, 2013, and 2 2014: the “Unofficial PAX Kickoff Party” held on August 30, 2012 (“the 2012 Party”), the 3 “3rd Annual Pokemon Unofficial PAX Pre-Party” held on August 29, 2013 (“the 2013 Party”), 4 and the “4th Annual Unofficial Pokemon PAX Kickoff Party” on August 28, 2014 (“the 2014 5 Party). These parties were held at bars in Seattle serving liquor and were open to the public. 6 The 2012 Party took place at The Social (a now-closed nightclub), and the 2013 and 2014 7 Parties took place at The Baltic Room. 8 9 10 11 11. Jones planned a Pokémon-themed party, the “5th Annual Unofficial PAX Pokémon Kickoff Party” (“the 2015 Party”), to be held August 27, 2015 at 500 East, a bar in Seattle that serves liquor and is open to the public. 12. Jones publicized the 2012, 2013, 2014, and 2015 Parties extensively, including 12 via Facebook, Eventbrite, and postings on event calendars on websites such as 13 www.eventful.com. 14 13. Jones sold tickets to the 2015 Party at $6.77 for a “NO Wait VIP Ticket,” that 15 would provide access to a “VIP lounge area” and quick entry, and at $2.99 for regular 16 admission. 17 14. Jones used images of Pokémon characters to publicize the parties. For example, 18 Jones copied the Pokémon characters Pikachu and Snivy to create the poster depicted below 19 left promoting the 2015 Party, and copied Pikachu to make the Facebook post depicted below 20 right promoting the 2015 Party. Jones caused this poster and Facebook post to be publicly 21 displayed on the Internet. 22 23 24 25 26 27 1 2 3 4 5 6 7 8 15. At the 2012, 2013, and 2014 Parties, Jones distributed raffle cards depicting the 9 Pokémon characters including Bulbasaur, Charmander, Ditto, Meowth, and Squirtle, which 10 attendees could use to obtain prizes. Jones copied images of these characters to create the 11 raffle cards, he caused copies to be made of the raffle cards, and he publicly displayed the raffle 12 cards at the 2012, 2013 and 2014 Parties. Jones planned to use this raffle card at the 2015 Party 13 as well. 14 15 16 17 18 19 20 21 16. At the 2012, 2013, and 2014 Parties, Pokémon-themed alcoholic drinks were 22 available for purchase. Jones planned to have Pokémon-themed alcoholic drinks available for 23 purchase at the 2015 Party. 24 17. In advance of the 2014 Party, Jones directed a graphic artist to copy the 25 Pokémon characters Bulbasaur, Gengar, Oshawott, and Pikachu and to create banners bearing 26 images of those characters. In addition to those images, the banners bear the logos of 27 Revolution Thursdays and of Smirnoff Vodka. Jones caused these banners to be publicly 1 displayed at the 2014 Party, as shown in the photos below that Jones posted to the Facebook 2 account for his Revolution Thursdays business. Jones planned to display these banners at the 3 2015 Party. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18. The Baltic Room paid Jones a share of the revenue it received from sales of 26 drinks and food at the 2013 and 2014 Parties. Jones had an agreement with 500 East that it 27 would pay him a share of its revenue for the 2015 Party. 1 2 3 19. After TPCi filed its complaint in this action, Jones cancelled the 2015 Party and gave refunds to purchasers of tickets. 20. TPCi owns copyrights in various works depicting the Pokémon characters 4 Bulbasaur, Charmander, Ditto, Gengar, Meowth, Oshawott, Pikachu, Snivy, and Squirtle. 5 These works include the ones covered by the following copyright registrations: 6 Copyright Registration Title Registered Title 7 (Character) 8 PB&W4 - Pikachu (39/99) VA0001821217 Pikachu 9 PB&W7 - Pikachu (50/149) VA0001908607 Pikachu 10 HGSS Undaunted - Pikachu (61/90) VA0001736210 Pikachu 11 PB&W – Snivy (1/114) VA0001819420 Snivy 12 PB&W7 - Snivy (11/149) VA0001905493 Snivy 13 HGSS Triumphant - Gengar (94/102) VA0001755592 Gengar 14 PB&W5 - Bulbasaur (1/108) VA0001917301 Bulbasaur 15 PB&W7 - Charmander (18/149) VA0001907710 Charmander 16 PBW11 - Charmander (17/113) VA0001940161 Charmander PB&W - Oshawott (28/114) VA0001819684 Oshawott PB&W7 - Ditto (108/149) VA0001908692 Ditto PB&W4 - Meowth (80/99) VA0001817767 Meowth PB&W7 - Squirtle (29/149) VA0001907954 Squirtle 17 18 19 20 21 22 23 24 25 26 27 CONCLUSIONS OF LAW 1. The Court has original subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1338. 2. The Court has personal jurisdiction over Jones, and venue is proper in this Court under 28 U.S.C. § 1391(b). 3. 2 3 TPCi is the prevailing party in this action within the meaning of 17 U.S.C. 4. 1 Jones violated TPCi’s exclusive rights as owner of copyrighted works depicting § 505. 4 Pikachu and Snivy to (1) reproduce the copyrighted works in copies; (2) prepare derivative 5 works based upon the copyrighted works; and (3) display the copyrighted works publicly. 17 6 U.S.C. § 106(1)-(2), (5). TPCi’s Complaint does not allege infringement of copyrighted works 7 relating to Pokémon characters other than Pikachu and Snivy, so the court does not rule on 8 whether TPCi has infringed TPCi’s copyrights in Bulbasaur, Charmander, Ditto, Gengar, 9 Meowth, Oshawott, and Squirtle. 10 5. Jones’s actions do not constitute fair use under 17 U.S.C. § 107 because (1) the 11 purpose and character of Jones’s use was commercial in nature; (2) the copyrighted works are 12 highly creative works subject to broad (not thin) copyright protection; (3) Jones used a 13 substantial portion of the copyrighted works in relation to the copyrighted works as a whole; 14 and (4) Jones’s use affects the potential market for or value of the copyrighted work. In 15 addition, Jones’s use of the copyrighted works is not transformative. 16 17 18 6. Jones’s actions constitute infringement of TPCi’s copyrights in Pikachu and Snivy under 17 U.S.C. § 501. 7. Pursuant to 17 U.S.C. § 504(c), the court finds an award of statutory damages 19 against Jones and in favor of TPCi in the total amount of $10,000 to be just under the 20 circumstances of this case. This amount comprises statutory damages of $5,000 for 21 infringement of TPCi’s copyrights in Pikachu and $5,000 for infringement of TPCi’s 22 copyrights in Snivy 23 8. Traditional equitable factors support entry of a permanent injunction against 24 Jones. Jones’s infringement has caused irreparable harm to TPCi’s rights in the copyrighted 25 works and to control their use and exploitation, which cannot be adequately measured and 26 compensated. TPCi will continue to suffer this irreparable harm unless Jones is enjoined from 27 continuing the conduct complained of, which injury cannot be adequately compensated 1 monetarily. Remedies available at law, such as monetary damages, are inadequate to 2 compensate for that injury, particularly since Jones has very limited ability to respond to a 3 money judgment. Considering the balance of hardships between TPCi and Jones, a remedy in 4 equity is warranted. The public interest would be served by the injunction. IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 5 INJUNCTION 6 7 1. For the purposes of this Permanent Injunction, the following definitions apply: (a) 8 “Copyrighted Work” shall mean any work, or portion thereof, whether now in existence or later created, in which TPCi, or a parent, subsidiary 9 10 or affiliate of TPCi owns or controls a valid and subsisting exclusive 11 right under the Copyright Act, 17 U.S.C. § 101 et seq. (b) 12 “Infringing Work” shall mean any unauthorized scan, copy, 13 reproduction, counterfeit, derivative work or other colorable imitation of 14 the Copyrighted Works or any part thereof. (c) 15 16 2. “Days” means calendar days, unless otherwise specified. Defendant Jones and his agents, servants, employees, assigns, and all those in 17 active concert or participation with any of them (“Enjoined Parties”), who receive actual notice 18 of this Permanent Injunction by personal service or otherwise, are ORDERED and ENJOINED 19 as follows: 20 (a) Effective immediately upon the entry of this Permanent Injunction, the 21 Enjoined Parties are permanently enjoined from infringing the 22 Copyrighted Works, either directly or contributorily, including generally 23 but not limited to, by copying, reproducing, creating derivative works of, 24 displaying, promoting, marketing, advertising, offering for sale, or 25 otherwise disposing of or distributing, any Infringing Work. 26 27 (b) Effective immediately upon the entry of this Permanent Injunction, the Enjoined Parties are permanently enjoined from inducing, aiding, 1 abetting, contributing to, or otherwise assisting anyone in infringing any 2 Copyrighted Work. (c) 3 Within seven (7) days of the entry of this Permanent Injunction, 4 Defendant Jones shall remove from websites, including but not limited to 5 Facebook.com and Eventbrite.com, all Infringing Works that he has 6 posted there. (d) 7 Within seven (7) days of the entry of this Permanent Injunction, 8 Defendant Jones shall delete or destroy each and every copy of an 9 Infringing Work in his possession, custody or control, including but not limited to the banners described in Finding of Fact No. 17. 10 (e) 11 Within fourteen (14) days of the entry of this Permanent Injunction, 12 Defendant Jones shall deliver to Stuart R. Dunwoody, Davis Wright 13 Tremaine LLP, Suite 2200, 1201 Third Avenue, Seattle, Washington 14 98101-3045, counsel for TPCi in this matter, a declaration signed under 15 penalty of perjury in compliance with 28 U.S.C. § 1746, certifying that 16 he has complied with the removal and destruction of the Infringing 17 Works as ordered herein. 18 3. If TPCi believes that Defendant Jones has violated any provision of this 19 Permanent Injunction, TPCi will provide him with written notice of the alleged violation and 20 Defendant Jones will have three (3) days after receipt of the notice to cure the alleged violation. 21 If the alleged violation is not cured by the expiration of this 3-day period, TPCi may pursue any 22 and all actions and relief in connection with the alleged violation. 23 24 BINDING EFFECT IT IS FURTHER ORDERED that this Permanent Injunction shall be binding upon and 25 inure to the benefit of the parties and all successors, assigns, parent entities, subsidiaries, 26 officers, directors, members, shareholders, distributors, agents, affiliates, and all other persons 27 1 who are in active concert or participation with anyone described herein, who receive actual 2 notice of this Permanent Injunction by personal service or otherwise. AWARD OF DAMAGES 3 4 IT IS FURTHER ORDERED that, pursuant to 17 U.S.C. § 504(c), judgment is entered 5 in favor of The Pokémon Company International, Inc. and against Ramar Larkin Jones, 6 individually and doing business as Ruckus Productions, in the amount of Ten Thousand Dollars 7 and Zero Cents ($10,000.00). 8 9 10 RETENTION OF JURISDICTION IT IS FURTHER ORDERED that the Court shall retain jurisdiction of this action for purposes of construing, modifying, and enforcing this Permanent Injunction. 11 IT IS SO ORDERED. 12 DATED this 26th day of April, 2016. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 A The Honorable Richard A. Jones United States District Court
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