Claim

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Docket number: 22-CCB-0112
Filed date: 08/24/2022 12:39 PM EDT

United States Copyright Claims Board

Paramount Pictures Corporation
Claimant
V.
JMC POP UPS LLC
Respondent

Claim

Go to case details
A claim for infringement
No
Paramount Pictures Corporation
Hollywood, CA

Authorized representative information

Daniel E Gaitan
Kilpatrick Townsend & Stockton LLP
dgaitan@kilpatricktownsend.com
310-435-7233
1801 Century Park East Suite 2300
Los Angeles, CA 90067
JMC POP UPS LLC
Coming to America
Paramount Pictures Corporation
Yes
PA0000376420
07/12/1988
Motion picture and audiovisual
Motion Picture Film for Coming to America
Coming 2 America
Paramount Pictures Corporation
Yes
PA0002280086
03/05/2021
Motion picture and audiovisual
Motion Picture Film for Coming 2 America
Create a derivative work
Publicly perform the work
Publicly display the work
Reproduce the work
Yes
1/1/2021 - Present
(1) online; (2) 2000 NJ-38, Cherry Hill, NJ 08002; and (3) 6500 Franconia-Springfield Pkwy, Springfield, VA 22150
Copyright Rights: Paramount Pictures Corporation (“Paramount Pictures”) is the sole and exclusive owner of all right, title, and interest in and to the copyrights in the motion pictures entitled Coming to America and Coming 2 America (hereinafter collectively referred to as the “Works”). The Works are original works of authorship, embodying copyrightable subject matter and subject to the full protection of the copyright laws of the United States. Paramount Pictures has complied with all requirements and formalities of the Copyright Act with respect to the Works. Paramount Pictures has obtained copyright registration certificates from the United States Copyright Office for each of the Works. Documents showing the registration of a representative sample of the Works are attached collectively as Exhibit 1 (See, e.g., U.S. Copyright Registration Numbers PA0000376420; PA0002280086). Background of the Works: Coming to America was a huge commercial success and the second highest-grossing movie of 1988, and remains immensely popular despite premiering over 30 years ago. See Exhibit 2 https://www.boxofficemojo.com/year/1988/. Coming to America is an American romantic comedy film. Eddie Murphy stars in the lead role alongside his co-stars Arsenio Hall, James Earl Jones, Shari Headley, and John Amos. The film was released in the United States on June 29, 1988. Eddie Murphy plays Akeem Joffer, the crown prince of the fictional African nation of Zamunda, who travels to the United States in the hopes of finding a woman he can marry and love for who she is, not for her status or for having been trained to please him. Akeem and his best friend/personal aide, Semmi, travel to the New York City borough of Queens and rent a squalid tenement in the neighborhood of Long Island City under the guise of poor foreign students. Beginning their search for Akeem's bride, they end up being invited by some locals to a rally raising money for the inner city. During the rally, Akeem encounters Lisa McDowell, who possesses all the qualities he is looking for. So, upon his insistence, he and Semmi get entry-level jobs working at the local fast-food restaurant called McDowell's, owned by widower Cleo McDowell, Lisa's father The sequel, Coming 2 America, was released on March 4, 2021, on Amazon Prime and was the No. 1 streaming movie during its opening weekend – and had the best opening weekend of any streaming movie in the previous 12 months. See Exhibit 3 https://www.yahoo.com/lifestyle/amazon-claims-victory-coming-2-213320921.html and https://deadline.com/2021/03/coming-2-america-amazon-first-weekend-viewership-record-1234709342/. The Works’ characters, dialogue, imagery, and other protective elements have attained iconic status and remain fixtures in popular culture. Please find attached examples of the Works as Exhibit 4 and a side-by-side comparison of the Works and the infringing content as Exhibit 5. Facts: On or around February 2021, JMC Pop Ups LLC (“JMC”) announced its “McDowell’s” pop-up restaurant (“Infringing Restaurant”), which was intended to be a recreation of the McDowell’s restaurant from the Works. See Exhibit 6-7. The Infringing Restaurant was scheduled for April 16-25, 2021, in Cherry Hill, New Jersey. Id. On or around March 2021, Paramount Pictures became aware that JMC was promoting and selling tickets for this Infringing Restaurant. See Exhibit 7-8. On March 29, 2022, Paramount Pictures contacted JMC to demand that it cease all its infringing activities in connection with the Infringing Restaurant. See Exhibit 9. In creating and marketing the Infringing Restaurant, JMC copied countless copyrighted materials from the works, including but not limited to the menu, the character names and likenesses, and the recreations of well-known McDowell’s restaurant from the Coming to America universe. Specifically, the Infringing Restaurant’s menu used numerous well-known indicia of the Works, including the “Big Mick” with a “non-seed bun” (the “Big Mick” featured in Coming to America); the “Meatless Mick” (a play on the “Beyond Big McBurger” featured in Coming 2 America); the “Louie Anderson” (an actor in the Works); and the “Sexual Chocolate Cake Shake” (the name of the band from the Works). See https://mcdowellspopup.com/menu and Exhibit 5, 7 and 10-12. Further, the event had an “Employee of the Month” photo opportunity for guests, which was an award presented to Akeem in Coming to America. See Exhibit 7 and 13. In addition, JMC offered merchandise bearing protected elements from the Works, including but not limited to clothing, stickers, patches, frisbees, pens, and glass cups. Exhibit 5, 11-12 and 14. In fact, the Chief Executive Officer of JMC was quoted saying, “[i]t’s a tribute to the movie,” and “[y]ou’re going to see similar food items that are in the movie, logos, photo ops that are taken directly from the movie that were reconstructed.” See https://www.audacy.com/kywnewsradio/news/local/coming-2-america-inspires-a-cherry-hill-pop-up and Exhibit 7 and 15. On April 2, 2021, JMC responded that they were within its rights to proceed using the referenced content without the permission of a third party. See Exhibit 16. On April 9, 2021, JMC’s counsel informed Paramount Pictures that their “client is seeking to accommodate [Paramount Pictures] requests and has some items to review on that point.” See Exhibit 17. On April 12, 2021, the parties had a call to discuss JMC’s proposed changes. On April 14, 2021, Paramount Pictures responded that the changes would not solve the problem and that there was no real way for JMC to continue with the event. Id. On or around April 16-25, 2021, JMC went forward with the Infringing Restaurant and likewise promoted and sold merchandise in violation of Paramount Pictures copyright rights. See Exhibits 5, 11-12, and 14. On February 13, 2022, JMC created a Facebook post stating, “McDowell's is Coming 2 Northern Virginia! Grab a Big Mick, take some photos, relive the memories, and be inside McDowell’s.” See Exhibit 6. The event was scheduled for May 20, 2022, through June 5, 2022. Id. On February 13, 2022, JMC created a Facebook post stating, “Coming 2 the DC area in May!” with a description that stated, “This May eat like the King of Zamunda with a meal from McDowell’s!” Id. On March 13, 2022, JMC created a Facebook post stating, “McDowell's is Coming to the DMV! Home of the Big Mick! Walk into a re-creation of McDowell's, Grab a Big Mick, and enjoy the photo ops and times with friends and family.” Id. On March 29, 2022, the Washingtonian quoted JMC stating, “‘Our experiences are a little different,’ McCullough says of his niche in the pop-cultural pop-up world. While many other pop-ups are centered around a selfie wall or branded drinks, McCullough is obsessed with creating immersive scenes of lifelike accuracy. ‘We try to make it like you’re really there,’ he says.” See https://www.washingtonian.com/2022/03/29/mcdowells-pop-up-coming-to-america-springfield-virginia/ and Exhibit 18. The Washingtonian also stated, JMC’s “McDowell’s will be a multi-room installation that includes not simply the restaurant’s order counter (which serves actual Big Micks), but also re-creations of the dingy apartment where Prince Akeem lives, and Mr. McDowell’s office (guests can sit at his desk, don his blue blazer, and pick up the cheeseburger phone).” Id. On April 1, 2022, JMC posted an article titled “A ‘Coming to America’ Pop-Up Is Coming to Virginia,” located at https://dc.eater.com/2022/3/30/23003489/virginia-mcdowells-coming-to-america-pop-up-popup-springfield-town-center. See Exhibit 19. The article stated, “McDowell’s, the burger counter at the heart of Eddie Murphy’s 1988 cult classic romantic comedy Coming to America, is being resurrected this May in Springfield Town Center (6500 Franconia-Springfield Parkway),” and “[t]he seedless bun burger the fictional restaurant is known for is on the menu, plus a meatless variety and a Magnum Mick with one pound of beef on a long, seedless bun. The pop-up will also sling chicken chunks, salads, and a few more items.” Id. Additionally, it stated, “in addition to the burger cafe at the heart of the movie, the pop-up will also bring to life Murphy’s character’s apartment and Mr. McDowell’s office, also according to the Washingtonian.” Id. On or around April 2022, Paramount Pictures became aware that JMC was promoting and selling tickets to another infringing event entitled “McDowell’s” in Springfield Town Center, 6500 Franconia-Springfield Parkway, from May 20, 2022, through June 5, 2022. See Exhibits 6, 20-21 and 24. On April 11, 2022, Paramount Pictures sent JMC another demand reiterating that JMC must cease its plans to recreate the McDowell’s restaurant, Prince Akeem’s apartment, and Mr. McDowell’s office as seen in the Works. See Exhibit 21. On April 28, 2022, JMC counsel responded acknowledging that “this event will also include a temporary fast-food restaurant featuring elements inspired by McDowell’s name, logo, appearance, and menu items.” JMC expressed its position that this use does not violate Paramount Pictures’ copyright rights. See Exhibit 22. On or around May 3, 2022, the parties had another meeting. During this call, JMC’s counsel informed Paramount Pictures’ counsel that their client would run out of money if they were to shut down this operation and proposed executing a written agreement acknowledging that this would be JMC’s last McDowell’s pop-up. On or around May 10, 2022, the parties had a follow-up call to discuss JMC’s proposal. During this call, Paramount Pictures informed JMC that they would not be interested in letting JMC’s pop-up event go forward considering JMC’s first unauthorized pop-up event and the extensive advertising they have implemented for this upcoming event. On May 13, 2022, Paramount Pictures sent JMC’s counsel stating, “[p]lease confirm whether your client is canceling the event or proceeding so my client can plan accordingly.” See Exhibit 23. Paramount Pictures received no response. On May 27, 2022, Paramount Pictures sent JMC’s counsel another email to confirm whether JMC was proceeding with the event. Id. Paramount received no response. On information and belief, JMC’s held the event from May 20, 2022, through June 5, 2022. At this event, JMC offered food packaging and merchandise bearing protected elements from the Works, including but not limited to clothing, frisbees, pens, ornaments, and glassware. Exhibit 5 and 24. In addition, the Infringing Restaurant utilized express references to the Works including “McDowell’s Zamunda” (a reference to the fictional African nation of the Works and the “McDowell’s Zamunda” restaurant in Coming 2 America), the “Big Mick” (the “Big Mick” featured in Coming to America) and the “McFlurby” (the “McFlurby” featured in Coming 2 America). Id. JMC also used the character Randy Watson (the lead singer of the band Sexual Chocolate from the Works played by Eddie Murphy) on merchandise and visuals in the Infringing Restaurant. Id.
No
JMC misused Paramount Pictures’ intellectual property to deceive parents and children into believing that the Infringing Restaurant is affiliated with, or authorized by, Paramount Pictures. To make matters worse, the quality of the food is in serious question, as consumers have reported feeling discomfort after eating at the Infringing Restaurant. See Exhibit 25. The foregoing harm is irreparable and is exacerbated by the fact that in the Infringing Restaurants and in associated marketing materials, JMC has intentionally displayed and reproduced the copyrighted images, characters, costumes, and character names, and derivative works thereof, from the Works. JMC created, displayed, and reproduced the Infringing Materials willfully, and in knowing disregard of Paramount Pictures’ copyrights, of which JMC was on notice long before it began its infringing conduct. On information and belief, all of JMC’s conduct described herein has been and continues to be willful, wanton, and in bad faith, and none has been with the authorization or consent of Paramount Pictures. Federal Copyright Infringement (17 U.S.C. § 501) As stated above, the Works are original works of authorship, and Paramount Pictures is the sole and exclusive owner of all right, title, and interest in and to the copyrights in the Works. The Works, as well as images and names from the Works, have been available in the media and on the Internet for years, and Defendants have long had access to the Works. Images, videos, sets, signage, costumes, character designs, and character names appearing in the Infringing Restaurants, and in related marketing materials are identical or substantially similar to copyrightable material in the Works. Without authorization from Paramount Pictures, JMC reproduced copyrightable material from the Works, displayed reproductions of copyrightable material from the Works, and created derivative works based on copyrightable material from the Works. JMC’s conduct has been willful and in knowing disregard of Paramount Pictures’ rights. Paramount Pictures is thus entitled to recover actual profits, damages or, in the alternative, statutory damages at our election totaling $30,000. Additionally, Paramount Pictures is entitled to attorneys’ fees based on JMC’s intentional and willful acts, and any other additional measures that the Board sees fit.