Earlier this week, Netflix Inc. filed a reply brief in support of its motion to dismiss plaintiff Hollywood Innovations Group LLC’s (HIG) complaint for federal copyright infringement. The case centers on a film HIG produced called Alone and the screenplay it was based on, which HIG purportedly obtained rights to.
According to the plaintiff, Alone flopped because Netflix and several South Korean defendants raced to bring #Saraitda, a Korean-language film based on the same screenplay as Alone, to other markets. The result of the defendants’ efforts was a translated and dubbed version of #Saraitda called #Alive that debuted a month before Alone and infringes HIG’s right to all non-Korean language versions of the film derived from the screenplay.
Netflix describes the screenplay, written by Matt Naylor, as “a zombie-apocalypse story that describes ‘a young man’s struggle for survival and the resulting mayhem as he is forced to self-isolate in his urban apartment during the outbreak of a global viral pandemic.’” According to HIG’s suit filed last December, the 2019 screenplay was prescient, and also valuable, in view of the COVID-19 pandemic that would grip the world beginning in 2020.
HIG argued that Netflix overstepped and infringed rights to the script belonging to HIG. The suit sought damages in addition to a permanent injunction preventing the defendants from dubbing, subtitling, and distributing non Korean-language versions of #Saraitda.
Netflix moved to dismiss the case in early February, arguing that HIG does not own the exclusive rights to translate and distribute #Saraitda. “Plaintiff cannot make that allegation, because the contracts that the Complaint repeatedly references— but conspicuously fails to attach— make it clear that Plaintiff has no such rights. By contrast, Netflix has the right to distribute the Korean-language film in ‘all languages,’” the motion said.
In this week’s redacted reply brief, Netflix doubles down on its argument that the Korean Copyright Act applies to Naylor’s agreement with the Korean production studio that made the first version of the film, #Saraitda. Under a provision of that law, “Article 99,” copyright licensing agreements include the rights to translate and distribute unless expressly carved out.
Netflix argues that because Naylor and the studio did not explicitly exclude those rights, the Korean production studio owned them prior to any agreement with HIG. As such, Netflix argues that it cannot have infringed rights HIG does not own.
The reply also reiterates arguments that the case should proceed in South Korea, not in the plaintiff’s chosen forum of Los Angeles, California. The public and private interest factors tip in favor of the Asian venue, Netflix says, contending that the claims implicate Korean law and that it is home to both witnesses and evidence.
Finally, Netflix adds that the case should be dismissed for failure to join indispensable parties. Because HIG is purporting to interpret the Naylor-Korean film studio agreement to invalidate subsequent agreements between the film studio, other producers, and Netflix, Federal Rule of Civil Procedure 19 “requires that those entities be joined so that they may exercise their ‘ability to protect the interest’ in their own rights,” the motion says.
HIG is represented by One LLP and Bay Advocacy PLLC and Netflix by Munger, Tolles & Olson.
