Preliminary Injunction

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Focus Features, signaling an intent that the forthcoming adaptations be artful, intelligent, and challenging. See Brooks Decl. 3-7. Defendant’s distribution of the XXX Adaptation undermines this legitimate attempt to control FSL’s copyrighted works. Now, the reputation and goodwill of a global literary franchise rest in the hands of a pornographic film company whose other titles include Private School Nymphos and Naughty Office Girls. See Kohn Decl., Ex. 32. The XXX Adaptation also impedes Universal’s efforts to cultivate goodwill in the Fifty Shades Films in advance of their release. Universal, which paid valuable consideration for exclusive film rights, is faced with competition from an infringing work before it even concludes production and begins distribution of the authorized films. Defendants’ distribution of an inferior product robs Universal of exclusivity, diminishes public anticipation, and requires Universal and Focus to market the authorized films against the false impressions created by the XXX Adaptation. See Brooks Decl. 17-21. 2. The XXX Adaptation Will Result In Incalculable Lost Profits. Because lost profits due to copyright infringement are “neither easily calculable, nor easily compensable,” this manner of harm is “an appropriate basis for injunctive relief.” WTV Systems, 824 F. Supp. 2d at 1013; accord Salinger, 607 F.3d at 81 (“to prove the loss of sales due to infringement is ... notoriously difficult”) (citations omitted)). In finding irreparable harm, courts in the Ninth Circuit consider the difficulty in calculating lost sales, Amini Innovation, 768 F. Supp. 2d at 1057; lost licensing revenues, WTV Systems, 824 F. Supp. 2d at 1013; and lost market share, Psystar, 673 F. Supp. 2d at 949. 15 “Lost sales” includes the substitution not only of the original work, but also authorized derivatives. In RDR Books, the court enjoined a “Lexicon” of J.K. 15 Losses due to disruption of the copyright holder’s marketing plan also are a form of irreparable harm. Ty, 132 F.3d at 1173 (maker of “Beanie Babies” limited distribution, creating a high-value secondary market; an infringer’s harm to this “scheme of distribution [and] marketing plan cannot readily be monetized” and was thus irreparable). -23- Memorandum ISO Plaintiff’s Motion for Preliminary Injunction
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Rowling’s Harry Potter universe, which included “considerable verbatim copying” of the language in the novels. 575 F. Supp. 2d at 552. The court noted that, because the infringing encyclopedia “replicated ... for a similar purpose” not only the protected language of the novels but also the central elements of Rowling’s own companion books, “[r]eaders would have no reason to purchase the [authorized] companion books since the Lexicon supersedes their value.” Id. Here, the infringing XXX Adaptation, with its extensive copying, acts as a substitute and will result in lost sales of the Fifty Shades Trilogy and diminished revenues for the Fifty Shades Films. See Mitchell Decl. 14-15; Brooks Decl. 22-23. The XXX Adaptation also interferes with Universal’s marketing strategy, to the detriment of future theatrical and home-entertainment sales. Brooks Decl. 22-23. All of these harms are difficult, if not impossible, to calculate with any degree of precision, and thus qualify as irreparable. C. The Balance Of Hardships Weighs Decidedly In Favor Of Plaintiffs. Defendants “cannot complain of the harm that will befall [them] when properly forced to desist from [their] infringing activities.” Triad Sys. Corp. v. Southeast Express Co., 64 F.3d 1330, 1338 (9th Cir. 1995); see also Cadence Design Sys., Inc. v. Avant! Corp., 125 F.3d 824, 830 (9th Cir. 1997) (“[W]here the only hardship that the defendant will suffer is lost profits from an activity which has been shown likely to be infringing, such an argument in defense ‘merits little equitable consideration ….’”) (citation omitted). The injunction requested by Plaintiffs does not threaten to cause hardship to Defendants’ lawful business activities; their sale of other, non-infringing works will continue unimpeded. See Sweet People, 2012 WL 1952842, at *3 (finding no harm to defendants where “an injunction would still allow Defendants to operate their businesses, albeit without the infringing [products]”). 27 28 -24- Memorandum ISO Plaintiff’s Motion for Preliminary Injunction
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Preliminary Injunction

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