Krisko v. Marvel Entertainment, LLC

Background

Zoltan Krisko alleged that the opening theme for X-Men: The Animated Series copied the primary melodic theme from Linda, a Hungarian television show. Krisko alleged that the two themes shared the same subject or melody, key, tempo, harmonization, synthesizer-based rhythm accompaniment, and similarly placed sound effects. He sued Marvel Entertainment, LLC; Warner Chappell Music, Inc.; The Walt Disney Company; FOX Corporation; Buena Vista Television, LLC; NBCUniversal Media, LLC; Amazon.Com, Inc.; Apple, Inc.; Haim Saban; Shuki Levy; and Ronald Aaron Wasserman.

The defendants filed motions to dismiss. The Media Defendants moved under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim. The Saban Entertainment Defendants joined that motion. Wasserman filed his own motion, primarily arguing that the court lacked personal jurisdiction over him, and also joined the other defendants’ arguments about the copyright claims.

Personal Jurisdiction over Wasserman

The court held that New York’s long-arm statute did not provide personal jurisdiction over Wasserman. The complaint did not allege that he transacted business in New York or contracted to provide goods or services there. The court also found that Wasserman was not physically present in New York when the alleged infringement occurred and that the complaint did not adequately allege that Marvel or FOX acted as his agents.

The court further held that Krisko had not alleged a direct, non-speculative injury to a person or property in New York. Krisko lived in Florida, and the complaint did not identify any specific New York business or licensing opportunity that was lost. The court declined to transfer the claims against Wasserman to the Central District of California because Krisko had not shown that transfer would serve the interests of justice and had not provided enough information about jurisdiction and venue there. Wasserman’s motion to dismiss was therefore granted in full, and the claims against him were dismissed.

Copyright-Infringement Claims

To state a copyright-infringement claim, Krisko had to allege a valid copyright, copying, and wrongful copying. Because access to the Linda theme was disputed, he could avoid separately pleading access by alleging “striking similarity”—similarity so strong that it plausibly rules out independent creation.

The court held that Krisko met that pleading requirement. It relied on his allegations that the themes had an identical subject or melody, the same key and tempo, similar harmonization, similar instrumentation, and similarly placed sound effects. The court did not need to consider the Hungarian copyright experts’ opinion because the complaint’s other allegations were sufficient. It emphasized that the case was at the motion-to-dismiss stage, not summary judgment, so Krisko needed only to plead a plausible claim rather than prove infringement.

Secondary Liability

The court allowed Krisko’s contributory-infringement claims against Saban and Levy to proceed. Krisko alleged that they copied the Linda theme while composing the X-Men theme and then distributed it through Saban Entertainment. The court found that the complaint did not adequately plead contributory infringement against Chappell or BVT because it lacked facts showing that they knew or had reason to know about the alleged infringement and materially contributed to it.

The court also allowed vicarious-liability claims against Saban and Levy to proceed. It found that their alleged ownership of Saban Entertainment and employment relationship with Wasserman supported an inference that they could supervise the allegedly infringing composition and sale of the theme. The court held that the complaint did not adequately plead vicarious liability against Marvel, Chappell, Disney, or BVT merely by alleging that they profited from licensing, producing, distributing, or selling the X-Men theme.

Disposition

The court granted Wasserman’s motion to dismiss in full. It granted in part and denied in part the Media Defendants’ and Saban Entertainment Defendants’ motions. Krisko’s adequately pleaded copyright claims against the remaining defendants could proceed to discovery, but the opinion did not decide whether the X-Men theme actually infringed the Linda theme. The Clerk was directed to remove Wasserman from the list of defendants and terminate the specified pending motions.