Epikhin v. Game Insight North America

145 F. Supp. 3d 896, 2015 U.S. Dist. LEXIS 152837, 2015 WL 6957491
CourtDistrict Court, N.D. California
DecidedNovember 11, 2015
DocketCase No. 14-CV-04383-LHK
StatusPublished
Cited by2 cases

This text of 145 F. Supp. 3d 896 (Epikhin v. Game Insight North America) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Epikhin v. Game Insight North America, 145 F. Supp. 3d 896, 2015 U.S. Dist. LEXIS 152837, 2015 WL 6957491 (N.D. Cal. 2015).

Opinion

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

LUCY H. KOH, United States District Judge

Plaintiffs Evgeny Epikhin (“Epikhin”) and Dmitri Redlikh (“Redlikh”) (collectively, “Plaintiffs”) bring suit against defendants Game Insight North America, Cooper Media Corp. d/b/a Game Insight, and Game Insight Global Limited d/b/a GIGL (collectively, “Game Insight”) and Game Garden, LLC (“Game Garden”) (together, with Game Insight, “Distributor Defendants”), as well as against Fly High Games (“Fly High”) and Yury Pomortsev (“Po-mortsev”) (all together, “Defendants”). Having considered the submissions of the parties, the relevant law, and the record in this case, the Court hereby GRANTS Defendants’ motion to dismiss.

I. BACKGROUND

A. Factual Background

The crux of this lawsuit is who owns the rights to Cat Story, a free mobile application (“app”) in which players build a virtual village for cats shipwrecked on an island and send the cats on various quests and adventures. EOF No. 58 (First Amended Complaint, or “FAC”) ¶¶ 1, 25. The app is distributed by Game Garden and Game Insight, pursuant to a license from Fly High. Id. ¶¶ 8-9,11,107,116. From 2011 to September 2013, Game Garden, a California Corporation, was owned by Pomortsev, Maxim Bakanovieh (“Bakanovich”), and Plaintiffs. Id. ¶ 32.1

Plaintiffs allege that the app which became Cat Story was first conceived in early 2012 at South Port Studios, LLC (“South Port”), a Russian corporation owned solely by Redlikh but managed by Pomortsev. Id. ¶¶ 23-25, 31. At the time, Plaintiffs say, the app was called Pussy-Ville. Id. ¶ 26. According to Plaintiffs, South Port employees and contractors participated in various tasks related to Pussy-Ville, including development of the game concept; creation of art, code and graphics; deployment of game mechanics; and development of a marketing strategy for the app. Id. ¶ 27. Plaintiffs allege that Pussy-Ville contained computer code based on and derived from code created by South [899]*899Port in connection with earlier South Port app projects such as Fairy Farm. Id. ¶ 29. Starting in 2011, Game Garden acted as the distributor of various South Port projects, including Fairy Farm. Id. ¶ 33.

Starting in mid-2012, things started to go awry. Plaintiffs allege that Pomortsev informed Plaintiffs that the owner of Fly High was interested in helping develop PussyVille in exchange for a share in the app’s profits. Id. ¶ 36. Plaintiffs allege further that Pomortsev began to share with Fly High information regarding Pus-syVille, including the PussyVille files and resources from earlier projects like Fairy Farm. Id. ¶¶ 37-38. By the end of 2012, Plaintiffs claim that Pomortsev was representing to them that South Port employees were no longer working to develop Pussy-Ville. Id. ¶ 39. In an e-mail to Plaintiffs dated January 18, 2013, Pomortsev allegedly wrote, “PussyVille is not being developed.” Id. ¶ 41. Despite these representations, Plaintiffs claim that Pomortsev and Bakanovich had started a new gaming company, Fair Play Studios, which was secretly working with Fly High to develop the app that would become Cat Story. Id. ¶¶ 35, 43. '

Due to various difficulties, the relationship between Game Garden’.s four owners began to deteriorate beyond repair. By May 2013, the owners had decided to part ways. Id. ¶ 47. Over the next several months, Plaintiffs negotiated with Pomort-sev and Bakanovich to sell Plaintiffs’ ownership interests in Game Garden. Id. ¶ 48-50. Plaintiffs eventually sold their ownership interests in Game Garden to friends of Pomortsev and Bakanovich on September 11, 2013. Id. ¶¶ 48, 50. Plaintiffs allege that the sale agreement listed every game, app, and project that was part of the transaction. Id. ¶ 51. The agreement, Plaintiffs say, made no mention of Pussy-Ville, whose rights and title were allegedly transferred from South Port to Plaintiffs in September 2013. Id. ¶¶ 51, 60. Plaintiffs allegedly never authorized Defendants to reproduce, adapt, distribute,- or make derivative works of PussyVille. Id. ¶ 53.

On August 2, 2013 — more than a month before Plaintiffs sold their interest in Game Garden — the domain name www. catstorygame.com was registered by Fly High’s owner. Id. ¶ 55) According to Plaintiffs, Distributor Defendants have since distributed Cat Story through various platforms. Specifically, Game Insight began distributing Cat Story through Apple’s App Store on September 19, 2013, and through Google Play on January 24, 2014. Id. ¶¶ 56-57. Game Garden began distributing Cat Story through Amazon on February 1, 2014. Id. ¶. 58. Game Garden additionally began distributing Cat Story through Windows Mobile on April 1, 2014. Id. ¶ 59. Since September 2013, there have been over a million downloads of Cat Story through these various platforms. Id. ¶¶ 106,115.

Plaintiffs filed for copyright protection for both PussyVille and Cat Story. Id. ¶¶ 62, 64. At the time of the two copyright applications, Plaintiffs allegedly had “no access to the original works created at South Port by South Port employees and contractors” because of the dispute with Pomortsev and Bakanovich. Id. ¶¶ 62, 64. Thus, in support of each application, Plaintiffs deposited: (1) the soured code of Fairy Farm, on which PussyVille was allegedly based; and (2) various images of characters in Cat Story that are allegedly identical to or derivative of PussyVille. Id. The U.S. Copyright Office registered PussyVille and Cat Story, effective September 24, 2014. Id. ¶¶ 63, 65; ECF No. 73-4 (printout of the record of registration for PussyVille, Registration Number TXu001935695); ECF No. 73-5 (printout of the record of registration for Cat Story, Registration Number TXu 001912978). Al[900]*900though' Plaintiffs applied for Cat Story’s registration as co-authors with Fly High, Fly High is not listed as an author on Cat Story’s registration. See FAC ¶¶ 13, 64-65; ECF No. 73-5.

B. Procedural History

On September 29, 2014, Plaintiffs filed their complaint. ECF No. 1 (“Compl”). In the complaint, Plaintiffs alleged that Cat Story contains significant art, graphics, and other copyrightable material created by South Port during its development of PussyVüle-, that the rights in this copyrightable material were properly assigned to Plaintiffs; and that these rights are infringed by Distributor-Defendants’ distribution of Cat Story. Compl. ¶¶ 1, 25-27, 58. On that basis, Plaintiffs brought causes of action for direct copyright infringement under 17 U.S.C. § 501 (first cause of action), contributory copyright infringement (third cause of action), and vicarious copyright infringement (fourth cause of action) against Distributor Defendants. Id. ¶¶ 61-73, 100-09. Plaintiffs brought additional causes of action against Pomortsev and Fly High. Specifically, Plaintiffs alleged fraud (second cause of action) and breach of contract (sixth cause of action) against Pomortsev. Id. ¶¶ 74-99, 118-23.

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Bluebook (online)
145 F. Supp. 3d 896, 2015 U.S. Dist. LEXIS 152837, 2015 WL 6957491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/epikhin-v-game-insight-north-america-cand-2015.