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...L. i I I I
BROWNE GEORGE ROSS LLP Eric M. George (State Bar No. 166403)
[email protected] Elena Nutenko (State Bar No. 289708)
[email protected] 2121 Avenue of the Stars, Suite 2400 Los
Angeles, California 90067 Telephone: (310) 274-7100 FacsImile:
(310) 275-5697 Attorneys for Plaintiff Ashleigh Erwin
.J
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
ASHLEIGIIERWIN, an individual, ; ,Vlh;c038 9 G -~~UJL0 \.he)
Plaintiff,
VS.
GREGORY SESTERO, an individual; SIMON & SCHUSTER, INC., a
New York corporation; AND DOES 1-10,
Defendants.
~ ~ 1735 1
COMPLAINT
COMPLi\INT
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Plaintiff Ashleigh Erwin ("Plaintiff'), by and through her
counsel, alleges 2 against defendants Gregory Sestero ("Sestero")
and Simon & Schuster, Inc. ("S&S") 3 (collectively
"Defendants") as follows: 4
5 1.
NATURE OF THE ACTION Plaintiff is the author of substantial
portions of a book titled The
6 Disaster Artist. My Life Inside the Room, the Greatest Bad
lUovie Ever Made (the 7 "Book"). Plaintiff devoted more than a year
to working on the Book. Despite her 8 significant contributions to
the Book, Defendants Greg Sestero, who is a co-author,
9 and Simon & Schuster, Inc., who is the Book's publisher,
have refused to
10 acknowledge Plaintiffs role in connection with the Book and
have refused to pay
I I Plaintiff any compensation for her work on the Book. Plainti
ff therefore has been
12 forced to file this action to vindicate her rights.
13 JURISDICTION AND VENUE 14 2. This Court has jurisdiction over
the present action pursuant to 28 15 U.S.c. 1331 and 1338(a), as
this action arises under the Copyright Act. In 16 addition,
Plaintiff seeks a declaration pursuant to 28 U.S.C. 220J(a)
regarding the 17 ownership of the copyrighted work. The Court has
supplemental jurisdiction over 18 Plaintiffs state law causes of
action pursuant to 28 U.S.C. 1367. 19 3. Venue is proper in this
Court pursuant to 28 U.S.C. 1391(b)(2), as a 20 substantial part of
the events or omissions giving rise to the claims asserted
herein
21 occurred within this District.
22
23
24
4.
5.
THE PARTIES Plaintiff Ashlcigh Erwin resides in Los Angeles
County, California.
Upon inf()Jmation and belief, defendant Gregory Sestero resides
in Los 25 Angeles County, California. Upon information and belief~
Sestero transacts 26 business in California. In addition, Plaintiff
worked with Sestero on the Book in
27 Los Angeles County.
28 431735 I
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1 6. llpon information and belief, defendant Simon &
Schuster, Inc. is a
2 New York corporation, with its principal place of business in
New York, New York.
3 Upon information and belief, S&S transacts substantial
business in Los Angeles
4 County and CalifornIa.
5
6 7. FACTS
Plaintiff and Sestero had a relationship beginning in 2005.
Sestero was
7 and is, among other things, an actor. One of the films in
which he has appeared is
8 The Room. The Room was released in 2003, and subsequently
became a cult hit
9 8. During 2009-2011, Sestero and Plaintiff lived in Plaintiffs
parents'
10 home, while Sestero traveled for appearances relating to The
Room. Sestero did not
11 pay for any housing related expenses during that period.
12 9. In or about spring 2007, Plaintiff developed the idea of
writing a book
13 about The Room. Plaintiff wrote the first draft of a book
proposal in October 2010.
14 10. Sestero provided a copy of the book proposal to Tom
Bissel1, a
15 journalist who had previously written an article in Harper's
magazine about The 16 Room. At that time, Bissell was living in
Portland, Oregon, and was teaching at
17 Portland University. Bissell initially declined to
participate in the writing of the
J 8 proposed book, as he felt he had too many other commitments,
including teaching.
19 He did, however, help locale an agent for the proposal.
Ultimately, Bissell agreed to
20 become a co-writer, and entered into an oral agreement to
share any revenue from
21 the book equally with Sestero.
22 1 I. In May 2011, Simon & Schuster entered into an
agreement with
23 Sestero and Bissell for the Book.
24 12. In July 20 II, Bissell sent Sestero a rough draft of
chapters 1 and 2 for
25 the book. Sestero and Plaintiff were shocked at the poor
quality of the chapters.
26 Plaintiff began editing the chapters and contributing her own
original material.
27 13. Tn August 2011, Bissell sent a draft of chapter 3. This
draft was also
28 inadequate.
COMPLAIN!
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14. By August 2011, Bissell had only written three chapters in
four
2 months, and the quality of the writing was unsatisfactory.
Sestero therefore asked
3 Plaintiff to help write the Book. Sestero stated that if
Plaintiff would co-write the
4 Book, Sestero would give Plainti ff hal f of whatever revenue
Sestero received in
5 connection with the Book, including but not limited to film
rights, international
6 rights, advances and royalties, as well as three
incentives--$l 0,000 if it was on the 7 New York Times Bestseller
list, $20,000 if it was a National bestseller, and $38,000 8 if it
was an International bestseller. Plaintiff accepted Sestero's offer
and the
9 agreement was fonned (the "Joint Author Agreement"). The
Agreement is reflected 10 in a document that was written that day.
Plaintiff and Sestero agreed that, while
11 Plaintiff was working on the Book, Plaintif1 would suspend
her career and would
12 defer enrolling in schooL
13 15. Sestero stated that he had already spent the first
installment of the
14 advance he had received when the contract with S&S was
executed, but would pay
15 Plaintiff the entire amount of the second installment of the
advance he was to
16 receive after the complete manuscript had been submitted to
and accepted by S&S.
17 16. After Plainti IT and Sestero agreed on the Joint Author
Agreement,
18 Plaintiff worked nearly full time on the Book. Plaintitl
spent much of October,
19 November and December 2011 working on the Book. Plaintiff did
her writing
20 primarily on her desktop computer or on a laptop that she
shared with Sestero.
21 17. Bissell did virtually no writing during that period, as
he was working
22 on other jobs, including teaching. In December 2011, Sestero
drafted a letter firing 23 Bissell from the project. Ultimately,
however, Sestero did not send the letter. 24 18. In or around
February 20 I 2, Sestero agreed to tell S&S that Plaintiff
25 was a co-author of the Book, so Plaintiff could receive
credit as a co-author.
26 19. Plaintiff continued working on the Book in 2012,
including writing the
27 majority of what ultimately became Chapters 15 and 16, the
complete initial version 28
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of Chapter 17, as well as the entire Author's Note, and the
rewriting, editing and co-
2 authoring of all other chapters.
3 20. Much of Plaintiffs work is contained verbatim, or
virtually verbatim,
4 in the published version of the Book. In addition to the
specific words Plaintiff
5 wrote, the Book also contains numerous other manifestations of
Plaintiffs
6 contributions, including but not limited to structure, tone,
theme and scenes Plaintiff
7 had suggested.
8 21. On information and belief, the first draft of the
completed manuscript
9 was sent to S&S no earlier than June or July 2012. After
the manuscript was
10 submitted, Plaintiff asked Sestero ifhe had received the
second portion of the
11 advance. Sestero stated that he had not. Sestero did not tell
Plaintiff he had
12 received the second portion of the advance unti I months
later. At that time, Sestero
13 stated that the advance needed to remain in the account in
which it had been
14 deposited, but he would provide it to Plaintiff when it was
released or he would
15 compensate Plainti ff from appearance funds that he stated he
was waiting to receive.
16 22. In December 201 Sestero consulted with an attorney to
draft a
17 contract reducing Bissell's percentage of revenue from the
Book, due to Bissell's
18 failure to perfonn the writing he had promised to do. The
contract was sent to
19 Bissell that month, but Bissell refused to sign it.
20 23. In December 2012, Plaintiff gave Sestero a deadline of
January 2013 to
21 tell S&S that Plaintiff was a co-author of the Book, and
that Plaintiff should receive
credit as an author. In February 2013, Sestero told Plaintiff
that he had informed
S&S by text message of Plaintiffs role. Sestero showed
Plaintiff an ambiguous
24 email response that was purportedly from S&S, but refused
to show Plaintifrthe text
25 he had purportedly sent.
26 24. In March 2013, Plaintiff consulted with an attomey to
have the Joint
Author Agreement drafted into a formal written contract. \Vhen
Sestero was
28 infonned of this, he told PlaintitThe was no longer willing
to comply with the Joint 431'30. 1
-
1 Author Agreement, and instead would only pay her 50% of his
share of the advance
2 from S&S. The relationship between Plaintiff and Sestero
ended at that time.
3 25. In mid-April, Sestero sent Plaintiff a text message
apologizing for
4 reneging on their Joint Author Agreement. Sestero then asked
Plaintiff if she would
5 assist him ifhe sued Bissell for failing to fulfill his
writing obligations with respect
6 to the Book. Plaintiff asked Sestero to sign their two
agreements. One was the
7 agreement to reimburse Plaintiff for certain expenses,
including expenses she had
8 incurred while writing the Book and reimbursement for the
school tuition she had
9 deferred while working on the Book (the "Reimbursement
Agreement"). Sestero 10 signed the Reimbursement Agreement. The
second agreement was a formal written
11 agreement reflecting the terms of the Joint Authorship
Agreement. Sestero stated
12 that he would sign it, but wanted to make sure it was written
in a way that would
13 protect him from any potential claims by S&S. Plaintiff
had an attorney draft the
14 agreement and sent it to Sestero. Sestero never
responded.
15 26. The Book was released in or about October 2013.
16 CLAIMS FOR RELIEF 17 First Claim for Relief
18 (Copyright Infringement, 17 U.S.C. 101 et seq.; Against All
Defendants) 19 27. Plaintiff incorporates by reference paragraphs 1
through 26, inclusive,
20 as though set forth in full herein.
21 28. Plaintiff is the sole copyright owner of the
copyrightable material she
22 contributed to the Book.
23 29. Plaintiffhas not consented to the use of her material in
the Book absent
24 compensation and/or credit.
25 30. The portions of the Book that contain the copyrightable
material that
26 Plaintiff contributed to the Book infringe Plaintiff's
exclusive rights under the
27 Copyright Act.
28 31. Plaintiff is entitled to damages under the Copyright
Act.
COMPLAl~T
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32. Upon information and belief, Defendants' infringement of
Plaintiffs
2 rights under the Copyright Act are willful, and were taken
with oppression, fraud
3 and malice, and in conscious disregard of Plaintiff's
rights.
4
5
Second Claim for Relief
(Declaratory Relief; Against All Defendants) 6 33. Plaintiff
incorporates by reference paragraphs 1 through 32, inclusive,
7 as though set forth in full herein.
8 34. Plaintiff is the author of substantial portions of the
Book.
9 35. Plaintiff asserts that she is either the sole author of
substantial pOJ1ions
10 of the Book or, in the alternative, a joint author of the
Book. ] 1 36. Defendants have asserted that Plaintiff does not have
any copyright 12 interest in the Book.
13 37. An actual controversy has accordingly arisen and exists
between
14 Plaintiff, on the one hand, and Sestero and S&S, on the
other hand.
15 38. Declaratory relief is necessary to resolve the foregoing
actual
16 controversy regarding Plainti ff s rights in the Book.
17 39. Plaintiff seeks a declaration that she is the sole author
of portions of the
18 Book.
19 40. In the alternative Plaintiff seeks a declaration that she
is a joint author 20 of the Book within the meaning of the
Copyright Act, and has all joint authorship 21 rights provided by
law with respect to the Book.
22 41. Plaintiff has no adequate remedy in the ordinary course
of law other
23 than the relief sought herein.
24
25 Third Claim for Relief
(Accounting; Against All Defendants) 26 42. Plaintiff
incorporates by reference paragraphs I through 41, inclusive,
27 as though set forth in ful1 herein.
28
-6-COMPLAl~1
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43. As a result of her copyright interests in the Book,
Plaintiff is entitled to
2 an accounting from Defendants of all revenue and/or other
consideration that have
3 been and will be paid in connection with the Book.
4 44. Plaintiff has not received any accounting concerning the
exploitation of
5 the Book.
6 45. An accounting is necessary to detennine the amounts
Plaintiff is
7 entitled to receive in connection with the exploitation of the
Book.
8 Fourth Claim for Relief
9 (Breach of Joint Author Agreement; Against Sestero) 10 46.
Plaintiff incorporates by reference paragraphs 1 through 45,
inclusive,
1 J as though set forth in full herein.
12 47. The Joint Author Agreement is a valid agreement.
13 48. Plaintiff has performed all, or substantially all, of the
significant things
14 she was required to do pursuant to the Joint Author
Agreement.
15 49. All conditions required for Sestero's performance of the
Joint Author
16 Agreement have occurred.
17 50. Sestero has failed to perform his obligations pursuant to
the Joint
18 Author Agreement by, among other things, failing to make the
payments Plaintiffis
19 entitled to receive pursuant to the Agreement.
20 51. Plaintiff has been hanned by Seslero's breach of the
Joint Author
21 Agreement.
22 Fourth Claim for Relief
23 (Breach of Reimbursement Agreement; Against Sestero) 24
Plaintiff incorporates by reference paragraphs 1 through 51,
inclusive,
25 as though set forth in full herein.
26 53. The Reimbursement Agreement is a valid agreement.
27 54. Plaintitfhas performed all, or substantially all, of the
significant things
28 she was required to do pursuant to the Reimbursement
Agreement.
COMPLAINT
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1 55. All conditions required for Sestero's performance of
the
2 Reimbursement Agreement have occurred.
3 56. Sestero has failed to perfom1 his obligations pursuant to
the
4 Reimbursement Agreement by, among other things, failing to
make all the payments
5 to Plaintiff required by the Agreement.
6 57. Plaintiffhas been harmed by Sestero's breach of the
Reimbursement
7 Agreement.
8
9
Fifth Claim for Relief
(Fraud; Against Sestero) 10 58. Plaintiff incorporates by
reference paragraphs 1 through 57, inclusive,
11 as though set forth in full herein.
12 59. Sestero induced Plaintiffto enter into the Joint Author
Agreement by
13 promising he would make the payments provided by that
Agreement.
14 60. Sestero's promise was important to Plaintiffs agreement
to enter into
15 the Joint Author Agreement and her subsequent performance of
her obligations
16 pursuant to that Agreement.
17 61. On information and belief, Sestero did not intend to
perform his
] 8 promises when he made them. 19 62. On infonnation and
belief, Sestero intended that Plainti ff would rely on 20 Sestero's
promises.
21 63. Plainti ff reasonably relied on Sestero' s promises.
22 64. Sestero did not perform his promises pursuant to the
Joint Author 23 Agreement.
24 65. Plaintiff has been harmed as a result of Scstcro's
acts.
25 66. Plaintiffs reliance on Sestero's promises was a
substantial factor in 26 causing her harm.
27 67. Sestero's wrongful actions were taken with oppression,
fraud and/or 28 malice.
-8-COMPLAINT
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1 PRA YER FOR RELIEF 2 WHEREFORE, Plaintiff asks that this Court
grant judgment against 3 Defendants for the following:
4 A. For actual and compensatory damages in an amount to be
proven at
5 trial, and for interest thereon at the highest lawful
rate.
6 B. For statutory damages under the Copyright Act.
7 C. For a declaration that Plaintiff is the sole copyright
owner of the
8 material she contributed to the Book and that the portions of
the Book that contain
9 Plaintiff's copyrightable material infringe Plaintiffs
exclusive rights as a copyright
owner. In the alternative, Plaintiff seeks a declaration that
she is a joint author of 10 the Book within the meaning of the
Copyright Act and has all joint authorship I 1 rights provided by
law with respect to the Book.
12 D. For an accounting to Plaintiff of all revenue and/or other
consideration
13 that have been paid to Sestero and others in connection with
the Book, and all
14 ancillary and lor related material, and an order that all
amounts paid or to be paid to
15 Sestero and others in connection with the Book, and all
ancillary andlor related
16 material be held in a constructi ve trust for the benetit of
Plaintiff. 17 E. For exemplary and punitive damages with respect to
Plaintiff's fraud 18 claim against Sestero. 19
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III
III III
~3171' I
F. G. H.
For prejudgment interest. For Plaintiff's costs of suit incurred
herein.
F or Plaintiff's attorneys' fees; and
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I. For such other and further relief as the Court may deem just
and proper.
Dated: May 20, 2014
"'In).1
BROWNE GEORGE ROSS LLP Eric M. George Elena Nutenko
By Eric M. George
Attorneys for Plaintiff Ashleigh Erwin
-10-COMPLAINT