The copyright infringement case of former Wiley College professor and Bossier City resident David Whitehead against Netflix Inc., Marvel Entertainment, Viacom and Walt Disney Inc. is going to Los Angeles.
After listening to arguments from both sides during a 20-minute motion hearing held in Marshall’s federal court on Monday, U.S. Magistrate Judge Roy Payne granted the parties’ joint motion for a change of venue, transferring the case from the Eastern District of Texas to the Central District of California.
“I’m going to Los Angeles!” a beaming Whitehead exclaimed as he exited the courthouse, celebrating the judge’s decision.
Whitehead, who is currently an American government teacher at Grambling State University as well as a playwright and author, filed the copyright infringement lawsuit in Marshall’s federal court against the defendants, claiming that the companies conspired together, infringing his script entitled “Batman Blackman” for the publishing, distribution and broadcast film production of Marvel’s top-grossing 2018 superhero film, “Black Panther.”
The lawsuit was originally filed Nov. 2, 2018 and accuses the defendants of “basically placing existing characters from Marvel Entertainment films, incorporating these characters into plaintiff’s ‘Batman Blackman,’ without having plaintiff’s consent or authorization or compensation.”
Although Whitehead was pushing for the case to be transferred to the Northern District of California on Monday, he told Judge Payne that he would concede to the defendants’ request to transfer it to the Central District in hopes that it would eventually be transferred to the district of his choice.
“Well, it can go to Central and I can ask Central to send it to the Northern District,” Whitehead told Payne.
Payne warned him that the likelihood of that happening is very remote. Nevertheless, the judge said he’d grant the motion to move it out of the East Texas jurisdiction in Marshall to Los Angeles, based on the joint request to transfer.
Whitehead left the courtroom relieved at the judge’s decision as he feared that the case would be dismissed altogether as counsel for the defendants had initially requested.
“I already have a dispute in Los Angeles with two judges (there), which allows this case to go forward with an independent action,” he said, explaining why he was OK with moving the case to the Central District of California.
When asked by Judge Payne why he initially filed to change the venue to his home district, the Western District of Louisiana, which already barred him, Whitehead said that he wants a fair trial.
“I just want it to go to trial on the merits of me asking for a jury trial,” he said.
He said that he was barred by judges who had financial and pecuniary conflicts of interest in the case.
“I can’t get off first base because of the bureaucracy of the United States,” he argued.
“You’re not advancing your case by throwing around the claim that different judges have conspired against you,” Payne responded.
Jennifer Haltom Doan, counsel for all four defendants in the case, said her initial argument in court Monday was to move to dismiss the entire case. In the event the judge denied it, she was moving forward with her alternative motion, which was the request to change venue to the Central District of California.
“If the court’s not going to dismiss, then the court should transfer the case,” she said of her clients’ request.
Hearing her request, Judge Payne advised that litigants do not get to learn the decision on a matter and then move for an alternative motion. The judge said they must move on one motion or the other.
“I’m not looking for easy. I’m just looking for a decision,” he said. “We should address venue before we address the merits.”
Doan moved forward with her motion to change the venue to the Central District of California due to the fact that all of the defendants either reside in the District or do significant business there. Whitehead ultimately agreed.
Also at Monday’s hearing, Doan advised the judge that she and her legal team do not believe that Disney and Marvel have been served properly by Whitehead in the case.
“We represent Netflix and Viacom. We also represent Disney and Marvel,” said Doan, of Haltom & Doan of Texarkana. “We don’t believe that they’ve been properly served in this matter. “We’ve had a number of discussions with Mr. Whitehead about that and how to effectuate that. That’s really not gone anywhere.”
Answering questions from the judge, Whitehead said he’s been a victim of Hollywood for a while.
“I believe I’ve been a victim of Hollywood theft of my intellectual property for years,” said Whitehead, noting he believes the victimization stems all the way to his past career at the CIA in Langley, Virginia. He claims that several concepts for Hollywood movies were stolen from his book entitled “Brains, Sex & Racism in the CIA and The Escape” along with his other works.
Prior to making his decision on the change of venue, Judge Payne asked Whitehead, a pro se litigant, if he has attempted to obtain representation from an attorney. Whitehead advised that he has, to no avail.
“I do need a lawyer in this big and complex case, however, I hadn’t had an opportunity to obtain one, he said.
Giving a timeline of the infringement alleged in the lawsuit, Whitehead alleges that in November 2016, Netflix and its Creative Content Executive (COO) Ted Sarando’s secretary invited him to submit his 30-film proposal to Netflix through an attorney.
Whitehead said he obliged and had his attorney, Alan Pesnell, submit his 30-film project proposal to Netflix, via email, on his behalf. According to the lawsuit, Netflix responded to the submission the very same day, informing Whitehead of their decision to reject his proposal.
The lawsuit goes on to say that another attorney for Whitehead, Doug Coggins, submitted his script “Batman Blackman” to an agent of a Hollywood actor in California, for the actor’s consideration to hopefully star in the project. Whitehead believes that the actor was tapped to star in Marvel’s “Black Panther” film, which is why Marvel has become a defendant in the lawsuit. Whitehead believes Marvel became privy of his script through its dealings with the actor.
Additionally, “Plaintiff believes and asserts defendant Walt Disney Company distributes the alleged infringing film ‘Black Panther,’ and accessories, allegedly based on plaintiff’s copyrighted script treatment ‘Batman Blackman,’” the lawsuit states.
Lawyers on behalf of Netflix and Viacom filed a response on May 28 to Whitehead’s claims, asking the court to dismiss the case. The defendants said the claims should be dismissed because they are identical to other cases that have been dismissed and also barred by other courts that have previously heard Whitehead’s case.
The defendants’ said Whitehead’s claims should be dismissed to prevent further waste of time, money and judicial resources. Defendants further contended that the case should be dismissed because claims against Viacom are unrelated to the submission and rejection of Whitehead’s 30-film proposal and are based upon allegations of copyright infringement of Whitehead’s book titled “Brains, Sex & Racism in the CIA and The Escape. Whitehead alleges the concepts were used in the production of the movie and novel “Mission Impossible.” Doan argued that these exact claims against Viacom have previously been litigated and are thus barred.
Whitehead expressed on Monday that he just wants his day in court. He is demanding a jury trial and $10 billion and $1 million in compensatory damages in the case.