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`FILED
`u. s iiisiii:iiiK§o°FF'cE
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`“F” '='-°- N-VI
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`flue AM.
`2-H.
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`C
`MEMORANDUM
`AND ORDER
`05-CV-5211 (SLT}
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT or NEW YORK
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`COLONEL A. ADAMS,
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`Plaintiff,
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`-against-
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`WARNER BROTHERS PICTURES
`NETWORK, AND CASTLE ROCK
`ENTERTAINMENT, AND DISCOVERY
`OR SCIENCE CHANEL NETWORK,
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`Defendants.
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`TOWNES, United States District Judge:
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`Plaintiff files the instant complaint and order to show cause seeking to stop the
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`defendants from producing and distributing the films “Polar Express” and “Trans Atlantic
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`Tunnel” and thirty billion dollars in damages because, he alleges, the films contain artwork to
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`which he holds a copyright. Plaintiff’ s request for injunctive relief is denied. However,
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`plaintiffs application to proceed in forma pauperis is granted and plaintiff is granted thirty days
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`from the date of this Order to amend his complaint as set forth below.
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`Injunctive Relief
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`Plaintiff’ s request for a preliminary injunction and a temporary restraining order are
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`denied. The party seeking such injunctive relief must establish that: (1) absent injunctive relief,
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`it will suffer an irreparable injury; and (2) either (a) a likelihood of success on the merits or (b)
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`sufficiently serious questions going to the merits to make them a fair ground for litigation and the
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`balance of hardships tips in favor of the party requesting the preliminary relief. Latino Officers
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`Ass'n v. Safir, 170 F.3d 167, 171 (2d Cir.1999); s_e§ a_ls;_o Mmland Cas. Co. v. Realty Advisory
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`1
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`

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`Case 1:O5—cv—O5211—SLT—LB Document 4 Filed 11/21/05 Page 2 of 5 Page|D #: 11
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`Bd. on Labor Relations, 107 F.3d 979, 984 (2d Cir.1997); Jackson Dairy Inc. v. H.P. Hood &
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` Sons Inc., 596 F.2d 70, 72 (2d Cir.l979) (per curiam). A showing of irreparable harm is
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`considered the "single most important requirement" in satisfying the standard. _S_e_emagi
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`Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A., 143 F.3d 688, 696 (2d Cir. 1998) Qwi
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`other grounds, 527 U.S. 308 (1999); Reuters Ltd. V. United Press Int'l Inc., 903 F.2d 904, 907
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`(2d Cir. 1 990) (recognizing that "irreparable harm is the single most important prerequisite for the
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`issuance of a preliminary injunction"). "A moving party must show that the injury it will suffer is
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`likely and imminent, not remote or speculative, and that such injury is not capable of being fiilly
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`remedied by money damages." National Association for Advancement of Colored People, Inc.
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`(NAACP! v. Town of East Haven, 70 F.3d 219, 224 (2d Cir.1995) (citing Tucker Anthony Realty
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`Com. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989)); Weinberger v. Romero-Barcelo, 456
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`U.S. 305, 312 (1982) ("The Court has repeatedly held that the basis for injunctive relief in the
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`federal courts has always been irreparable injury and the inadequacy of legal remedies").
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`Plaintiff has not made the requisite showing for such relief. Plaintiff alleges that
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`“Transatlantic Tunnel” was released on April 16, 2003 and “Polar Express” was released on
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`November 10, 2004. He arrives at the courthouse steps on November 7, 2005 because “Polar
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`Express.” is scheduled to be released on “dvd” on November 10, 2005. As plaintiff states, on
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`April 16, 2003, “the damage had already been done, because the network had made transcripts,
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`dvds and video tapes.” Memorandum of Law at 2. The purported harm that petitioner seeks to
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`avoid is neither imminent nor irreparable.
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`It happened years ago and is the type of injury which
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`can be fully remedied by money damages, if appropriate. Accordingly, the order to show cause is
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`denied.
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`

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`Standard of Review
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`Turning to plaintiff’s complaint, the Court is mindful that because plaintiff is proceeding
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`pro se, his submissions should be held “to less stringent standards than formal pleadings drafted
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`by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980). Under 28 U.S.C. § 1915 (e)(2)(B), a district
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`court shall dismiss an in forma pauperis action where it is satisfied that the action is “(i)
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`frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
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`monetary relief against a defendant who is immune from such relief.” An action is “frivolous”
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`when either: (1) “‘the factual contentions are clearly baseless,’ such as when allegations are the
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`product of delusion of fantasy,” or (2) “the claim is ‘based on an indisputedly meritless legal
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`3”
`theory. Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal
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`citations omitted).
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`Copygght Infringement Claim
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`In order to state a cognizable claim of copyright infringement under the Copyright Act, 17
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`U.S.C. § 50l(b), a plaintiff must allege: (1) that she owns a valid copyright; (2) that the
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`defendant copied original elements of the copyrighted work; and (3) that there is a substantial
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`similarity between the protectible material in the plaintiffs and defendant's works. Fisher-Price
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`Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 122-23 (2d Cir.l994); Kelly V. L.L. Cool J., 145
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`F.R.D. 32, 36 (S.D.N.Y. 1992). Moreover, in order to satisfy Rule 8's requirement that the
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`complaint provides defendants fair notice of the claims against them, “a plaintiff suing for
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`copyright infringement may not rest on bare-bones allegations that infringement occurred.
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`Rather, she must identify the ‘specific original work [that] is the subject of the claim’ as well as
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`‘by what acts’ the defendant infringed the copyright.” Sharp V. Patterson, No. 03 Civ 8772,
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`

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`2004 WL 2480426, at *l2-13 (S.D.N.Y. Nov. 3, 2004). Here, plaintiff fails to (a) identify the
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`specific artwork describing it in his submissions only as “his design art [ATST & TSSS];”
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`(b)state that he owns a valid copyright; or (0) demonstrate how defendants infiinged on his
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`copyright by producing the films “Polar and “Trans Atlantic Turmel.”
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`Leave to Amend
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`As presently stated, even interpreting plaintiffs pleadings as raising the strongest
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`argument they suggest, plaintiff has failed to state a claim upon which relief may be granted
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`under the Copyright Act. In an abundance of caution however, and in deference to plaintiffs pro
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`se status, the Court grants plaintiff thirty days to amend his complaint. E Cruz V. Gomez 202
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`F.3d 593 (2dCir. 2000) (pro se plaintiff should be afforded opportunity to mend complaint prior
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`to dismissal).
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`Conclusion
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`Plaintiff is granted thirty days leave to file an amended complaint. The amended
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`complaint must be signed and submitted to the Court withir1 thirty days of the date of this Order,
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`be captioned “AMENDED COMPLAINT," and bear docket number 05-CV-5211. No summons
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`shall issue at this time and all further proceedings are stayed for thirty days for plaintiff to
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`comply with this Order. If plaintiff fails to comply with this Order within the time allowed, the
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`complaint shall be dismissed for failure to state a claim upon which relief may be granted. 28
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`U.S.C. § 1915(e)(2)(B)(ii). Once submitted, the amended complaint shall be reviewed for
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`compliance with this order and for sufficiency under 28 U.S.C. § 1915 (e)(2)(B). The Court
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`certifies pursuant to 28 U.S.C. §1915(a)(3) that any appeal from this order would not be taken in
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`case 1:05-cv-05211-SLT—LB Document 4
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`good faith and therefore informapauperis status is denied for purpose ofan appeal. Coppedge v.
`United States, 369 U.S. 438, 444-45 (1962).
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`SO ORDERED.
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`Dated: Brooklyn, New York
`/662005
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`_
`)¢ffl}f‘,-1,-7,
`i
`SANDRA L. TOWNES
`United States District Judge
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`""'—--———-.___
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`HR‘