TEAM CODE – IPTC_31

FICCI-CLC 1ST NATIONAL VIRTUAL MOOT COURT COMPETITION, 2024

IN THE COURT OF THE HON’BLE DISTRICT COURT KRYTONITE, UNITED STATES

POLAR PUBLISHING HOUSE AND AGATHA’S PR TEAM …………………………CLAIMANTS

V.

JENNIE, ALEX AND WE WRITE………………………………………………..RESPONDENTS

FILED UNDER:

SECTIONS 106, 106A, 501 OF THE COPYRIGHT ACT OF 1976,

SECTIONS 1400(A) AND 1391(B) OF TITLE 28, U.S. CODE

UPON SUBMISSION TO HON’BLE DISTRICT COURT KRYPTONITE, UNITED STATES

-MEMORIAL ON BEHALF OF THE CLAIMANT-

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 TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................................... 2

LIST OF ABBREVIATIONS .................................................................................................. 4

LIST OF REFERENCES AND CASES ................................................................................. 5

STATEMENT OF JURISDICTION....................................................................................... 7

STATEMENT OF FACTS ..................................................................................................... 10

STATEMENT OF ISSUES .................................................................................................... 11

SUMMARY OF PLEADINGS .............................................................................................. 12

DETAILED PLEADINGS..................................................................................................... 14

1. THE DISTRICT COURT OF KRYPTONITE HAS THE JURISDICTION ............... 14

1.1. The Cause Of Action Arose In Usa ...................................................................... 14

1.2. The Suit Has Jurisdiction Usa Based On Personal Jurisdiction Principles .......... 15

1.3. Extraterritoriality As An Element Of Copyright Infringement, Not A Jurisdictional

Question ........................................................................................................................... 15

1.4. The Alien Tort Statute (Ats) May Serve As A Jurisdictional Basis For Claims Of
International Copyright Infringement Occurring Outside Of The U.S. ........................... 16

2. THE FAN-FICTION WRITTEN BY JENNIE & ALEX CONSTITUTES

COPYRIGHT INFRINGEMENT ........................................................................................ 17

2.1. The Ingredients Of Copyright Are Met ................................................................ 18

2.1.1. Polar Publishing House Holds A Valid Copyright Ownership ..................... 18

2.1.2. Jennie And Alex Have Unlawfully Copied Original, Protected Elements Of
The Work19

2.1.2.1. Copying Of Original Elements: .............................................................. 19

2.1.2.2. There Is Substantial Similarity Between The Works .............................. 20

2.1.2.3. The Merger Doctrine Defense Is Not Applicable ................................... 20

2.2. Jennie And Alex Infringed The Right To Make A Derivate Work Over The
Copyrighted Work ............................................................................................................ 21

2.3. Jennie And Alex Infringed The Moral Rights Of Ms. Agatha ............................. 21

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 2.3.1. Violation Of The Right Of Attribution ......................................................... 22

2.3.2. Violation Of The Right Of Integrity ............................................................ 22

3. THE COPYRIGHTED WORK DOESN’T FALL UNDER ANY OF THE

STATUTORY EXCEPTIONS.............................................................................................. 23

3.1. The Purpose And Character Of The Use Is Not Transformative Work................ 23

3.2. The Nature Of The Copyrighted Work Is Highly Creative And Imaginative, Falling
Within The Core Of Works That Copyright Law Seeks To Protect. ................................ 24

3.3. The Amount Of Copyrighted Material Used Is Substantial And Integral To The
Original Work .................................................................................................................. 25

3.4. Their Actions Have Caused Potential Harm To The Present And Future Market Of
The Copyrighted Work. .................................................................................................... 26

4. WEWRITE IS LIABLE AS AN INTERMEDIARY ................................................... 27

4.1. We Write Is Be Held Liable For Secondary Copyright Infringement: ................ 28

4.1.1. There Is Contributory Infringement ............................................................. 28

4.1.2. Inducement Infringement Is Present ............................................................ 28

4.1.3. We Write Is Liable For Vicarious Infringement ........................................... 29

4.2. We Write Is Not Protected By The Safe Harbour Provision ................................ 29

5. THE USE OF AI IN MIMICKING THE VOICE OF AGATHA VIOLATES THE

PERSONALITY RIGHT INFRINGEMENT OF VOICE RIGHTS .................................... 30

5.1. Agatha’s Voice Is Publicly Recognised To Be Protected Under The Right Of

Publicity ........................................................................................................................... 30

5.2. Posthumous Survival Of Personality Rights ........................................................ 31

5.3. Lack Of Authorisation To Use Agatha’s Voice Causing Commercial Damage ... 32

5.4. Violation Of Moral Rights Causing Risk Of Reputational Damage .................... 33

PRAYER ................................................................................................................................. 34

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 LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

AI Artificial Intelligence

ATS Alien Tort Statute

¶ Paragraph

§ Section

Co. Company

Inc. Incorporated

LLC Limited Liability Company

No. Number

s. Sections

TRIPS Trade-Related Aspects Of Intellectual

Property Rights
U.S. U.S.

U.S.C. U.S. Code

UNCLOS United Nations Convention On The

Law Of The Sea
v. Versus

Wrt. With Respect To

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 LIST OF REFERENCES AND CASES

S. No. Case Name Page No.

1. A&M Records, Inc. v. Napster, 239 F.3d 1004, 1019 (9th Cir. 2001) 28

2. Alfred Bell Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir.) 21

3. Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) 15

4. Baker v. Selden, 101 U.S. 99 (1880) 19

5. Bill Graham Archives v. Dorling Kindersley Ltd, 448 F.3d 605 24

6. Calder v. Jones, 465 U.S. 783 (1984) 15

7. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) 23

8. Carter v. Helmsley-Spear ("Carter I"), 861 F.Supp. 303, 313 2

(S.D.N.Y. 1994), Carter II, 71 F.3d 77 (2d Cir. 1995)
9. Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 24
150 F.3d 132 (2d Cir. 1998)
10. Chicago Board of Education v. Substance, Inc., 354 F.3d 624 (7th 26
Cir. 2003)
11. Clark v. Associated papers, [1998] R.P.C. 261 33

12. De Gette v. Mine Co. Rest., Inc., 751 F.2d 1143, 1145 (10th Cir. 17
1985)
13. Ellis v. Diffie, 177 F.3d 503, 507 (6th Cir. 1999) 20

14. Elvis Presley Enters. v. Passport Video, 349 F.3d 622 (9th Cir. 2003) 24

15. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 18
340 (1991)
16. Geophysical Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d 15
785, 791 (5th Cir. 2017)
17. Gilliam v American Broadcasting Companies, Inc., 538 F.2d 14 (2d 33
Cir. 1976)
18. Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 32
(2d Cir.)
19. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 24
563 (1985)
20. Julia Fiona Roberts v. Russell Boy, WIPO Case No. D2000-0210, 33
May 29, 2000

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21. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) 17

22. Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003) 20

23. Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir. 1991) 20

24. Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir. 20
1992)
25. Litecubes, LLC v. Northern Light Products, Inc., 523 F.3d 1353, 16
1368 (Fed. Cir. 2008)
26. L. Batlin Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.) 21

27. Martin Luther King, Jr., Center for Social Change v. American 32
Heritage Products, Inc, 296 S.E.2d 697
28. Mattel, Inc. v. MCA Records, Inc., 28 F. Supp. 2d 1120 (C.D. Cal. 22
1998)
29. Mavrix Photographs, LLC v. Live Journal, Inc, 873 F. 3d 1045, 13
1052–57 (9th Cir. 2017)
30. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 29
930 (2005)
31. Pavesich v. New England Life Ins. Co, 122 Ga 190: 50 SE 68 (1905) 30

32. Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146, 1172 (9th Cir. 28
2007)
33. Price v Holoach Studios Inc, 400 F. Supp 836 (SDNY 1975) 31

34. Robert R. Jones Associates, Inc. v. Nino Homes, 858 F.2d 274 (6th 20
Cir. 1988)
35. Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987) 25

36. Sid & Marty Krofft Television Productions, Inc. v. McDonald’s 19

Corp., 562 F.2d 1157 (9th Cir. 1977)
37. Spanski Enterprises, Inc. v. Telewizja Polska, S.A., No. 17-7051 14
(D.C. Cir. 2018)
38. Stewart v. Abend, 495 U.S. 207 (1990) 25

39. Tom Waits v Frito-Lay Inc, 978 F.2d 1093 (1992) 13

40. Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 25

F.2d 1366, 1376 (2d Cir. 1993)
41. U.S. v. Smith, 18 U.S. 153 (1820) 17

42. Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) 21

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 43. Warner Bros. Entm’t, Inc. v. RDR Books, 575 F. Supp. 2d 513 25
(S.D.N.Y. 2008)
44. Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870 18
(3d Cir.)

STATUTORY PROVISIONS
S. No. Statute Name Page No.
1. Copyright Act, § 1400(a), No. 773, Acts of Congress, 1948 (U.S.) 9

2. Copyright Act, § 106, Acts of Congress, 1976 (U.S.) 9

3. Copyright Act, § 101, Acts of Congress, 1976 (U.S.) 21

4. Copyright Act, § 102, Acts of Congress, 1976 (U.S.) 18

5. Copyright Act, § 107, Acts of Congress, 1976 (U.S.) 17

6. Digital Millennium Copyright Act, 1976, s. 512. 29

7. Copyright Act, § 1391(b), No. 773, Acts of Congress, 1948 (U.S.) 9

8. Copyright Act, § 1350, (2018) (U.S.) 16

ARTICLES
S. No. Name Page No.
1. Abhinav Goswami, The Essentiality of Authors' Personhood: An 33
Ecumenical Perspective to Droit Morale, 6 UPES L.R., 98 (2021)
2. Kristin B. Hopkins, When I Die Put My Money in the Grave: 31
Creating a Federally Protected Post-Mortem Right of Publicity,
AMERICAN BAR ASSOCIATION, (2023)
3. Madhavi Goradia Divan, The Commodification of Celebrities: 32
Rights of Publicity, P.L, 16 (2009)
4. Melville B. Nimmer & David Nimmer, 4-18 Nimmer On Copyright 16
§ 18.06 (2003)
5. Pratima Narayan, Beyond the Grave: Exploring the Legality of 31
Posthumous Publicity Rights, SCC TIMES, (2023)
6. Shounak Banerjee, Intermediary Liability in USA and India: To 27
Block or Not to Block, 4 C&M Ent. Tech. L. Rev. 1 (2017)
7. Shreya Goswami, Must the Messenger be Shot? - Liability of 29
Internet Intermediaries, 3.1 J. Crim. L. & Jurisprudence 721 (2022)

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 Treaties
S. No. Name Page No.
1. Berne Convention for the Protection of Literary and Artistic Works, 16
1971, 1161 U.N.T.S. 3.

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 STATEMENT OF JURISDICTION

The petitioners most humbly and respectfully submit that this hon’ble district court of
kryptonite city, usa has the requisite territorial and subject matter jurisdiction to entertain and
adjudicate this matter under section 106 and section 106A read with section 501 and section
1400(a) of the copyright act of 1976,1 and under section 1391(b) of title 28 of the U.S. code,2
as the offence of copyright infringement and breach of moral and personality rights was
committed within the jurisdiction of this hon'ble court.

A combined reading of section 501(b) of the copyright act with section 1400(a) and section
1391(b) of the U.S. code3 establishes the jurisdiction of this hon'ble court to hear and adjudicate
the matter.

1
Copyright Act, § 106, § 106A, § 501, § 1400(b), Acts of Congress, 1976 (U.S.).
2
28 U.S.C. § 1391(b), Acts of Congress, 1948 (U.S.).
3
Id; supra note 1.

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 STATEMENT OF FACTS

• Agatha Rose, a renowned author from Kryptonite City, USA, was celebrated for her
popular murder mystery series, Lurking in the Dark, which was inspired from real-life
crimes with additions of her unique creative vision and characters. Tragically, Agatha
passed away on June 20, 2024, before the release of the third book in her series. In her
honour, Polar Publishing House, Ltd., hosted a special book reading event, sharing the
first three chapters of the final book, and announcing that the remaining chapters would
be released in two parts, with Part 1 available for pre-release on August 31, 2024.
• Jennie and Alex, fans of Agatha from Bluestock, Indiga, accessed a preview of Part 1
through ReadBook4Free, the only platform providing a preview of the pre-release in
Indiga. The respondents used AnswerAI, an AI tool, to generate a speculative ending
based on the preview content and the book reading event. The AI-generated material
included an alternative plotline that was not part of Agatha’s work.
• Jennie and Alex then wrote a fanfiction based on the AI-generated content and
published it on the fanfiction website We Write. They used an AI-generated image of
Agatha as the book cover and incorporated an AI-generated voice of Agatha to narrate
the fanfiction. While they included a disclaimer in small font, noting the work as
fictional and non-commercial, their fanfiction quickly gained popularity and began
influencing the reader community. The use of Agatha’s likeness and voice blurred the
lines between the original work and the fanfiction, misleading some readers and diluting
the suspense Agatha had carefully crafted.
• The growing attention on Jennie and Alex’s fanfiction led to confusion and
overshadowed the anticipation of the official release of Agatha’s writings. Upon
discovering the fanfiction, Agatha’s PR team and Polar Publishing House filed a lawsuit
against Jennie, Alex, and We Write in the District Court of Kryptonite, USA, alleging
copyright infringement and a breach of moral and personality rights.

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 STATEMENT OF ISSUES

1. Whether Court has the appropriate Jurisdiction to hear the matter?

2. Whether Jennie & Alex commit copyright infringement?
3. Whether the defence of Fair Use and Transformative work be taken by Jennie &
Alex?
4. Whether WeWrite be held liable as an intermediary?
5. Whether the use of AI in mimicking the voice of Agatha violate the personality right?

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 SUMMARY OF PLEADINGS

1. THE DISTRICT COURT OF KRYPTONITE HAS THE JURISDICTION.

The counsel submits that the District Court of Kryptonite has jurisdiction over the copyright
infringement claims against the Respondents. Under 28 U.S.C. §§ 1400(a) and 1391(b),
jurisdiction exists because the cause of action arose in the U.S., where their AI-generated
fanfiction misled consumers and harmed Polar Publishing House's pre-booking sales. The
Personal jurisdiction is established through the "effects test" as the Respondents intentionally
targeted the U.S. market and creating harm to Agatha’s work. Furthermore, extraterritoriality
is an element of the copyright claim, not a jurisdictional barrier and thereby, allowing for
jurisdiction to reside in U.S. Finally, it is contended that U.S. derives jurisdiction from the
concept of Alien Tort Statute (ATS). Therefore, in conclusion, the District Court of Kryptonite
has the authority and jurisdiction to hear these claims against the fanfiction and Respondents.

2. THE FAN-FICTION WRITTEN BY JENNIE & ALEX CONSTITUTES

COPYRIGHT INFRINGEMENT.

The counsel puts for the submission that the fanfiction created by Jennie and Alex constitutes
clear copyright infringement of Agatha's original work. The material possesses distinct
originality, meeting all legal criteria for copyright protection under U.S. law. However, Jennie
and Alex have unlawfully copied original, protected elements of Agatha's work, and thereby
infringing copyrights. Their fanfiction also abridged the right of control over the derivative
works of the owner as it directly borrows from Agatha’s copyrighted material without
authorization, violating the exclusive rights granted under 17 U.S.C. § 106(2). Furthermore,
Respondent's actions infringe Agatha's moral rights, notably the right of attribution and the
right of integrity, by misleading readers regarding the origin of their work and harming Agatha's
reputation. In summation, the respondents are liable for copyright infringement.

3. THE COPYRIGHTED WORK DOESN’T FALL UNDER ANY OF THE

STATUTORY EXCEPTIONS.

The counsel submits that the fanfiction clearly infringes Agatha’s copyright and does not
qualify for the fair use exception under Section 107 of the Copyright Act. The work fails to
meet the transformative-use standard, as it merely reproduces original characters and plot
elements without adding new elements. Secondly, Agatha's work is highly creative and
imaginative, deserving strong protection under copyright law, which the fanfiction undermines

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by copying substantial and integral parts of her original narrative. Furthermore, their actions
threaten the current and future markets for Agatha’s work by potentially substituting for her
original creation and diluting its value. Thus, the counsel affirms that their use is not fair,
constituting copyright infringement.

4. WEWRITE IS LIABLE AS AN INTERMEDIARY.

The Counsel submits that We Write is liable for copyright infringement as an intermediary,
facing secondary liabilities for causing contributory, inducement, and vicarious infringement.
We Write is responsible for contributory infringement due to its knowledge of the infringing
content and its material contribution in enabling users to upload and distribute infringing
fanfiction. Additionally, it is contended that We Write also faces vicarious infringement claims
for profiting from infringing content while having the ability to control and limit it. While We
Write may invoke the safe harbour provision under § 512 of the Copyright Act, it cannot defend
itself, as it failed to promptly take down the infringing material upon acquiring knowledge.
Lastly, We Write retains substantial control over uploaded content, as indicated by its ability to
manage and monitor material on its site. Therefore, We Write's is liable for copyright
infringement as an intermediary.

5. THE USE OF AI IN MIMICKING THE VOICE OF AGATHA VIOLATES THE

PERSONALITY RIGHT INFRINGEMENT OF VOICE RIGHTS.

The counsel submits that the AI-generated imitation of Agatha 's voice infringes her personality
rights, particularly her right of publicity. Agatha’s voice is a distinctive trait protected under
these rights, and its unauthorized use constitutes a violation that extends posthumously. This
misuse leads to commercial exploitation without lawful authorization and undermines her
moral rights against derogatory treatment of her persona. The AI-generated voice closely
resembles Agatha’s unique characteristics, misrepresenting her identity and diminishing the
commercial value of her brand. The Respondents’ actions result in false endorsement and
unlawfully leverage her voice to enhance their fanfiction, misappropriating her likeness for
their benefit. Furthermore, by using her voice without consent, the Respondents mislead the
public regarding her association with the fanfiction, infringing on her rights of attribution and
integrity. Thus, this unauthorized imitation violates Agatha's personality rights and adversely
affects her reputation and commercial interests.

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 DETAILED PLEADINGS
1. THE DISTRICT COURT OF KRYPTONITE HAS THE JURISDICTION
¶1. The counsel most humbly submits that, in cases of copyright infringement under §106
of the Copyright Act of 1976, the relevant jurisdictional statutes are §1400(a) and
§1391(b) of 28 U.S.C.,4 which provide clear guidance on where a copyright
infringement suit may be filed. According to these provisions, a suit can be filed in any
of the following venues: “a) Where the defendant resides b) Where the cause of action
arose c) In any district where the defendant is subject to personal jurisdiction”.5 In the
Present case, although the infringement is extraterritorial, the counsel contends that 1.1)
The cause of Action arose in USA, and 1.2) The Respondents are subject to personal
jurisdiction on by Application of Effect Test. Additionally, the counsel contends that
jurisdiction at Kryptonite district Court is reaffirmed by 1.3) Extraterritoriality as an
Element of Copyright Infringement, not a Jurisdictional Question and 1.4) The Alien
Tort Statute provides jurisdiction for extraterritorial copyright infringement.
1.1. The Cause Of Action Arose In USA
¶2. The counsel submits that the infringement by Jennie and Alex occurred in Indiga but
had significant effects in the U.S. Their AI-generated fanfiction based on Agatha's work
was distributed on "We Write", creating confusion among readers and impacted the
commercial viability of the original work. The global availability of their fanfiction
disrupted the Publisher’s pre-booking sales, as consumers have been misled into
believing the work was authorized. This confusion undermined the integrity of the
original work and posed a tangible threat to the publisher's financial interests in the U.S.
¶3. The Court in Spanski Enterprises, Inc. v. Telewizja Polska, S.A.6 held that a
copyright infringement falls within the purview of U.S. laws if there the impact is over
U.S, regardless of the the location of the infringement. In light of the above, the counsel
submits that the Kryptonite District Court has proper jurisdiction over the copyright
infringement claims. Although the infringement originated in Indiga, the substantial
effects on U.S. markets, including misleading consumers and threatening Polar
Publishing House’s financial interests, firmly establish jurisdiction under §1400(a) and
§1391(b).7

4
supra note 1; supra note 2.
5
Id.
6
Spanski Enterprises, Inc. v. Telewizja Polska, S.A., No. 17-7051 (D.C. Cir. 2018).
7
supra note 1.

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1.2. The Suit Has Jurisdiction USA Based On Personal Jurisdiction Principles
¶4. The counsel humbly submits that the effects test, established in Calder v. Jones,8 is
applicable in determining personal jurisdiction in cases involving extraterritorial
copyright infringement by following reasons.
¶5. Intentional Act: Jennie and Alex with the assistance of AI tools intentionally uploaded
fanfiction based on Agatha’s copyrighted work on We Write platform. This fanfiction
closely mimicked the plot of the third book in Agatha’s Lurking in the Dark series and
though it provides an alternative ending, it’s still based on the plot created by Agatha.
¶6. Express Aiming at the Forum State: Jennie and Alex’s actions, though occurring in
Indiga, were expressly aimed at the U.S., where Agatha was a celebrated author with
an established readership. Their fanfiction, which copied and altered elements of Rose’s
work, was published on a platform accessible in the U.S., targeting her fanbase and
reputation there, thus explicitly aiming their actions at the forum state.
¶7. Foreseable Harm in the forum state: Jennie and Alex were aware that their fanfiction
would harm the U.S. market. Its widespread circulation on a public platform caused
confusion among readers and diluted the unique narrative of Agatha’s work,
overshadowing the official release of her third book and harming Polar Publishing’s
commercial interests, particularly in pre-booking sales. The harm was concentrated in
the U.S., where Agatha’s work holds significant economic value.
1.3.Extraterritoriality as an Element of Copyright Infringement, Not a Jurisdictional
Question9
¶8. The counsel humbly submits that the Supreme Court ruling in Arbaugh10 established a
bright-line rule i.e. When legislature does not explicitly state a statutory limitation as
jurisdictional, Courts must treat such a restriction as non-jurisdictional in character.
Under the copyright Act, 1976 the legislature did not explicitly make extraterritoriality
a jurisdictional bar in the Copyrights Act,1976. Thus, based on the reasoning provided
in Arbaugh,11 the territorial scope of copyright infringement should be considered as
an element of the claim, not a matter of subject matter jurisdiction. Moreover, it is
contended that the absence of jurisdictional language in the statute indicates that

8
Calder v. Jones, 465 U.S. 783 (1984).
9
Geophysical Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d 785, 791 (5th Cir. 2017).
10
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).
11
supra note 10.

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 Congress intended extraterritoriality to be part of substantive question of whether an
act of infringement has occurred, not whether the Court has authority to hear the case.12
¶9. Therefore, claims related to extraterritorial infringement fall under the merits of the
case rather than the Court’s jurisdiction. On this reasoning the counsel contends that
there is significant distinction, as jurisdictional limitations preclude Courts from even
hearing a case, whereas treating extraterritoriality as an element of the claim allows
Courts to assess the facts and legal arguments on a case-by-case basis, ensuring a fuller
examination of the issues at hand.
¶10. In the case of GlowProducts13, the Court held that whether an accused action falls
within the territorial limits of U.S. copyright law is an issue of statutory interpretation
and an element of the claim, rather than a restriction on federal Courts' jurisdiction.
This statement recognizes the need for an independent judicial analysis to determine
whether the case can proceed on the merits, not whether the Court has initial authority
to hear it.
1.4.The Alien Tort Statute (ATS) May Serve as a Jurisdictional Basis for Claims of
International Copyright Infringement Occurring Outside of the U.S.
¶11. The Alien Tort Statute (ATS), 28 U.S.C. § 1350,14 provides U.S. federal Courts with
jurisdiction over civil actions brought by aliens for torts committed in violation of the
law of nations or a treaty of the U.S.. The counsel submits that ATS serves as a
jurisdictional basis for claims of international copyright infringement based on-
¶12. International Copyright Infringement Violates the Law of Nations: The counsel
humbly submits that claims of copyright infringement fall within the purview of the
ATS, as such conduct violates the "law of nations" or customary international law.
Customary international law is formed by consistent state practices followed out of a
sense of legal obligation. In this context, international copyright protection is
established as a component of customary international law, supported by treaties such
as the Berne Convention and the Trade-Related Aspects of Intellectual Property Rights
(TRIPS) Agreement.15 These multilateral treaties enjoy near-universal ratification, with
162 nations party to the Berne Convention and 149 members of TRIPS.16 Consequently,
international copyright infringement constitutes a breach of the consensus among

12
Litecubes, LLC v. Northern Light Products, Inc., 523 F.3d 1353, 1368 (Fed. Cir. 2008).
13
Id.
14
Copyright Act, § 1350, (2018) (U.S.).
15
Berne Convention for the Protection of Literary and Artistic Works, 1971, 1161 U.N.T.S. 3.
16
Melville B. Nimmer & David Nimmer, 4-18 Nimmer On Copyright § 18.06 (2003) at 17.01.

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 member states regarding the necessity of copyright protection. In Sarei, the Court held
that ratification of the United Nations Convention on the Law of the Sea (UNCLOS)
was sufficient to establish a basis for an ATS claim.17 Similarly, the ratification of the
Berne and TRIPS agreements should qualify as a violation of the law of nations.
¶13. Copyright Infringement is a Tort Under U.S. Law: The counsel humbly submits that
copyright infringement satisfies the second prong of the ATS, as it is tortious in nature.
Copyright infringement is recognized as a tort under both state common law and federal
statutory law in the U.S..18 Since it is treated as a tort domestically, the same
characterization should apply to extraterritorial infringement. There is no rationale to
differentiate between domestic and international infringing acts based solely on
geographic location, as the fundamental nature of the act namely, the infringement of
an author's rights remains unchanged.19
¶14. The ATS Applies to Extraterritorial Copyright Infringement: The counsel humbly
submits that the ATS possesses extraterritorial reach. In Kiobel,20 the Supreme Court
held that ATS claims must "touch and concern" the U.S. with sufficient force to warrant
jurisdiction. Subsequent rulings indicate that claims may proceed if they involve
significant U.S. interests or if the defendants maintain substantial connections to the
U.S. In this case, Jennie and Alex’s actions significantly affect U.S. jurisdiction,
especially since a majority of Agatha's fan base is in Kryptonite City, USA. Their
fanfiction has overshadowed the anticipated release of the original work, potentially
impacting pre-booking sales and tarnishing Polar Publishing House's reputation. Thus,
there is sufficient “touch and concern” to U.S. jurisdiction, making the ATS applicable
for the copyright infringement claims.
2. THE FAN-FICTION WRITTEN BY JENNIE & ALEX CONSTITUTES
COPYRIGHT INFRINGEMENT
¶15. The counsel respectfully submits that Agatha’s work, which is distinctively original,
bears a unique expression, solidified through its publication. As the rightful owner of
this copyrighted material, Polar Publishing House and Agatha retain exclusive rights
under Sections 106 and 106A of the Copyright Act, 1976. These rights include control
over reproduction, derivative works, and moral rights tied to the work. In light of this,

17
Sarei, 456 F.3d at 1078.
18
De Gette v. Mine Co. Rest., Inc., 751 F.2d 1143, 1145 (10th Cir. 1985).
19
U.S. v. Smith, 18 U.S. 153 (1820).
20
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013).

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 the counsel contends that 2.1.) Jennie and Alex’s actions amount to copyright
infringement for the following reasons: 2.1.1) Polar Publishing House holds a valid
copyright ownership; 2.1.2) Jennie and Alex have unlawfully copied original, protected
elements of the work; 2.2) Jennie and Alex further infringed the rights to create
derivative works; 2.3) As well as the moral rights of Ms. Agatha, 2.3.1) Violating the
right to attribution and 2.3.2)Infringing the right to integrity.
2.1. The Ingredients Of Copyright Are Met
2.1.1. Polar Publishing House Holds A Valid Copyright Ownership
¶16. The counsel for the Claimant respectfully submits that the novel Lurking in the Dark,
authored by Agatha, satisfies all the necessary legal requirements for copyright
protection under U.S. copyright law. Pursuant to 17 U.S.C. § 10221 (a), a work is eligible
for copyright protection if it meets three essential criteria: (a) originality, (b) fixation in
a tangible medium of expression, and (c) expression. In this case, it is contended that
Agatha’s work meets these requirements.
¶17. Originality and Creativity: Under the landmark decision in Feist Publications,22 the
Supreme Court established that for a work to be original, it must possess certain degree
of creativity. Importantly, Feist clarified that the threshold for creativity is low where
even a modest amount of creative input is sufficient to render a work original.
¶18. In the present case, Agatha’s novel, while inspired by real-life murder cases, introduces
substantial creative elements that go beyond mere factual summation. Agatha has not
simply reproduced facts but has transformed and adapted these events by incorporating
fictional elements, altering details, and weaving them into a cohesive, original narrative.
These creative modifications meet the requisite “modicum of creativity” required under
Feist. Accordingly, the novel demonstrates sufficient originality to warrant copyright
protection.
¶19. Fixation in a Tangible Medium: The Claimant further submits that the requirement of
fixation, as outlined in 17 U.S.C. § 102(a), is clearly satisfied. Agatha’s novel exists in
a tangible form, namely, a written, published book, which is “fixed in a tangible medium
of expression” and therefore qualifies for protection. The Court’s holding in Williams
Electronics, 23
reinforces that once a work is recorded or embodied in a stable,

21
Copyright Act, § 102, No. 17 U.S.C., Acts of Congress, 1976 (U.S.).
22
Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
23
Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870 (3d Cir. 1982).

18 | P a g e
 permanent form (other than the human mind), it meets the fixation requirement. Rose’s
work, available in book form, unequivocally satisfies this criterion.
¶20. Idea-Expression Distinction: Lastly, the Claimant submits that Lurking in the Dark
successfully distinguishes between the underlying ideas and their expressive form, a
distinction crucial to copyright protection. In Baker v. Selden, the Court clarified that
copyright law protects the expression of ideas, not the ideas themselves.24 In this case,
while Agatha’s novel may be inspired by real-life events, her unique narrative structure,
character development, and the particular details constitute an original expression of
these ideas.
¶21. Furthermore, as established in Sid & Marty Krofft,25 the test for determining whether
expression is distinct from an idea is whether the work adds original elements that
reflect the author’s creativity. Here, Rose’s alteration and reimagining of factual
incidents to fit within her novel’s fictional framework demonstrate a clear and creative
transformation of raw ideas into expressive content. This differentiation satisfies the
legal requirement for protectable expression. Therefore, it is submitted that Agatha’s
writings meet all the statutory requirements and is eligible for copyright protection and
is eligible for copyright protection.
2.1.2. Jennie And Alex Have Unlawfully Copied Original, Protected Elements Of The
Work
¶22. The counsel submits that respondents' have committed copyright infringement by
copying of constituent elements of Agatha's original work. In this regard, the counsel
makes following submissions-
2.1.2.1. Copying of Original Elements:
¶23. A fundamental requirement in proving copyright infringement is the unauthorized
copying of original elements of the work. In Feist Publications,26 the U.S. Supreme
Court established that copyright protection extends only to original aspects of a work.
The respondent’s actions blatantly copy the central characters, plotlines, and unique
stylistic choices that define Agatha’s literary legacy. These are all protected under
copyright law, as they embody creative expression rather than mere ideas.
¶24. The respondents had clear access to Agatha’s works, having participated in reading
sessions and pre-releases of her unpublished material. They used these materials to

24
Baker v. Selden, 101 U.S. 99 (1880).
25
Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977).
26
supra note 22.

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 construct their fanfiction, incorporating entire plot elements and critical narrative
structures. Courts have long held that access coupled with substantial similarity can
infer copying, as seen in Ellis v. Diffie.27 Thus, the deliberate copying is sufficient to
establish unlawful appropriation, as in the case of Laureyssens.28
2.1.2.2. There is Substantial Similarity Between the Works
¶25. The two-prong test for substantial similarity, as established in Kohus v. Mariol,29 are
filtering out unprotectable elements and then assessing whether the protectable
elements are substantially similar. Here, the respondents copied not just general themes
or tropes but also the protectable elements specific to Agatha’s original writings.
¶26. Under the "Ordinary Observer" test, as applied in Ellis,30 the central question is whether
the ordinary reader would view the respondents' work as substantially similar to the
original. The respondents' work borrows key characters, distinctive plot twists, and
even stylistic expressions unique to Agatha’s voice. A lay observer would undoubtedly
find the respondents' work derivative of Agatha’s original series.
¶27. Failure of Independent Creation Defense: While defendants in copyright cases often
raise the defense of independent creation, here it does not apply. Jennie and Alex's
fanfiction was derived directly from pre-released content, including unreleased
narrative details, making their claim of independent creation unsustainable. In Robert
R. Jones Associates,31 access to a partial design was sufficient to establish copying.
Similarly, Jennie and Alex had more than sufficient access to Agatha’s protected work.
2.1.2.3. The Merger Doctrine Defense Is Not Applicable
¶28. The Defendants may attempt to argue the application of the doctrine of "Merger," which
states that when there is only one or a limited number of ways to express an idea, the
expression merges with the idea, and thus is not protected.32 However, this defense fails
in this case because the literary elements at issue—such as plot progression, specific
dialogues, and character arcs—are not merely ideas, but original expressions of ideas.
¶29. There are numerous ways to write crime fiction or develop murder mystery stories, and
the Defendants have chosen to copy Agatha’s specific expression of these ideas. The
narrative twists, suspense-building techniques, and character interactions in her series

27
Ellis v. Diffie, 177 F.3d 503, 507 (6th Cir. 1999).
28
Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir. 1992).
29
Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003).
30
supra note 27.
31
Robert R. Jones Associates, Inc. v. Nino Homes, 858 F.2d 274 (6th Cir. 1988).
32
Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir. 1991).

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 are distinct and creatively constructed, thus falling squarely within the protections of
copyright law. The Defendants cannot claim that there was only one way to develop a
narrative similar to Rose’s; their work reflects the copying of specific creative elements.
2.2. Jennie And Alex Infringed The Right To Make A Derivate Work Over The
Copyrighted Work
¶30. The counsel humbly submits that Jennie and Alex have infringed upon Polar Publishing
House and Agatha's exclusive right to create derivative works as defined under 17
U.S.C. § 101.33 The copyright owner possesses the exclusive right to prepare derivative
works based on the original copyrighted work under 17 U.S.C. § 106(2).34 A "derivative
work" is defined as a work based upon one or more preexisting works, encompassing
any form in which the original work may be “recast, transformed, or adapted”.
¶31. In this case, Jennie and Alex's creation of fanfiction directly borrows characters,
settings, and themes from Agatha’s copyrighted works. This constitutes a derivative
work, transforming the original content into a new medium without permission from
Polar Publishing or Agatha. Thus, in the lines of Walt Disney Productions,35, the
fanfiction produced by Jennie and Alex is not an independent creation but rather a
reproduction of existing elements from the original copyrighted work.
¶32. Additionally, the Court in Alfred Bell Co.36 held that works consisting of actual copying
are not original. By this rationale, Jennie and Alex merely reimagining the preexisting
elements without any additions fails the originality test. Though the copyright
protection for derivative works is low, it still requires substantial originality as
emphasised in L. Batlin & Son, Inc.37 Thus, the counsel submits that Jennie and Alex
have clearly infringed upon the exclusive right to create derivative works by unlawfully
transforming Agatha’s copyrighted material into fanfiction and AI-generated content.
2.3. Jennie and Alex infringed the Moral rights of Ms. Agatha
¶33. The counsel for the Claimants respectfully submits that Jennie and Alex have gravely
infringed upon the moral rights of the Ms. Agatha as protected under 17 U.S.C. §
106A(a)(3). In this case, the respondents' actions have not only diluted the original
creative intent of Ms. Rose’s work but have also misled the public by circulating

33
Copyright Act, § 101, No. 17 U.S.C., Acts of Congress, 1976 (U.S.).
34
Copyright Act, § 106(2), No. 17 U.S.C., Acts of Congress, 1976 (U.S.).
35
Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978).
36
Alfred Bell Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951).
37
L. Batlin Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.).

21 | P a g e
 alternative theories and narratives under the guise of fanfiction. Thus, the counsel
submits-
2.3.1. Violation of the Right of Attribution
¶34. The right of attribution grants an author the right to be properly identified as the creator
of a work and to prevent false attribution. In the case of Mattel, Inc.,38 it was established
that misrepresentation of the origin of creative work amounts to wrongful attribution.
By using an AI-generated image of Agatha on their fanfiction cover and her AI voice
for narration, Jennie and Alex misled readers into believing that their fanfiction was
linked to Agatha’s original work. This amounts to misattribution, which is
impermissible in law.
¶35. The counsel submits that by adopting large portions of Agatha’s work with minimal
alterations, the respondents created confusion about the origin of the fanfiction. Such
misleading conduct is akin to a violation of Agatha’s right to claim authorship and to
control the association of her name with derivative works.
¶36. Moreover, Jennie and Alex's use of an AI-generated image resembling Agatha, as well
as an AI voice narrating the fanfiction, further entrenches this false attribution. In
Gilliam v. American Broadcasting Companies, it was held that modifications to a work
without the author’s consent distort the original meaning. Here, the usage of Agatha’s
likeness, both visually and aurally, falsely attributes authorship of the fanfiction to
Agatha, misleading her established readership.
2.3.2. Violation of the Right of Integrity
¶37. The right of integrity protects authors from modifications that harm their reputation or
distort their work’s original meaning. In Harper & Row,39 it was established that
unauthorized use or alteration of a copyrighted work could lead to reputational damage
to the author. The substandard quality of Jennie and Alex’s fanfiction, derived from
Agatha’s original work, falls short of Agatha’s well-known standards. The respondents
uploaded their content on a public platform, where it was misattributed to Agatha,
causing reputational harm to the esteemed author.
¶38. In Carter I40 and Carter II,41 the Courts emphasized the importance of preventing
modifications that are prejudicial to an artist’s standing. Jennie and Alex’s

38
Mattel, Inc. v. MCA Records, Inc., 28 F. Supp. 2d 1120 (C.D. Cal. 1998).
39
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 563 (1985).
40
Carter v. Helmsley-Spear ("Carter I"), 861 F.Supp. 303, 313 (S.D.N.Y. 1994),
41
Carter II, 71 F.3d 77 (2d Cir. 1995).

22 | P a g e
 modifications, promoted as fanfiction, blurred the lines between official and
unauthorized works, leading to public confusion and diluting the reception of Agatha’s
intended narrative. Additionally, in Carter v. Helmsley-Spear, Inc.,42 the Court noted
that distortions or unauthorized alterations of a work could be prejudicial to the honour
or reputation of the original author. The fanfiction published by Jennie and Alex
contains significant modifications of Agatha’s original content. Such unauthorized
changes distort the creative vision of Agatha, prejudicing her honour and professional
reputation. Readers who consumed the fanfiction mistakenly believing it to be Agatha’s
own work were exposed to a lower quality product. This inevitably harms Agatha’s
standing as a respected author and violates her right of integrity. Thus in conclusion,
Jennie and Alex’s actions have abridged Agatha’s moral rights, specifically the right of
attribution and the right of integrity.
3. THE COPYRIGHTED WORK DOESN’T FALL UNDER ANY OF THE
STATUTORY EXCEPTIONS
¶39. The counsel most humbly submits that the work of Jennie and Alex constitutes clear
copyright infringement and does not qualify under the statutory exceptions outlined in
Section 107 of the Copyright Act, which governs the doctrine of fair use. The counsel
contends that the respondent’s fail to meet the criteria for fair use for following
compelling reasons: 3.1) The purpose and character of the use do not reflect
transformative work. 3.2) The nature of the copyrighted work is highly creative and
imaginative, falling within the core of works that copyright law seeks to protect. 3.3)
The amount of the copyrighted material used is substantial and integral to the original
work. 3.4) Their actions have caused potential harm to the present and future market of
the copyrighted work.
3.1. The Purpose And Character Of The Use Is Not Transformative Work
¶40. The counsel humbly submits that Jennie and Alex's AI-generated fanfiction does not
satisfy the transformative-use standard under the first factor of the fair-use defense, as
outlined in Campbell.43 The Court held that a key factor in determining whether a work
is transformative is whether the new work "merely supersedes the objects of the original
creation" or "adds something new, with a further purpose or different character." To
qualify as transformative, a use must add new insights, aesthetics, or value beyond

42
Supra Note 39.
43
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

23 | P a g e
 repurposing the original work. In this case, Jennie and Alex’s fanfiction falls short of
this standard. They took verbatim content from Agatha’s original work, reproducing the
plot and characters without offering any creative elements. The alternate ending
provided does not serve a distinct or new purpose but rather targets the same fan base
by retaining the same intrinsic value. This mirrors the ruling in Bill Graham Archives,44
where the Court found the lack of meaningful transformation to weigh against fair use.
¶41. Moreover, while commerciality alone does not negate fair use, Campbell recognized
that it does weigh against the defendant when the use is not significantly
transformative.45 Although the fanfiction was available to public, the effect of
publishing the fanfiction was increase of fan base and even potential generate future
revenue. Additionally, as highlighted in Castle Rock Entertainment,46 a critical factor
is whether the secondary work substitutes for the original. Jennie and Alex’s fanfiction
could potentially diminish the demand for Agatha’s future publications which also
harms the market for derivative works.
¶42. Finally, in Paramount Pictures Corp.,47 the Court found that a fanfiction based on Star
Trek violated copyright, despite being a tribute. Jennie and Alex’s work similarly draws
heavily from Rose’s original characters and narrative, failing to meet the
transformative-use standard under fair use. In conclusion, Jennie and Alex’s fanfiction
does not qualify as transformative, and thus does not satisfy the first factor of the fair-
use defense.
3.2. The Nature Of The Copyrighted Work Is Highly Creative And Imaginative, Falling
Within The Core Of Works That Copyright Law Seeks To Protect.
¶43. The Counsel humbly submits that Agatha’s work is highly creative, imaginative, and
falls squarely within the core of copyright protection. As recognised in Campbell,48 the
more creative and fictional a work, the stronger the protection under copyright law.
Agatha’s work represents a wholly original and fictional universe populated by
imaginative characters, intricate plots, and detailed world-building. The Court in
Harper & Row, Publishers,49 held the law recognizes a greater need to protect fictional
works over factual ones, due to the author's unique creative choices it cannot be easily

44
Bill Graham Archives v. Dorling Kindersley Ltd, 448 F.3d 605.
45
supra note 42; Elvis Presley Enters. v. Passport Video, 349 F.3d 622 (9th Cir. 2003).
46
Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998).
47
Paramount Pictures Corp. v. Carol Publishing Group, Inc., 11 F. Supp. 2d 329, 336 (S.D.N.Y. 1998).
48
supra note 42.
49
supra note 38.

24 | P a g e
 replicated without infringing on her rights. Similarly, the Court in the cases of Castle
Rock50 and Twin Peaks Production51 held that the second factor favors a creative and
fictional work.
¶44. While transformative use may diminish the importance of the creative nature of a work
in some cases, Jennie and Alex’s AI-generated fanfiction lacks significant
transformation as it merely reproduces substantial elements of Rose's work. In Castle
Rock Entertainment,52 the Court emphasized that when secondary works are not
transformative, the creative nature of the original remains a critical factor that weighs
against fair use. Similarly, in Paramount Pictures Corp.,53 the Court held that minimal
transformation does not excuse the copying of original fictional works.
¶45. Copyright law’s core purpose is to protect the author’s creative efforts and encourage
the creation of new works by giving authors control over their creations. As affirmed in
Stewart v. Abend,54 the protection of fictional works is essential because they arise from
an author’s personal investment of creativity. As protection granted to J.K. Rowling’s
universe in Warner Bros. v. RDR Books,55 Agatha’s fictional world deserves the same
protection from such unauthorized use.
3.3. The Amount Of Copyrighted Material Used Is Substantial And Integral To The
Original Work
¶46. The counsel humbly submits that the respondents' use of copyrighted material from
Agatha’s original works is substantial, and the quantity taken is integral to the creativity
and value of the original. As outlined in Campbell,56 the third factor of the fair-use
analysis considers not only the quantity of material copied but also its "quality and
importance." The respondents' fanfiction copies large sections of Agatha’s original
work which includes the first three chapters, the base story, the characters, and the core
plot, all of which are essential elements that form the heart of Rose’s creation. Similarly,
In Salinger v. Random House,57 the Court held that even when a book is not
substantially copied in terms of volume, the appropriation of key elements of the
original text that embody its essence can still constitute copyright infringement.

50
supra note 45.
51
Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 F.2d 1366, 1376 (2d Cir. 1993).
52
supra note 45.
53
supra note 46.
54
Stewart v. Abend, 495 U.S. 207 (1990).
55
Warner Bros. Entm’t, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008).
56
supra note 42.
57
Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).

25 | P a g e
 Similarly, in the present case, the respondents have copied the unique expressions,
including the distinctive narrative structure and character arcs, which are critical to the
value of Agatha’s work.
¶47. As per the principle in Warner Bros. Entertainment Inc,58 the respondents’ wholesale
copying of key characters, narrative arcs, and detailed plot developments from Agatha’s
work is not only unnecessary but also constitutes an unjustifiable appropriation of the
creative essence of the original. Furthermore, in Craft v. Kobler,59 the Court ruled that
even small verbatim portions of a work, if they constitute highly expressive language
or integral parts of the original, amount to substantial copying. In this case, the
respondents have taken large portions of Rose’s narrative and characters—integral parts
of her original story—without making meaningful alterations or transformations, thus
failing to meet the third factor of the fair-use analysis.
¶48. Lastly, in Chicago Board of Education v. Substance,60 the Court held that some level
of copying might be permissible for transformative purposes, but the copying must be
limited to what is reasonably necessary for the new work’s purpose. Here, the
respondents' fanfiction does not limit its copying to factual reporting or short
summaries. Instead, it goes beyond what is reasonably necessary, copying both factual
and fictional elements of Rose’s works in their entirety, rendering the copying excessive
and unjustifiable. Given the substantial nature of the copying and the integral role that
the appropriated material plays in Agatha’s original works, it is clear that the
respondents have taken more than what is reasonably necessary to achieve their
purpose, thus the respondent’s fail to fall within the exception.
3.4. Their Actions Have Caused Potential Harm To The Present And Future Market Of
The Copyrighted Work.
¶49. The counsel humbly submits that Jennie and Alex’s use of Agatha’s copyrighted work
has caused significant harm to both the present and future markets for Rose’s work,
including potential derivative markets. The primary market for Agatha's original work
is directly affected by Jennie and Alex’s unauthorized use. Their fanfiction, which is
based on Rose’s original work, undermines the market for the copyrighted material in
two primary ways:

58
supra note 54.
59
Craft v. Kobler, 667 F. Supp. 120 (S.D.N.Y. 1987).
60
Chicago Board of Education v. Substance, Inc., 354 F.3d 624 (7th Cir. 2003).

26 | P a g e
 ¶50. Market Substitution: Jennie and Alex’s fanfiction could substitute Agatha’s original
work, especially where it parallels key themes and characters. In Campbell,61 market
substitution occurs when the secondary work lacks transformative purpose. Here, their
fanfiction is derivative rather than transformative, thus undermining Rose’s primary
market by providing an alternative experience of her intellectual property.
¶51. Market Confusion and Dilution: The fanfiction causes confusion and dilutes Rose’s
market. As seen in Warner Bros. v. RDR Books,62 even if not a full replacement, a
parallel publication erodes interest in the legitimate work by diverting readers to the
infringing fanfiction.
¶52. Jennie and Alex’s fanfiction also jeopardizes Rose’s ability to develop or license
authorized derivative works, such as sequels or adaptations. As recognized in Twin
Peaks Productions,63 copyright holders have exclusive rights to exploit derivative
markets. By creating an unlicensed fanfiction, Jennie and Alex intrude upon Rose’s
exclusive rights to create or license adaptations of her universe, damaging these
potential markets.
¶53. Moreover, the Court in Campbell64 emphasized that widespread infringement of the
same nature could further harm the market for the original work. If Jennie and Alex’s
actions are left unchecked, it may encourage others to create unauthorized fanfiction,
exacerbating the harm to both Rose’s current and potential markets. In Warner Bros.,65
even though a reference guide did not serve as a direct substitute, the Court found it
harmed the market for companion books. Similarly, Jennie and Alex’s fanfiction
threatens Rose’s future derivative works, including sequels or companion pieces. In
conclusion, Jennie and Alex’s fanfiction poses substantial market harm to Agatha’s
current and future markets, tipping the balance decisively against fair use. Therefore,
the counsel respectfully submits that this Court should find against the respondents.
4. WEWRITE IS LIABLE AS AN INTERMEDIARY
¶54. The counsel submits that We Write is liable for copyright infringement as an internet
intermediary. We Write falls within the category of indirect infringers and attracts
secondary liabilities.66 In the present case, the counsel submits that 4.1) We Write is be

61
supra note 42.
62
supra note 54.
63
supra note 50.
64
supra note 42.
65
supra note 54.
66
Shounak Banerjee, Intermediary Liability in USA and India: To Block or Not to Block, 4 C&M Ent. Tech. L.
Rev. 1 (2017).

27 | P a g e
 held liable for secondary copyright infringement as 4.1.1) There is Contributory
Infringement; 4.1.2) Inducement infringement is present; 4.1.3) We Write is liable for
Vicarious Infringement. Additionally, the counsel submits that 4.2) We Write is not
protected by the safe harbour provision, s.512 of Copyrights Act, 1976.
4.1. We Write Is Be Held Liable For Secondary Copyright Infringement:
4.1.1. There is Contributory Infringement
¶55. First, as pronounced in the case of A&M Records, Inc. v. Napster, the copyright
infringement is proven based on two prongs - it was within the knowledge of the
intermediary and there was a material contribution for causing such infringement.67 In
the present case, given the popularity of Agatha’s works, particularly the buzz
surrounding the release of the third book, WeWrite ought to have been aware that the
fanfiction, based on a substantial portion of the unreleased and protected content, is
infringing copyright. Further, the cover page is containing a disclaimer that mentions
the using AI to derive the alternative story from the original work. This highlights the
existence of knowledge on the part of WeWrite. Where there is no explicit knowledge,
it can also be imputed, as held in Perfect 10, Inc. v. Amazon.com.68 This fulfils the
knowledge requirement. With regards to the element of material contribution, by
providing a platform and enabling the Respondents to upload, promote, and distribute
their infringing fanfiction, WeWrite has materially contributed to the infringement.
Along with hosting and distributing, the online platform has also provided additional
features such as the read-aloud feature, which allowed the Respondents to
misappropriate Agatha’s voice through AI-generation. Further, even if a website has
“substantial non-infringing uses”, invoking such an argument will have no bearing as
the matter can still be brought within the scope of material contributory infringement.69
4.1.2. Inducement Infringement Is Present
¶56. Second, inducement infringement can be established wherein it attaches liability of
indirect copyright infringement to an entity who distributes any copyright infringing
works with the object of promoting its use, as held in Metro-Goldwyn-Mayer Studios
Inc. v. Grokster, Ltd.70 In consonance with the conclusion that there is material
contribution, We Write created an inducing effect on the public. It has been providing

67
A&M Records, Inc. v. Napster, 239 F.3d 1004, 1019 (9th Cir. 2001).
68
Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146, 1172 (9th Cir. 2007).
69
Id.
70
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).

28 | P a g e
 free and easy access to the users, enhancing the experience through vocal
narrations/audio books and benefiting from public promotion. This clearly indicates
that there is an active role of inducement by We Write.
4.1.3. We Write is liable for Vicarious Infringement
¶57. It is submitted that there is vicarious infringement, wherein the intermediary is
vicariously liable for indirect copyright infringement if they monetarily profit from a
direct infringement, while holding, but not exercising, the right to stop or limit it”. In
other words, as concluded in the case of Metro-Goldwyn-Mayer Studios Inc. v. Grokster,
Ltd., if an indirect infringer monetarily benefits from a direct infringement, then it has
committed vicarious infringement of copyrights.71 In the present case, WeWrite
evidently benefited and profited indirectly from the infringing content, as popular
fanfiction and other creative contents drive traffic and engagement on the online
platform. As a result, the site’s popularity is driven up along with the revenue. Thus, by
hosting and distributing the infringed work of the Respondents, WeWrite profited from
the copyright violation. Furthermore, the infringing content is well within the area of
control of WeWrite. Hence, not exercising the power to take down and limit the use of
the fan fiction supplements the copyright violation.
4.2. We Write is not protected by the safe harbour provision
¶58. The defence of safe harbour cannot be invoked by the Respondents. To avail this
exception, the principle of safe harbour requires the intermediaries to take down the
infringing material promptly upon being aware of its presence on their platform. Only
upon fulfilment of this condition, the intermediaries can obtain the benefit of the
exceptions.72 The presence of control of the site over the uploaded contents is a crucial
factor in the application of the safe harbour provisions. The 9th Circuit Courts in Mavrix
Photographs, LLC v. Live Journal, Inc, articulated that, in cases where an online
website has control, the right of internet service providers for deriving protection under
the safe harbour provisions is extinguished.73
¶59. On applying this principle to the facts at hand, WeWrite cannot claim protection under
the doctrine of safe harbour. Despite learning and possessing the knowledge about the
infringing fanfiction, WeWrite did not take any measures for removing the material

71
Id.
72
Digital Millennium Copyright Act, 1976, s. 512; s.512 of DMCA (Title II); Shreya Goswami, Must the
Messenger be Shot? - Liability of Internet Intermediaries, 3.1 J. Crim. L. & Jurisprudence 721 (2022).
73
Mavrix Photographs, LLC v. Live Journal, Inc, 873 F. 3d 1045, 1052—57 (9th Cir. 2017).

29 | P a g e
 from their page and thus, the required condition is not met. The platform retains the
power to remove content that is offensive or abusive. This implies that the online
platform has control over what is posted and hosted in it. For this purpose, it is
reasonable to opine that there is active monitoring and management of the type of
content that is uploaded in the web page and the site has the absolute authority to decide
what content will remain and be accessible to the users.
5. THE USE OF AI IN MIMICKING THE VOICE OF AGATHA VIOLATES THE
PERSONALITY RIGHT INFRINGEMENT OF VOICE RIGHTS
¶60. The counsel respectfully submits that the AI generation of Agatha’s voice is violative
of her personality rights or publicity rights. In the present case, due to misappropriation
of the author’s voice, it is submitted that 5.1) Agatha’s voice is publicly recognised to
be protected under the right of publicity; 5.2) There is violation of the right of publicity
which continues to protect Agatha posthumously; 5.3) There is existence of commercial
damage/exploitation without lawful authorization and; 5.4) There is violation of
Agatha’s moral rights.
5.1. Agatha’s Voice Is Publicly Recognised To Be Protected Under The Right Of Publicity
¶61. As per Bloom & Hamlin v. Nixon, any unauthorised use or imitation of one’s persona,
style, and name, is an infringement amounting to a violation of intellectual property
rights.74 Further, as posited by Hirsch v S.C. Johnson & Sons Inc, the personality
rights extend beyond prominent traits, with a low threshold for recognisability.75 This
includes individuals' right to safeguard their distinctive traits, such as their voice. 76 In
the U.S., personality rights stem from the right to privacy, which, as established in
Pavesich v. New England Life Ins. Co., evolved into the right of publicity.77 With this,
publicity rights protect against the unauthorised publication of individuals’ private
information and commercial exploitation of aspects of their persona, including voice.
If the voice synthesised by AI can enable the public to associate it with the natural
person based on its timbre, intonation, and pronunciation style, it can be deemed to be
recognisable.

74
Bloom & Hamlin v. Nixon, 125 F 977 (CCED Pa 1903).
75
Hirsch v S.C. Johnson & Sons Inc, 90 Wis. 2d 379 (1979).
76
Seagull Song and Wang Mo, China’s first case regarding AI-generated voice Infringement, KING AND WOOD
MALLESONS, (2024), https://www.kwm.com/global/en/insights/latest-thinking/china-s-first-case-regarding-ai-
generated-voice-infringement.html.
77
Pavesich v. New England Life Ins. Co, 122 Ga 190: 50 SE 68 (1905).

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 ¶62. Considering the above principle, Agatha’s voice rights extend to the AI-generated
voice, and there is an infringement of her voice rights per se. The AI-generated voice
of Agatha, which is highly consistent with her timbre, intonation, pronunciation style,
etc., arouses ordinary people's thoughts or emotions related to the Agatha, and could
link the voice to her, thereby identifying her subject identity. In other words, the use of
Agatha’s voice in the fanfiction poses a high risk of misleading the audience into
believing that the work is original. Though the cover page mentions that it is fanfiction,
the read aloud feature would not convey the same to the listeners. The facts also reveal
that Agatha is a well-known author among the public. Thus, on application of the
reasonableness test, her voice is sufficiently recognizable among her large followings.
5.2. Posthumous survival of personality rights
¶63. Having established that voice rights fall within the ambit of personality rights (or
publicity rights), it is submitted that such a right survives a celebrity’s death 78 and
thereby protects their persona posthumously, following the legal principle laid down in
Price v Holoach Studios Inc.79 This ensures, not only their reputation and goodwill
being protected beyond their lifetime, but also preserves the commercial value of an
individual’s persona. Many states in US recognise posthumous publicity rights under
the State common law or statute.80 It is pertinent to note that right of publicity is akin
to intellectual property, and hence, should be treated as an intellectual property right.81
¶64. In the facts of the present case, the right of publicity of a celebrity like Agatha persists
even after her lifetime. In line with Factors Etc. v. Pro Arts, one of the primary reasons
for the right to be able to survive after her death is because she exploited her right of
publicity - her persona and identity - during her lifetime.82 She is a well-known and
celebrated author among the public. She has also built a reputation in the society with
that identity as the author of various works including, murder mystery novels. Granting
her post-mortem right would uphold the principle against unjust enrichment, prevent
deceptive advertising and serve to maintain confidence in contracts.83

78
Factors Etc. v. Pro Arts, 579 F.2d 215 (2d Cir. 1978).
79
Price v Holoach Studios Inc, 400 F. Supp 836 (SDNY 1975).
80
Pratima Narayan, Beyond the Grave: Exploring the Legality of Posthumous Publicity Rights, SCC TIMES,
(2023), https://www.scconline.com/blog/post/2023/10/24/beyond-the-grave-exploring-the-legality-of
posthumouspublicityrights/#:~:text=States%he%20US,before%20they%20are%20commercially%20exploited.
81
Bloom & Hamlin v. Nixon, 125 F 977 (CCED Pa 1903).
82
supra note 77.
83
Kristin B. Hopkins, When I Die Put My Money in the Grave: Creating a Federally Protected Post-Mortem Right
of Publicity, AMERICAN BAR ASSOCIATION, (2023),

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5.3. Lack of authorisation to use Agatha’s voice causing commercial damage
¶65. Recognised in Haelan Labs. v. Topps Chewing Gum,84 personality right, per se, has
more characteristic of a property, including the fact that it is a transferable right that can
be licensed for use by third parties.85 This implies that celebrities have the right of
publicity over their distinctive traits, such as their voice, which cannot be imitated
without permission.86 It protects individuals from unauthorised exploitation and uphold
the value of their identities.87 It also allows celebrities or even those moderately
renowned88 to have exclusive right to control and licence their personas, according to
the case of Bi-Rite Enterprises v. Button Master.89 Consequently, as noted in Zacchini
v. Scripps-Howard Broadcasting Co., any unlawful use of a celebrity’s distinctive traits
damages their commercial value.90
¶66. With the facts at hand, as a result of Agatha’s voice being integral to her brand or
identity as an author, the law mandates the obtaining of a licence before using her traits
or personalities for goods or services. With Agatha’s posthumous right of publicity
persisting, the Respondents and the “We Write” platform are prohibited from
commercially using or imitating her voice without a licence or lawful authorisation.
¶67. However, there is unauthorised imitation of Agatha’s voice by the Respondents, and the
AI-generated voice constitutes a violation of her personality rights and causes
commercial damage. In other words, the Respondents’ unauthorised use misrepresents
her identity, undermines her reputation, and diminishes the commercial value of her
brand. This is a case where there is unlawful personality merchandising by the
Respondents who have used the identity of Agatha to market their fanfiction work. They
have used AI technology to install Agatha’s voice into the read-aloud feature for their
fanfiction in order to attract the attention of the followers.
¶68. Thus, it can be said that Respondents procured no authorisation to commercially exploit
Agatha’s voice in the “We Write” platform's read-aloud feature. Unauthorised use of a
celebrity’s distinctive traits, like name, for commercial gain constitutes a violation of

https://www.americanbar.org/groups/entertainment_sports/publications/entertainment-sports-lawyer/esl-39-01-
spring-23/when-i-die-put-my-money-the-grave-creating-federally-protected-postmortem-right-publicity/.
84
Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir.).
85
supra note 79.
86
Tom Waits v Frito-Lay Inc, 978 F.2d 1093 (1992).
87
Madhavi Goradia Divan, The Commodification of Celebrities: Rights of Publicity, P.L, 16 (2009).
88
Martin Luther King, Jr., Center for Social Change v. American Heritage Products, Inc, 296 S.E.2d 697.
89
Acme Circus Operating Co. v. Kuperstock, 711 F.2d 1538 (11th Cir. 1983); Bi-Rite Enterprises v. Button Master,
11 555 F. Supp. 1188 [S.D.N.Y] 1983.
90
Zacchini v. Scripps-Howard Broadcasting Co., 1977 SCC OnLine US SC 153.

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 personality rights.91 The Respondents have committed the offence of misappropriation
of a person’s likeness or name for their own benefit. It also constitutes false
endorsements thereby violating the personality rights of Agatha.
5.4. Violation of moral rights causing risk of reputational damage
¶69. Furthermore, the Personality rights give rise to the idea of moral rights, within which
comes the right to attribution and the right of integrity. While the former allows authors
to claim ownership of their works, the latter empowers authors to object to derogatory
treatment of their works that could harm their reputation.92 The rights of attribution and
integrity apply to AI-generated voices, thereby providing protection against
misrepresentation and infringement. False attribution of works and derogatory
treatment that result in reputational harm constitute a clear infringement of moral rights.
¶70. In the factual matrix at hand, the unauthorised use of her likeness and voice not only
intrudes upon her personal domain but also poses a substantial risk of reputational harm.
The Respondents, being amateur writers, are a risk to Agatha’s reputation. By
leveraging her voice without permission, the Respondents enhance their work’s appeal
at the expense of her reputation. The lack of disclosure regarding the work’s true nature
and the read-aloud feature using her voice amplifies this issue.
¶71. According to the ruling in Clark v. Associated papers, it does not matter if the work is
a creation of fanfiction, and what is of consideration is whether the attribution is
misleading or not.93 The Respondents’ introduction of an alternative ending and falsely
attributing it to her, there is a substantial likelihood that the work will be misrepresented
as part of her original works, violating her right of integrity and damaging her ability
to earn money, as inferred from Gilliam v American Broadcasting Companies, Inc.94
It can potentially cause public confusion about her association with these works thereby
misleading the audience into believing that she is involved in the fan fiction. Blending
her original content with an alternative ending blur the distinction between her work
and the derivative piece. This is a violation of her right of attribution. The misuse of her
voice restricts her ability to control her narrative and protect her integrity as a celebrated
author.

91
Julia Fiona Roberts v. Russell Boy, WIPO Case No. D2000-0210, May 29, 2000.
92
Abhinav Goswami, The Essentiality of Authors' Personhood: An Ecumenical Perspective to Droit Morale, 6
UPES L.R., 98 (2021).
93
Clark v. Associated papers, [1998] R.P.C. 261.
94
Gilliam v American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir. 1976).

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 PRAYER

Wherefore, in the light of the issues raised, arguments advanced, and authorities cited, the
Claimants humbly prays and implores before this Hon’ble District Court that:

1. This Court has the appropriate jurisdiction to hear the matter.

2. Jennie and Alex have committed copyright infringement.

3. The defence of Fair Use and Transformative work is inapplicable in this case.

4. We Write is liable as an intermediary.

5. The use of AI in mimicking the voice of Agatha is violative of her personality rights.

AND/ OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Date : 25th September, 2024

Place : Kryptonite, U.S. (COUNSELS FOR Claimants)

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