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Second amended complaint Filed in u.s. District court for the Southern District of New York. In this action, Plaintiff seeks injunctive relief and damages for acts of copyright infringement. Plaintiff alleges acts of unfair competition by Defendants under the laws of the United States and the State of new york.
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Wallert v. Atlan - Starlight copyright infringement second amended complaint.pdf
Second amended complaint Filed in u.s. District court for the Southern District of New York. In this action, Plaintiff seeks injunctive relief and damages for acts of copyright infringement. Plaintiff alleges acts of unfair competition by Defendants under the laws of the United States and the State of new york.
Second amended complaint Filed in u.s. District court for the Southern District of New York. In this action, Plaintiff seeks injunctive relief and damages for acts of copyright infringement. Plaintiff alleges acts of unfair competition by Defendants under the laws of the United States and the State of new york.
D H CAVANAUGH ASSOCIATES 555 Fifth Avenue, 17 th Floor New York, New York 10017 Telephone: (212) 856-7210 Facsimile: (212) 856-7211
Nadine Y. From (NF 8848) FROM LAW, PLLC 175 Varick Street New York, New York 10014 Telephone: (212) 655-5492 Facsimile: (646) 213-3111
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------X Charles Wallert, Civil Action No.: Plaintiff, 14 CV 4099 (PAE) (JCF) v.
Guillaume J ean Atlan; Sidney Dov Prosper Benichou p/k/a Mani Hoffman; LaFesse Records; Independiente Ltd; Cyclo Records; Universal Music Publishing MGB France; Universal Music MGB Songs; Universal Music Group, Inc.; BMG Music Publishing France; Cyclo Music; Serhat Bedk p/k/a Bedk; Audiology Records; Columbia Records; Seyhan Mzik; Does 1-50; and XYZ Corporations 1-50,
Plaintiff Charles Wallert (hereinafter referred to as Plaintiff or Wallert), by his attorneys, Dennis H. Cavanaugh and Nadine Y. From, as and for his second amended complaint, alleges as follows: Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 1 of 21
2 NATURE OF THE ACTION 1. In this action, Plaintiff seeks injunctive relief and damages for acts of copyright infringement and unfair competition engaged in by Defendants under the laws of the United States and the State of New York. JURISDICTION AND VENUE 2. This action arises under the Copyright Act of 1976, 17 U.S.C. Sec. 101 et seq. (the Copyright Act), and the common law of the State of New York. This Court has jurisdiction pursuant to 28 U.S.C. Secs. 1331, 1332 and 1338, 17 U.S.C. Sec. 101 et seq., and the law of supplemental jurisdiction. 3. The venue of this action is properly laid in the Southern District of New York pursuant to 28 U.S.C. Secs. 1391(b) and (c), 1392 and 1400(a). Upon information and belief, each of the Defendants has been transacting and continues to transact business in this the State of New York and elsewhere in interstate commerce, or transacts business that affects such commerce, and has been committing and continues to commit the acts complained of herein in the State of New York and elsewhere in interstate commerce, and regularly has been and now does business and solicits business and derives substantial revenue from the sale and licensing of creative properties and other products and services sold, used or consumed in the State of New York, including the musical composition complained of herein, and elsewhere in interstate commerce. The Defendants expected or should have reasonably expected their acts, including the acts set forth above and complained of herein, to have consequences in the State of New York. 4. The amount in controversy exceeds, exclusive of interest and costs, the sum of $75,000.00. Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 2 of 21
3 THE PARTIES 5. Plaintiff is an individual having a residence and his principal place of business in Glen Cove, New York. 6. Plaintiff is informed and believes and thereupon alleges that at all times relevant hereto: a. Defendant Guillaume J ean Atlan (Atlan) is a resident of France and is either doing business in or is engaged in the transaction of business within this judicial district. b. Defendant Sidney Dov Prosper Benichou p/k/a Mani Hoffman (Hoffman) is a resident of France and is either doing business in or is engaged in the transaction of business within this judicial district. c. Defendant Lafesse Records (Lafesse), is an entity of unknown nature with its principal place of business at 68, rue Brossolette, 92700 Colombes, France. On information and belief, Lafesse is either doing business in or is engaged in the transaction of business within this judicial district. d. Defendant Independiente Ltd (Independiente), is a corporation organized and existing under the laws of the United Kingdom with its principal place of business at The Drill Hall, 3 Heathfield Terrace, London W4 4J E, United Kingdom. On information and belief, Independiente is either doing business in or is engaged in the transaction of business within this judicial district. e. Defendant Cyclo Records (Cyclo) is an entity of unknown nature with its principal place of business at 17 Cecile Park, London N8 9AX, United Kingdom. On information and belief, Cyclo is either doing business in or is engaged in the transaction Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 3 of 21
4 of business within this judicial district. f. Defendant Universal Music Publishing MGB France (Universal MGB France) is an unincorporated division of Universal Music MGB NA LLC, with its principal place of business at % Universal Music MGB Songs, 2100 Colorado Avenue, Santa Monica, California 90404. On information and belief, Universal MGB France is either doing business in or is engaged in the transaction of business within this judicial district. g. Defendant Universal Music MGB Songs (MGB Songs) is an unincorporated division of Universal Music MGB NA LLC, with its principal place of business at 2100 Colorado Avenue, Santa Monica, California 90404. On information and belief, MGB Songs is either doing business in or is engaged in the transaction of business within this judicial district. h. Universal Music MGB NA LLC, originally sued herein as Universal Music Group, Inc. (UMG) is a Delaware corporation with its principal place of business at 2100 Colorado Avenue, Santa Monica, California 90404. On information and belief, UMG is either doing business in or is engaged in the transaction of business within this judicial district. i. Defendant BMG Music Publishing France (BMG) is an entity of unknown nature with its principal place of business at 4/6 place de la Bourse, 75002 Paris. On information and belief, BMG is either doing business in or is engaged in the transaction of business within this judicial district. j. Defendant Cyclo Music (Cyclo Music) is an entity of unknown nature with its principal place of business at 17 Cecile Park, London N8 9AX, United Kingdom. Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 4 of 21
5 On information and belief, Cyclo is either doing business in or is engaged in the transaction of business within this judicial district. k. Defendant Serhat Bedk p/k/a Bedk (Bedk) is a resident of Turkey and is either doing business in or is engaged in the transaction of business within this judicial district. l. Defendant Audiology Records (Audiology) is an entity of unknown nature with its principal place of business at Merkez, 34295 Istanbul, Turkey, Kkekmece, Tevfik Bey. On information and belief, Audiology Records is either doing business in or is engaged in the transaction of business within this judicial district. m. Defendant Columbia Records (Columbia), is an unincorporated division of Sony Music Entertainment, Inc., a corporation organized and existing under the laws of Delaware with its principal place of business at 550 Madison Avenue, New York, New York 10022. On information and belief, Sony is either doing business in or is engaged in the transaction of business within this judicial district. n. Defendant Seyhan Mzik (Seyhan) is an entity of unknown nature with its principal place of business in Istanbul, Turkey. On information and belief, Seyhan is either doing business in or is engaged in the transaction of business within this judicial district. o. Upon information and belief, Defendants Does 1-50 are either residents of, doing business in or transacting doing business within this judicial district. The identities of the various Does are not presently known and cannot be presently known. This complaint will be amended to include the names of said individuals if they permit Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 5 of 21
6 themselves to be identified. p. Upon information and belief, Defendants XYZ Corporations 1-50 are either doing business in or are engaged in the transaction of business within this judicial district. The identities of XYZ Corporations 1-50 are not presently known and cannot be presently known. This complaint will be amended to include the name of the actual company(ies) if the company(ies) permit identification. Defendants Atlan, Hoffman, Lafesse, Independiente, Cyclo, BMG, Cyclo Music, Universal MGB France, MGB and UMG are hereinafter referred to collectively as the Hoffman Defendants. Defendants Bedk, Audiology, Columbia and Seyhan are hereinafter referred to collectively as the Bedk Defendants. The Hoffman Defendants, the Bedk Defendants, Does 1-50 and XYZ Corporations 1-50 are hereinafter referred to collectively as Defendants. 7. Plaintiff Wallert is a well-known, award-winning, music producer and composer. He has produced and/or composed songs for major recording artists such as O.C. Smith, Dionne Warwick, George Benson, Cuba Gooding and the Main Ingredient and Chuck J ackson. As a songwriter, Plaintiff has done business as Moonstruck Sounds, Ltd. in connection with the music publishing of the musical compositions written by him. Wallert is the sole owner of and successor in interest to all rights of Moonstruck Sounds, Ltd. 8. In 1978, Wallert co-wrote, together with Michael Foreman and Al Gee, a musical composition entitled The Rock (the Plaintiffs Song). Plaintiffs Song was co-published by Moonstruck and Mich-Den Music, a publishing company of Michael Foreman or Al Gee. 9. In 1978, Wallert produced and financed a master sound recording of Plaintiffs Song (the The Rock Record), performed by singers and musicians engaged by Wallert and designated on The Rock Record by the group name East Coast. The name East Coast was a Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 6 of 21
7 group name coined by Wallert for this sound recording. The Rock Record was initially released in 1978 by Family Music Productions, Inc. d/b/a Family Records (Family Records), a New York corporation solely owned by Wallert. Family Records ceased to do business in approximately 1980. Wallert is the sole owner of and successor in interest to all rights of Family Records. The Rock Record was subsequently released and distributed by RSO Records, Inc. (RSO) pursuant to a distribution agreement. 10. The music, lyrics and/or other creative elements of Plaintiffs Song are wholly original with Plaintiff and constitute copyrightable subject matter under the Copyright Act. 11. Plaintiffs Song is the subject of an existing copyright registration, Registration No. PA37208, a copy of the online abstract of which is attached hereto and identified as Exhibit A and is incorporated herein by reference (the Copyright). The Copyright has been duly registered in the Copyright Office and all applicable recordation and registration formalities and notice requirements under The Copyright Act have been fully complied with. 12. The Copyright was originally registered in the names of Moonstruck and Mich- Den Music. Plaintiff is the successor in interest to Moonstruck and thus has standing to assert any and all claims on behalf of Moonstruck with respect to Plaintiffs Song. Plaintiff, as the successor in interest to Moonstruck, is also a joint owner of the Copyright and thus has standing to bring this action with respect to the Defendants unauthorized use of the Plaintiffs Song. 13. On or about 1978, Plaintiffs Song was registered with Broadcast Music Inc. (BMI), the music writer and publisher performing rights society. At all times complained of herein, information regarding the registration of Plaintiffs Song and the publishers or other parties responsible for the licensing of Plaintiffs Song was available from BMI. 14. On or about J une 29, 1979, Family Records entered into a written distribution Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 7 of 21
8 agreement with RSO for the distribution of The Rock Record (the RSO Agreement). Pursuant to the RSO Agreement, RSO acquired all rights in The Rock Record, including the worldwide distribution rights to The Rock Record. Upon information and belief, RSO ceased to exist in 1983 and Polydor Records is currently the successor in interest to the RSO Agreement. 15. On or about September 19, 1979, RSO filed for and obtained a registration of Plaintiffs Record as a published sound recording, Registration No. SR12223. 16. Upon information and belief, to date, no license authorizing any a sample of any portion of The Rock Record has been granted to any of the Defendants herein by Plaintiff, RSO, Polydor Records, or any of successor in interest to the RSO Agreement or any rights in The Rock Record. FIRST CLAIM FOR RELIEF (Copyright Infringement against the Hoffman Defendants)
17. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 16 of the complaint as if fully set forth herein. 18. This claim arises under the Copyright Act of 1976. 19. Upon information and belief, on or about 2000, Defendants Atlan, LaFesse and Hoffman, and possibly others, created a musical composition entitled Starlight, which composition incorporates unauthorized copies or copyrighted elements of Plaintiffs Song, thereby infringing same (the Infringing Starlight Song). Upon further information and belief, on or about March 2002, Lafesse, in association with Independiente, Cyclo, Disques Vogue (an unincorporated division or non-U.S. subsidiary of Sony Music Entertainment, Inc.), Sony Music Entertainment, Inc. and BMG France (an unincorporated division or non-U.S. subsidiary of Sony Music Entertainment, Inc.), recorded, manufactured and distributed a sound recording of the Infringing Starlight Song by a group known as The Superman Lovers featuring Mani Hoffman Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 8 of 21
9 (the Infringing Hoffman Record), which recording incorporates both the Infringing Starlight Song and unauthorized copies or copyrighted elements of The Rock Record, thereby infringing both Plaintiffs Song and The Rock Record. Upon further information and belief, the artists performing on the Infringing Hoffman Record are Defendants Atlan and Hoffman. Starlight was produced by Atlan. 20. Upon information and belief, at the time of the composition of the Infringing Starlight Record, and the production and distribution of the Infringing Hoffman Record, information regarding the ownership and copyright status of Plaintiffs Song and The Rock Record was publically available on the Internet. Accordingly, the Hoffman Defendants either knew or should have known that Plaintiffs Song and The Rock Record were both subject to copyright protection, and that, accordingly, a license was required for use of any copyright protected elements of either, including separate licenses for both the Plaintiffs Song and The Rock Record. 21. Upon information and belief, the Hoffman Defendants knowingly and willfully directly copied and/or incorporated copyrighted elements of Plaintiffs Song in the Infringing Starlight Song. Upon further information and belief, the Hoffman Defendants knowingly and willfully directly copied from and/or sampled copyrighted elements of The Rock Record in their production of the Infringing Hoffman Record. 22. Upon information and belief, the Hoffman Defendants have sold and/or distributed copies of the Infringing Hoffman Record in various media throughout the world, including but not limited to CDs, cassettes, DVDs, videocassettes, videos, digital downloads and ringtones. Upon further information and belief, the Hoffman Defendants have licensed the Infringing Hoffman Record for further recording and various means of public performance, Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 9 of 21
10 broadcast and webcast, including but not limited to live performances, videos, radio, television and the Internet, including through one or more agents, including but not limited to BMI, ASCAP and The Harry Fox Agency, Inc. 23. Plaintiff is informed and believes and on that basis alleges that the Hoffman Defendants have infringed and threaten to further infringe upon Plaintiffs Song and The Rock Record by being the source of the Infringing Hoffman Record and aiding and abetting others in the manufacturing, distributing, offering for sale and/or selling copies of, licensing, and/or otherwise commercially exploiting the Infringing Hoffman Record, and contributing to the infringement of Plaintiffs Song and The Rock Record by others, in the Southern District of New York and elsewhere, all without the consent or authorization of either Plaintiff or anyone authorized to act on his behalf, or Polydor, any successor in interest to the RSO Agreement or anyone authorized to act on behalf of same. 24. The marketing and sale of copies of the Infringing Hoffman Record by the Hoffman Defendants and others with their aid and assistance, and/or as a direct result of their direct and contributory actions, constitutes an unauthorized distribution of copies of Plaintiffs copyrighted work; and the public performance of the infringing musical composition embodied in the Infringing Hoffman Record by the Hoffman Defendants constitutes unauthorized public performance of Plaintiffs copyrighted work, all in violation of Plaintiffs rights under the Copyright Act. 25. Upon information and belief, at the time of the composition of the Infringing Starlight Song, and the production and distribution of the Infringing Hoffman Record, and through the present, BMG, Cyclo Music, Universal MGB France, MGB and UMG acted as publishers for the musical composition Starlight and as a result thereof, have obtained gains, Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 10 of 21
11 profits, and advantages as a result of their direct, contributory and/or vicarious copyright right infringement of Plaintiffs Song and The Rock Record. Defendants BMG and Cyclo Music are listed as copyright claimants in the registration of the Infringing Starlight Song at the U.S. Copyright Office, Copyright Registration No. PA0001072690. 26. Plaintiff is informed and believes and on that basis alleges that the Hoffman Defendants infringement of Plaintiffs copyrighted work has been and continues to be carried out with the Hoffman Defendants full knowledge that the Plaintiffs Song and The Rock Record are protected by copyright and that at all relevant times the Hoffman Defendants had actual and constructive knowledge of Plaintiffs rights (and those of others in The Rock Record) but proceeded in complete disregard thereof. In doing the acts complained of herein, the Hoffman Defendants have willfully and intentionally infringed Plaintiffs copyright in Plaintiffs Song and the copyright in The Rock Record. 27. Plaintiff has suffered and continues to suffer irreparable harm and injury as a result of the aforesaid infringing acts of Defendants and Plaintiff is without an adequate remedy at law, in that damages are extremely difficult to ascertain and, unless injunctive relief is granted as prayed for herein, Plaintiff will be required to pursue a multiplicity of actions. 28. Plaintiff has sustained damages as a result of the Hoffman Defendants wrongful acts as hereinabove alleged. Plaintiff is presently unable to ascertain the full extent of the money damages it has suffered by reason of said acts of copyright infringement, but upon information and belief such damages exceed $1,000,000 as to each work infringed as to each of the Hoffman Defendants. 29. Plaintiff is informed and believes and on that basis alleges that the Hoffman Defendants have obtained gains, profits, and advantages as a result of their infringing acts as Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 11 of 21
12 hereinabove alleged. Plaintiff is presently unable to ascertain the full extent of the gains, profits, and advantages the Hoffman Defendants have obtained by reason of their aforesaid acts of copyright infringement, but upon information and belief such gains, profits, and advantages exceed $1,000,000 as to each work infringed as to each of the Hoffman Defendants. SECOND CLAIM FOR RELIEF (Copyright Infringement against the Bedk Defendants)
30. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 16 of the complaint as if fully set forth herein. 31. This claim arises under the Copyright Act of 1976. 32. Upon further information and belief, on or about 2008, Defendant Bedk, and possibly others, created a musical composition entitled Hot Bitch, which composition incorporates unauthorized copies or copyrighted elements of Plaintiffs Song, thereby infringing same (the Infringing Bedk Song). Upon further information and belief, on or about 2008, Audiology, in association with Columbia, recorded, manufactured and distributed a sound recording by Bedk (the Infringing Bedk Record), which recording incorporates both the Infringing Bedk Song and unauthorized copies or copyrighted elements of The Rock Record, thereby infringing both Plaintiffs Song and The Rock Record. The Infringing Bedk Record is contained on the album entitled Dance Revolution released by Audiology and/or Columbia. 33. Upon information and belief, the Bedk Defendants knowingly and willfully directly copied and/or sampled copyrighted elements of Plaintiffs Song and/or The Rock Record in creating the Infringing Bedk Song and/or the Infringing Bedk Record. 34. Upon information and belief, the Bedk Defendants have sold and/or distributed copies of the Infringing Bedk Record in various media throughout the world, including but not limited to CDs, cassettes, DVDs, videocassettes, videos, digital downloads and ringtones. Upon Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 12 of 21
13 further information and belief, the Bedk Defendants have licensed the Infringing Bedk Record for further recording and various means of public performance, broadcast and webcast, including but not limited to live performances, videos, radio, television and the Internet, including through one or more agents, including but not limited to BMI, ASCAP and The Harry Fox Agency, Inc. 35. Plaintiff is informed and believes and on that basis alleges that the Bedk Defendants have infringed and threaten to further infringe upon Plaintiffs Song by being the source of the Infringing Bedk Record and aiding and abetting others in the manufacturing, distributing, offering for sale and/or selling copies of, licensing, and/or otherwise commercially exploiting the Infringing Bedk Record, and contributing to the infringement of Plaintiffs Song by others, in the Southern District of New York and elsewhere, all without the consent or authorization of Plaintiff or anyone authorized to act on his behalf. 36. The marketing and sale of copies of the Infringing Bedk Record by the Bedk Defendants and others with their aid and assistance, and/or as a direct result of their direct and contributory actions, constitutes an unauthorized distribution of copies of Plaintiffs copyrighted work; and the public performance of the infringing musical composition embodied in the Infringing Bedk Record by the Bedk Defendants constitutes unauthorized public performance of Plaintiffs copyrighted work, all in violation of Plaintiffs rights under the Copyright Act. 37. Upon information and belief, at the time of the composition, production and distribution of the Infringing Bedk Record, Seyhan acted as publisher for the Infringing Bedk Song and as a result thereof, has obtained gains, profits, and advantages as a result of its direct, contributory and/or vicarious copyright right infringement of Plaintiffs Song. 38. Plaintiff is informed and believes and on that basis alleges that the Bedk Defendants infringement of Plaintiffs copyrighted work has been and continues to be carried Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 13 of 21
14 out with the Bedk Defendants full knowledge that the Plaintiffs Song is protected by copyright and that at all relevant times the Bedk Defendants had actual and constructive knowledge of Plaintiffs rights but proceeded in complete disregard thereof. In doing the acts complained of herein, the Bedk Defendants have willfully and intentionally infringed Plaintiffs copyright. 39. Plaintiff has suffered and continues to suffer irreparable harm and injury as a result of the aforesaid infringing acts of the Bedk Defendants and Plaintiff is without an adequate remedy at law, in that damages are extremely difficult to ascertain and, unless injunctive relief is granted as prayed for herein, Plaintiff will be required to pursue a multiplicity of actions. 40. Plaintiff has sustained damages as a result of the Bedk Defendants wrongful acts as hereinabove alleged. Plaintiff is presently unable to ascertain the full extent of the money damages it has suffered by reason of said acts of copyright infringement, but upon information and belief such damages exceed $1,000,000 as to each work infringed as to each of the Bedk Defendants. 41. Plaintiff is informed and believes and on that basis alleges that the Bedk Defendants have obtained gains, profits, and advantages as a result of their infringing acts as hereinabove alleged. Plaintiff is presently unable to ascertain the full extent of the gains, profits, and advantages the Bedk Defendants have obtained by reason of their aforesaid acts of copyright infringement, but upon information and belief such gains, profits, and advantages exceed $1,000,000 as to each work infringed as to each of the Bedk Defendants. THIRD CLAIM FOR RELIEF (Unjust Enrichment against all Defendants)
42. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 41 of the complaint as if fully set forth herein. Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 14 of 21
15 43. As a result of their infringing activities complained of herein, including the furtherance of the respective careers of Atlan, Hoffman and Bedk, and their respective statures in the entertainment business as a direct consequence thereof, Defendants have been unjustly enriched to the damage of Plaintiff. PRAYER FOR RELIEF WHEREFORE, Plaintiff demands judgment against Defendants, and each of them, jointly and severally, as follows: 1. Permanently enjoining and restraining Defendants, their respective officers, agents, servants, employees and attorneys, and predecessors and successors, by whatever name, and all those in active concert or participation with them from: (a) Further violating any of the exclusive rights of Plaintiff in the copyrighted song The Rock, including the importation, reproduction, preparation, sale or distribution of any and all copies of the Infringing Hoffman Record and/or the Infringing Bedk Record; (b) Further infringing upon Plaintiffs rights under the Copyright Act by importing, manufacturing, producing, distributing, circulating, selling, marketing, offering for sale, advertising, promoting, displaying or otherwise disposing of any products not authorized by Plaintiff, incorporating any simulation, reproduction, counterfeit, copy or colorable imitation of Plaintiffs copyrighted works or any of their creative elements; (c) Licensing or otherwise authorizing the public performance of any recording of the Infringing Hoffman Record and/or the Infringing Bedk Record in all media, including, but not limited to, radio, television (broadcast and cable), the Internet Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 15 of 21
16 and motion pictures, and publicly performing the musical compositions embodied in the Infringing Hoffman Record and/or the Infringing Bedk Record; (d) Using any simulation, reproduction, counterfeit, copy or colorable imitation of Plaintiffs copyrighted works in such fashion as to relate or connect, or tend to relate or connect such copies in any way to Plaintiff; (e) Making any statement or representation whatsoever, or using any false designation of origin or false description, or performing any act, which can or is likely to lead the trade or public, or individual members thereof, to believe that any products or services manufactured, distributed or sold by Defendants are in any manner associated or connected with Plaintiff or are sold, manufactured, licensed, sponsored, approved or authorized by Plaintiff; (f) Engaging in any other activity constituting unfair competition with Plaintiff or his licensees, or constituting an infringement of any of Plaintiffs copyrights or of Plaintiffs rights in, or rights to use or to exploit, said copyrights, including aiding and abetting third parties engaging in such activities; (g) Engaging in any acts or activities directly or indirectly calculated to trade upon or injure the reputation or the goodwill of Plaintiff or in any manner to compete unfairly with Plaintiff by appropriating the distinctive creative elements of Plaintiffs copyrighted works; (h) Effecting assignments or transfers, forming new entities or associations or utilizing any other device for the purpose of circumventing or otherwise avoiding the prohibitions set forth in subparagraphs 1(a) through (g) hereinabove; and (i) Secreting, destroying, altering, removing or otherwise dealing with copies Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 16 of 21
17 of the Infringing Hoffman Record or the Infringing Bedk Record, or any books or records which contain any information relating to the importation, manufacture, production, distribution, circulation, sale, marketing, offering for sale, advertising, promoting or displaying of any copies of the Infringing Hoffman Record and the Infringing Bedk Record by Defendants. 2. Directing that Defendants deliver for impoundment: (a) All copies of the Infringing Hoffman Record and the Infringing Bedk Record, including sound recordings in any format, CDs, cassettes, DVDs, videocassettes, digital audio and/or video files, sheet music, labels, boxes, signs, packages, advertisements, novelty items, prints, dyes, wrappers, receptacles and any other such goods or merchandise in Defendants possession, custody or control incorporating or associated with the Infringing Hoffman Record and the Infringing Bedk Record; and (b) All masters, plates, molds, mechanicals, digital or analog tapes, or apparatus utilized in making copies of the Infringing Hoffman Record and the Infringing Bedk Record and packaging therefor, and all digital files of same in whatever media they are maintained. 3. Directing such other relief as the Court may deem appropriate to prevent the trade and public from deriving any erroneous impression that any products or services manufactured, sold or otherwise circulated or promoted by Defendants are authorized by Plaintiff or related in any way to Plaintiff or his musical compositions or sound recordings. 4. Directing that an accounting of and judgment be rendered against each Defendant for: (a) Statutory damages as provided by 17 U.S.C. Sec. 504(a); Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 17 of 21
18 (b) All profits received by any of the Defendants from the sale or other commercial exploitation of the Infringing Hoffman Record and the Infringing Bedk Record, as provided by 17 U.S.C. Sec. 504(b), including all revenues received relating to or deriving from, in manner whatsoever, the Infringing Hoffman Record and the Infringing Bedk Record, and any profits received by third parties as a result of activities for which Defendants may be found contributorily or vicariously liable; (c) All damages suffered by Plaintiff as a result of any of Defendants copyright infringements, as provided by 17 U.S.C. Sec. 504(a), whether as a result of their direct, contributory or vicarious actions; (d) All monies received from whatever source, directly or indirectly, by any of the Defendants as unjust enrichment from the exploitation of the Infringing Hoffman Record and the Infringing Bedk Record. 5. Awarding Plaintiff punitive damages of not less than $5,000,000. 6. Awarding Plaintiff his costs in this action, including reasonable attorneys and investigative fees, as provided by 17 U.S.C. Sec. 505. 7. Directing that Plaintiff be declared the owner of the copyright in the Infringing Starlight Song, and that Copyright Registration No. PU0001072690, be amended to show Wallert as the author of the musical composition Starlight and the claimant of Copyright Registration No. PU0001072690. 8. Directing that the Court retains jurisdiction of this action for the purpose of enabling Plaintiff to apply to the Court at any time for such further orders and directions as may be necessary or appropriate for the interpretation or execution of any order entered in this action, for the modification of any such order, for the enforcement or compliance therewith, and for the Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 18 of 21
19 punishment of any violations thereof. 9. Awarding to Plaintiff such other and further relief as the Court may deem just and proper. JURY DEMAND Plaintiff hereby demands trial by jury on all issues triable to a jury.
DATED: New York, New York October 17, 2014 Respectfully submitted,
D H CAVANAUGH ASSOCIATES
/Dennis H. Cavanaugh/ By___________________________ Dennis H. Cavanaugh (DC 3146) 555 Fifth Avenue, 17 th Floor New York, New York 10019 Tel: (212) 856-7210 Fax: (212) 856-7211 Email: dhc@dhcavanaugh.net
FROM LAW, PLLC
/Nadine Y. From/ By___________________________ Nadine Y. From (NF 8848) 175 Varick Street New York, New York 10014 Tele: (212) 655-5492 Fax: (646) 213-3111 Email: nadine@nyfrom.com Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 19 of 21
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EXHIBIT A Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 20 of 21 Case 1:14-cv-04099-PAE Document 26 Filed 10/17/14 Page 21 of 21