JS 44C/SDNY

REV. 4/2014
PLAINTIFFS f''" '.
THE WILLEM DE KOONING FOUNDATrCW w
CIVIL COVER
,85.0 3
5fp2014
The JS-44 civil cover sheet and the informationcontained hereifceifrTBBBplace nV4uppement the filing
pleadings orother papers as required bylaw, except as provideonSy local rules of court. This form, apprm
Judicial Conference oftheUnited States in September 1974, isrequired for useoftheClerk ofCouRMr*
initiating thecivil docket sheet. ** ^
DEFENDANTS
KENO AUCTIONS, LLC and LEIGH KENO
ATTORNEYS (FIRM NAME, ADDRESS, ANDTELEPHONE NUMBER
Robert W. Clanda, 885 Third Avenue,20th Floor, New York, NY 10022
ATTORNEYS (IF KNOWN)
CAUSE OF ACTION (CITETHE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITEA BRIEFSTATEMENT OF CAUSER
(DO NOTCITEJURISDICTIONAL STATUTESUNLESS DIVERSITY)
Pursuant to 17 U.S.C. 101 - Plaintiff seeks damages
Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY atany time? NcEJ/esIbudge Previously Assigned
Ifyes, wasthis case Vol. Invol. Dismissed. No [~j Yes If yes, give date &Case No.
No 0 Yes IS THIS AN INTERNATIONAL ARBITRATION CASE?
(PLACEAN[x] INONEBOXONLY)
TORTS
CONTRACT PERSONAL INJURY
1)110 INSURANCE [ ] 310 AIRPLANE
[]120 MARINE [ ] 316 AIRPLANEPRODUCT
I ]130 MILLER ACT LIABILITY
[]140 NEGOTIABLE [ ] 320 ASSAULT, LIBEL&
INSTRUMENT SLANDER
[ ]150 RECOVERY OF [ ] 330 FEDERAL
OVERPAYMENT & EMPLOYERS'
ENFORCEMENT LIABILITY
OF JUDGMENT [ ] 340 MARINE
[ ] 151
MEDICARE ACT [ ] 345 MARINE PRODUCT
[]152 RECOVERY OF LIABILITY
DEFAULTED [ ] 350 MOTORVEHICLE
STUDENT LOANS [ ] 355 MOTORVEHICLE
(EXCL VETERANS) PRODUCT LIABILITY
[J153 RECOVERY OF [ ] 360 OTHER PERSONAL
OVERPAYMENT INJURY
OF VETERAN'S [ ] 362 PERSONAL INJURY-
BENEFITS
MED MALPRACTICE
[ ]160 STOCKHOLDERS
SUITS
[]190 OTHER
CONTRACT
[ ]195 CONTRACT
PRODUCT ACTIONS UNDER STATUTES
LIABILITY
[ ] 196 FRANCHISE CIVIL RIGHTS
[ J 440 OTHER CIVILRIGHTS
REAL PROPERTY
(Non-Prisoner)
[ ] 441 VOTING
[ 1210 LAND [ ] 442 EMPLOYMENT
CONDEMNATION [ ) 443 HOUSING/
[ ]220 FORECLOSURE ACCOMMODATIONS
[ ]230 RENT LEASE & [ ] 445 AMERICANSWITH
EJECTMENT
DISABILITIES -
[ ]240 TORTS TO LAND
EMPLOYMENT
[ ]245 TORT PRODUCT
[ ] 446 AMERICANS WITH
LIABILITY
DISABILITIES -OTHER
[ ]290 ALL OTHER
REAL PROPERTY
[ ] 448 EDUCATION
Checkif demanded incomplaint:
CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23

DEMAND $ OTHER
Check YES onlyifdemandedincomplaint
JURY DEMAND: E YES LNO
NATURE OF SUIT
PERSONAL INJURY FORFEITURE/PENALTY
[ ] 367 HEALTHCARE/
PHARMACEUTICAL PERSONAL , , 625 DRUG RELATED
INJURY/PRODUCT LIABILITY SE|ZURE QF pRopERTY
[ ] 365 PERSONAL INJURY 21 USC881
PRODUCT LIABILITY
[ 1368 ASBESTOS PERSONAL
INJURY PRODUCT
LIABILITY
PERSONAL PROPERTY
[ ] 370 OTHER FRAUD
[ 1371 TRUTH INLENDING
[ ] 380 OTHER PERSONAL
PROPERTY DAMAGE
[ ] 385 PROPERTY DAMAGE
PRODUCT LIABILITY
PRISONER PETITIONS
[ ] 463 ALIEN DETAINEE
[ ] 510 MOTIONS TO
VACATE SENTENCE
28 USC 2255
[ ] 530 HABEASCORPUS
[ ] 535 DEATH PENALTY
[ ] 540 MANDAMUS &OTHER
PRISONER CIVIL RIGHTS
[ ] 550 CIVILRIGHTS
[ ] 555 PRISON CONDITION
560 CIVIL DETAINEE
) 690 OTHER
LABOR
[ ] 710 FAIR LABOR
STANDARDS ACT
[ ] 720 LABOR/MGMT
RELATIONS
[ ] 740 RAILWAYLABOR ACT
[ ] 751 FAMILY MEDICAL
LEAVE ACT (FMLA)
[ ] 790 OTHER LABOR
LITIGATION
[ ] 791 EMPL RET INC
SECURITY ACT
IMMIGRATION
[ ] 462 NATURALIZATION
APPLICATION
[ ] 465 OTHER IMMIGRATION
ACTIONS
CONDITIONS OF CONFINEMENT
ACTIONS UNDER STATUTES
BANKRUPTCY
[ ] 422 APPEAL
28 USC 158
[ ] 423 WITHDRAWAL
28 USC 157
PROPERTY RIGHTS
M 820 COPYRIGHTS
[ ] 830 PATENT
840 TRADEMARK
SOCIAL SECURITY
[ ]861 HIA(1395ff)
[ ] 862 BLACK LUNG (923)
[ ] 863 DlWC/DIWW(405(g))
[ ) 864 SSID TITLEXVI
[ ] 865 RSI (405(g))
FEDERAL TAX SUITS
[ ] 870 TAXES (U.S. Plaintiff or
Defendant)
[ ] 871 IRS-THIRD PARTY
26 USC 7609
OTHER STATUTES
I 1 375 FALSE CLAIMS
[ ] 400 STATE
REAPPORTIONMENT
[ ] 410 ANTITRUST
[ ] 430 BANKS&BANKING
[ ] 450 COMMERCE
[ ] 460 DEPORTATION
[ ] 470 RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT
(RICO)
[ ] 480 CONSUMER CREDIT
[ ] 490 CABLE/SATELLITE TV
[ ] 850 SECURITIES/
COMMODITIES/
EXCHANGE
[ ] 890 OTHER STATUTORY
ACTIONS
[ ] 891 AGRICULTURAL ACTS
[ ] 893 ENVIRONMENTAL
MATTERS
[ ] 895 FREEDOM OF
INFORMATION ACT
[ ] 896 ARBITRATION
[ ) 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISION
[ ] 950 CONSTITUTIONALITYOF
STATE STATUTES
DO YOU CLAJM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.?
JUDGE DOCKET NUMBER
NOTE: You must also submit at the time of filingthe Statement of Relatedness form (Form IH-32).
(PLACEAN x INONEBOXONLY) ORIGIN
[El 1 Original 2 Removed from Ll 3 Remanded D 4 Reinstated or Q 5 Transferred from 6 Multidistrict 7 Appeal to District
Proceeding State Court from Reopened (Specify District) Litigation Judge from
ll ~ Apellate Magistrate Judge
|_| a. all parties represented Court Judgment
|~~| b. At least one
party is pro se.
(PLACEAN x INONE BOXONLY) BASIS OF JURISDICTION IFDIVERSITY, INDICATE
1 U.S. PLAINTIFF 2 U.S. DEFENDANT [x] 3 FEDERAL QUESTION D4 DIVERSITY CITIZENSHIP BELOW.
(U.S. NOT A PARTY)
CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X] in one box for Plaintiff and one box for Defendant)
PTF DEF PTFDEF PTF DEF
CITIZEN OF THISSTATE []1 []1 CITIZEN OR SUBJECT OF A []3[]3 INCORPORATED and PRINCIPAL PLACE []S [)5
FOREIGN COUNTRY OF BUSINESS IN ANOTHER STATE
CITIZEN OF ANOTHER STATE [ ] 2 [ ] 2 INCORPORATED or PRINCIPAL PLACE [ ] 4 [ ] 4 FOREIGN NATION [ ] 6 [ ] 6
OF BUSINESS IN THIS STATE
PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
790 Madison Avenue, New York, New York 10065
DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
Keno Auctions -127 East 69th Street, New York, New York 10021
Leigh Keno -1365 York Ave., Apt. 21F, New York, New York 10021
DEFENDANT(S) ADDRESS UNKNOWN
REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RESILIENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
Check one: THISACTION SHOULD BEASSIGNED TO: WHITE PLAINS [x] MANHATTAN
(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVILRIGHTS
COMPLAINT.)
DATE 9/24/2014 StSbLATLIRE OF,ATTORNEY<5F*rfECORQ? ADMITTED TO PRACTICE IN THIS DISTRICT
[ ] NO 7 >*
Hi YES (DATE ADMITTED Mo. V*- Yr. I *>
RECEIPT # Attorney Bar Code #
Magistrate Judge is to be designated by the Clerk of ttft^uM/ai hi&Ah
Magistrate Judge is so Designated.
Ruby J. Krajick, Clerk of Court by Deputy Clerk, DATED .
UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)
Reitler Kailas & Rosenblatt LLC
Robert William Clarida
885 Third Avenue
20th Floor
New York, NY 10022
Phone:(212)209-3044
Fax: (212) 371-5500 ^
Email: rclarida(a),reitlerlaw.com
Attorneyfor PlaintiffThe Willem de Kooning Foundation
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
14 CV 8503
-x
THE WILLEM DE KOONING FOUNDATION
Plaintiff,
-against-
COMPLAINT
JURY TRIAL DEMANDED
KENO AUCTIONS, LLC and
LEIGH KENO,
~;~ in
Defendants.
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Co
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Plaintiff The Willem de Kooning Foundation ("The Foundation "), by its^ J5
attorneys, Reitler Kailas & Rosenblatt LLC, alleges as follows:
NATURE OF ACTION
1. The Foundation is an artist-endowed, private, 501(c)(3) tax-exempt
operating foundation with a principal place of business in this judicial District.
2. The Foundation's mission is to foster the study and appreciation of the
life and work of the late artist Willem de Kooning through research, exhibitions and
educational programs. Through The Foundation's initiatives, it strives to encourage new
discussion and a deeper understanding of de Kooning, his contemporaries, and their
historical moment among scholars and the general public.
3. Plaintiff seeks damages for willful copyright infringement by the
defendants, Keno Auctions, LLC ("Keno Auctions") and its founder and principal Leigh
Keno ("Mr. Keno")(Keno Auctions and Mr. Keno are referred to collectively hereafter as
"Defendants"), arising from Defendants' unauthorized use of numerous original Willem de
Kooning artworks in violation of the United States Copyright Act, 17U.S.C. 101 et seq.
(the "Copyright Act").
4. Defendants, without any authority from the Plaintiff, prepared,
reproduced, publicly displayed and publicly performed a promotional audiovisual work (the
"Video") incorporating exact copies of dozens of Willem de Kooning's copyrighted
artworks, including without limitation the work registered in the U.S. Copyright Office as
registration number VAu 1-180-097 (the "Registered Work").
5. Plaintiff is the owner of copyright in all of the Willem de Kooning
artworks incorporated in the Video, including the Registered Work.
6. Sixty-eight (68) additional Willem de Kooning artworks infringed by
the Defendants' Video are identified on the attached Schedule A. These additional works are
being submitted to the U.S. Copyright Office for registration, and Plaintiff will seek to
amend this Complaint to add allegations of infringement regarding these additional works
when those registrations have been issued.
7. Plaintiff seeks legal and equitable relief to remedy Defendants' willful
infringement of the Plaintiffs copyrights. Plaintiff requests an order: (1) declaring that
Defendants' unauthorized preparation, duplication, public performance and public display of
the Video willfully infringes plaintiffs copyrights inviolation ofthe Copyright Act; (2)
prohibiting Defendants from further infringement ofthe Plaintiffs copyrights; (3) requiring
the impoundment and destruction of all copies ofthe Video inDefendants' custody or
control; and (4) awarding actual damages and profits totheextent permitted under the
Copyright Act.
JURISDICTION AND VENUE
8. This Court has subject matterjurisdictionover this actionunder the
copyright laws of the United States, 17 U.S.C. 101 et seq. and 28 U.S.C. 1331 and
1338.
9. Upon information andbelief, this Court has personaljurisdictionover
the Defendants because Mr. Keno and Keno Auctions have distributed and performed the
Video in New York and this District, or have authorized others to do so, and are otherwise
doing business in this State and in this jurisdiction.
10. Venue is proper in this District under 28 U.S.C. 1391(b), 28 U.S.C.
1391(c) and 28 U.S.C. 1400(a).
PARTIES
11. Plaintiff The Foundation is private, tax-exempt operating foundation
havinga principal place of business at 790 MadisonAvenue, New York, New York 10065.
12. Upon information and belief, Defendant Keno Auctions is a limited
liability company established under the laws of NewYorkhavinga principal place of
business at 127East 69th Street, NewYork, New York 10021.
13. Uponinformation andbelief, Defendant LeighKeno is an individual
residing or doing business in this judicial District.
14. Uponinformation andbelief, Defendant Leigh Kenois the founder of
Defendant Keno Auctions.
THE REGISTERED WORK
15. Plaintiff is the copyright owner of the Registered Work, having
acquired the copyright fromThe Willemde Kooning RevocableTrust by written agreement
on April 26, 2002.
16. The Registered Work is an original work of authorship.
17. The Registered Work has been fixed in a tangible medium of
expression.
18. The Registered Work contains substantial amounts of material created
by the artist's own artistic judgment and creativity.
19. The Registered Work is copyrightable subject matter under the laws of
the United States.
20. The Registered Work has never been published with the consent of
Willem de Kooning or The Foundation.
INFRINGEMENT
21. Upon information and belief, Defendants had a reasonable opportunity
to view the Registered Work prior to the making of the Video.
22. Upon information and belief, Defendants obtained a photograph of the
Registered Work from a third party who was employed by Willem de Kooning during his
lifetime.
4
23. The photograph of the Registered Work that is incorporated into the
Video is substantially similar to the Registered Work.
24. Beginning on or about August 29, 2014, the Video was publicly
displayed and performed on the Keno Auctions website, www.kenoauctions.com, to promote
Keno Auctions and the sale by consignment of a painting other than the Registered Work.
25. Promptly after becoming aware of Defendants' s unauthorized use of
the Registered Work in the Video, The Foundation contacted Defendants and advised
Defendants that the use of any Willem de Kooning artwork in the Video was unauthorized.
26. Plaintiff has suffered, and continues to suffer, from the infringing
activities of Defendants, including without limitation from the Defendants' failure to pay a
license fee commensurate with the value of their commercial, promotional use of the
Registered Work and from Defendants' usurping of Plaintiff s right to control the first
publication and the commercial use of the Registered Work.
DEFENDANT LEIGH KENO
27. The Keno Auctions website, www.kenoauctions.com, states that "Leigh
Keno is intimately involved in each consignment."
28. The Keno Auctions website, www.kenoauctions.com, identifies only
three employees of Keno Auctions, one of whom is the founder, Leigh Keno, and another of
whom is an administrative assistant.
29. Accordingly, upon information and belief, Mr. Keno at all relevant
times had actual or constructive knowledge of the infringing activities complained of herein.
30. Upon information and belief, Mr. Keno at all relevant times
participated materially in the infringing activities complained of herein.
5
31. Upon information and belief, Mr. Keno at all relevant times had the
right to control theinfringing activities complained of herein.
32. Upon information and belief, Mr. Keno at all relevant times had the
ability to control the infringing activities complained of herein.
33. Upon information and belief, Mr. Keno at all relevant times realized or
stoodto realize a direct financial benefit fromthe infringingactivities complainedof herein.
34. Accordingly, Mr. Keno is a contributory and/or vicarious infringer of
Plaintiffs copyright intheRegistered Work andisjointly and severally liable for any
damages that may be awarded in this action.
COUNT I
COPYRIGHT INFRINGEMENT
35. Plaintiffrepeats and realleges the allegations contained in paragraphs 1
through 34 as if set forth fully herein.
36. Defendants' unauthorized copying of Plaintiff s Registered Work into
the Video, andsubsequent reproduction, public display andpublic performance of the Video,
areinfringements of Plaintiffs copyright in violation of the Copyright Act, 17U.S.C. 106.
37. As a direct and proximate result of the foregoing acts of the
Defendants, the Plaintiff has been damaged in an amount to be proved at trial.
WHEREFORE, the Plaintiff requests the following relief:
A. Actual damages and profits under 17 U.S.C. 504 in an amount to be
proved at trial;
B. A permanent injunction requiring the Defendants to cease and desist
from reproducing, distributing, performing and displaying the Video without authorization
from the Plaintiff;
C. An order requiring the impoundment and destruction of all copies of
the Video in Defendants' custody or control;
D. Such other and further relief as this Court deems just and proper.
Dated: New York, New York
September^/, 2014
By:_
REITLER KAILAS &
ROSENBLATT, LLC
Attorneys for Plaintiff
Robert W. Clarida
885 ThirdAvenue, 20th Floor
New York, NY 10022
Tel. (212) 209-3044
SCHEDULE A
WdK photo # Title Date created
(00220) Gansevoort Street 1949
(00238) Asheville 1949
(00262)
Excavation 1950
(00516)
Women III 1952-53
(00703) Nude 1964
(00713)
Sphinx 1964
(00888) Pink Woman Torso 1967
(01108)
The Dancer 1972
(01412) Untitled VIII 1977
(01417)
Untitled XIII 1977
(01432)
Untitled XXVIi 1977
(01515) Man on the Dunes 1971
(01543)
Pirate (Untitled II) 1981
(01544) Untitled III (inprocess] 1981
(01550) Untitled IX 1981
(01830) UntitledXI [inprocess] 1983
(01849) Untitled XXI 1983
(01880) <no Htle> 1983
(02078) Untitled 1988
(02095) <no title> fin process] 1989
(02108) <no title> 1989
(03584) <no title> 71972
(03600) <no title> c. 1970-1977
(03609) <no title> c. 1971
(03615) <no title> 1970-1977?
(03653) <no title> 1971?
(03666) <no title> c. 1970-1971
(03669) <no title> 1970-1972?
(03687) <no title* 1975-1979?
(03737) <no title> c. 1975-1979
(03739) <no tltle> 1975-1978?
(03740) <no Stte> c. 1966
(03827) <no title> 1982?
(03842) Untitled (Tm Women) 1966-1968?
(04161) <no title> c. 1968
(04175) <no title> 1950
(04597) <no title> 1971?
(04612) <no title> 1971?
(04613) <no Btle> 1972?
(04614) <no title> 1972?
(04615) no title> 1972?
(04616) <no title> 1972?
(04617) <no title> 1972?
(04619) <no title> 1972?
(04620) <no title> 1972?
(04621) <no 8tle> 1972?
(04622) <no title> 1972?
(04635) <no title> 1972?
(04829) <no title> 71968
(05545) <no title> 1971
(05774) <no title> 71978
(05884) <no title> 1989
(05965) <no title> 71978
(05966) <no title> 71978
(05967) <no title> 71978
(05970) <no title> 1972?
(05971) <no title> 1972?
(05972) <no title> 1972?
(05973) <no title> 1972?
(05974) <no titie> 1972?
(05975) <no title> 1972?
(05976) <no title> 1972?
(05977) <no title> 1972?
(05978) <no titles 1972?
(05979) <no tiUe> 1972?
(05980) <no tltle=> 1972?
(05981) <no title> 1972?
(40400)
Untitled 1966