Orlan Petition for Discovery DI 3 (Orlan v. Lady Gaga)

8/15/2019 Orlan Petition for Discovery DI 3 (Orlan v. Lady Gaga)

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

In re Petition of

MIREILLE PORTE a/k/a ORLAN, Action No. 16-cv-00068

Petitioner,

pursuant to 28 U.S.C. § 1782 to issue subpoenas upon NICOLA FORMICHETTI and BILLY BRASFIELDfor the production of documents and oral testimonyfor use in foreign proceedings.

DECLARATION OF ALAN E. SASH IN SUPPORT OF PETITIONFOR AN ORDER PURSUANT TO 28 U.S.C. § 1782

TO CONDUCT DISCOVERY FOR USE IN FOREIGN PROCEEDINGS

Alan E. Sash, hereby declares under penalty of perjury, pursuant to 28 U.S.C. §1746, that

the following is true and correct:

1. I am an attorney duly licensed to practice law in the State of New York and in the

District Court of the Southern District of New York. I am a member of the law firm of

McLaughlin & Stern, LLP, counsel for MIREILLE PORTE a/k/a ORLAN (“ORLAN”). I make

this declaration in support of her application for an order to conduct discovery within this district

for use in a French proceeding.

Background

2. In 2014, ORLAN commenced a lawsuit against UMG Recordings, Inc., Universal

Musical France, and Stefani Germanotta (better known as the singer/songwriter “Lady Gaga”)

(collectively, the “French Defendants”) in the District Court of Paris (hereinafter “French

Action”).

3. All parties were served with the French Action and they are currently litigating it in

Case 1:16-cv-00068-WHP Document 3 Filed 01/06/16 Page 1 of 4


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the French courts. A true and correct copy of the French Action (without exhibits) in French and

English is annexed hereto as Exhibits “A” and “B”, respectively.

4. ORLAN is a French citizen residing in Paris. She is an artist whose work is devoted

to the human body and social pressures associated on one’s body and its appearance. Since

1964, ORLAN’s art reveals how the body can be beautiful in unconventional ways. She

underwent plastic surgery for the sake of her art including implants to her cheekbones which she

inserted on either side of her forehead. See, Exhibit B.

5. ORLAN created a new form of contemporary art called “Charnel Art” which wavers

between disfiguration and re-figuration. Her plastic surgery was photographed and broadcastlive in Paris, New York and Canada. ORLAN’s photographs were exhibited at the Pompidou

Museum in Paris and the Musee du Quai Branly (both in Paris), the Andy Warhol Museum in

Pittsburg, the Pushkin Museum in Moscow, and the Miro Foundation in Barcelona. Id.

6. In May 2011, Lady GaGa released here third album entitled “Born this Way”. It was

produced by UMG Recordings, Inc. and distributed by Universal Musical France. The album

contains 14 songs. One of the songs was called “Born this Way” which was released prior to the

album. “Born this Way” debuted at number one on the Billboard Hot 100 Chart and made the

top of the charts in numerous countries including France, Australia, the United Kingdom and the

United States. Id.

7. The cover on the single was Lady Gaga’s body transformed into a hybrid person

whose body is covered in excrescences on the forehead and shoulders. In order to promote the

album, Lady Gaga performed the song “Born this Way” in a musical video bearing the same

title. Id.

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Infringement of ORLAN’s Work

8. Lady Gaga infringed and exploited ORLAN’s work without permission to do so on

both the cover of the “Born this Way” album and in the “Born this Way” video. In particular,

Lady Gaga copied a sculpture created by ORLAN in 1989 entitled “ Bumpload ” wherein ORLAN

transformed her face into a mutant whose body is covered with excrescences. This work by

ORLAN was well publicized in 2009 on television, the Internet and in museums. Lady Gaga

also reproduced this work by ORLAN on the homepage of her official website. Id.

9. Lady Gaga also infringed upon and exploited one of ORLAN’s most famous works

called “Woman with Head” dated 1996 in the “Born this Way” video. The “Woman with Head”shows ORLAN’s decapitated head on a table. In the “Born this Way” video, Lady Gaga is

wearing a blunt haircut like ORLAN and is resting her head on a sheet of Plexiglas like that of

the decapitate ORLAN. Id.

10. The similarities between Lady Gaga’s album cover/video and ORLAN’s artwork did

not go unnoticed by either ORLAN or the international press. As a result, ORLAN commenced

the French Action against the French Defendants. Id.

The Need to Conduct Discovery for Use in the French Action

11. There are two witnesses located in this district who were part of Lady Gaga’s

creative team that worked on the “Born this Way” cover and video -- NICOLA

FORMICHETTI (“FORMICHETTI”) and BILLY BRASFIELD (“BRASFIELD”) who

according to public records maintain residences on White Street and West 23 rd Street, respectively,

12. Upon information and belief, FORMICHETTI was (a) Lady Gaga’s fashion director

for the “Born this Way” project; (b) responsible for styling Lady Gaga in the “Born this Way”

video; and (c) credited with “creation” and “fashion director” on the “Born this Way” album and

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“styling” on the “Born this Way” video. Accordingly, it is respectfully submitted that

FORMICHETTI has relevant information regarding the creative processes and techniques used

in the “Born this Way” project and how ORLAN’s works played a role in it. The proposed

subpoena for FORMICHETTI is annexed hereto as Exhibit “C”.

13. Upon information and belief, BRASFIELD was the makeup artist for Lady Gaga’s

“Born this Way” video and gave Lady Gaga the intricate skeleton look therein. BRASFIELD

should have information regarding the Lady Gaga’s appearance for the video, the inspiration for

it and the genesis of the idea. The proposed subpoena for BRASFIELD is annexed hereto as

Exhibit “D”.14. The French courts do not have jurisdiction over either FORMICHETTI or

BRASFIELD in the French Action. ORLAN needs both documents and deposition testimony

from these individuals to aid in the prosecution of her case in France. Without the

implementation of 28 U.S.C. § 1782, material evidence cannot be obtained in the French Action.

Accordingly, we respectfully requests that this Court grant the within application in its entirety.

Dated: New York, New YorkJanuary 6, 2016

s/ Alan E. SashAlan E. Sash

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Documents

Orlan Petition for Discovery DI 3 (Orlan v. Lady Gaga)