JUDGE ENGELMAYER
14 CV;p|g^fior supplementthe filing ar
JS 44C/SDNY
REV. 4/2014
PLAINTIFFS
Charles Wallert
CIVIL COVER SHEET
DEFENDANTS
See attached list
The JS-44civil coversheet andthe information contained herein neither fepljfcpor supplement the filing andserviipleadings or other papers as required by law, except as provided by local rules of court. This form, approved by theJudicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose ofinitiating the civil docket sheet.
TJUN 062014ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER ATTORNEYS (IF KNOWN)Dennis H. Cavanaugh, D H Cavanaugh Associates555 Fifth Avenue, 17th Floor, NY, NY 10017 (212) 856-7210Nadine Y. From, From Law, PLLC175 Varick Street. New York. New York 10014 (212) 655-5492 DCAUSE OF ACTION (CITE THEU.S. CIVIL STATUTE UNDER WHICH YOUARE FILING ANDWRITEA BRIEF STATEMENT OFCAUSE)
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
17 U.S.C. 101 et seq. This is an action for copyright infringement of a musical composition and sound recording and for unjust enrichment.
Has this action, case, or proceeding, or one essentially thesame been previously filed in SDNY atany time? NoEresI—(Judge Previously Assigned
If yes,wasthiscase Vol. fj Invol. Q Dismissed. No Q Yes Q If yes, give date &Case No.
IS THIS AN INTERNATIONAL ARBITRATION CASE?
(PLACEAN [x] INONE BOX ONLY)
TORTS
No 0 Yes •
NATURE OF SUIT
CONTRACT PERSONAL INJURY
11110 INSURANCE [ ] 310 AIRPLANE11120 MARINE [ ] 315 AIRPLANE PRODUCT[ ]130 MILLER ACT LIABILITY
1 1140 NEGOTIABLE [ ] 320 ASSAULT, LIBEL &INSTRUMENT SLANDER
11150 RECOVERY OF [ ] 330 FEDERALOVERPAYMENT & EMPLOYERS'
ENFORCEMENT LIABILITY
OF JUDGMENT [ ] 340 MARINE[ 1151 MEDICARE ACT [ ] 345 MARINE PRODUCTI 1152 RECOVERY OF LIABILITY
DEFAULTED ( ] 360 MOTOR VEHICLESTUDENT LOANS [ ] 355 MOTOR VEHICLE(EXCL VETERANS) PRODUCT LIABILITY
[1153 RECOVERY OF [ ] 360 OTHER PERSONALOVERPAYMENT INJURY
OF VETERAN'S [ ] 362 PERSONAL INJURY -BENEFITS MED MALPRACTICE
[ ]160 STOCKHOLDERS
SUITS
I 1190 OTHER
CONTRACT
[ ]195 CONTRACT
PRODUCT ACTIONS UNDER STATUTES
LIABILITY
[ ] 196 FRANCHISE CIVIL RIGHTS
[ ]440 OTHER CIVIL RIGHTS
REAL PROPERTY(Non-Prisoner)
[ 1441 VOTING[J 210 LAND [ J442 EMPLOYMENT
CONDEMNATION [ ]443 HOUSING/
[ ]220 FORECLOSURE ACCOMMODATIONS
[ J 230 RENT LEASE & [ ] 445 AMERICANS WITHEJECTMENT DISABILITIES -
[ ]240 TORTS TO LAND EMPLOYMENT
[ ]245 TORT PRODUCT [ ] 446 AMERICANS WITH
LIABILITY DISABILITIES -OTHER
[ ]290 ALL OTHER
REAL PROPERTY
[ ] 448 EDUCATION
Check ifdemanded in complaint:
CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23•
5 mil +DEMAND $; OTHER
Check YES only ifdemanded in complaintJURY DEMAND: EYES QlO
ACTIONS UNDER STATUTES
PERSONAL INJURY[ ] 367 HEALTHCARE/PHARMACEUTICAL PERSONAL
INJURY/PRODUCT LIABILITY
[ ] 365 PERSONAL INJURYPRODUCT LIABILITY
( ] 368 ASBESTOS PERSONALINJURY PRODUCT
LIABILITY
PERSONAL PROPERTY
[ ] 370 OTHER FRAUD[ ] 371 TRUTH IN LENDING
FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
I 1 375 FALSE CLAIMS
[ ] 625 DRUG RELATED [ ]422 APPEAL ( ]400STATESEIZURE OF PROPERTY 28 USC 158 REAPPORTIONMENT
21 USC 881[ ] 423 WITHDRAWAL [ ]410 ANTITRUST
[ ] 690 OTHER28 USC 157 [ ]430 BANKS & BANKING
( ) 450 COMMERCE[ ]460 DEPORTATION
PROPERTY RIGHTS | ) 470 RACKETEER INFLUENCED & CORRUPT
DC820 COPYRIGHTS ORGANIZATION ACT
[ ] 830 PATENT (RICO)[ ]840 TRADEMARK t ]480 CONSUMER CREDIT
[ ]490 CABLE/SATELLITE TV
SOCIAL SECURITY [ ] 850 SECURITIES/COMMODITIES/
LABOR [ J861 HIA(1395ff)[ ] 862 BLACK LUNG (923)
EXCHANGE
[ ] 710 FAIR LABOR [ ] 863 DIWC/DIWW (405(g))STANDARDS ACT [ 1864 SSID TITLE XVI
[ ] 720 LABOR/MGMT [ ]865 RSI (405(g)) [ J890 OTHER STATUTORYRELATIONS ACTIONS
[ ]740 RAILWAY LABOR ACT ( )891 AGRICULTURAL ACTS
[ ] 380 OTHER PERSONALPROPERTY DAMAGE
[ ] 385 PROPERTY DAMAGEPRODUCT LIABILITY
PRISONER PETITIONS
[ ] 463 ALIEN DETAINEE[ ] 510 MOTIONS TO
VACATE SENTENCE
28 USC 2255
[ ] 530 HABEAS CORPUS[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS & OTHER
PRISONER CIVIL RIGHTS
[ ] 550 CIVIL RIGHTS[ ] 555 PRISON CONDITION[ ] 560 CIVIL DETAINEE
[ ] 751 FAMILY MEDICALLEAVE ACT (FMLA)
[ ]790 OTHER LABORLITIGATION
[ ] 791 EMPL RET INCSECURITY ACT
IMMIGRATION
[ ] 462 NATURALIZATIONAPPLICATION
[ ) 465 OTHER IMMIGRATIONACTIONS
CONDITIONS OF CONFINEMENT
FEDERAL TAX SUITS
[ ]870 TAXES (U.S. Plaintiff orDefendant)
[ ] 871 IRS-THIRD PARTY26 USC 7609
[ ] 893 ENVIRONMENTALMATTERS
[ ] 895 FREEDOM OFINFORMATION ACT
[ ] 896 ARBITRATION
[ J 899 ADMINISTRATIVEPROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISION
[ 1950 CONSTITUTIONALITY OFSTATE STATUTES
DOYOU CLAJM THIS CASEIS RELATED TOA CIVIL CASE NOW PENDING IN S.D.N.Y.?
JUDGE DOCKET NUMBER
NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).
(PLACEAN x INONEBOXONLY)
® 1 Onginal • 2 Removed fromProceeding State Court
I | a. >t|»nta>
ORIGIN
L_l 3 Remanded I I^ Reinstated or LJ 5 Transferred from Q 6 Multidistrict [3 7 Appeal toDistricttrom Reopened (Specify District) Litigation Judge fromAppellate Magistrate JudgeCourt Judgment
[~1 b. Atleaston*party to pro s«.
(PLACE ANx INONt BOX ONLY) BASIS OF JURISDICTION
• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT [x] 3 FEDERAL QUESTION Q4 DIVERSITY(U.S. NOT A PARTY)
IFDIVERSITY, INDICATECITIZENSHIP BELOW.
CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X] in one box for Plaintiff and one box for Defendant)
CITIZEN OF THIS STATE
PTF DEF
111 ! 11 CITIZEN OR SUBJECT OF AFOREIGN COUNTRY
PTF DEF
I |3( )3PTF DEF
INCORPORATED and PRINCIPALPLACE | ]5 [)5OF BUSINESS IN ANOTHER STATE
CITIZEN OF ANOTHER STATE 12 [ 12 INCORPORATED or PFtlNCIPAL PL<kCE [ ] 4 | ]4OF BUSINESS IN THIS STATE
FOREIGN NATION 116 | 16
PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
Charles Wallert Nassau County, NYGlen Cove, NY
DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
See attached list
DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADETHAT. AT THIS TIME. I HAVEBEEN UNABLE.WITH REASONABLE DILIGENCE, TO ASCERTAIN
RE9IB6NCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
See attached list
Check one: THIS ACTION SHOULD BEASSIGNED TO: Q WHITE PLAINS(DO NOT check either box if this^TPRISONER PETITION/PRISONER CIVIL RIGHTS
f ATTQRNEYiiF RECORD
H MANHATTANCOMPLAINT)
DATE / , - - L/. ..SIGNATUREt/^/zciTRECEIPT #
Ruby J. Krajick, Clerk of Court by
ADMITTED TO PRACTICE IN THIS DISTRICT
[\J/YES (DATE ADMITTED Mo. /M/W Yr. tC^j)Attorney Bar Code # H0 Cjd j
Magistrate Judge is to be designated by the Clerk of the C$UC **v '" ivV*C
Magistrate Judge y^,!%*&^^^ is so Designated.
Deputy Clerk, DATED
UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)
Dennis H. Cavanaugh (DC 3146)D H CAVANAUGH ASSOCIATES
555 Fifth Avenue, 17th FloorNew York, New York 10017Telephone: (212) 856-7210Facsimile: (212) 856-7211
Nadine Y. From (NF 8848)FROM LAW, PLLC
175 Varick Street
New York, New York 10014Telephone: (212) 655-5492Facsimile: (646)213-3111 JUDGE ENGELMAVERAttorneysfor Plaintiff
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Charles Wallert,
Plaintiff,
Guillaume Jean Atlan; Sidney DovProsper Benichou p/k/a Mani Hoffman;Independiente Ltd; Cyclo Records;Disques Vogue; Sony Music Entertainment,Inc.; BMG France; Universal MusicPublishing MGB France; UniversalMusic - MGB Songs; Universal MusicGroup, Inc.; Serhat Beduk p/k/a Bediik;Audiology Records; Columbia Records;Seyhan Muzik; Does 1-50; andXYZ Corporations 1-50,
Defendants,
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Civil Action No.
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COMPLAINT
Plaintiff Charles Wallert (hereinafter referred to as "Plaintiff or "Wallert"), by his
attorneys, Dennis H. Cavanaugh and Nadine Y. From, as and for his complaint, alleges as
follows:
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 ofNew 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
jurisdictionpursuant to 28 U.S.C. Sees. 1331, 1332and 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. Sees. 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.
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 Jean 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 4JE, 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
of business within this judicial district.
f. Defendant Disques Vogue ("Vogue") is an unincorporated division of
Sony Music Entertainment, Inc. On information and belief, Sony Music Entertainment,
Inc. is the successor in interest to all rights ofVogue.
g. Defendant Sony Music Entertainment, Inc. ("Sony") is a corporation
organized and existing under the laws of New York 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.
h. Defendant BMG France ("BMG France") is owned by Sony. On
information and belief, BMG France has an office and place of business within this
judicial district at 800 Third Avenue, New York, New York 10022 and is either doing
business in or is engaged in the transaction of business within this judicial district.
i. Defendant Universal Music Publishing MGB France ("Universal MGB
France") is an unincorporated division of Universal Music Group, Inc., 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.
j. Defendant Universal Music - MGB Songs ("MGB Songs") is an
unincorporated division of Universal Music Group, Inc., 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.
k. 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.
1. Defendant Serhat Bediik p/k/a Bediik ("Bediik") is a resident of Turkey
and is either doing business in or is engaged in the transaction of business within this
judicial district.
m. Defendant Audiology Records ("Audiology") is an entity of unknown
nature with its principal place of business at Merkez,
34295 Istanbul, Turkey, Kuciikcekmece, 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.
n. Defendant Columbia Records ("Columbia"), is an unincorporated division
of Sony with its principal place of business at 550 Madison Avenue, New York, New
York 10022-3211. On information and belief, Columbia is either doing business in or is
engaged in the transaction of business within this judicial district.
o. Defendant Seyhan Muzik ("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.
p. 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
themselves to be identified.
q. 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, Vogue, Sony, BMG France,
Universal MGB France, MGB and UMG are hereinafter referred to collectively as the "Hoffman
Defendants." Defendants Bediik, Audiology, Columbia and Seyhan are hereinafter referred to
collectively as the "Bediik Defendants." The Hoffman Defendants, the Bediik 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 Jackson. 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 performed by singers and musicians engaged by Wallert and designed on the sound
recording by the group name "East Coast." The name "East Coast" was a group name coined by
Wallert for this sound recording. The sound recording was initially released in 1978 by Family
Records, a New York corporation solely owned by Wallert (the "Plaintiffs Record"). 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. Plaintiffs 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 March 1978, Wallert entered into a written distribution agreement
with RSO for the distribution of Plaintiffs Record (the "RSO Agreement"). The RSO
Agreement provided that RSO would have the right to distribute Plaintiffs Record as a single,
and that it would have an option to call for the production of a full album incorporating the
single. RSO proceeded to distribute Plaintiffs Record. RSO also did call for, funded and
released a full album incorporating the single as a track in 1979. The RSO Agreement did not
provide that Plaintiffs Record was a "work for hire" of RSO. It also did not contain any transfer
of Wallert's rights in either Plaintiffs Song or Plaintiffs Record. The RSO Agreement provided
that all rights in Plaintiffs Record would revert to Wallert within 3-5 years after termination of
the agreement. Termination was effective upon RSO not exercising its option to call for a
second album. RSO never called for a second album, and accordingly, the RSO Agreement
terminated on or about 1983. Upon information and belief, RSO also ceased to exist in 1983.
On or about 1983, all rights in Plaintiffs Record reverted Wallert. Since that time, all rights in
Plaintiffs Record have remained in Wallert, and such rights have not been transferred,
encumbered or affected in any way that would limit Wallert's right to bring this action.
15. On or about September 19, 1979, RSO filed for and obtained a registration of
Plaintiffs Record as a published sound recording, Registration No. SRI2223, a copy of the
online abstract of which is attached hereto and identified as Exhibit B and is incorporated herein
by reference. The copyright for Plaintiffs record should have been in Wallert's name. RSO had
no right to register the copyright for Plaintiffs record in its name because there was not a
transfer of ownership of rights in Plaintiffs Record from Wallert to RSO and the relationship
between Wallert and RSO was not a "work-for-hire" relationship. The copyright for Plaintiffs
Record should have been in Wallert's name.
16. Plaintiff has standing to bring this action with respect to the acts complained of
herein because he is the owner of the copyright. Even assuming, arguendo, that RSO and/or any
of its successors in interest is the owner of the copyright for Plaintiffs Record, Plaintiff still has
standing to bring this action because Plaintiff would be the beneficiary of fifty percent of the
revenues to be received from any licensing, royalties or damages as a result of the Defendants'
use of the Plaintiffs Record. Pursuant to industry practice, if RSO, and/or any successors in
interest, is the owner of the copyright, then Plaintiff would be entitled to at least fifty percent
(50%) of any licensing revenues received by RSO or any of its successors in interest, including
from the licensing of samples of the Plaintiffs Record. Upon information and belief, to date, no
license agreement for a sample of the Plaintiffs Record has been entered into by any of the
Defendants herein with RSO or any of its successors in interest with respect to the acts
complained of herein. Based upon all of the foregoing, and his beneficial interest in the revenues
from any exploitation of Plaintiffs Record, Plaintiff has standing to bring this action with
respect to the Defendants' unauthorized use ofPlaintiffs 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 March 2002, Lafesse, in association
with Independiente, Cyclo, Vogue, Sony and BMG France, recorded, manufactured and
distributed a sound recording by a group known as "The Superman Lovers featuring Mani
Hoffman" of a musical composition entitled "Starlight" (the "Infringing Hoffman Record"),
which composition incorporates unauthorized copies or copyrighted elements of Plaintiffs Song
and Plaintiffs Record, thereby infringing same. Upon 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, production and
distribution of the Infringing Hoffman Record, information regarding the ownership and
copyright status of Plaintiffs Song and Plaintiffs Record was publically available on the
Internet. Accordingly, the Hoffman Defendants either knew or should have known that
Plaintiffs Song and Plaintiffs Record were subject to copyright protection, and that,
accordingly, a license was required for use of any copyright protected elements thereof.
21. Upon information and belief, the Infringing Hoffman Record was knowingly and
willfully directly copied from and/or sampled copyrighted elements of Plaintiffs Song and
Plaintiffs Record by the Hoffman Defendants.
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,
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 Plaintiffs
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
10
otherwise commercially exploiting the Infringing Hoffman Record, and contributing to the
infringement of Plaintiff s Song and Plaintiffs Record 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.
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 Plaintiff s
copyrighted works; 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 works, all in violation of Plaintiffs rights under the
Copyright Act.
25. Upon information and belief, at the time of the composition, production and
distribution of the Infringing Hoffman Record, Universal MGB France, MGB and UMG acted as
publishers for the musical composition "Starlight" and as a result thereof, have obtained gains,
profits, and advantages as a result of their direct, contributory and/or vicarious copyright right
infringement of Plaintiffs Song and Plaintiffs Record.
26. Plaintiff is informed and believes and on that basis alleges that the Hoffman
Defendants' infringement of Plaintiffs copyrighted works has been and continues to be carried
out with the Hoffman Defendants' full knowledge that the Plaintiffs Song and Plaintiff's Record
are protected by copyright and that at all relevant times the Hoffman Defendants had actual and
constructive knowledge of Plaintiffs rights but proceeded in complete disregard thereof. In
doing the acts complained of herein, the Hoffman Defendants have willfully and intentionally
infringed Plaintiffs copyrights.
11
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
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 Bediik 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 information and belief, on or about 2008, Audiology, in association with
Columbia, recorded, manufactured and distributed a sound recording Bediik of a musical
composition entitled "Hot Bitch" (the "Infringing Bediik Record"), which composition
incorporates unauthorized copies or copyrighted elements of Plaintiffs Song and Plaintiffs
12
Record, thereby infringing same. "Hot Bitch" is contained on the album entitled "Dance
Revolution" released by Audiology and/or Columbia.
33. Upon information and belief, the Infringing Bediik Record was knowingly and
willfully directly copied from and/or sampled copyrighted elements of Plaintiffs Song and
Plaintiffs Record by the Bediik Defendants.
34. Upon information and belief, the Bediik Defendants have sold and/or distributed
copies of the Infringing Bediik 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 Bediik Defendants have licensed the Infringing Bediik 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 Bediik
Defendants have infringed and threaten to further infringe upon Plaintiffs Song and Plaintiffs
Record by being the source of the Infringing Bediik 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 Bediik Record, and contributing to the infringement of
Plaintiffs Song and Plaintiffs Record 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 Bediik Record by the Bediik
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 Plaintiff s copyrighted
13
works; and the public performance of the infringing musical composition embodied in the
Infringing Bediik Record by the Bediik Defendants constitutes unauthorized public performance
of Plaintiffs copyrighted works, all in violationof Plaintiffs rights under the CopyrightAct.
37. Upon information and belief, at the time of the composition, production and
distribution of the Infringing Bediik Record, Seyhan acted as publisher for the musical
composition"Hot Bitch" and as a result thereof, have obtained gains, profits, and advantages as a
result of their direct, contributory and/or vicarious copyright right infringement of Plaintiffs
Song and Plaintiffs Record.
38. Plaintiff is informed and believes and on that basis alleges that the Bediik
Defendants' infringement of Plaintiff s copyrighted works has been and continues to be carried
out with the Bediik Defendants' full knowledge that the Plaintiffs Song and Plaintiffs Record
are protected by copyright and that at all relevant times the Bediik Defendants had actual and
constructive knowledge of Plaintiffs rights but proceeded in complete disregard thereof. In
doing the acts complained of herein, the Bediik Defendants have willfully and intentionally
infringed Plaintiffs copyrights.
39. Plaintiff has suffered and continues to suffer irreparable harm and injury as a
result of the aforesaid infringing acts of the Bediik 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
ofactions.
40. Plaintiff has sustained damages as a result of the Bediik 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
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and belief such damages exceed $1,000,000 as to each work infringed as to each of the Beduk
Defendants.
41. Plaintiff is informed and believes and on that basis alleges that the Bediik
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 Beduk 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 Bediik 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.
43. As a result of their infringing activities complained of herein, including the
furtherance of the respective careers of Atlan, Hoffman and Bediik, 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
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distribution of any and all copies of the Infringing Hoffman Record and/or the Infringing
Bediik 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 Beduk Record in all
media, including, but not limited to, radio, television (broadcast and cable), the Internet
and motion pictures, and publicly performing the musical compositions embodied in the
Infringing HoffmanRecord and/or the InfringingBediikRecord;
(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 originor 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
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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
of the Infringing Hoffman Record or the Infringing Bediik 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 Beduk Record by Defendants.
2. Directing that Defendants deliver for impoundment:
(a) All copies of the Infringing Hoffman Record and the Infringing Bediik
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 Bediik Record; and
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(b) All masters, plates, molds, mechanicals, digital or analog tapes, or
apparatus utilized in making copies of the Infringing Hoffman Record and the Infringing
Bediik 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);
(b) all profits received by any of the Defendants from the sale or other
commercial exploitation of the Infringing Hoffman Record and the Infringing Beduk
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 Bediik 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 Bediik Record.
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5. Awarding Plaintiffpunitive damages of not less than $5,000,000.
6. Awarding Plaintiff hit 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 Plaintiffs
Record and that the registration of Plaintiffs Record, Registration No. SRI 2223, be amended to
show Wallert as the author of Plaintiffs Record and the claimant of Copyright Registration No.
SRI 2223.
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
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 YorkJune 6, 2014
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Respectfully submitted,
D H CAVANAUGH ASSOCIATES
Dennis H. Cavanaugh (DC 31^555 FifthAvenue, 17th FloorNew York, New York 10019Tel: (212) 856-7210Fax: (212)856-7211Email: [email protected]
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FROM LAW* PLL
NadinefCFrefh (NF 8848)175 Varick Street
New York, New York 10014Tele: (212) 655-5492Fax: (646)213-3111
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