DeKooning v. Keno Auction complaint.pdf
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8/10/2019 DeKooning v. Keno Auction complaint.pdf
1/13
JS 44C/SDNY
REV.
4/2014
PLAINTIFFS f
THE
WILLEM DE KOONING
FOUNDATrCW
w
CIVIL
COVER
,85.0 3
5fp2014
The JS-44 civilcover
sheet
and the informationcontained hereifceifrTBBBplace nV4uppement the
filing
pleadings orother papers as required by
law
except as provideonSy local rules ofcourt. This
form
apprm
Judicial
Conference
oftheUnited States in September 1974 isrequired
or
useoftheClerk ofCouRMr
initiating theivil
docket
sheet. ^
EFEN NTS
KENOAUCTIONS,
LLC
an d LEIGH KENO
ATTORNEYS (FIRM
NAME,
ADDRESS, ANDTELEPHONENUMBER
Robert
W. Clanda,
88 5
Third Avenue,20th Floor, New York, NY 10022
ATTORNEYS (IF KNOWN)
CAUSE OF ACTION (CITETHEU.S.
CIVIL
STATUTE UNDER WHICH YOU ARE FILING AND WRITEA BRIEFSTATEMENT OF CAUSER
(DO NOTCITE JURISDICTIONAL 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, was this case Vol.
Invol.
Dismissed. No [~j Yes If yes,give date &Case No.
No
0 Yes
STHIS AN INTERNATIONAL ARBITRATION CASE?
PLACE
AN[x]INONEBOX
ONLY
TORTS
CONTRACT
PERSONALINJURY
1)110
INSURANCE [ ] 310 AIRPLANE
[ ]120
MARINE [ ] 316 AIRPLANEPRODUCT
I
]130
MILLER
AC T
LIABILITY
[]140
NEGOTIABLE
[ ] 320 ASSAULT, LIBEL&
INSTRUMENT
SLANDER
[ ]150
RECOVERY OF [ ] 330 FEDERAL
OVERPAYMENT &
EMPLOYERS
ENFORCEMENT
LIABILITY
OF JUDGMENT
[ ] 340 MARINE
[ ] 1 51
MEDICARE ACT [ ] 345 MARINEPRODUCT
[]152
RECOVERY OF
LIABILITY
DEFAULTED
[ ] 350 MOTORVEHICLE
STUDENT LOANS [ ] 355 MOTORVEHICLE
(EXCLVETERANS)
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
[ J440 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
Checkifdemanded 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
, , 6 25 DRUG RELATED
INJURY/PRODUCT
LIABILITY SE|ZURE
QF pRopERTY
[ ] 365 PERSONAL INJURY 21 USC881
PRODUCT
LIABILITY
[ 1 368
ASBESTOS
PERSONAL
INJURY PRODUCT
LIABILITY
PERSONALPROPERTY
[ ] 370 OTHER FRAUD
[ 1371 TRUTH INLENDING
[ ] 380 OTHER PERSONAL
PROPERTY DAMAGE
[ ] 385 PROPERTY DAMAGE
PRODUCT
LIABILITY
PRISONER PETITIONS
[ ] 463 ALIEN DETAINEE
[ ] 510 MOTIONSTO
VACATE SENTENCE
28 US C 2255
[ ] 530 HABEASCORPUS
[ ] 535 DEATH PENALTY
[ ] 5 40
MANDAMUS
&OTHER
PRISONERCIVILRIGHTS
[ ] 550 CIVILRIGHTS
[ ] 555 PRISON CONDITION
56 0
CIVIL DETAINEE
) 69 0 OTHER
L BOR
[ ] 710 FAIRLABOR
STANDARDS
AC T
[ ] 720 LABOR/MGMT
RELATIONS
[ ] 740 RAILWAYLABOR ACT
[ ] 751 FAMILY MEDICAL
LEAVEACT (FMLA)
[ ] 790 OTHER LABOR
LITIGATION
[ ]791 EMPLRET INC
SECURITY
AC T
IMMIGRATION
[ ] 462 NATURALIZATION
APPLICATION
[ ]465 OTHER IMMIGRATION
ACTIONS
CONDITIONS
OF
CONFINEMENT
A C T I ON S U N D ER S T A TU T E S
BANKRUPTCY
[ ] 422 APPEAL
28
USC 15 8
[ ] 423 WITHDRAWAL
28
USC 1 57
PROPERTY
RIGHTS
M 820 COPYRIGHTS
[ ] 830 PATENT
84 0 TRADEMARK
SOCIAL
SECURITY
[ ]861 HIA(1395ff)
[ ] 862 BLACKLUNG (923)
[ ] 863 DlWC/DIWW(405(g))
[ )864 SSID TITLEXVI
[ ] 865 RSI (405(g) )
FEDERAL
T X
SUITS
[ ] 870 TAXES (U.S. Plaintiffor
Defendant)
[ ] 871 IRS-THIRD PARTY
26 US C 7609
OTHER
STATUTES
I 1
37 5
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 AGRICULTURALACTS
[ ] 8 93 ENVIRONMENTAL
MATTERS
[ ]895 FREEDOM OF
INFORMATION
ACT
[ ] 896
ARBITRATION
[ ) 899 ADMINISTRATIVE
PROCEDURE
ACT/REVIEW
APPEAL OF
AGENCY
DECI
[ ]
950
CONSTITUTIONALIT
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 offilingthe
Statement
of Relatedness form (Form IH-
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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.
parties represented
Court
Judgment
|~~| b. At
least
one
party is prose.
PLACE
AN
x
IN
ONEBOX
ONLY
BASIS
OF JURISDICTION
IF
DIVERSITY, 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 Plaintiffand one box for Defendant)
PTF DEF
PTFDEF
PTF
DEF
CITIZEN OFTHISSTATE []1 []1
CITIZEN
ORSUBJECT OFA [ ]3 [ ]3 INCORPORATED and PRINCIPAL PLACE [ ]S [ 5
FOREIGN COUNTRY OF
BUSINESS
IN ANOTHER STATE
CITIZEN
OFANOTHER 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 Stree t, 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: THIS
ACTION SHOULD
BE ASSIGNED
TO:
WHITE
PLAINS [x] MANHATTAN
(DO NOT check either box ifthis a PRISONER PETITION/PRISONER CIVILRIGHTS
COMPLAINT.)
DATE
9/24/2014
StSbLATLIRE
OF,ATTORNEY*
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)
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Rei t l e r Kai las
&
Rosenb l a t t 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 Plaintiff
The
Willem de Kooning Foundation
UNITED
STATES
DISTRICT COURT
SOUTHERN
DISTRICT OF
NEW
YORK
14
CV
8503
x
THE
WILLEM DE KOONING FOUNDATION
Plaintiff,
-against-
COM PL INT
JURY TR I L
DEM NDED
ENO AUCTIONS, LLC and
LEIGH KENO,
~;~ in
Defendants.
o
o
Co
~ r
x
. \
_ on
~ o
PlaintiffThe Willem de Kooning Foundation ( The
Foundation ),
by its^ J5
attorneys,Reitler Kailas & Rosenblatt LLC, alleges as follows:
N TURE OF CT ION
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
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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 o n th e at tached Schedule A. These additional
works
are
being submitted to the U.S. Copyright Office for registration, and Plaintiffwill 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 rel ief to remedy Defendants' willful
infringement
of
the Plaintiffs copyrights. Plaintiffrequests an order: (1) declaring that
Defendants' unauthorized preparation, duplication, public performance and public display
of
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the Video willfully
infringes plaintiffs copyrights in
violation
of
the
Copyright
Act; (2)
prohibiting Defendants from further
infringement
ofthe Plaintiffs
copyrights;
(3)
requiring
the impoundment
and
destruction
of
all copies
of
the Video
in
Defendants' custody
or
control; and (4) awarding actual damages and profits totheextent permitted under the
Copyright Act.
JU RI SD IC TIO N N D V E N U E
8. ThisCourthas subject matterjurisdictionover this actionunderthe
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,thisCourthas 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).
P RT IES
11. PlaintiffThe Foundation is private, tax-exempt operating foundation
havinga principalplace of businessat 790MadisonAvenue,New York, New York 10065.
12. Upon information and belief, DefendantKeno Auctions is a limited
liability company established under the laws ofNewYorkhavinga principalplaceof
businessat 127East 69th Street,NewYork,New York
10021.
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13. Uponinformation andbelief,Defendant LeighKenois an individual
residing or doing business in this judicial District.
14. Upon information andbelief,Defendant LeighKeno is the founder of
Defendant Keno Auctions.
T H E R E G IS TE R ED W O R K
15. Plaintiff is the copyright owner
of
the Registered Work, having
acquired the copyright from TheWillemde KooningRevocableTrust bywritten agreement
on Apri l 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. TheRegistered Work is copyrightable subject matter under the laws of
t h e Un it ed States.
20. The Registered Work has never been published with the consent
of
Willem de Kooning or The Foundation.
INFR INGEMENT
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
RegisteredWork from a third party who was employed by Willem de Kooning during his
lifetime.
4
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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. Plaintiffhas 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.
DEFEND NT
LE IGH
K EN O
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
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31. Upon
information
and belief, Mr. Keno
at
all
relevant
times had the
right to control the infringing activities complained ofherein.
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
stood to realizea direct financial benefit from the infringingactivities complainedof herein.
34.
Accordingly, Mr. Keno is a
contributory
and/or
vicarious
infringer of
Plaintiffs
copyright
inthe
Registered Work
andisjointly
and severally liable
for
any
damages that may be awarded in this action.
C OUN T
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 ofPlaintiffs Registered Work into
the
Video,
and subsequent reproduction, public display andpublic performance of theVideo,
are
infringements
ofPlaintiffs
copyright
in violation ofthe
Copyright Act,
17
U.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 Plaintiffrequests the following relief:
A. Actual damages and profits under 17U.S.C. 504 in an amount to be
proved at trial;
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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
Robe r t
W .
Clar ida
885 Third
Avenue,
20th Floor
New
York,
NY
10022
Tel. (212) 209-3044
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SCHEDULE A
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WdK photo
Title
Date
created
(00220)
Gansevoort Street
1949
(00238)
sheville
1949
(00262)
Excavation
1950
(00516)
Women
III
1952-53
(00703)
Nude
1964
(00713)
Sphinx
1964
(00888)
Pink
Woman Torso
1967
(01108)
Th e 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)
finprocess]
1989
(02108)
1989
(03584)
71972
(03600)
c. 1970-1977
(03609)
c.
1971
(03615)
1970-1977?
(03653)
1971?
(03666)
c. 1970-1971
(03669)
1970-1972?
(03687)
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(03737)
c. 1975-1979
(03739)
1975 1978?
(03740)
c.
1966
(03827)
1982?
(03842)
Untitled mWomen
1966-1968?
(04161)
c.
1968
(04175)
1950
(04597)
1971?
(04612)
1971?
(04613)
1972?
(04614)
1972?
(04615)
n o
title>
1972?
(04616)
1972?
(04617)
1972?
(04619)
1972?
(04620)
1972?
(04621)
1972?
(04622)
1972?
(04635)
1972?
(04829)
71968
(05545)
1971
(05774)
71978
(05884)
1989
(05965)
71978
(05966)
71978
(05967)
71978
(05970)
1972?
(05971)
1972?
(05972)
1972?
(05973)
1972?
(05974)
1972?
(05975)
1972?
(05976)
1972?
(05977)
1972?
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05978