Stiletto Entertainment v. Princess Cruise Lines - Barry Manilow complaint.pdf

8/18/2019 Stiletto Entertainment v. Princess Cruise Lines - Barry Manilow complaint.pdf

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508028.01 1 FIRST AMENDED COMPLAINT

LAW OFFICES

ROSENFELD,MEYER &

SUSMAN LLP

TODD W. BONDER, ESQ. (Cal. Bar No. 116482)[email protected] RYAN M. LAPINE, ESQ. (Cal. Bar No. 239316)[email protected] JOSHUA H. HERR, ESQ. (Cal. Bar No. 301775)

[email protected], MEYER & SUSMAN LLP232 North Canon DriveBeverly Hills, California 90210-5302Telephone: (310) 858-7700Facsimile: (310) 860-2430

Attorneys for PlaintiffHASTINGS, CLAYTON & TUCKER, INC.dba STILETTO ENTERTAINMENT

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HASTINGS, CLAYTON & TUCKER,INC., a Nevada corporation, dbaSTILETTO ENTERTAINMENT,

Plaintiff,

vs.

PRINCESS CRUISE LINES, LTD.,WHICH WILL DO BUSINESS IN

CALIFORNIA AS PRINCESSCRUISES, a Bermuda corporation;SWANK MOTION PICTURES, INC., aMissouri corporation; and DOES 1-10,inclusive,

Defendants.

))))))))))

)))))))))))))))))

Case No. 16-cv-01831-GHK-JEM

FIRST AMENDED COMPLAINTFOR:

(1) DIRECT ANDCONTRIBUTORY COPYRIGHTINFRINGEMENT;

(2) DIRECT AND

CONTRIBUTORY VIOLATIONOF SECTION 43(a) OF LANHAMTRADEMARK ACT – UNFAIRCOMPETITION;

(3) UNFAIR COMPETITION;

(4) DILUTION AND/OR INJURYTO BUSINESS REPUTATION;and

(5) STATUTORY ANDCOMMON LAW RIGHT OFPUBLICITY

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 1 of 24 Page ID #:43


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Plaintiff, HASTINGS, CLAYTON & TUCKER, INC. (hereinafter referred to

as “HCT”), complains and alleges as follows:

JURISDICTION

1.

The first and second claims hereof each arise under the Copyright Actof 1976, 17 U.S.C. § 101 et seq. This Court has jurisdiction over the subject matter

of these claims pursuant to 28 U.S.C. Sections 1331 and 1338(a).

2. The third and fourth claims hereof arise under the provisions of the

Lanham Trademark Act of 1946, as amended, in 15 U.S.C. Section 1125(a). This

Court has jurisdiction over the subject matter of these claims pursuant to 15 U.S.C.

Section 1121 and 28 U.S.C. Sections 1331 and 1338.

3. The fifth, sixth, seventh, and eighth claims hereof each arise under the

common law and statutory law of California relating to trademark infringement,

unfair competition, and right of publicity. This Court has jurisdiction over the

subject matter of such claims pursuant to the provisions of 28 U.S.C. Section 1338(b

and 28 U.S.C. Section 1367.

4. Each of the claims hereof at least in part involve conduct that took

place on the high seas. This Court has jurisdiction over the subject matter of such

claims pursuant to the provisions of 28 U.S.C. Section 1333.

VENUE IS PROPER

5. Venue is proper in this judicial district pursuant to 28 U.S.C. Sections

1391(b) through (c), 1392 and 1400(a), and 18 U.S.C. Section 3238.

THE PARTIES

6. HCT is, and at all times material hereto was, a Nevada corporation

doing business in Los Angeles County, California.

7. HCT does business as STILETTO ENTERTAINMENT ("Stiletto"),

having properly registered that Fictitious Business Name with the California

Secretary of State. (As used herein, "Plaintiff" refers to HCT and Stiletto, which are

in fact and in law the same entity).



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8. Plaintiff is informed and believes, and upon that basis alleges, that at all

times relevant hereto:

a. Defendant SWANK MOTION PICTURES, INC. (hereinafter

“Swank”) is a Missouri corporation doing business in Los Angeles County,California, with its principal place of business in St. Louis, Missouri;

b. Defendant PRINCESS CRUISE LINES, LTD., WHICH WILL DO

BUSINESS IN CALIFORNIA AS PRINCESS CRUISES (hereinafter “Princess

Cruises”) is a Bermuda corporation doing business in Los Angeles County,

California, with its principal place of business in Santa Clarita, California in this

District.

9. The true names and capacities of DOES 1-10, inclusive, whether

corporate, associate, individual or otherwise, are unknown to Plaintiff at this time.

Plaintiff will, with leave of court, amend this First Amended Complaint to show the

true names and capacities of these DOES if and when the same have been

ascertained. Plaintiff is informed and believes, and upon that basis alleges, that each

of these fictitiously named Defendants is legally responsible in some manner for the

events and occurrences herein alleged and that Plaintiff's damages as alleged herein

were proximately caused thereby. (Swank, Princess Cruises, and DOES 1-10,

inclusive, are referred to collectively as “Defendants.”)

PLAINTIFF EXISTS TO MANAGE BARRY MANILOW'S AFFAIRS, OWNS

THE MANILOW TRADEMARK AND COMMISSIONED THE COPYRIGHTED

WORK MUSIC AND PASSION LIVE FROM LAS VEGAS

10. Barry Manilow writes the songs that make the whole world sing.

11. Plaintiff manages Barry Manilow's business and financial affairs.

12. Born Barry Alan Pincus, Barry Manilow, one of the best selling

musical artists of all time, is an entertainment icon. At present, he is on his final

concert tour.



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LAW OFFICES

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13. "Barry Manilow" is registered as a trademark with the United States

Patent and Trademark Office with Serial Number 73606430; Plaintiff owns that

mark. (That mark is referred to herein as “Plaintiff’s Trademark.”)

14.

Plaintiff has openly and actively used Plaintiff's Trademark as adistinctive mark. The mark has developed a distinctive meaning among members of

the public, who have come to identify its use as designating music, performances,

and services associated with that singer and performer known as Barry Manilow.

15. Barry Manilow assigned to Plaintiff all of his rights of publicity for use

of his name and likeness in connection with the sale of his music, performances, or

the marketing of his music or performances.

16. Plaintiff hired Barry Manilow and a cadre of background musicians,

employing them to perform, as a work made for hire, a concert entitled “Barry

Manilow: Music and Passion Live from Las Vegas” (hereinafter “ Music and

Passion Live”).

17. Music and Passion Live is wholly original with Plaintiff and constitutes

copyrightable subject matter under the Copyright Act of 1976, 17 U.S.C. § 101 et

seq.

18. Plaintiff owns and controls all right, title and interest in and to Music

and Passion Live, including all related intellectual property rights.

19. Plaintiff has complied in all respects with the laws governing Music

and Passion Live's intellectual property rights and has registered Music and Passion

Live with the United States Copyright Office.

20. Plaintiff has at no time, directly or indirectly, granted Defendants, or

any of them, the authority, permission, license or consent to use Plaintiff's

Trademark, Music and Passion Live, or any aspect thereof, or the name and likeness

of Barry Manilow.



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LAW OFFICES

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SWANK SOLICITED AND PROFITED FROM

PLAINTIFF'S INTELLECTUAL PROPERTY

21. On information and belief, on an ongoing basis and within the last three

years, Swank willfully endeavored to sell Plaintiff's copyrighted work Music and Passion Live and profit from it in this judicial district.

22. On information and belief, on an ongoing basis and within the last three

years, Swank willfully used Plaintiff's Trademark and his likeness and name to

solicit sales of Music and Passion Live and profit from it in this judicial district.

23. Swank never obtained from Plaintiff any rights, permission, authority

or consent to market or sell Music and Passion Live, to use Plaintiff's Trademark in

the marketing or sale of goods or products, or to use Barry Manilow's name or

likeness to sell or market goods or products.

24. Indeed, prior to receiving a cease and desist letter in 2015, Swank never

once contacted Plaintiff – or Barry Manilow – to assess whether it may market or

sell Music and Passion Live, use Plaintiff's Trademark to market or sell goods or

products, or use Barry Manilow's name or likeness to market or sell goods or

products.

25. Swank intentionally and willfully, within the last three years, and

within this judicial district, marketed for sale and sold to, among others, Princess

Cruises "rights" to broadcast Music and Passion Live along with copies of that

copyrighted work, using Plaintiff's Trademark and Barry Manilow's name and

likeness in the solicitation of that sale, all without Plaintiff's authority, permission,

or consent.

PRINCESS CRUISES REPEATEDLY, WILLFULLY AND INTENTIONALLY

INFRINGED PLAINTIFF'S INTELLECTUAL PROPERTY

26. Without Plaintiff's authority, permission or consent, Princess Cruises

repeatedly broadcast Music and Passion Live on the lido deck of its cruise ships to

entertain its customers.



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LAW OFFICES

ROSENFELD,MEYER &

SUSMAN LLP

27. On information and belief, Princess Cruises used Plaintiff's Trademark

and Barry Manilow's name and likeness to market its broadcasts of Music and

Passion Live.

28.

In 2014, Plaintiff discovered that Princess Cruises was repeatedly broadcasting Music and Passion Live on the lido deck of its ships as a key

component of its entertainment of its cruise customers.

29. Plaintiff wrote Princess Cruises in March of 2014, informed Princess

Cruises that Princess Cruises did not have any rights to broadcast Music and

Passion Live on any of its cruise vessels or in any forum for its customers’

entertainment and consumption, and demanded that it cease and desist from

broadcasting Music and Passion Live immediately.

30. Princess Cruises acknowledged that cease and desist letter, refused to

cease and desist, and instead willfully and intentionally continued to broadcast

Music and Passion Live on its cruise vessels while, on information and belief,

continuing to use Plaintiff's Trademark and Barry Manilow's name and likeness to

advertise and market that entertainment.

PRINCESS CRUISES' INFRINGEMENT ACTIVITY DIRECTLY COMPETED

WITH PLAINTIFF'S BUSINESS ENDEAVORS

31. Plaintiff is currently producing Barry Manilow's final concert tour for

which it is selling tickets and merchandise.

32. It expressly would not and did not intend to concomitantly make

available live concert footage for repetitive screenings on cruise ships that would

provide direct competition to the live concerts it was and is seeking to sell.

FIRST CLAIM

(For Direct Copyright Infringement

-- Against Defendants)

33. Plaintiff repeats, realleges and incorporates the allegations contained in

paragraphs 1 through 32, inclusive, hereof as if fully set forth herein.



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ROSENFELD,MEYER &

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34. Defendants infringed Plaintiff’s copyrights in Music and Passion Live

by, among other things, advertising, displaying, promoting, marketing, distributing,

providing, publicly performing, offering for license, licensing, offering for rental

and/or renting, offering for sale and/or selling within this judicial district andelsewhere, including on cruise lines, Music and Passion Live. This specifically

includes, but is not limited to, Swank's solicitation, sale, licensing and/or renting of

Music and Passion Live to, among others, Princess Cruises; Defendants' copying

and loading of Music and Passion Live for broadcast on its cruise ships and

elsewhere; and Princess Cruises' repeated and willful public broadcast of Music and

Passion Live on the lido deck of its cruise ships for the entertainment of its

customers.

35. The production or manufacture of Music and Passion Live is an

unauthorized reproduction of Plaintiff’s copyrighted work by Defendants violating

17 U.S.C. Section 106(1).

36. The licensing, renting, selling and/or screening of Music and Passion

Live by Defendants is an unauthorized distribution of copies of Plaintiff’s

copyrighted work violating 17 U.S.C. Section 106(3).

37. The public performance of Music and Passion Live by Defendants is an

unauthorized performance of Plaintiff's copyrighted work violating 17 U.S.C.

Section 106(4).

38. The advertising and/or display of Music and Passion Live by

Defendants is an unauthorized public display of Plaintiff’s copyrighted work

violating 17 U.S.C. Section 106(5).

39. Plaintiff has fully complied with its obligations under the copyright

laws, and as stated above Plaintiff has at all times been and still is the sole proprietor

of all right, title and interest in and to Music and Passion Live.

40. The manufacture, production, advertisement, display, promotion,

marketing, distribution, public performance, licensing, rental and/or sale of Music



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and Passion Live by Defendants is without any permission, license or other

authorization from Plaintiff.

41. Defendants were notified of their infringing and illegal activity.

Despite clear requests to Defendants, Defendants, and each of them, willfully andknowingly continued at least certain of their respective unlawful infringing activities

On information and belief, the unlawful infringing activities have now ceased.

42. Plaintiff has no adequate remedy at law and has suffered, and is

continuing to suffer, irreparable harm and damage as a result of the aforesaid acts of

infringement. Defendants are each liable in amounts within the jurisdiction of this

Court.

43. These damages include, but are not limited to, the devaluing of Barry

Manilow's concert tours Plaintiff is presently producing and that Plaintiff produced

at times relevant hereto that Defendants' repetitive broadcasting of Barry Manilow's

Music and Passion Live in a public setting competed directly against.

44. Plaintiff is informed and believes, and upon that basis alleges, that the

aforesaid infringements by Defendants of Music and Passion Live was and

continues to be with the knowledge that Music and Passion Live is copyrighted, and

that the Defendants, and each of them, in doing the acts complained of herein, have

willfully infringed Plaintiff’s rights under the Copyright Laws of the United States,

17 U.S.C. Section 101 et seq.

45. Plaintiff is informed and believes, and upon that basis alleges, that

Defendants have each obtained gains, profits and advantages as a result of their

respective wrongful acts in amounts within the jurisdiction of this Court.

46. Plaintiff is informed and believes, and upon that basis alleges, that it

has suffered, and is continuing to suffer, direct and actual damages as a result of

Defendants’ wrongful conduct as alleged herein, in amounts within the jurisdiction

of this Court. In order to determine the full extent of such damages, including such

profits as may be recoverable under 17 U.S.C. Section 504, Plaintiff will require an



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accounting from each Defendant of all monies generated from the manufacture,

production, distribution, provision, public performance, licensing, rental and/or sale

of infringing goods as alleged herein.

47.

Plaintiff is informed and believes, and upon that basis alleges, that eachDefendant's acts as described above are in willful violation of Plaintiff’s rights, and

statutory damages against each such willfully infringing Defendant in the Court’s

discretion up to the amount of $150,000.00 for the infringement of Music and

Passion Live should be assessed by the Court pursuant to 17 U.S.C. Section

504(c)(2).

48. By reason of the foregoing, Plaintiff has incurred, and will continue to

incur, attorneys’ fees and other costs in connection with the prosecution of his

claims herein, which attorneys' fees and costs Plaintiff seeks from the Defendants,

and each of them, herein.

SECOND CLAIM

(For Contributory Copyright Infringement)




Defendants, and each of them, with knowledge of the infringing activities of their

third-party customers and other of the Defendants, as well as with the ability to

control the same and the intent to themselves benefit, either directly or indirectly,

therefrom, have infringed Plaintiff’s copyrights in Music and Passion Live by,

among other things, participating in or otherwise knowingly contributing to the

manufacture, production, advertisement, display, promotion, marketing, distribution,

provision, public performance, offering for license, licensing, offering for rental

and/or renting, offering for sale and/or selling within this judicial district and

elsewhere Music and Passion Live, and have induced, caused and materially



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contributed to the infringing conduct by such third party customers and other

Defendants.

51. The participation in or otherwise knowing contribution by Defendants

to the production or manufacture of Music and Passion Live is an unauthorizedreproduction of Plaintiff’s copyrighted work violating 17 U.S.C. Section 106(1).


to the marketing of Music and Passion Live is an unauthorized distribution of copies

of Plaintiff’s copyrighted work violating 17 U.S.C. Section 106(3).


to the advertisement and/or display of Music and Passion Live is an unauthorized

public display of Plaintiff’s copyrighted work violating 17 U.S.C. Section 106(5).

54. The manufacture, production, importation, exportation, advertisement,

display, promotion, marketing, distribution, provision, public performance, licensing

rental and/or sale of Music and Passion Live by Defendants and/or their third party

customers and others for resale or other use(s) in commerce is without any

permission, license or other authorization from Plaintiff.

55. Defendants have been notified of their infringing and illegal activity.

Despite clear requests to Defendants, Plaintiff is informed and believes, and upon

that basis alleges, that Defendants, and each of them, have willfully and knowingly

undertaken and continued at least certain of their unlawful infringing activity.


continuing to suffer, irreparable harm and damage as a result of the aforesaid

respective acts of contributory infringement. Defendants are liable in an amount

within the jurisdiction of this Court.

57. Plaintiff is informed and believes, and upon that basis alleges, that the

aforesaid contributory infringements by Defendants of Music and Passion Live was

and continues to be with the knowledge that Music and Passion Live is copyrighted,

and that Defendants, in doing the acts complained of herein, has willfully infringed



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Plaintiff’s rights under the Copyright Laws of the United States, 17 U.S.C. Section

101 et seq.


Defendants have obtained gains, profits and advantages as a result of theirrespective wrongful acts of contributory infringement in amounts within the

jurisdiction of this Court.

59. Plaintiff is informed and believes, and upon that basis alleges, that he

has suffered, and is continuing to suffer, direct and actual damages as a result of

Defendants’ wrongful conduct as alleged herein, in amounts within the jurisdiction

of this Court. In order to determine the full extent of such damages, including such

profits as may be recoverable under 17 U.S.C. Section 504, Plaintiff will require an

accounting from each Defendant of all monies generated from the manufacture,

production, importation, exportation, distribution, provision, public performance,

licensing, rental and/or sale of infringing goods and/or services as alleged herein.

60. Plaintiff is informed and believes, and upon that basis alleges, that each

Defendant's respective acts as described above are in willful violation of Plaintiff’s

rights, and statutory damages against each such willfully infringing Defendant in the

Court’s discretion up to the amount of $150,000.00 for the contributory

infringement of Music and Passion Live should be assessed by the Court pursuant to

17 U.S.C. Section 504(c)(2).



claims herein, which attorneys' fees and costs Plaintiff seeks from the Defendants,

and each of them, herein.

///

///



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THIRD CLAIM

(For Direct Violation of Section 43(a)

of the Lanham Act -- Unfair Competition

-- Against All Defendants)62. Plaintiff repeats, realleges and incorporates the allegations contained

in paragraphs 1 through 61, inclusive, hereof as if fully set forth herein.

63. Plaintiff owns all right, title and interest in and to Plaintiff’s

Trademark.

64. Barry Manilow assigned to Plaintiff his rights of publicity, including all

rights associated with use of his name, his likeness, his reputation and his goodwill.

65. Plaintiff has openly and actively used Plaintiff's Trademark as a

distinctive mark. The mark has developed a distinctive meaning among members of

the public, who have come to identify its use as designating goods, performances,

and services endorsed by that singer and performer known as Barry Manilow.

66. Defendants used Plaintiff's Trademark to market their solicitation, sale,

licensing, and broadcast of Music and Passion Live. Plaintiff did not know of this

solicitation, sale, licensing and broadcast, did not approve of it and did not endorse

it.

67. The conduct complained of herein has damaged and diluted the

goodwill and reputation of Plaintiff and of Barry Manilow, and, thus, the value of

Plaintiff's Trademark.

68. Defendants' unauthorized use of Plaintiff's Trademark for their own

gain and advantage constitute acts of unfair competition and false representation of

affiliation, all in violation of Section 43(a) of the Lanham Trademark Act, 15 U.S.C.

§ 1125(a), as amended. Plaintiff is informed and believes, and upon that basis

alleges, that each Defendant’s respective acts of reputational appropriation and

unfair competition was willful and intentional.



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69. Defendants' respective unauthorized and unlawful acts of federal unfair

competition, and each of them, have enabled Defendants, and each of them, to trade

unlawfully upon the established goodwill, reputation and artistic skill of Plaintiff

and Barry Manilow and upon the value and worth of Plaintiff's Trademark.70. Defendants, and each of them, thereby unjustly enriched themselves at

the expense and to the damage and injury of Plaintiff, of Barry Manilow, and of


71. The continued use by any of the Defendants of Plaintiff’s Trademark

has caused, and unless restrained will continue to cause, serious irreparable injury to

Plaintiff.


Defendants, and each of them, have willfully and knowingly continued at least

certain of their wrongful conduct in violation of Plaintiff’s rights through the date of

the filing of this First Amended Complaint.


continuing to suffer, irreparable harm and damage as a result of Defendants'

respective acts of federal unfair competition in amounts thus far not determined but

within the jurisdiction of this Court, which amounts should each be trebled pursuant

to 15 U.S.C. Section 1117.


unless enjoined by the Court, the unfair competition and false representation of

affiliation noted above, and the likelihood thereof, will continue with irreparable

harm and damage to Plaintiff. Accordingly, Plaintiff seeks preliminary and

permanent injunctive relief pursuant to 15 U.S.C. Section 1116.


Defendants have each obtained gains, profits and advantages as a result of their

wrongful acts of federal unfair competition in amounts thus far not determined but



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within the jurisdiction of this Court, which amounts should each be trebled pursuant

to 15 U.S.C. Section 1117.

76. In order to determine the full extent of such damages, including such

profits as may be recoverable, Plaintiff will require an accounting from eachDefendant of all monies attributable to their unfair competition and false designation

of affiliation.



claims herein, which attorneys' fees and costs Plaintiff is entitled to recover from the

Defendants, and each of them, herein.

78. Defendants' conduct was willful, wanton, malicious and deliberate such

that punitive damages should be awarded.

FOURTH CLAIM

(For Contributory Violation of Section 43(a)

of the Lanham Act -- Unfair Competition

-- Against All Defendants)




Defendants have, without permission, authority or license from Plaintiff,

participated in or otherwise knowingly contributed to the affixation, application

and/or use by others, including other Defendants, of Plaintiff’s Trademark including

but not limited to, third-party use of Plaintiff's Trademark in the advertising,

solicitation, sale, licensing and broadcast of Music and Passion Live.

81. Plaintiff did not know of this third-party use of Plaintiff's Trademark,

did not approve of it and did not endorse it.

82. Defendants' contributory conduct in connection with this third-party

unauthorized and unlawful act of federal unfair competition, and each of them, have



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enabled, assisted, aided and abetted the these third-parties to trade unlawfully upon

the established goodwill and reputation of Plaintiff, of Barry Manilow, and of


83.

Defendants are thereby unjustly enriching themselves at the expenseand to the damage and injury of Plaintiff, and unless enjoined by this Court will

further impair the value of Plaintiff’s Trademark and goodwill.

84. By reason of the aforesaid, the continued use by any of the Defendants’

customers of Plaintiff’s Trademark, and/or the likenesses thereof, has caused, and

unless restrained will continue to cause, serious irreparable injury to Plaintiff.


continuing to suffer, irreparable harm and damage as a result of Defendants’

respective acts of contributory federal unfair competition in amounts thus far not

determined but within the jurisdiction of this Court, which amounts should each be

trebled pursuant to 15 U.S.C. Section 1117.

86. Defendants have been notified of their infringing and illegal activity.

Despite clear requests to Defendants, Plaintiff is informed and believes, and upon

that basis alleges, that Defendants willfully and knowingly continued at least certain

of their wrongful conduct in violation of Plaintiff’s rights well after they were

notified of their illegal and infringing activity.


Defendants have obtained gains, profits and advantages as a result of their

respective wrongful acts of contributory federal unfair competition in amounts thus

far not determined but within the jurisdiction of this Court, which amounts should

each be trebled pursuant to 15 U.S.C. Section 1117.


profits as may be recoverable, Plaintiff will require an accounting from each

Defendant and others of all monies attributable to their unfair competition and false

designation of affiliation.



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claims herein, which attorneys' fees and costs Plaintiff is entitled to recover from

Defendants herein.90. Defendants' conduct was willful, wanton, malicious and deliberate such


FIFTH CLAIM

(For State Law Unfair Competition




92. Plaintiff owns all right, title and interest in and to Plaintiff’s

Trademark.



94. Defendants have, without authority, permission or consent, traded upon

and profited from Plaintiff's Trademark, Barry Manilow's name, his likeness, his

reputation and his goodwill by using each of the same to sell products, to promote

their own products, including Princess Cruises' entertainment offerings on its cruise

lines and Swank's catalog of entertainment titles, and to benefit from their affiliation

with them.

95. As such, Defendants have each committed trademark infringement,

misleading advertising, breach of the right of publicity, and unfair competition

under the common law and under the California Unfair Business Practices Act, Cal.

Bus. & Prof. Code §17200 et seq.


these deceptive, unfair and fraudulent practices have been undertaken with



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knowledge by each defendant of their wrongfulness, in violation of the California

Unfair Business Practices Act, Cal. Bus. & Prof. Code §17200 et seq.

97. Defendants acted for the willful and calculated purpose of

misappropriating Barry Manilow's goodwill, the value of Plaintiff's Trademark, andthe value of Barry Manilow's right of publicity.


continuing to suffer, irreparable harm and damage as a result of each Defendant’s

acts in amounts thus far not determined but within the jurisdiction of this Court.


Defendants have each unlawfully and wrongfully derived, and will continue to

derive, income, gains, profits and advantages as a result of their wrongful acts of

unfair competition in amounts thus far not determined but within the jurisdiction of

this Court.

100. In addition, Plaintiff is informed and believes, and upon that basis

alleges, that it has lost and will continue to lose profits and goodwill as a result of

Defendants’ respective conduct.

101. By reason of the foregoing acts of unfair competition, Plaintiff is

entitled to restitution from each Defendant of all income, gains, profits and

advantages resulting from their wrongful conduct in amounts to be determined

according to proof at trial.


profits as may be recoverable, Plaintiff will require an accounting from each

Defendant of all monies attributable to their tortuous conduct.


Defendants, and each of them, committed the acts alleged herein intentionally,

fraudulently, maliciously, willfully, wantonly and oppressively with intent to injure

Plaintiff in his business and with conscious disregard of Plaintiff’s rights, thereby

justifying awards of punitive and exemplary damages against each Defendant.



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SIXTH CLAIM

(For Dilution and/or Injury To Business Reputation


104.

Plaintiff repeats, realleges and incorporates the allegations containedin paragraphs 1 through 103, inclusive, hereof as if fully set forth herein.

105. Plaintiff’s business reputation, the name Barry Manilow, and Music

and Passion Live, and each of them, are entitled to protection pursuant to Section

14330 of the California Business and Professions Code.

106. Each Defendant’s unauthorized appropriation(s) of part or all of

Plaintiff’s Trademark and copyrighted product Music and Passion Live, as alleged

hereinabove, which are each valid at common law, are acts likely to injure

Plaintiff’s business reputation and/or dilute the distinctive quality of Plaintiff’s

trademark interests, and each Defendant’s unauthorized acts should be enjoined

pursuant to California Business and Professions Code Section 14330 as a result

thereof.

SEVENTH CLAIM

(For Violation of California Statutory Right of Publicity


107. Plaintiff repeats, realleges and incorporates the allegations contained




109. On information and belief, Swank used Barry Manilow's name, voice,

photograph and/or likeness to market Music and Passion Live and sell, license

and/or rent it to consumers, including Princess Cruises.

110. Swank did not have Plaintiff's or Barry Manilow's authority,

permission or consent to use his name, voice, photograph or likeness to market



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Music and Passion Live and sell, license and/or rent it to consumers, including

Princess Cruises.

111. Swank profited from this unauthorized use of Barry Manilow's name,

voice, photograph and/or likeness.112. Princess Cruises, on information and belief, used Barry Manilow's

name, voice, photograph and likeness to market the entertainment offerings on

board its ship(s).

113. Princess Cruises did not have Plaintiff's or Barry Manilow's authority,

permission or consent to use his name, voice, photograph or likeness to market the

entertainment offerings on board its ship(s).

114. Princess Cruises profited from this unauthorized use of Barry

Manilow's name, voice, photograph and/or likeness.

115. Defendants’ misappropriation of Barry Manilow's name and/or likeness

for their own purposes, commercial or otherwise, is a violation of California Civil

Code Section 3344 and afforded them ill-begotten profits, the recovery of which

Plaintiff seeks.

116. As a result of Defendants' actions, Plaintiff has suffered, and continues

to suffer, damages in an amount to be proven at trial.



EIGHTH CLAIM

(For Violation of California Common Law Right of Publicity


118. Plaintiff repeats, realleges and incorporates the allegations contained




/ / /



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120. On information and belief, Swank used Barry Manilow's name, voice,

photograph and/or likeness to market Music and Passion Live and sell, license

and/or rent it to consumers, including Princess Cruises.

121.

Swank did not have Plaintiff's or Barry Manilow's authority, permission or consent to use his name, voice, photograph or likeness to market

Music and Passion Live and sell, license and/or rent it to consumers, including

Princess Cruises.

122. Swank profited from this unauthorized use of Barry Manilow's name,

voice, photograph and/or likeness.

123. Princess Cruises, on information and belief, used Barry Manilow's

name, voice, photograph and/or likeness to market the entertainment offerings on

board its ship(s).

124. Princess Cruises did not have Plaintiff's or Barry Manilow's authority,

permission or consent to use his name, voice, photograph or likeness to market the

entertainment offerings on board its ship(s).

125. Princess Cruises profited from this unauthorized use of Barry

Manilow's name, voice, photograph and/or likeness.

126. Further, Defendants, and each of them, gained a commercial advantage

by using Barry Manilow's name, voice, photograph, and/or likeness as part of their

respective entertainment portfolios without his authority, permission or consent.

127. As a result of Defendants' actions, Plaintiff has suffered, and continues

to suffer, damages in an amount to be proven at trial.



/ / /

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/ / /

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment as follows:

1. That Defendants, and each of them, be adjudged to have infringed,

willfully or otherwise, Plaintiff’s copyrighted work, Music and Passion Live.2. That Defendants, and each of them, be adjudged to have contributorily

infringed, willfully or otherwise, Plaintiff’s copyrighted work, Music and Passion

Live.

3. That Defendants, and each of them, be adjudged to have infringed,

willfully or otherwise, Plaintiff’s Trademark.

4. That Defendants, and each of them, be adjudged to have contributorily

infringed, willfully or otherwise, Plaintiff’s Trademark.

5. For a full and complete accounting from each Defendant of all infringing

activities, including reproduction, use, distribution, marketing, publicly performing,

licensing, renting and/or sale of Plaintiff's intellectual property, and of all income,

profits, gains and advantages received by such Defendant therefrom;

6. That judgment be rendered jointly and severally against Defendants, and

each of them, for:

a. All profits, gains and advantages received by any of the

Defendants as a result of any of the Defendants' respective acts of copyright

infringement, as provided by 17 U.S.C. Section 504;

b. All damages suffered by Plaintiff as a result of any of the

Defendants' respective acts of copyright infringement, as provided by 17 U.S.C.

Section 504;

c. Statutory damages against each of the Defendants for its

infringing activities where available; and

d. All income, gains, profits and other advantages received by any

of the Defendants and all damages sustained by Plaintiff, on account of the

Defendants' respective acts of unfair competition under the Lanham Act; and



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furthermore, that such profits and damages as found herein be trebled pursuant to 15

U.S.C. Section 1117;

e. All income, gains, profits and other advantages received by any

of the Defendants and all damages sustained by Plaintiff on account of theDefendants' respective acts of state law unfair competition, dilution or injury to

business reputation, and breach of Barry Manilow's rights of publicity; and

g. Such other and further damages as may be available in accord

with California Business and Professions Code Sections 14330 and/or 17200 et seq.

7. That judgment be further rendered jointly and severally against the

Defendants, and each of them, for:

a. All profits, gains and advantages received by any of the

Defendants as a result of any of the Defendants' respective acts of contributory

copyright infringement, as provided by 17 U.S.C. Section 504;

b. All damages suffered by Plaintiff as a result of any of the

Defendants' respective acts of contributory copyright infringement, as provided by

17 U.S.C. Section 504;

c. Statutory damages against each of the Defendants for its

contributory infringing activities where available; and

d. All income, gains, profits and other advantages received by any

of the Defendants and all damages sustained by Plaintiff, on account of the

Defendants' respective acts of contributory unfair competition; and furthermore, that

such profits and damages as found herein be trebled pursuant to 15 U.S.C. Section

1117.

8. That judgment be further rendered jointly and severally against each of

the Defendants for restitutionary damages in amounts to be determined at trial, but

in no event less than all income, gains, profits and other advantages derived as a

result of such defendant’s direct and/or contributory unfair business activities.

9. The imposition of exemplary and punitive damages against Defendant.



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10. That Plaintiff recover its costs and disbursements incurred in this action,

including an award of its reasonable attorneys’ and investigator’s fees.

11. That Plaintiff recover prejudgment interest on all profits and damages

awarded by this Court.12. That the Court grant such other and further relief as it may deem just and

proper.

DATED: March 22, 2016 TODD W. BONDER, ESQRYAN M. LAPINE, ESQ.JOSHUA H. HERR, ESQ.ROSENFELD, MEYER & SUSMAN LLP

By: /s/ Ryan M. Lapine Ryan M. Lapine

Attorneys for Plaintiff,HASTINGS, CLAYTON & TUCKER, INC.



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DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff HASTINGS,

CLAYTON & TUCKER, INC. hereby demands trial by jury of all issues so triable.

DATED: March 22, 2016 TODD W. BONDER, ESQ.RYAN M. LAPINE, ESQ.JOSHUA H. HERR, ESQ.ROSENFELD, MEYER & SUSMAN LLP

By: /s/ Ryan M. Lapine Ryan M. Lapine

Attorneys for Plaintiff,HASTINGS, CLAYTON & TUCKER, INC.


Stiletto Entertainment v. Princess Cruise Lines - Barry Manilow complaint.pdf

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Transcript of Stiletto Entertainment v. Princess Cruise Lines - Barry Manilow complaint.pdf