Wallert v. Atlan Copyright Infringement Complaint

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(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)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


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


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


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


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.


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.


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.


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


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.


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.


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.


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


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

Email: [email protected]

Wallert v. Atlan Copyright Infringement Complaint

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