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8/10/2019 Mah Na complaint.pdf
1/11
JS
44C/SDNY
REV. 4/2014
?K|;V IVIL
OV R SH T
The JS-44 civil coversheet andthe information containedherein neitherreplace norsupplementthe filing and serviceof
pleadings
orother papersas required by
law
except as provided by local rulesofcourt. This form approvedby the
Judicial Conference
oftheUnited
States in September
1974 isrequired for useoftheClerk ofCourt for the
purpose
of
initiatingthe civildocke t sheet. ~
14 CV 927
rviceof s W r
th e
f s e o f
21 ww
PLAINTIFFS
CREAZIONIARTISTICHE MUSICALI,S.r.l
DEFENDANTS
CARLINAMERICA, INC., EDWARD B. MARKS MUSICCO., and JOHN DOE
1-10
ATTORNEYS
(FIRM
NAME, ADDRESS,
AND
TELEPHONE NUMBER ATTORNEYS
(IF
KNOWN)
Reitler Kailas &Rosentblatt LLC,885 Third Avenue, 20th Floor, New York,
NY10022, (212) 209-3050
CAUSE
OF
ACTION C ITE THE U.S .
CIVIL
STATUTE UNDER
WHICH
YOU ARE
FILING AND
WRITE
A
BRIEF
STATEMENT OF CAUSE)
(DO NOTCITEJURISDICTIONAL STATUTESUNLESS DIVERSITY)
Copyright Infringement
Has this
action, case,
or
proceeding, or one essentially the
same
been previously filed in SDNY at any time? NdSfesQjudge Previously Assigned
If
yes,
was
this
case Vol.
[J
Invol.
Dismissed.
No
Yes
If yes, give date &
Case
No.
No
0 Yes
STHISAN INTERNATIONAL
ARBITRATION
CASE?
PLACE
AN[x]INONEBOX
ONLY)
TORTS
NATURE
OF
SUIT
] 110
J120
]130
]140
1150
[ ]
[ ]153
]160
]190
]195
1196
PERSONALINJURY
[ ] 310 AIRPLANE
[ ] 315 AIRPLANE PRODUCT
LIABILITY
[ ] 320 ASSAULT, LIBEL&
SLANDER
[ ] 330 FEDERAL
EMPLOYERS
LIABILITY
[ ]340 MARINE
[ ]345 MARINEPRODUCT
LIABILITY
[ J350 MOTOR VEHICLE
[ ] 355 MOTOR VEHICLE
PRODUCT
LIABILITY
[ ] 360 OTHER PERSONAL
INJURY
[ ] 362 PERSONAL INJURY -
MED MALPRACTICE
INSURANCE
MARINE
MILLER
ACT
NEGOTIABLE
INSTRUMENT
RECOVERY
OF
OVERPAYMENT &
ENFORCEMENT
OF JUDGMENT
MEDICARE ACT
RECOVERY OF
DEFAULTED
STUDENT
LOANS
(EXCLVETERANS)
RECOVERY OF
OVERPAYMENT
OF VETERAN S
BENEFITS
STOCKHOLDERS
SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT
LIABILITY
FRANCHISE
REAL
PROPERTY
PERSONAL
INJURY
[ ]
36 7
HEALTHCARE/
PHARMACEUTICAL PERSONAL
, , 625
DRUG RELATED
INJURY/PRODUCT
LIABILITY
[ ] 36 5 PERSONAL INJURY
PRODUCT
LIABILITY
[ ] 3 68
ASBESTOS
PERSONAL
INJURY PRODUCT
LIABILITY
PERSONALPROPERTY
[ ] 370 OTHER FRAUD
[ ] 371 TRUTH INLENDING
[ ] 380 OTHER PERSONAL
PROPERTY DAMAGE
[ ] 385 PROPERTY DAMAGE
PRODUCT LIABILITY
PRISONER PETITIONS
[ ]
46 3
ALIEN DETAINEE
[ ] 510 MOTIONS TO
VACATE SENTENCE
28
US C 2255
[ ] 530 HABEAS
CORPUS
[ ] 535 DEATH PENALTY
[ ] 540 MANDAMUS&OTHER
PRISONER
CIVIL
RIGHTS
[ ] 550 CIVILRIGHTS
[ ] 555 PRISONCONDITION
[ ] 560 CIVILDETAINEE
FORFEITURE/PENALTY
SEIZURE
OF PROPERTY
21 US C 88 1
]
690
OTHER
LABOR
[ ]
710 FAIR LABOR
STANDARDS
AC T
[ ] 720 LABOR/MGMT
RELATIONS
[ ] 740 RAILWAY LABOR ACT
[ ] 751 FAMILYMEDICAL
LEAVEACT (FMLA)
[ ] 790 OTHER LABOR
LITIGATION
[ ] 7 91 EMPL RET INC
SECURITY
ACT
IMMIGRATION
[ ) 462 NATURALIZATION
APPLICATION
[ ] 465 OTHER IMMIGRATION
ACTIONS
[]210
[
]220
[ ]230
[ ]240
[]245
LAND
CONDEMNATION
FORECLOSURE
RENT LEASE &
EJECTMENT
TORTS TO LAND
TORT PRODUCT
LIABILITY
ALL
OTHER
REAL PROPERTY
ACTIONSUNDER
STATUTES
CIVIL RIGHTS
[ J440 OTHER CIVILRIGHTS
(Non-Prisoner)
[ ]441 VOTING
[ ] 442 EMPLOYMENT
[ ) 443 HOUSING/
ACCOMMODATIONS
[ ] 445 AMERICANS WITH
DISABILITIES
-
EMPLOYMENT
[ ]446 AMERICANS WITH
DISABILITIES -OTHER
[ ] 448 EDUCATION
CONDITIONS
OF
CONFINEMENT
Check ifdemandedin complaint:
CHECK
IF
THIS
IS ACLASS
ACTION
UNDER
F.R.C.P.
23
ACTIONS UNDER STATUTES
BANKRUPTCY
OTHER STATUTES
1 1 37 5 FALSE CLAIMS
[ J400 STATE
] 422 APPEAL
28
US C 15 8
REAPPORTIONMENT
[ ] 42 3 WITHDRAWAL
[ ] 410 ANTITRUST
28
USC 15 7
[ ] 43 0 BANKS & BANKING
[ ]
450
COMMERCE
[ ] 460 DEPORTATION
PROPERTY
RIGHTS
[ J 47 0
RACKETEER
INFLU
ENCED & CORRUPT
\ i
820 COPYRIGHTS
ORGANIZATION ACT
[ ] 830 PATENT
(RICO)
[ ] 840 TRADEMARK
[ ]
480
CONSUMER CREDIT
[ ] 490 CABLE/SATELLITE TV
SOCIAL SECURI TY
[ J 850 SECURITIES/
COMMODITIES/
[ ]861 HIA(1395ff)
EXCHANGE
[ ] 862 BLACKLUNG (923)
[ ] 863 DIWC/DIWW(405(g))
[ ] 8 64 SSID TITLE XVI
[ ] 865 RSI (405(g) )
[ ] 89 0 OTHER STATUTORY
ACTIONS
[ ] 891 AGRICULTURALACTS
FEDERAL
TA X SUITS
[ ] 870 TAXES (U.S. Plainti ff or
Defendant)
[ J 871 IRS-THIRD PARTY
26 US C 7609
[ ] 893 ENVIRONMENTAL
MATTERS
[ ]
895
FREEDOM OF
INFORMATION ACT
[ ] 896 ARBITRATION
[ ] 899 ADMINISTRATIVE
PROCEDURE
ACT/REVIEW
O
APPEAL
OF AGENCY DECIS
[ ]
950
CONSTITUTIONALITY
STATE STATUTES
DEMAND $_
OTHER
[ O YOU CLAJM
THIS
CASE
IS RELATED TO
A
CIVIL CASE
NOW PENDING IN S.D.N.Y.?
JUDGE DOCKET NUMBER
Check YES onlyif
demanded
incomplaint
JURY DEMAND: El YES
PsiO
NOTE:
You
mustalso submitat the timeof
filing
the StatementofRelatedness
form (Form IH-32
8/10/2019 Mah Na complaint.pdf
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PLACE
AN
x
IN ONEBOX
ONLY)
ORIGIN
1
Original
2
Removed from II
3
Remanded
d 4
Reinstated or
O 5
Transferred from
6
Multidistrict
7 Appeal
to
District
Proceeding
State
Court
from
Reopened (Specify
District) Litigation
Judge from
3.
a.l parties
repr.s.n,l
APPellate Magistrate Judge
1' Court Judgment
I I b. At least one
party is pr o
se .
PLACEANxINONEBOXONLY)
BASIS
OF
JURISDICTION
IF DIVERSITY,
INDICATE
1
U.S.
PLAINTIFF 2 U.S. DEFENDANT
\x\
3 FEDERAL QUESTION 4
DIVERSITY
CITIZENSHIP BELOW.
(U.S. NOT A PARTY)
CITIZENSHIP OF PRINCIPAL PARTIES (FORDIVERSITY CASES ONLY)
(Place an [X] in one box for Plaintiffand one box for Defendant)
PTF DEF
PTFDEF
PTF DEF
CITIZEN
OF THIS
STATE []1 []1 CITIZEN OR SUBJECT OFA []3[]3 INCORPORATED and PRINCIPAL
PLACE
[]S [] 5
FOREIGN COUNTRY OF
BUSINESS
INANOTHER STATE
CITIZEN OF ANOTHER STATE []2 []2 INCORPORATED orPRINCIPAL PLACE []4[]4 FOREIGN NATION [] 6 [16
OF
BUSINESS
IN THIS STATE
PLAINTIFF(S)ADDRESS(ES) AND COUNTY(IES)
CREAZIONI
ARTISTICHE
MUSICALI,
S.r.l.,Galleria del Corso 4, 20122
Milano,
Italy
DEFENDANT(S) ADDRESS(ES) ANDCOUNTY(IES)
CARLIN
AMERICA, INC.,
126
East
38th Street, New York, NY
10016
EDWARD B. MARKS MUSIC CO.,
126
East 38th
Street,
New York, NY
10016
DEFENDANT(S) ADDRESS UNKNOWN
REPRESENTATION IS
HEREBY
MADE THAT, ATTHISTIME, I
HAVE
BEEN
UNABLE, WITH
REASONABLE DILIGENCE,
TO
ASCERTAIN
RE9IBENCE ADDRESSES OF THE FOLLOWINGDEFENDANTS:
John Does
1-10
Check one: THIS ACTION
SHOULD
BE
ASSIGNED
TO:
WHITE PLAINS
[x]
MANHATTAN
(DO NOT check
either
box if thi s a
PRISONER PETITION/PRISONER
CIVIL RIGHTS
COMPLAINT.)
DATE
11/21/2014
JSTSfclATURE.OF
ATJOR^Y
OF
RECORD
ADMITTED
TO PRACTICE
IN
THIS DISTRICT
I I N0
.
i l
M
YES
DATE ADMITTED Mo. J
I Yr.
f
RECEIPT # Attorney BarCode#
Magistrate
Judge
is to be designated by the Clerk of the Court.
Magistrate
Judge jsso
Designated.
Ruby J. Krajick,
Clerk
ofCourt by Deputy
Clerk,
DATED .
UNITED STATESDISTRICT COURT(NEWYORKSOUTHERN)
8/10/2019 Mah Na complaint.pdf
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1 4
' * W J
i i t
Rei t l e r
Kai la s
& 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(5),reitlerlaw.com
Attorney rPlaintiffCreazioniArtisticheMusicali S.r.l.
UNITED STATES DISTRICT
COURT
SOUTHERN
DISTRICT OF
NEW YORK
x
CREAZIONI ARTISTICHE MUSICALI, S.r.l.
Plaintiff,
-against-
COMPLAINT
OS
C O
CO
:. -;
CD
rr
JURY TRIAL DEMANeSd
8/10/2019 Mah Na complaint.pdf
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registered in the U.S. Copyright Office as registration number PAu3-700-309 (the
Registered Work ).
3. Defendants Carlin
America,
Inc., Edward B.,
Marks
Music Co., and
John Does 1-10 (referred to collectively hereafter as Defendants ), without any authority
from the Plaintiff, have within the three years preceding the commencement of this action
prepared, reproduced, and publicly performed derivative works
of
the Registered Work, or
authorized others to do so, in violation
of
the United States Copyright Act, 17 U.S.C. 101
et seq. (the Copyright Act ).
4. Plaintiff seeks legal reliefto remedy Defendants' willful infringement
of
the Plaintiffs copyright. Plaintiffrequests an order: (1) declaring that Defendants'
unauthorized preparation, reproduction, distribution, and public performance of derivative
works of the Registered Work, and/or authorization
of
others to engage in such acts,
infringes
Plaintiffs
copyright in violation
of
the Copyright Act; and (2) awarding actual
damages and profits to Plaintiff, to the extent permitted under the Copyright Act.
J U R IS D I CT IO N A N D
VENUE
5. This Court has subject matter jurisdiction over this action under the
copyright laws
of
the United States, 17 U.S.C. 101 et seq. and 28 U.S.C. 1331 and
1338.
6. Upon information and belief, this Court has personal jurisdiction over
the Defendants because the Defendants have prepared, reproduced, and publicly performed
derivative works of
the
Registered Work, or authorized others to do so, in New
York
and this
District, and are otherwise doing business in this State and in this jurisdiction.
2
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7. 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 A R T I E S
8. PlaintiffCAM is an Italian corporation having a principal place
of
business at Galleria del Corso 4, 20122 Milano, Italy
9.
Upon
information
and
belief, Defendant Carlin
America
Inc. ( Carlin )
is aNew York corporation having a principal place ofbusiness at 126
East
38th
Street, New
York,
NY
10016.
10. Upon information and belief, Defendant Edward B. Marks Music Co.
( Marks ) is a partnership organized under the laws
of
the state
of
New York having a
principal place ofbusiness at
126
East
38th
Street, New York,
New
York
10016.
11.
Upon
information
and
belief, Defendant
Marks
is a subsidiary of
Defendant
Carl in.
12.
Upon
information
and
belief, Defendants
John Does
1-10 are
individuals and/or corporate entities whose identity is presently unknown, residing or doing
business in this judicial District, but whose identity will become known through discovery in
this action.
13. Upon information and belief, John Does 1-10 have prepared,
reproduced, and publicly performed derivative works
of
the Registered Work under the
ostensible authority of licenses issued by Defendants Carlin or Marks, which authority Carlin
and Marks did not ever and do not now possess.
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A. Ownership and Registration of
the
RegisteredWork
14. Plaintiff is the copyright owner of the Registered Work, having
acquiredthe copyrightby written agreementwith the composer, Piero Umiliani ( Umiliani ),
dated October 4, 1966.A copy of that agreement has been recorded with the U.S. Copyright
Office as V3620 D649, page 55, and is attached hereto as Exhibit 1.
15. The Registered Work was written as part
of
the soundtrack for a 1966
I ta l ian action
fi lm entit led
Duello
nel Mondo.
16. The October 4, 1966 agreement concerning CAM's ownership
of
the
Registered Work was registered with SIAE, the Italian music-rights society, December 31,
1966.
17. The original 1966 open-reel tape recordings from the soundtrack
recording session
of
Duello Nel Mondo are in Plaintiffs' possession, and copieswill be
made available to the Court upon request in such audio format as the Court may direct.
18. The Registered Work is an original work
of
authorship.
19. The Registered Work has been fixed in a tangible medium
of
expression.
20. The Registered Work contains substantial amounts ofmaterial created
by the composer's own skill, judgment and creativity.
21. The Registered Work is copyrightable under the laws
of
the United
States .
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B. Access and Substantial Similarity
22. Upon information and belief, in June 1968, after having written the
Registered Work in 1966, Umiliani wrote music for a Swedish film, Svezia Inferno e
Paradiso ( Sweden, Heaven and Hell ).
23. This film score, registered in the U.S. Copyright Office May 1, 1969by
Defendant Marks (Reg. No. Eu 113247), contained the composition that is now listed on
Defendant Carlin s website under the t it le Mah Na Mah Na.
24. Umiliani, having previously composed the Registered Work, had
access to it prior to composing MahNa Mah Na.
25. The 1968 Umiliani composition Mah Na Mah
Na
is identical,
virtually note-for-note, to the 1966 Registered Work.
26. The aggregate
of
similarities between the Registered Work and Mah
Na Mah Na is striking, and Mah Na Mah Na could not have been created without having
heavily copied from and having been based on the Registered Work.
27. An audio recording containing both works will be made available to the
Court upon request in such audio format as the Court may direct.
28. Under the title Mah
Na
Mah Na, the Defendants unauthorized
derivativeworkhas become extremely successful in recordings and film soundtracks by the
Muppets, among
many
others.
29. After becoming aware
of
Defendants' unauthorized use
of
the
Registered Work,
CAM
contacted Defendant Carlin
and
advised it
of
the
unauthorized use.
30. Plaintiffs efforts to resolve the matter short
of
litigation have been
unsuccessful.
5
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31. Plaintiffhas suffered, and continues to suffer, fromthe infringing
activities of
Defendants, including without
limitation from the Defendants'
failure
topaya
licensefee commensurate with the value of their use of the RegisteredWork as embodiedin
the infringing MahNa Mah
Na
derivative work.
O U N T
OPYRIGHT
INFRING M NT
32. Plaintiffrepeats and reavers the allegationscontained in paragraphs 1
through 31 as
if
set forth fully herein.
33. Defendants' unauthorized preparation, reproduction, distribution, and
public performance
of
derivative works
of
the Registered Work, and/or authorization of
others to engage in such acts, are infringements of Plaintiffs copyright in violation of the
Copyright Act, 17 U.S.C. 106.
34. 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 17 U.S.C. 504 in an amount to be
proved at trial;
B. A permanent injunction requiring the Defendants to cease and desist
fromreproducing, distributing, or publiclyperformingthe RegisteredWork or anyderivative
work thereof, or authorizing and third parties to do so, without authorization from the
Plaintiff;
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Such otherand further reliefas this
Court
deems just andproper.
Dated:
New
York,
New York
November 0,2014
REITLER KAILAS &
ROSENBLATT, LLC
Attorneys for
Plaintiff
Rober t W.
Clar ida
885ThirdAvenue,
20th
Floor
New York, NY
10022
Tel. (212)209-3044
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EXHIBIT
1
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