Dustin Lance Black v. Starzlife, Inc. et al

Filing 56

PRELIMINARY INJUNCTION by Judge R. Gary Klausner: IT IS ORDERED THAT Defendants are RESTRAINED and ENJOINED from displaying, posting for view or access on or through the Internet or in any other manner or in any otherformat or medium or outlet, and f rom publishing, distributing, broadcasting,transferring, exploiting, attempting to exploit, selling or licensing, offering to sell or license, facilitating the sale or licensing of, and/or otherwise disseminating, the Video, Photos and/or Property; R ESTRAINED and ENJOINED from infringing and making any unauthorized use of Blacks name, photograph, image, likeness and/or persona and/or the Videos or Photos in connection with any commercial purpose(s), including on the internet to advertise, sell, license and/or exploit the Video and Photos; ORDERED to immediately deliver and turn-over to Plaintiffs counsel, to hold and maintain possession of, each and every copy of the Video and/or any of the Photos and/or Property in their possession, contro l or custody, that exists in a tangible hard-copy form, including turning over any copies on any printouts,hard-copies, portable storage devices, CDs, DVDs and/or flash drives(collectively, a Portable Device) containing the same; IT IS FURTHER ORDERE D THAT: Within ten (10) days after entry of this Order of Preliminary Injunction, each Defendant shall file with the Court and serve upon Blacks counsel a report setting forth the manner and form in which said Defendants have complied with this Preliminary Injunction. IT IS FURTHER ORDERED THAT:The bond in connection with the Temporary Restraining Order in this Actionshall constitute the bond on this Preliminary Injunction. (See order for further details) (shb)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DUSTIN LANCE BLACK, an individual, ) ) ) Plaintiff, ) ) ) v. ) ) ) STARZLIFE, INC., an entity of ) unknown form d/b/a Starzlife and ) d/b/a Starzlife.com; NATHANIEL ) THOMAS CONRAD FOLKS, an ) individual; MICHAEL LAWRENCE, ) an individual; TRACI RAITT, an ) individual; SCOTT ALLEN ) ENTERTAINMENT, INC., an ) unregistered fictitious entity; ) STEVEN LENEHAN, an individual; ) KELLY STAGG-LENEHAN, an ) individual; SERGEY KNAZEV, an ) individual; JESSICA JOHNSON, an ) individual; ZAC ALBRIGHT, an ) individual; and DOES 1-10, inclusive, ) ) Defendants. ) ) ) ______________________________ ) /// CASE NO. CV09-5380 RGK (RCx) Hon. R. Gary Klausner [PROPOSED AMENDED] ORDER GRANTING PRELIMINARY INJUNCTION

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The Application for Temporary Restraining Order and Order to Show Cause re Preliminary Injunction (the "Application") of Plaintiff Dustin Lance Black ("Black" and/or "Plaintiff") came before the Court upon the Court's grant of Plaintiff's requested TRO and the issuance of an Order to Show Cause ("OSC") dated July 27, 2009 as to why a preliminary injunction should not issue against defendants Starzlife, Inc. d/b/a Starzlife and Starzlife.com, Nathaniel Thomas Conrad Folks, Michael Lawrence, Traci Raitt, Scott Allen Entertainment, Inc., Steven Lenehan, Kelly Stagg-Lenehan, Sergey Knazev, Jessica Johnson, Zac Albright, and Deal With It People, Inc., and Does 1-10; AND, the Court having considered that Plaintiff Black, on the one hand, and Defendants Deal With It People, Inc d/ba Starzlife and Starzlife.com, Starzlife d/b/a Starzlife and d/b/a Starzlife.com; Steven Lenehan, Sergey Knazev and Zac Albright, on the other hand, stipulated to the following Preliminary Injunction on the terms set forth in said parties' Stipulation and Order thereon, pursuant to which the Starzlife Defendants withdraw their opposition; AND, the Court having considered that defendants Nathaniel Thomas Conrad Folks, Michael Lawrence, Traci Raitt, Scott Allen Entertainment, Inc., Kelly Stagg-Lenehan and Jessica Johnson have made no opposition to or objection to the issuance of a Preliminary Injunction order as requested by Black; AND, the Court having considered the Stipulation, the Complaint, the declarations and memorandum of points and authorities presented by Plaintiffs in support of the Application, and any other papers, evidence or arguments presented by the parties in connection with Plaintiffs' Application; AND, it appearing to the satisfaction of the Court upon hearing that: (1) (2) Plaintiff has made a clear showing that they are likely to succeed on the Plaintiffs have shown that they are suffering, and will continue to
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merits at trial in this action; suffer, immediate and irreparable harm if the requested relief is not granted; and
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(3)

the balance of hardships tips in the favor of Plaintiffs on the present

application for preliminary injunction; IT IS HEREBY ORDERED THAT: 1. DEFENDANTS Deal With It People, Inc d/ba Starzlife and Starzlife.com ("Deal With It People"), Starzlife d/b/a Starzlife and d/b/a Starzlife.com ("Starzlife"); Steven Lenehan ("Lenehan"), Sergey Knazev ("Knazev") and Zac Albright ("Albright") (all collectively herein sometimes referred to as, the "Starzlife Defendants") and defendants Nathaniel Thomas Conrad Folks ("Folks"), Michael Lawrence ("Lawrence"), Traci Raitt ("Raitt"), Scott Allen Entertainment, Inc. ("SAEI"), Kelly Stagg-Lenehan ("Stagg-Lenehan"), and Jessica Johnson ("Johnson") (all of whom are collectively herein sometimes referred to as, "Defendants"), and each of them, and their officers, directors, stockholders, owners, agents, partners, servants, employees, representatives and attorneys, and all those in active concert or participation with Defendants, and each of them (collectively, the "Defendant Related-Parties"), and all others, including any website or blog operator(s) and hosting service(s), who receive notice of this order, are, pending final disposition of this matter before the Court, hereby: (a) RESTRAINED and ENJOINED from displaying, posting for view or access on or through the Internet or in any other manner or in any other format or medium or outlet, and from publishing, distributing, broadcasting, transferring, exploiting, attempting to exploit, selling or licensing, offering to sell or license, facilitating the sale or licensing of, and/or otherwise disseminating, the Video, Photos and/or Property (each as defined hereinbelow), and from making any use of the Video, Photos and/or Property or images thereof or any information contained therein, all whether in electronic or hard-copy form or in any other manner; and ///
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(b)

RESTRAINED and ENJOINED from infringing and making any

unauthorized use of Black's name, photograph, image, likeness and/or persona and/or the Videos or Photos in connection with any commercial purpose(s), including on the internet to advertise, sell, license and/or exploit the Video and Photos, but, notwithstanding the foregoing, are not enjoined from publication of potential articles with a reliable source with regard to current and newsworthy stories as may contain Black's name and likeness (not from the Video or Photos, nor describing graphic details or description of the content of the Video or Photos), and provided they are not in violation of libel laws; 2. DEFENDANTS, and each of them, the Defendant Related-Parties, and (a) ORDERED to immediately deliver and turn-over to Plaintiff's each of them, are hereby further (subject to sub-paragraph (h) below): counsel, to hold and maintain possession of, each and every copy of the Video and/or any of the Photos and/or Property in their possession, control or custody, that exists in a tangible hard-copy form, including turning over any copies on any printouts, hard-copies, portable storage devices, CD's, DVD's and/or flash drives (collectively, a "Portable Device") containing the same; (b) ORDERED to immediately delete and destroy each and every electronically stored copy of the Video and/or any of the Photos and/or Property in their possession, control or custody, that exists in any format or medium in a nontangible form or which does not reside on a Portable Device (in contrast to material on a Portable Device as referenced in sub-paragraph (a) above), including as may exist on any stationary storage devices or systems, servers, computer CPU's, laptops, in any online storage account systems, e-mail accounts or networked drives (collectively, "Non-Portable Formats"), with said deletion and destruction in such a manner that reasonably assures complete and permanent destruction of such property without ability to resurrect or undelete the same; (c) ORDERED to immediately recall, retrieve and obtain through
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Defendants' and Defendant Related-Parties' best efforts the Video and any and all Photos and Property, and all copies thereof, in any format or medium, from any persons or entities who received possession of any of said material from any of said Defendants' and/or their related Defendant Related-Parties', and to either destroy such property in a manner consistent with Section 2(b), or alternatively, as possible, to deliver to Black's counsel all copies of the Video and/or any of the Photos and/or Property so retrieved under this section; (d) ORDERED to immediately give notice (along with a copy of this Order) to any and all persons and entities who have or had copies of any part of the Video or any of the Photos or any of the Property, received by/through the particular Defendants or any of their related Defendant Related-Parties, that they are restrained and enjoined by Court Order from displaying, posting for view or access on or through the Internet or in any other manner or in any other format or medium or outlet, and from publishing, distributing, broadcasting, transferring, exploiting, attempting to exploit, selling or licensing, offering to sell or license, facilitating the sale or licensing of, and/or otherwise disseminating, the Video, Photos and/or Property, and from making any use of the Video, Photos and/or Property or images thereof or any information contained therein, pending further Order of this Court, and provide a copy of each said sent notice to Plaintiff's counsel; (e) ORDERED to immediately provide, from each Defendant (and from each Defendant Related-Parties to the extent he/she/it had possession at any time of a copy of the any of the Property) a sufficient accounting to Black's counsel, under statement of penalty of perjury, which provides Black with a list documenting and accounting for: (i) every item of Property in their possession, control or custody, at any time present or past; and (ii) every item that was/is destroyed under paragraphs 2(b) and/or (c); and (iii) every item that was/is delivered and turned-over to Black's counsel; (iv) every item of Property provided, at any time, to any licensees and/or other persons or entities; and (iv) every item of Property recalled
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and/or retrieved from any persons or entities who received possession of any of said material from any of the Defendants and/or Defendant Related-Parties; (f) ORDERED to immediately provide Black's counsel with a list of identifying information (containing to the extent known to the Defendants and/or Defendant Related-Parties, the name, address, telephone number, e-mail address and facsimile number) for all persons and entities who have or had copies of any part of the Video or any of the Photos or any of the Property, received by/through said Defendant or any of their Defendant Related-Parties, so Plaintiff can provide such persons/entities with notice of this Order if Plaintiff elects to do so. (g) ORDERED to submit proof to the Court, under penalty of perjury by each of the individual Defendants, and by an authorized representative of the entity Defendants (and by each Defendant Related-Parties to the extent he/she/it had possession at any time of a copy of the any of the Property), that each and every copy of the Video and/or any of the Photos and/or Property in their possession, control or custody, and/or to which they have any access, in any format or medium, has been destroyed or delivered to Black's counsel in accordance with this Order; (h) PROVIDED HOWEVER, to the extent that any particular Defendant(s) and/or Defendant Related-Parties have already complied with the requirements of the subparagraphs (a) through (g) above in connection with the Court's temporary restraining order, any said Defendant(s) and Defendant RelatedParties are relieved from having to comply with such subparagraphs for a second time. Counsel for Black and the StarzLife Defendants shall work together in good faith to resolve any disputes concerning compliance herewith prior to seeking the Court's intervention. 3. As used in this Order, the following definitions shall apply: (a) The "Video" means and shall include the personal video, and any
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and all outtake photo images therefrom, that captures and/or features and/or includes
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Dustin Lance Black, either individually and/or with Jeff Delancy, engaged in explicit intimate physical sexual acts and/or which show either of their genitalia; (b) The "Photos" means and shall include any and all of the photos that capture and/or feature and/or include Dustin Lance Black, either individually and/or with Jeff Delancy, engaged in explicit intimate physical sexual acts and/or which show either of their genitalia; (c) The "Property" collectively means and shall include both all of the Video and Photos, and any and all outtake photo images, portions and/or derivative images therefrom. IT IS FURTHER ORDERED THAT: Within ten (10) days after entry of this Order of Preliminary Injunction, each Defendant shall file with the Court and serve upon Black's counsel a report setting forth the manner and form in which said Defendants have complied with this Preliminary Injunction. IT IS FURTHER ORDERED THAT: The bond in connection with the Temporary Restraining Order in this Action shall constitute the bond on this Preliminary Injunction. SERVICE OF PROCESS A copy of this Order shall be served upon the Defendants via telecopier, email or Federal Express or similar delivery service by not later than the second business-day following the issuance of this Order or notice thereof to Plaintiff, whichever is later. IT IS SO ORDERED. Dated: August 5, 2009 ____________________________________ HON. R. GARY KLAUSNER UNITED STATES DISTRICT JUDGE

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