Don Henley et al v. Charles S Devore et al

Filing 1

COMPLAINT against defendants Charles S Devore, Justin Hart.(Filing fee $ 350 paid) jury demand., filed by plaintiff Don Henley, Mike Campbell.(twdb) (lwag).

Don Henley et al v. Charles S Devore et al

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Case 8:09-cv-00481-JVS-RNB Document 1

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CBarquist(Gmofo .com MORRSON & FOERSTER LLP 555 West Fifth Street Los Angeles, California 90013-1024
Telephone: [phone] Facsimile: 213.892.5454

CHARLES S. BARQUIST (CA SBN 133785)

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JACQUELINE C. CHARLESWORTH (pro hac vice pending)

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KELVIN D. CttEN (pro hac vice pending) KChen(Gmofo.com MORRON & FOERSTER LLP the Americas New York, New York 10104
1290 Avenue of

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Telephone: [phone] Facsimile: 212.468.7900

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PAUL GOLDSTEIN (CA SBN 79613) PGoldstein(imofo.com 559 Nathan Abbott Wa'l Stanford, California 94305-8610 Telephçme: 650.723.0313
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Facsimile: 650.327.0811

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Attoi-~s for Plaintiffs DON HENLEY AND MIKE CAMPBELL
UNITED STATES DISTRlCT COURT
CENTRAL DISTRlCT OF CALIFORNIA

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SAC V09- 0148 i jTMr,S (RNBJ(
DON HENLEY and MIKE CAMPBELL,
Plaintiffs,
v.
Case No.

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COMPLAINT
DEMAND FOR JURY TRIAL

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and JUSTIN HART,

CHAES S. DEVORE
Defendants.

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Dockets.Justia.com

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Plaintiffs Don Henley and Mike Campbell bring this Complaint against
Charles S. DeVore and Justin Hart, and allege as follows:

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INTRODUCTION
1. This action arises out of

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the wholesale appropriation and exploitation by

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Defendants DeVore and Hart of

the well-known and valuable song "The Boys of

Summer," written by Plaintiffs Don Henley and Mike CampbelL. Defendants'

infringing conduct is unauthorized, brazenly wilful, and pursued solely in order to

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promote DeVore and Hart's personal and professional agenda. Openly flouting
Henley and Campbell's intellectual property rights, DeVore and Hart copied almost
all of Henley and Campbell's copyrighted musical composition note for note and,

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altering the lyrics to suit their own purpose and using a recorded performance of the

work to mimic the original Henley recording, produced and distributed a video
featuring Henley and Campbell's song (the "Boys of

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Summer Video"). DeVore

and Hart's avowed aim in doingthis was to use the Boys of Summer Video to
promote DeVore's campaign for th~ Republican nomination for the U.S. Senate in
2010.
2. To this end, DeVore and Hart posted the infringing Boys of

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Summer Video

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on the popular online video site Y ouTube and elsewhere, publicized their efforts

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through multiple media outlets, and encouraged others to make infringing videos of
Henley and Campbell's work as welL.
3. Henley sent a notice requesting Y ouTube to remove the infringing Boys of

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Summer Video pursuant to the Digital Milennium Copyright Act ("DMCA"),
17 U.S.C. § 512, and the Boys of Summer Video was taken down from the
Y ouTube site. De V ore and Hart, however, have asked Y ouTube to repost the Boys

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of Summer Video. Y ouTube, in tum,has notified Henley that it will do so unless
Henley pursues prompt legal action against De V ore and Hart.
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4. Further, just days after being informed that Henley objected to their
-infringing use of "The Boys of

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Summer," DeVore and Hart appropriated and

exploited yet another famous song widely associated with Henley, "All She Wants

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to Do Is Dance," which they also fashioned into a campaign advertisement (the

"Dance Video"). Again, DeVore and Hart copied almost the entire musical
composition note for note, altering the lyrics to suit their own purpose and, using a

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recorded performance of the work to mimic the original Henley recording,

produced and distributed this second video.
5. In making and distributing the videos, DeVore and Hart have wilfully and

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intentionally appropriated not just Henley's exclusive rights, but also his goodwil,
identity and persona by using well-known songs associated with him, one almost
immediately after another, in what are essentially campaign fundraising videos.
Such close identification of

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Henley with DeVore's fundraising efforts is an

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egregious, intentional, false association that must be stopped.

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6. Henley, who carefully selects the particular causes he wishes to endorse and
selectively licenses his exclusive copyrghts, did

not authorize DeVore or Hart to

use his copyrghted musical work, does not endorse DeVore's campaign and does
not wish his name or work to be associated with DeVore or the De V ore campaign.

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Nor does Campbell wish his copyrighted work to be used by or associated with
DeVore or DeVore's campaign.
7. In bringing this action, Henley and Campbell seek (i) a declaration that

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De V ore and Hart have infringed Henley and Campbell's rights under the Copyright

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Act, 17 U.S.C. § 101 et seq., the Lanham Act, 15 U.S.C. § 1051 et seq. and
California Business & Professions Code § 17200 et seq., (ii) preliminary and
permanent injunctive relief to halt DeVore and Hart's continuing violation of

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their

intellectual property rights, (iii) damages, and (iv) attorneys' fees and costs.
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JURISDICTION AND VENUE
8. This action arises under the Copyright Act, 17 U.S.C. § 101 et seq., the

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Lanham Act, 15 U.S.C. § 1051 et seq., and California Business & Professions Code
§ 17200 et seq.

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9. This Court has original subject matter jurisdiction of

this action under 28

U.S.C. §§ 1331 and 1338(a) and (b).
10. This Court has supplemental jurisdiction pursuant

to 28 U.S.C. § 1367(a).

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11. This Court has personal jurisdiction over DeVore and Hart. On information

and belief, DeVore resides in and maintains his campaign office in Irvine,
California, within this District. On information and belief both De V ore and Hart

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conduct continuous and systematic business in the state of California and this
District.
12. Venue is proper in this District

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pursuant to 28 U.S.C. §§ 1391(b) and 1400(a)

because De V ore and Hart or their agents may be found in this District and because
they

are subject to personal jurisdiction in this District.

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PARTIES

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13. Plaintiff Don Henley is a songwriter and recording artist. He is a resident of
Dallas, Texas.
14. Plaintiff

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Mike Campbell is a songwriter, recording artist, and producer. He is

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a resident of Los Angeles, California.
15. On information and belief, Defendant DeVore is a California State

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Assemblyman residing in Irvine, California. DeVore is now conducting a
campaign for the Republican nomination for the U.S.

Senate seat currently held by
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U.S. Senator Barbara Boxer. DeVore maintains an office at 3 Park Plaza, Suite
275, Irvine, California 92614 and a mailing address for his campaign at 4790 Irvine Boulevard, Suite 105-191, Irvine, California 92620.
16. On information and belief, Defendant Hart, a resident of Virginia, is
employed by DeVore as the Director of

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Internet Strategies and New Media for

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DeVore's California-based campaign. In this capacity, Hart travels to California

and engages in business in California.

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FACTUAL ALLEGATIONS
17. Henley and Campbell own the copyright to "The Boys of Summer," which

has been registered with the United States Copyright Office, registration number
PA 231-596.
18. Henley, a preeminent songwriter and recording artist, is a founding member
and lead singer of

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the Eagles, the band credited with recording the largest-sellng
the Eagles' top ten hits
them.

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album ever in the United States. Henley co-wrote all ten of

and was the lead singer for many of

19. In addition to his extraordinary success as a member of the Eagles, Henley

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has also had a remarkable solo career. His multi-platinum solo album Building the
Perfect Beast, released in 1984, inCluded the hit song "The Boys of Summer."

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"The Boys of Summer," in which the singer reminisces on his love for a woman
during summer days, earned Henley a Grammy Award in 1985.
20. Campbell, a prominent songwriter, recording artist, and producer, is a
founding member of

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the rock band Tom Petty and the Heartbreakers. In addition to

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his work with Henley and Tom Petty, he has co-written songs that have been
recorded by other popular artists, including the Dixie Chicks, Stevie Nicks and John

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Prine. He has co-produced a series of

top-sellng albums for Tom Petty and has

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also acted as a producer for Stevie Nicks, Roy Orbison and Del Shannon.

21. At no time has De V ore or Hart obtained a license, authorization, or other
permission to exploit "The Boys of Summer" in the manner described herein or to
capitalize on Henley and Campbell's celebrity or reputation as songwriters and
recording artists for the purpose of

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promoting DeVore's political aspirations.

Indeed, Henley has a longstanding practice of denying requests to license his works
for political or religious causes.
22. De V ore maintains an online presence for his Senate campaign through a
variety of

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Internet applications, including his Facebook.com page, a Twitter.com

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page, and several other websites"such as. http://www.ChuckDeVore.com.

http://tweetforchuck.com/tweet2 and http://ww.Chuck76.com. DeVore also
contributes a web-log through the website
http://bighollywood.breitbart.com/cdevore.
23. As described in a January 30,2009 article in The Wall Street Journal,

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DeVore frequently uses the Internet as a fundraising source. According to the
article, such online fundraising efforts are led by Hart.
24. On or about April

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1, 2009, DeVore posted an article on the website "Andrew

Breitbart Presents Big Hollywood" ("Big Hollywood"). In this article, De V ore

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published a set of lyrics to accompany the music of Henley and Campbell's song
"The Boys of

Summer." DeVore's lyrics do not comment on the style, technique,
Henley

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genre, or subject matter of

and Campbell's song; instead, they address the

actions of President Barack Obama.
25. In the same April 1 "Big Hollywood" article, DeVore included a link to the

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Boys of Summer Video posted by Hart that reproduces Henley and Campbell's
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song, as sung by Hart, and encouraged others to make their own infringing videos
as welL. The Boys of Summer Video, titled "A Special Message from Chuck

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DeVore," consists of a spoken introduction by Hart, followed by a full-length,
verse-by-verse rendition of

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Henley and Campbell's song that reproduces, note for

note, almost all of the music Henley and Campbell wrote for the song, mimics

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Henley's recorded performance of "The Boys of Summer" music, and substitutes
DeVore's lyrics for Henley and Campbell's. This unauthorized use of

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Henley and

Campbell's copyrighted work is synchronized with a series of

photographic images

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of De Vore, Hart and President Barack Obama, among others.
26. Hart's introduction, spoken over the well-known opening bars of

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Campbell's work, explains the purpose of

Henley and
the Boys of Summer Video as follows:

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"Hi, this is Justin Hart. I'm Director of Internet Strategies and New Media for the
Chuck De V ore Campaign. And we want to thank you, the thousands of supporters

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Chuck DeVore, in his bid for the U.S. Senate. And to show you our

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appreciation, Chuck has prepared a very serious exposition on the financial crisis

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and political realities of our day under President Barack Obama."
27. At the conclusion of the Boys of Summer Video, with the instrumental
recording of

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Henley and Campbell's song still playing, a DeVore campaign ad

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slogan appears: "Time for Chuck DeVore." Beneath the slogan, there is a standard
campaign ad notice that the video has been "paid for by De V ore for California,"

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even though no payment has been made to, nor permission sought from, Henley
and Campbell for the music in the video, to which they own the rights.
28. On information and belief, DeVore and/or Hart arranged to post the Boys of

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Summer Video on Y ouTube, from which it was linked to other websites such as

DeVore's page on the popular Facebook site. Additionally, on information and
belief, by posting the Boys of Summer Video to another online host service,
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Hipcast.com, De Vore and/or Hart arranged to make the Boys of Summer Video

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available as a link through still more online sources used by De V ore to publicize

and generate support for his campaign.

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29. Henley and Campbell's song and the associated instrumental track are used
throughout the entire Boys of Summer Video, including during the promotional
messages for DeVore's campaign. Viewers accessing the Boys of

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Summer Video

through Y ouTube or by other means who are familiar with Henley and Campbell's

well-known song could easily conclude that "The Boys of Summer" was used by
De V ore and Hart with permission, even though Henley and Campbell did not, and

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would not, authorize the use of their song for this purpose. Viewers might also
conclude that Henley and Campbell are political supporters or sponsors of De V ore,

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which they are not.
30. Concerned about this unauthorized and damaging use of

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his song, Henley

directed that a takedown notice be sent to Y ouTube on or about April 3, 2009,

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pursuant to the DMCA, 17 U.S.C. § 512, asking that the Boys of Summer Video be

removed. On information and belief, Y ouTube responded to the notice by
removing the Boys of Summer Video from its service.
31. On information and belief, on or about April 7, 2008, DeVore and/or Hart

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sent a DMCA counter-notice to Y ouTube requesting that the Boys of Summer

Video be reposted.
32. On or about April 8, 2009,YouTube sent notice to Henley's counsel,
explaining that as a result of

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the DMCA counter-notice, YouTube would wait ten

days for confirmation that Henley had filed an action seeking a court order to
restrain the infrnging activities of De V ore and Hart. In the notice, Y ouTube

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further explained that if it did not receive notice of such a suit within ten days,
Y ouTube would reinstate the material to Y ouTube.
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33. Additionally, on or about April 7, 2009, DeVore posted another article on the

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"Big Hollywood" site. In this article, De V ore observed that the Boys of Summer

Video had been taken down from Y ouTube due to a notice of infringement. In an
apparent dismissal of and reaction to Henley's efforts to protect his intellectual

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property rights - and apparently ignoring the fact that a "parody" involves criticism
of a particular work, not of the person who created it or of a third party - De V ore

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stated: "And, it goes without saYIng that I'll now be looking for every opportunity

to turn any Don Henley work I can into a parody of any left tilting politician who
eserves It . . . .

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d."

34. Notwithstanding his knowledge of Henley's claim of infrngement

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concerning the Boys of Summer Video, De V ore included in the April 7 article a
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link to a different website where the Boys of Summer Video could continue to be

accessed, http://ww.chuck76.com/nov.Oninformationandbelief.this posting of
the Boys of Summer Video was hosted by an online service provider used by
DeVore and/or Hart, Hipcast.com.
35. In addition to being able to view the Boys of Summer Video, a user who

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clicked on the link supplied by De V ore in the April 7 post and then attempted to

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navigate from the video to ww.chuck76.com was automatically redirected to a
DeVore fundraising page captioned "SUPPORT Chuck DeVore for US Senate," at

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http://tweetforchuckcom/tweet2.
36. On or about April

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14, 2009, Henley's counsel sent a takedown notice to

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Hipcast.com. On or about April 15, 2009, Hipcast.com notified counsel for Henley
that it would arrange for the Boys of Summer Video to be taken down or disabled, and the video was removed from the Hipcast site.
37. Also on or about April 14,2009, DeVore made good on his threat to commit
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infringement based upon Henley's creative work To this end,
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De V ore and Hart produced a new video, the Dance Video, incorporating almost the

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entirety of another very well-known song recorded by Don Henley (this one written

by Henley's colleague, Danny Kortchmar), "All She Wants to Do Is Dance." In the
Dance Video, which again appropriates and alters the underlYing copyrighted work
to further DeVore's political ambitions, DeVore presents a critique of

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Senator

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Barbara Boxer.
38. In addition to taking valuable copyrighted works and repurposing them for

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their own interests, it is apparent that De V ore and Hart are attempting to capitalize

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on Henley and Campbell's fame and popularity as hit songwriters and recording
artists to advance their personal and professional agenda.
39. Henley and Campbell do not wish to have their creative work used as part of

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DeVore's political campaign, or in videos to promote his campaign. They do not
want the public to believe that they might be associated with or endorse the social
or political views of DeVore.
40. The further exploitation of "The Boys of

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Summer" and "All She Wants to Do

Is Dance" by DeVore and Hart in the above-described manner, and the wide public
dissemination of the Boys of Summer and Dance Videos by Y ouTube and other

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online sources, will cause the creative work of Henley and Campbell to become
associated with De V ore and Hart in the public mind.
41. Henley and Campbell derive substantial income and economic value from
licensed uses of

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their copyrghted musical composition "The Boys of Summer," and
Henley and Campbell's works with

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Henley from his recorded performances in "The Boys of Summer" and "All She
Wants to Do Is Dance." The association of

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DeVore's campaign and views wil make these works less attractive to be licensed
for other legitimate, income-producing purposes, such as for film, television and
commercials.
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42. Henley and Campbell have been irreparably harmed by the actions of

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DeVore and Hart, and will continue to be so harmed if De Vore and Hart are not

enjoined from further using and exploiting "The Boys of Summer" and "All She

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Wants to Do Is Dance," from the infrngement of any additional songs associated
with Henley and/or Campbell that DeVore and Hart choose to appropriate, and
from engaging in further conduct that falsely suggests an association between
Henley and Campbell and their creative works, on the one hand, and DeVore, Hart,
and the De V ore campaign, on the other.

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FIRST CLAIM FOR RELIEF
(DIRECT COPYRGHT INFRINGEMENT)
(By Both Plaintiffs)
43. Henley and Campbell repeat

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and reallege each and every allegation set forth

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in paragraphs 1 through 42 as if fully set forth herein.
44. DeVore and Hart's unauthorized reproduction of, preparation of a derivative

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work based upon, distribution to the public of, and public performance of Henley
and Campbell's copyrighted musical work "The Boys of

Summer" in the Boys of

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Summer Video infrnge Henley and Campbell's exclusive rights in violation of the

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Copyright Act, 17 U.S.C. § 101 et seq.
45. Each unauthorized reproduction, derivative work, distribution to the public

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and public performance of Henley and Campbell's copyrighted musical work
constitutes an individual act of infringement of

Henley and Campbell's exclusive

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rights under the Copyright Act, 17 U.S.C. § 101 et seq.
46. DeVore and Hart's conductlias been and continues to be intentional, wilful,

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and with full knowledge of Henley and Campbell's copyright interests and the
infringement thereof.
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47. The foregoing acts by De V ore and Hart constitute wilful, direct
infringement of

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Henley and Campbell's exclusive rights in "The Boys of Summer."
DeVore

48. Pursuant to 17 U.S.C. § 504(c), as a direct and proximate result of

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and Hart's infrngement of

Henley and Campbell's exclusive rights, Henley and
up to $150,000 for the work

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Campbell are entitled to recover statutory damages of

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infringed. Alternatively, at Henley and Campbell's election, pursuant to 17 U.S.C.
§ 504(b), they shall be entitled to their actual damages, including De V ore and

Hart's profits from infringement, as will be proven at triaL.
49. DeVore and Hart are causing and, unless enjoined by the Court, wil continue

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to cause, Henley and Campbell irreparable harm for which they have no adequate
remedy at law.

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50. Henley and Campbell are further entitled to their attorneys' fees and full

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costs pursuant to 17 U.S.C. § 505, and prejudgment interest according to law.

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SECOND CLAIM FOR RELIEF

(CONTRIBUTORY COPYRGHT INFRINGEMENT)
(By Both Plaintiffs)

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51. Henley and Campbell repeat and reallege each and every allegation set forth
in paragraphs 1 through 50 as if fully set forth herein.
52. Through their conduct alleged herein, DeVore and Hart knowingly and

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systematically induced, caused, materially contributed to and participated in the
infringement of

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Henley and Campbell's copyrighted musical work "The Boys of

Summer."
53. Each unauthorized reproduction, derivative work, distribution to the public
and public performance of

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Henley and Campbell's copyrighted musical work
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constitutes an individual act of infrngement of Henley and Campbell's exclusive

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rights under the Copyright Act, 17U.S.C. § 101 et seq.
54. DeVore and Hart's conduct has been and continues

to be intentional, wilful,

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and with full knowledge of Henley and Campbell's copyright interests and the
infringement thereof.
55. The foregoing acts by DeVore and Hart constitute wilful, contributory
infringement of

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Henley and Campbell's exclusive rights in "The Boys of Summer."
DeVore

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56. Pursuant to 17 U.S.C. § 504(c), as a direct and proximate result of

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and Hart's infrngement of

Henley and Campbell's exclusive rights, Henley and
up to $150,000 for the work

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Campbell are entitled to recover statutory damages of

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infringed. Alternatively, at Henley and Campbell's election, pursuant to 17 U.S.C.
§ 504(b), Henley and Campbell shall be entitled to their actual damages, including
DeVore and Hart's profits from infringement, as wil be proven at triaL.
57. DeVore and Hart are causing and, unless enjoined by the Court, will continue
to cause, Henley and Campbell irreparable harm for which they have no

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adequate

remedy at law.

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58. Henley and Campbell are further entitled to their attorneys' fees and full

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costs pursuant to 17 U.S.C. § 505, and prejudgment interest according to law.

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THIRD CLAIM FOR RELIEF
(VCARIOUS COPYRGHT INFRINGEMENT)
(By Both Plaintiffs)

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59. Henley and Campbell repeat and reallege each and every allegation set forth
in paragraphs 1 through 58 as if fully set forth herein.

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60. On information and belief, DeVore and Hart have and had the right and Henley and
ability to control the unauthorized reproduction and/or adaptation of

Campbell's copyrighted musical work "The Boys of Summer" and the unauthorized
distribution to the public and public performance of the Boys of Summer Video incorporating such work, to the extent that these activities relate to DeVore's Senate
campaign.
61. On information and belief, DeVore and Hart received a direct financial and

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economic benefit from the Boys of Summer Video by, among other things,

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receiving media exposure and additional campaign contributions.
62. Each unauthorized reproduction, derivative work, distribution to the public

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and public performance of Henley and Campbell's copyrighted musical work
constitutes an individual act of infringement of Henley and Campbell's exclusive
rights under the Copyright Act, 17 U.S.C. § 101 et seq.
63. DeVore and Hart's conduct has been and continues to be intentional, willful,
and with full knowledge of

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Henley and Campbell's copyrght interests and the

infringement thereof.
64. The foregoing acts by DeVöre and Hart constitute wilful, vicarious

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infringement of Henley and Campbell's exclusive rights in "The Boys of Summer."
65. Pursuant to 17 U.S.C. § 504(c), as a direct and proximate result of

DeVore

and Hart's infringement of

Henley and Campbell's exclusive rights, Henley and
up to $150,000 for the work

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Campbell are entitled to recover statutory damages of

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infringed. Alternatively, at

Henley and Campbell's election, pursuant to 17 U.S.C.

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§ 504(b), Henley and Campbell shall be entitled to their actual damages, including
DeVore and Hart's profits from infringement, as will be proven at triaL.

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13

Case 8:09-cv-00481-JVS-RNB Document 1

Filed 04/17/09 Page 15 of 25

1

66. DeVore and Hart are causing and, unless enjoined by the Court, wil continue

2
3

to cause, Henley and Campbell irreparable harm for which they have no adequate
remedy

at law.

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5

67. Henley and Campbell are further entitled to their attorneys' fees and full

costs pursuant to 17 U.S.C. § 505, and prejudgment interest according to law.

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8

FOURTH CLAIM FOR RELIEF
(FALSE ASSOCIATION OR ENDORSEMENT - 15 U.S.C. § 1125(a)) (By Plaintiff Henley)

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68. Henley repeats and realleges each and every allegation set forth in
paragraphs 1 through 67 as if fully set forth herein.
69. Henley is one of

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13

the world's most famous songwriters and recording artists.

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15

The well-known hit song, "The Boys of Summer," for which Henley earned a
Grammy Award, is famously associated with Henley and immediately suggests

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Henley's identity and persona in the mind of the public.
70. Similarly, the well-known hit song recorded by Henley, "All She Wants to

19

Do Is Dance," is famously associated with Henley and immediately suggests
Henley's identity and persona in the mind of the public.
71. DeVore and Hart's use of

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21

these two songs in connection with their videos

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23

was in commerce, specifically for campaign, publicity and fundraising purposes,

and to further DeVore and Hart's interests.
72. De V ore and Hart knew or should have known that their unauthorized use of

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25

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Henley's identity and persona by incorporating well-known songs associated with him in their videos, one almost immediately after another, was likely to cause confusion or mistake by the public regarding whether Henley has endorsed, is
14

Case 8:09-cv-00481-JVS-RNB Document 1

Filed 04/17/09 Page 16 of 25

1

affiliated, connected to, or associated with, or has approved of the message and

2
3

content of, such videos, DeVore and/or DeVore's Senate campaign, in violation of
the Lanham Act, 15 U.S.C. § 1

125(a).

4
73. Due to DeVore and Hart's unauthorized use of

Henley's identity and persona

5

through the use of these songs in their videos, Henley has suffered damages and
will continue to suffer damages.
74. DeVore and Hart's conduct has been and continues to be intentional, wilful,
and with full knowledge of the violation of

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8

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11

Henley's rights.

75. DeVore and Hart are causing and, unless enjoined by the Court, wil continue

to cause, Henley irreparable harm for which he has no adequate remedy at law.
76. Henley is further entitled to his attorneys' fees and full costs pursuant to

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13

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15

15 U.S.C. § 1117, and prejudgment interest according to law.

FIFTH CLAIM FOR RELIEF
(STATE UNFAIR BUSINESS PRACTICES -

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CALIFORNIA BUSINESS & PROFESSIONS CODE § 17200)
(By Plaintiff Henley)

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77. Henley repeats and realleges each and every allegation set forth in
paragraphs 1 through 76 as if fully set forth herein.

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23

78. As described above, DeVore and Hart's conduct is likely to cause confusion
or mistake regarding whether Henley has endorsed, is affiliated, connected to or

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25

associated with, or has approved of the message and content of, the Boys of

26
27 28

Summer and Dance Videos, DeVore and/or his Senate campaign. The conduct of

15

Case 8:09-cv-00481-JVS-RNB Document 1

Filed 04/17/09 Page 17 of 25

1

DeVore and Hartis intended to produce and likely has produced substantial
benefits for DeVore and Hart at the expense of

2
3

Henley.

79. DeVore and Hart's conduct is likely to deceive the general public and
constitutes wilful and intentional unlawful, unfair and fraudulent business practices

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5

in violation of California Business & Professions Code § 17200 et seq.
80. Henley has suffered substantial injury as a result of

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7
8

DeVore and Hart's

wrongful acts. DeVore and Hart's misconduct also has caused, and is continuing to

9
10
11

cause, irreparable injury to Henley, his reputation and goodwil, and unless
enjoined wil cause further irreparable injury for which Henley has no adequate
remedy

at law.

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13

PRAYER FOR RELIEF
WHEREFORE, Henley and Campbell pray for relief as follows:

14
15

FIRST. SECOND AND THIRD CLAIMS FOR RELIEF
1. For a declaration that:

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17
18

(a) through their conduct, DeVore and Hart have wilfully and directly

19

infringed the copyright in the musical work "The Boys of Summer'/ by their

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21

unauthorized reproduction of, creation of a derivative work based upon,
distribution to the public of" and public performance of such work, in

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23

violation of Henley and Campbell's exclusive rights under the Copyright
Act, 17 U.S.C. § 101 et seq.;
(b) through their conduct, DeVore and Hart have wilfully and

24
25

contributorily infringed the copyright in the musical work "The Boys of
Summer" by their unauthorized reproduction of, creation of a derivative

26
27
28

work based upon, distribution to the public of, and public performance of
16

Case 8:09-cv-00481-JVS-RNB Document 1

Filed 04/17/09 Page 18 of 25

1

such work, in violation of Henley and Campbell's exclusive Tights under the

2
3

Copyright Act, 17 U.S.C. § 101 et seq.; and
(c) through their conduct, DeVore and Hart have willfully and vicariously

4
5

infringed the copyrght in the musical work "The Boys of Summer" by their
unauthorized reproduction of, creation of a derivative work based upon, distribution to the public of, and public performance of such copyrighted work, in violation of Henley and Campbell's exclusive rights under the
Copyright Act, 17 U.S.C. § 101 et seq.;
2. For a preliminary and permanent injunction enjoining DeVore and

6 7
8

9
10
11

Hart and their agents, servants, employees, officers, attorneys, successors,
licensees, partners, and assigns, and all persons acting in concert with them:
(a) from all further infrnging conduct in connection with the Boys of

12
13

14
15

Summer Video;
(b) from all further infringement of any copyrighted musical work owned

16
17
18

or controlled by Henley and/or Campbell; and
(c) requiring removal of the Boys of Summer Video from all places where

19

it has been stored and/or made available and destruction of any and all copies
of the Boys of Summer Video;
3. For an award of statutory damages to Henley and Campbell pursuant

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21

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23

to the Copyright Act in the amount of $150,000 for the wilful infringement of
Henley and Campbell's work "The Boys of

Summer" or, at Henley and Campbell's

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25

election, actual damages and profits as permitted under the Copyright Act, in an
amount to be determined at trial;
4. For prejudgment interest according to law;

26
27
28

17

Case 8:09-cv-00481-JVS-RNB Document 1

Filed 04/17/09 Page 19 of 25

1

5. For an order awarding Henley and Campbell their attorneys' fees,
together with the costs and disbursements of

2
3

this action; and

6. For such other relief as the Court deems just and proper.

4
5

FOURTH AND FIFTH CLAIMS FOR RELIEF
1. For a declaration that:

6

7
8

(a) through their conduct, DeVore and Hart improperly used Henley's

identity and persona by creating the false impression that Henley has

9 10
11

endorsed, is affiliated, connected to or associated with, or has approved of
the message and views of, the Boys of Summer and Dance Videos, De V ore
and/or his Senate campaign, in violation of

the Lanham Act, 15 U.S.C. §

12
13

11

25(a); and

14
15

(b) through their conduct, De V ore and Hart improperly used Henley's

identity and persona by creating the false impression that Henley has

16
17
18

endorsed, is affiliated, connected to or associated with, or has approved of
the message and views of, the Boys of Summer and Dance Videos, DeVore and/or his Senate campaign, in violation of California Business &
Professions Code § 17200 et seq.;
2. For a preliminary and permanent injunction enjoining DeVore and

19

20
21

Hart and their agents, servants, employees, officers, attorneys, successors,
licensees, partners, and assigns, and all persons acting in concert with them:
(a) from all further unlawful conduct in connection with the Boys of

22
23

24
25

Summer Video and Dance Video;
(b) from improperly suggesting an association with Henley or his creative
works in violation of

26 27
28

the Lanham Act, 15 U.S.C. § ll25(a);

18

Case 8:09-cv-00481-JVS-RNB Document 1

Filed 04/17/09 Page 20 of 25

1

(c) from improperly suggesting an association with Henley or his creative

2
3

works in violation of California Business & Professions Code § 17200 et
seq.; and
(d) requiring removal of the Boys of Summer Video and Dance Video

4
5

from all places where it has been stored and/or made available and destruction of any and all copies of the Boys of Summer Video and Dance
Video;
3. For an award of

6 7
8

9
10
11

DeVore and Hart's profits and damages according to

proof, for their violations of

the Lanham Act, 15 U.S.C. § 1125(a), in an amount to

be determined at trial;
4. For an award of

12
13

DeVore and Hart's profits and damages according to

proof, for their violations of California Business & Professions Code § 17200 et
seq., in an amount to be determined at trial;
5. F or prejudgment interest according to law;

14
15

16 17

6. For an order awarding Henley his attorneys' fees, together with the

18

costs and disbursements of this action; and
7. F or such other relief as the Court deems just and proper.

19

20
21

22
23

24
25

26
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28
19

Case 8:09-cv-00481-JVS-RNB Document 1
n~(17(?nnD 11'ßR R~Y R~n7?~n?~i

~~~NRn~n T ~w ~rHnn'

Filed 04/17/09 Page 21 of 25 nn? tnn? ((

1

2
3

JURY DEMAND
Henley and Campbell hereby demand a trial by jury on all issues so triable.
Dated: April!7, 2009

4
5

6

7
8

MORRSON & FOERSTER LLP CHARES S. BARQUIST JACQUELINE C. CHARLESWORTH KELVIN D. CHEN PAUL GOLDSTEIN
I

9
10
11

By:

Attorneys for Plaintiffs DON HENLEY and MIKE CAMPBELL

12
13

14
15

16

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18

19

20
21

22
23

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25

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Case 8:09-cv-00481-JVS-RNB Document 1

Filed 04/17/09 Page 22 of 25

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUGE FOR DISCOVERY

This case has been assigned to Distrct Judge James V. Selna and the assigned discovery Magistrate Judge is Robert N. Block.
The case number on all documents filed with the Cour should read as follows:

SACV09- 481 JVS (RNBx)
Pursuant to General Order 05-07 of

the United States Distrct Cour for the Central

Distrct of Californa, the Magistrate Judge has been designated to hear discovery related

motions.

All discovery related motions should be noticed on the calendar of the Magistrate Judge

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _. -NOTICE TO COUNSEL

A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs).
Subsequent documents must be filed at the following location:

U Western Division

312 N. Spring St., Rm. G-8
Los Angeles, CA 90012

(Xl Southern Division

411 West Fourth St., Rm. 1-053 Santa Ana, CA 92701-4516

U Eastern Division

3470 Twelfth St., Rm. 134
Riverside, CA 92501

Failure to file at the proper location wil result in your documents being returned to you.

CV-18 (03/06)

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY

Case 8:09-cv-00481-JVS-RNB Document 1 Charles S. Barquist (SBN 133785) Morrson & Foerster LLP 555 West Fifth Street, Suite 3500 Los Angeles, CA 90013-1024
Telephone: [phone]
Fax: [phone]

Filed 04/17/09 Page 23 of 25

Attorneys for Plaintiffs Don Henley and Mike Campbell

UNITED STATES DISTRICT COURT CENTRA DISTRICT OF CALIFORNIA
CASE NUMBER

DON HENLEY and MIKE CAMPBELL,
PLAINTIFFS

v.

! t OHH'J~r) A C V 0 9- o. 14 81 ~.'¡.r.'.'T~...,.J ,fU~¡¿A'

CHARLES S. DEVORE and JUSTIN HART,
DEFENDANTS.

SUMMONS

TO:DEFENDANT(S): Charles S. DeVore and Justin Har
A lawsuit has been filed against you.
Within 20 days after service of this summons on you (not counting the day you received it), you must serve on the plaintiff an answer to the attached IZ complaint 0 _ amended complaint o counterclaim 0 ,cross-claim or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiffs attorney, Charles S. Barquist, whose address is 555 W. Fifth Street, Suite 3500, Los Angeles, Californa 90013. If you fail to do so, judgment by default wil be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Clerk, U.S. District Court

Dated:

APR 1 7 2O

By:

1192
(Use 60 days if the defendant is the United States or a United States agency, or is an offcer or employee of

the United States. Allowed

60 days by Rule 12(a)(3)).

CV-OIA (12/07)
la-1024 7 68

SUMMONS
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C

Case NITED STATES 8:09-cv-00481-JVS-RNB Document 1 DISTRICT 0"" ,. ALIFORNIA of 25 fRICT COURT, CENTRA Filed 04/17/09 Page 24
CIVIL COVER SHEET
you are representing yourself.D)
DEFENDANTS

I (a) PLAINTIFFS (Check box if

Don Henley and Mike Campbell

Charles S. DeVore and Justin Hart

(b) Attorneys (Firm Name, Address and Telephone Number. If

you are representing Attorneys (If

Known)

yourself, provide same.)

Charles S. Barquist Morrison & Foerster LLP 555 West Fift Street, Suite 3500 Los Angeles, CA 90013-1024
Telephone: [phone]
II. BASIS OF JURISDICTION (Place an X in one box only.)
01 U.S. Government Plaintiff
t8 3 Federal Question (U.S.

II. CITIZENSHIP OF PRINCIPAL PARTIES - For Diwrsity Cases Only
(Place an X in one box for plaintiff

and one for defendant.)

PTF DEF
Citizen of

Governent Not a Part

This State

o i 0 I Incoll'oratcd or Principal Place

of Business in this State

0404

PTF DEF

o 2 U.S. Governent Defendant D 4 Diversity (Indicate Citizenship Citizen of Another State ofParties in Item III)

o 2 0 2 IncOll'oratcd and Principal Place 0 5 0 5
of

Business in Another State

Citizen or Subject of a Foreign Countr 0 3 0 3 Foreign Nation
iV. ORIGIN (Place an X in one box only.)
¡g i Original 0 2 Removed from 0 3 Remanded frm 04 Reinstated or 0 5 Transferred from another district (specify): .06 Multi-

06 06
o 7 Appeal

Proceeding State Court Appellate Court

Reopened District

to District

Judge from

Litigation

Magistrate Judge

V. REQUESTED IN COMPLAINT: JURY DEMAND: ¡g Yes 0 No (Check 'Yes' only if demanded in complaint.)

CLASS ACTION under F.R.C.P. 23: 0 Yes %No ¡g MONEY DEMANDED IN COMPLAINT: $ 150,000 or actual damages
Vi. CAUSE OF ACTION (Cite the U. S. Civil Statute under which you are filing and write a brief statement of

cause. Do not'cite jurisdictional statutes unless diversity.)

VII. NATURE OF SUIT (place an X in one box onl .)
'.,QfliR;~TifnJ;æEsJ~1i¿i;g!;~)~)'~;i'ti¥jtir-Q . ,.. ,PRISONER"'" .

LABOR

Cr4öò"St~i~-R;;pp~;;;n-;~~t= trtïõfu;~~ce; , ;:"~~~l:"d?f.l#c~BsFj,:"i' B~'~o F~i~~b~r Siand~ius
0410 Antitrust 0 120 Marine 0310 Airplane 510 Motions to Vacate Act
0430 Bank and Bankng 0 130 Miller Act 0315 Airplane Product Sentence Habeas. 720 Labor/Mgint.

0450 Commerce/ICC 0 140 Negotiable Instrument Liability 0 371 Truth in Lending Corpus Relations
0470 Racketeer Influenced Enforcement of 0330 Fed.'

Rates/etc. 0 i 50 Recovery of 0 320 Assault, Libel & 0 380 Oter Personal .0 530 General .0 730 Labor/Mgmt.

0460 Deportation Overpayment & . Slander Property Damage 0535 Death Penalty Reporting &
Organizations 0 151 Medicare Act 0340 Marine

Eriployéri' . 0385 Propert Damage 0 540 Mandamus/ Disclosure Act
,,,:àANKkuPjêy: '':0 550 Civil Rights 790 Other Labor

and Corrpt Judgment Liability. Product Liability Other :0740 Railway Labor Act

o 480 Consumer Credit 0 152 Recovery of Defaulted . 0 345 Marine Product 0 22 Appeal 28 USC 0 555 Prison Condition Litigation o 490 Cable/Sat TV Student Loan (Excl. Liability 158 .c;.jiÒRFifuRE'i" 791 Empl. ReI. Inc.

o 810 Selective Service Veterans) 0 350 Motor Vehicle 0423 Withdrawal 28 ...... ......:1l'EAUrY. . . Security Act

~ ::: E;:::':~ 0 153 =~"~ ::: =iE~:;ry ~~~~,e :::~~~i:i &~:eO!:?';h~IGH"
USC 3410 DO 160 Stockholders' Suits 0 Injury 0442 Employment 0625 Drug Relate._,-S~~T~.de!T_ark.~ 'c"-

o 890 Other Statutory Actions i 90 Other Contract 362 Persona) Injury- 0 443 Housing! Acco- Seizure of,u,dßQ'PIALSECURITY

0891 Agricultural ActO 195 C?nt~ct Product Med Malp~ctice mmodations Propei1y 21 USC t16'1 HIA(i39Sftj
0893 Environmental Matters ';::1I';;;r:~~pl~Ji~:!l~l~2~:;f?Æf~X 368 ~s,best~s P:rs~nal Disabilities - ,0640 R.R.& Truck 405(g))

o 892 Economic Stabilization Liability 0 365 Personal InJury- 0444 Welfare g81 S62 Black Lung (923)
Act ~l.,~;,~~~r¡~;h,i~~""'"_~'":"'F_"'m 0 Product Liability 0 445 American with .0 630 Liquor Laws 0 '863 DlWC/DlWW

B ::~ ~;e::¿:~~~:;~~:~tct B ~~~ ~~~~~:::mnation ,,;~:;~~~~~;;~;;/D 446 F~nbl~:I~:::th B ~~~ ~~~~~~a~:~:IO :~~ ~~11~4~i~~~~VI
0.900 Appeal of

nation Under Equal 0 240 Tort to Land 0 462 Natui:li~tion Other . , 0 690 Other 0 870 Taxes (U.S, Plaintiff
Access to Justice 0 245 Tort Product Liability Application 0 440 O~er Civil . or Defendant)

Fee Determi- 0230 Rent Lese & Ejectment",;;;.:i;;:''''''''"C",~:,.;i,;''" ::;!~; isa I ities- Safety /HealthFEDERAL TAXSUlTS

o 950 Ctlnstitutionality of State 0 290 All Other Real Propert 0 463 Ha~ea C0i:us- Rights 0 871 IRS-Third Party 26
465 Other Immigration Actions

Statutes Ahen Detamee USC 7609
AFtER COMPLETING THE

FOR OFFICE USE ONLY: Case Number:
FRONT SIDE OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED BELOW.
CY -7 H.Q5108)

la-1024769

CIsLAO~Rvn9-0\481

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Case NITED STATES 8:09-cv-00481-JVS-RNB Document 1 Filed 04/17/09 Page 25 of 25 U CENTRAL DISTRICT ("- ":ALIFORNIA TRICT COURT;

CIVIL tOVER SHEET I

VJl(a). IDENTICAL CASES: Has tls action bee previously filed in this court and dismissed, remanded or closed? l8 No 0 Yei:
If

yes, list case numbei(s):

VJl(b ). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? I8 No 0 Yes
If

yes, list case numbei(s):

Civil cases are deemed related if a previously fied case and the present case:
(Check all boxes that apply) 0 A. Arse from the same or closely related trnsactions, happenings, or events; or the same or substantially related or similar questions oflaw and fact; or o B. Call for deterination of
o C. For other reaons would entail substantial duplication oflabor if o D. Involve the same patent, trademark or copyrght, and one of heard by different

judges; or

the factors identified above in a, b or c also is present.

iX. VENUE: (When completing the following information, use an additional sheet if

necessary.)

(a) List the County in this District; California County outside of

o Ci k h 'fth t 't i ed i . tff Ifth' b h k d t 't (b)
iec
ere i

this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides. e govemmen , i S agencies or emp oyees is a nam . piam i is ox is c ec e , go 0 i em
Califomia County outside of this District; State, if other than Califomia; or Foreign Country

County in this District:.

Mike Campbell: Los Angeles

Don Henley: Texas

(b) List the County in this District; Californa County outside of o Check here if

this District; State if other than Californa; or Foreign Country, in which EACH named defendant resides, the govemment, its agencies or employees is a named defendant. Iftlùsbcix is checked, go to item (c).
Califomia County outside of

County in this District:.

this District; Stale, if other than California; or Foreign Country

Charles S. DeVore: Orange County

Justin Har: Virginia

(c) List the County in ths Distrct; California County outside of ths Distrct; State if other than California; or Foreign Country, in which EACH claim arose. Note: In land condemnation cases, use the location of the tract of land involved.
County in this District:.
California Count outside of this District; State, other if

than California; or Forci n Counir

Orange County
· Los Angeles, Orange, San Bernardino, Riverside, Vent a S
Note: In land condemnation cases, use the location of the t ct;;

X. SIGNATURE OF ATTORNEY (OR PRO PER):

Date April 17, 2009

Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Sheet and the information contained herein neither replace nor supplement the filing and service,ofplcadings or other papers as required by law. This form, approved by the Judicial Conference of the United States in September 1974, is required pursuant to Loal Rule 3 -i is not filed
but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instrutions sheei.)

CV-71 (05/08)

CIVIL COVER SHEET

la-1024769

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