Toma v. Motley Crue, Inc. et al

Filing 1

COMPLAINT against Motley Crue, Inc, et al. filed by Ron Toma; Jury Demand. Filing fee $ 350, receipt number 0752-7054119. (Attachments: # 1 Exhibit A and B, # 2 Exhibit C and D)(Thompson, Lawrence)

THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RON TOMA, an individual,
Plaintiff,
vs.
MOTLEY CRUE, INC., a California
corporation; 11-7 RECORDING CORP, a
California corporation; 10TH STREET
ENTERTAINMENT ASSOCIATES, LLC, a
California LLC; and LIVE NATION
MERCHANDISE, INC., a Delaware
corporation;
Defendants.

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Case No.: 1:12-cv-02796

JURY DEMAND

COMPLAINT
NOW COMES the Plaintiff, RON TOMA, by his attorney, LAWRENCE E.
THOMPSON of THE THOMPSON LAW OFFICE, P.C., and respectfully states the following
as his Complaint against the Defendants, MOTLEY CRUE, INC. (“MOTLEY CRUE”), 11-7
RECORDING

CORP

(“ELEVEN

SEVEN”),

10TH

STREET

ENTERTAINMENT

ASSOCIATES, LLC (“TENTH STREET”); and LIVE NATION MERCHANDISE, INC.
(“LIVE NATION”):
NATURE OF THE ACTION IN BRIEF
1.

This is an action by TOMA for injunctive relief and damages relating to the

defendants’ copyright infringement of TOMA’s intellectual property and defendant MOTLEY
CRUE’s breach of contract related to the same intellectual property. More specifically, Toma
possesses copyrights in photographic images of the members of Motley Crue, a popular band,
that were created by author Michael Pinter in 1981. The defendants, either directly or through
intermediaries, have copied, distributed and/or imported those images. The defendants’ actions
in this regard constitute copyright infringement.

2.

TOMA and MOTLEY CRUE were parties to prior litigation, Toma v. Motley

Crue, et al., 08-cv-03479 (N.D. ILL Closed 05/22/09), that concerned the same intellectual
property. The prior litigation was resolved pursuant to a settlement agreement (the “Settlement
Agreement”). MOTLEY CRUE has breached the terms of the Settlement Agreement by failing
to include a proper copyright notice on packaging for musical sound recordings and on
merchandise.
3.

Defendants MOTLEY CRUE, ELEVEN SEVEN and TENTH STREET have

facilitated and/or authorized the importation of the sound recording packaging into the United
States, and the display of the packaging in the United States, without the required proper
copyright notice.
4.

Defendants MOTLEY CRUE and LIVE NATION have facilitated and/or

authorized the importation of merchandise, including merchandise into the United States, and the
display of the packaging in the United States, without the required proper copyright notice.
PARTIES AND JURISDICTION
5.

The plaintiff is a citizen of Illinois residing in DuPage County.

6.

Defendant MOTLEY CRUE is a California corporation having its principal place

of business in California. Defendant ELEVEN SEVEN is a California corporation having its
principal place of business in California. Defendant TENTH STREET is a California limited
liability corporation having its principal place of business in California.

Defendant LIVE

NATION is a Delaware corporation having its principal place of business in California.
7.

The amount in controversy, without interest and costs, exceeds the sum or value

specified by 28 U.S.C. § 1332.
8.

This Court has jurisdiction under 17 U.S.C. § 101 et seq.; 28 U.S.C. § 1331

(federal question); 28 U.S.C. § 1332 (diversity); and 28 U.S.C. § 1338(a) (copyright).
9.

Venue is proper pursuant to 28 U.S.C. § 1391 and 28 U.S.C. § 1400.

10.

This action arises under federal statutes. Defendants’ conduct and activities were,

and are, unauthorized and constitute copyright infringement under the United States Copyright
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Act, 17 U.S.C. § 101, et seq.
COUNT I - COPYRIGHT INFRINGEMENT
11.

Plaintiff incorporates and restates Paragraphs 1-10 as set forth above.

12.

In 1981, Michael Pinter created original photograph images of the members of the

band Motley Crue (the “Pinter Images”).
13.

The Pinter Images, individually and collectively, are original works subject to

copyright protection under United States law.

The Pinter Images include the relevant

photographic images attached as Exhibits A-1 and A-7 (referred to herein as the “Album
Images”).
14.

Plaintiff acquired the copyright to the Pinter Images through written assignments

which have been provided to the Copyright Office.
15.

Plaintiff has registered the Album Images with the Copyright Office as Reg. No.

VA1642841, Reg. No. VA1642842, and Reg. No. VA1642242. See Exhibit B.
16.

Defendants MOTLEY CRUE, ELEVEN SEVEN, and TENTH STREET have

infringed the copyright by publishing and/or displaying one or more images and/or derivatives
that were copied from plaintiff's Pinter Images, for example, on compact discs advertised,
distributed, and imported from 2010 to the present, exerts from some of which are attached as
Exhibits C1 – C5.
17.

Upon information and belief, defendant continues to infringe and/or are planning

to infringe the copyright by continuing to facilitate the importation and/or displaying the
infringing images in violation of the copyright, thus causing irreparable damage.

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COUNT II - COPYRIGHT INFRINGEMENT
18.

Plaintiff incorporates and restates Paragraphs 1-10 as set forth above.

19.

In 1981, Michael Pinter created original photograph images of the members of the

band Motley Crue (the “Pinter Images”).
20.

The Pinter Images, individually and collectively, are original works subject to

copyright protection under United States law.

The Pinter Images include the relevant

photographic images attached as Exhibits A-1 and A-2 (referred to herein as the “Belt Buckle
Image”).
21.

Plaintiff acquired the copyright to the Pinter Images through written assignments

which have been provided to the Copyright Office.
22.

Plaintiff has registered the Album Images with the Copyright Office as Reg. No.

VA1642841 and Reg. No. VA1642842. See Exhibit B.
23.

Defendants MOTLEY CRUE and LIVE NATION have infringed the copyright

by publishing and/or displaying one or more images and/or derivatives that were copied from
plaintiff's Belt Buckle Images, for example, on greeting cards, exerts from one of which is
attached as Exhibit D.
24.

Upon information and belief, defendant continues to infringe and/or are planning

to infringe the copyright by continuing to facilitate the importation and/or displaying the
infringing images in violation of the copyright, thus causing irreparable damage.
COUNT III – BREACH OF CONTRACT
25.

Plaintiff incorporates and restates Paragraphs 1-24 as set forth above.

26.

Defendant MOTLEY CRUE’s actions are a breach of the Settlement Agreement.
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PRAYER FOR RELIEF
Therefore, TOMA demands:
(a)

for Defendants to be enjoined from engaging in any further unauthorized

infringement of plaintiff’s protected photographic images;
(b)

for Defendants to account for and pay as damages to the plaintiff all profits and

advantages gained from infringing the plaintiff's copyright, and that the Court enter judgment in
favor of plaintiff and against Defendants for damages sustained by plaintiff in an amount to be
determined at trial;
(c)

for Defendants to pay the plaintiff interest, costs, statutory damages, and

reasonable attorney's fees; and
(d)

for plaintiff to be awarded any other just relief.
JURY DEMAND

TOMA hereby demands a trial by jury on all issues and claims triable by jury.
Respectfully submitted,
Dated: April 16, 2012

RON TOMA

By:

Lawrence E. Thompson, Esq.
THE THOMPSON LAW OFFICE, P.C.
831 S. State Street
Lockport, IL 60441
[e-mail]
815.838.6033
Fax: [phone]
Attorney No. 6279547
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s/Lawrence E. Thompson/
Lawrence E. Thompson