Teller v. Dogge
Filing
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COMPLAINT against Gerard Dogge (Filing fee $ 350 receipt number 0978-2334374), filed by Teller. Certificate of Interested Parties due by 4/21/2012. Proof of service due by 8/9/2012. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Civil Cover Sheet, # 6 Summons) (Tratos, Mark) Corrected image 5 filed on 4/25/2012 (SRK).
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Mark G. Tratos (Bar No. 1086)
tratosm@gtlaw.com
Peter H. Ajemian (Bar No. 9491)
ajemianp@gtlaw.com
GREENBERG TRAURIG, LLP
3773 Howard Hughes Parkway
Suite 400 North
Las Vegas, Nevada 89169
Telephone: (702) 792-3773
Facsimile: (702) 792-9002
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Counsel for Plaintiff
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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Teller, an individual,
Case No.
Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
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Plaintiff,
COMPLAINT FOR:
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v.
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Gerard Dogge (P/K/A, Gerard Bakardy) an
individual,
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Defendant.
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(1) Copyright Infringement
17 U.S.C. § 501 et seq.;
(2) Unfair Competition
15 U.S.C. § 1125(a)
Jury Trial Demanded
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Plaintiff Teller, an individual residing in Nevada (hereinafter “Teller” or “Plaintiff”), by
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and through his attorneys Greenberg Traurig, LLP, hereby demands a trial by jury and
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complains and alleges against Defendant Gerard Dogge (P/K/A, Gerard Bakardy), an
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individual, (hereinafter “Bakardy” or “Defendant”), as follows:
NATURE OF ACTION
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This is an action for copyright infringement and unfair competition under federal
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statutes. Plaintiff seeks damages, attorneys’ fees and costs.
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JURISDICTION AND VENUE
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1.
These Claims arise under the Copyright Act, 17 U.S.C. § 101 et seq., and the
Lanham Act, 15 U.S.C. § 1051 et seq.
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COMPLAINT
LV 419,730,139
2.
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This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C.
§§ 1331, 1338(a) and 1338(b).
3.
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This Court has personal jurisdiction over Defendant based upon the following:
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(a) Defendant conducts business in Nevada, and (b) Defendant committed tortuous acts
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that he knew or should have known would cause injury to Plaintiff in the State of Nevada.
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Venue is proper in the United States District Court for the District of Nevada
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under 28 U.S.C. §§ 1391(a) and 1391(b). Venue lies in the unofficial Southern Division of
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this Court.
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THE PARTIES
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Teller is a professional entertainer and magician, who is part of the world-
Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
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famous magic and comedy duo Penn & Teller, and was at all relevant times herein, a
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resident of Clark County, Nevada.
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Upon information and belief, Defendant Bakardy is a professional entertainer,
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musician and singer, who also performs magic, and is currently a resident of Fuerteventura,
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Spain.
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Upon information and belief, Defendant is doing business in the State of
Nevada, County of Clark.
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ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF
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FACTS REGARDING PLAINTIFF’S RIGHTS
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Plaintiff is a professional entertainer and magician and part of the world-
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famous magic and comedy duo Penn & Teller. Penn & Teller are famous in the magic
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community for creating innovative magic tricks, and have become well-known in the United
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States and throughout the world for their unique brand of entertainment, including both live
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theater and televised shows that incorporate comedy along with unusual and cutting-edge
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magic routines (hereinafter the “Show”).
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Penn & Teller have enjoyed major national and worldwide success, including
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sold-out runs on Broadway, world tours, Emmy-winning TV specials and hundreds of guest
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appearances on popular television shows such as “Late Show with David Letterman,” “The
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COMPLAINT
LV 419,730,139
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Tonight Show with Jay Leno,” “Friends,” “The Simpsons,” “Chelsea Lately” and “Top Chef,”
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to name a few.
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Additionally, Penn & Teller had their own critically acclaimed television series
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on the Showtime cable network called “Penn & Teller: BS!,” which was nominated for
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thirteen Emmys and was the longest running series in the history of the network. Penn &
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Teller also had a British television series called “Fool Us” that ran last year, and have a
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show on the Discovery Channel called “Penn & Teller Tell A Lie.”
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Penn & Teller have written two national best-selling books, hosted their own
Emmy nominated variety show for the FX network, starred in their own specials for major
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networks ABC, NBC and Comedy Central and produced the critically lauded feature film
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Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
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documentary “The Aristocrats.”
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Currently, Penn & Teller are performing their live Show regularly at The Rio
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All-Suite Hotel & Casino in Las Vegas, Nevada (“The Rio”), where it has been running for
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over eleven years, making it one of the longest running, successful and most-beloved
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shows in Las Vegas history. Penn & Teller’s long run at The Rio has earned them the
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prestigious award of “Las Vegas Magicians of the Year” six times, including in 2011.
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Plaintiff Teller has been instrumental in the success of the Show, and has
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created many of the original comedy bits and magic tricks that have been featured in the
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Show over the years. One of Teller’s most successful and lasting original magic tricks is a
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dramatic work called “Shadows,” which is the subject of the instant litigation.
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Teller created the highly innovative and unusual dramatic work “Shadows” in
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1976, and obtained a U.S. Copyright Registration for it in 1983. True and accurate copies
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of U.S. Copyright Office Certificate of Registration No. PA 469-609, and the deposit
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materials submitted in support of the registration, are attached hereto as Exhibit 1.
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“Shadows” essentially consists of a spot light trained on a bud vase
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containing a rose. The light falls in a such a manner that the shadow of the real rose is
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projected onto a white screen positioned some distance behind it. Teller then enters the
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otherwise still scene with a large knife, and proceeds to use the knife to dramatically sever
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COMPLAINT
LV 419,730,139
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the leaves and petals of the rose’s shadow on the screen slowly, one-by-one, whereupon
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the corresponding leaves of the real rose sitting in the vase fall to the ground, breaking
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from the stem at exactly the point where Teller cut the shadow projected on the screen
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behind it. Upon information and belief, the magic trick “Shadows” was the first illusion of its
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kind.
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“Shadows” has been performed by Teller in Penn & Teller’s Show thousands
of times, including live and televised performances throughout the United States and the
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world. In fact, “Shadows” has appeared in every Penn & Teller Show performed on and off
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Broadway and in their national tours. It is the oldest, most venerated piece of material in
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continuous use in Penn & Teller’s Show, and while other material has come and gone, it
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Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
7
has remained as a universal favorite.
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“Shadows,” among all of Penn & Teller’s repertoire, has an iconic quality as
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the piece with the longest association to Penn & Teller’s Show, and to Teller himself. It is
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considered one of the rare new plots in the canon of 20th Century magic and is Teller’s
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principal claim to fame in magic history. In fact, “Shadows” is still a major part of the Show
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currently running at The Rio, and it has been used so extensively and exclusively by Teller
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that it has become his signature piece - millions of people in the United States and around
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the world have seen Teller perform “Shadows,” and have come to identify this signature
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piece with its creator and source: Teller.
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FACTS REGARDING DEFENDANT’S CONDUCT
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Upon information and belief, Defendant is a Dutch professional entertainer,
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and along with his wife is part of a musical singing lounge act duo, currently performing a
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regular engagement in a hotel located in Fuerteventura, Spain (Canary Islands).
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Upon information and belief, a part of Defendant’s act also includes
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performing magic tricks.
True and correct copies of printouts of webpages from
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Defendant’s website at , showing that Defendant is in the
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business of providing entertainment services in the nature of musical performances as well
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as magic performances, are attached hereto as Exhibit 2.
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COMPLAINT
LV 419,730,139
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20.
Upon information and belief, Defendant has traveled to Las Vegas, Nevada
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and seen Penn & Teller’s Show at The Rio, including Teller’s dramatic performance of his
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signature piece “Shadows.”
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Without authorization from Teller, Defendant has created a magic routine that
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is substantially similar to Teller’s copyrighted work “Shadows.” Defendant calls his magic
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routine “The Rose & Her Shadow.”
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Defendant has recorded a video of himself performing the dramatic work “The
Rose & Her Shadow,” and had posted it on the popular Internet website YouTube along
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with an advertisement offering to sell the magic trick to consumers. True and correct
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copies of screen captures of the YouTube pages containing the video “The Rose & Her
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Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
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Shadow” are attached hereto as Exhibit 3.
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In fact, in the text beneath Defendant’s YouTube video post, Defendant refers
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to Penn & Teller’s Show, admitting that he has “seen the great Penn & Teller performing a
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similar trick and now I’m very happy to share my version….” See Exhibit 3.
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Upon information and belief, Defendant created an advertisement for the sale
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of “The Rose & Her Shadow” trick, and has expressed his intention to Plaintiff to place this
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particular ad in magazines in Belgium and potentially other countries as well.
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Defendant’s listed selling price for “The Rose and Her Shadow” is an amount equal to
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approximately USD $3,050.00.
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advertisement for the sale of the magic trick “The Rose & Her Shadow” is attached hereto
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as Exhibit 4.
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The
A true and correct copy of the intended magazine
On or about March 15, 2012, Plaintiff Teller became aware of the Defendant’s
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video of “The Rose & Her Shadow” posted on YouTube, including the offer to sell the trick
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to consumers shown at the end of the video, and recognizing this as an infringement of his
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copyrighted work “Shadows,” Plaintiff instructed his attorneys to send YouTube a DMCA
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takedown notice, eventually resulting in YouTube’s removal of the Defendant’s video from
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its website.
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COMPLAINT
LV 419,730,139
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On or about March 22, 2012, Plaintiff Teller contacted Defendant by
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telephone and notified him that Defendant’s work “The Rose & Her Shadow” was infringing
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on Plaintiff’s copyrighted work “Shadows,” and also informed him of YouTube’s actions in
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removing Defendant’s videos from the site. Plaintiff requested that Defendant cease all use
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and offers to sell his infringing work “The Rose & Her Shadow;” however, Plaintiff did offer
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to pay Defendant for his work, as it could more efficient than filing a lawsuit.
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Defendant did not accept the terms offered by Plaintiff, but instead countered
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with a much higher sum that he would accept in payment for him to cease use and sale of
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the infringing work “The Rose & Her Shadow.”
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Unfortunately, this higher payment offered by Defendant is unacceptable and
Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
11
uneconomical to Plaintiff, and Defendant has refused to permanently cease use and sale of
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the infringing work “The Rose & Her Shadow,” and upon information and belief, Defendant
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continues to use the infringing work to date.
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Defendant has recently threatened that if Plaintiff does not come to terms
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soon, he will continue to use the infringing work “The Rose & Her Shadow” and sell it to the
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public throughout the world. As such, Plaintiff has been forced to retain counsel to remedy
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Defendant’s infringement.
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CLAIMS FOR RELIEF
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FIRST CLAIM FOR RELIEF
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(Copyright Infringement, 17 U.S.C. § 106)
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Plaintiff repeats and realleges each and every allegation in the preceding
paragraphs as though set forth fully herein.
31.
Plaintiff’s work “Shadows” constitutes copyrightable subject matter, because it
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is a dramatic work within the meaning of Section 102(a) of The Copyright Act of 1976 (“The
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Copyright Act”).
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“Shadows” is an original work of authorship fixed in a tangible medium of
expression from which it can be perceived.
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COMPLAINT
LV 419,730,139
Plaintiff has taken all reasonable steps
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necessary to secure his copyright including obtaining a United States Copyright
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Registration with the U.S. Copyright Office.
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Plaintiff owns a valid copyright registration in “Shadows” and is the owner of
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all rights, title and interest in and to said work, and owns all rights, title and interest to the
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registered copyright of “Shadows,” and has done nothing to abandon the copyrighted work
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or place it into the public domain.
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34.
Upon information and belief, and without the knowledge, approval or consent
of Plaintiff, Defendant willfully infringed and continues to infringe Plaintiff’s copyright by
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reproducing, copying, duplicating, displaying, publically performing and using Plaintiff’s
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copyrighted work for Defendant’s own commercial purposes by publically performing and
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Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
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displaying Plaintiff’s work, and making unauthorized video copies of Plaintiff’s work for the
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purpose of being hired for his entertainment services, and offering to sell the work to third
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parties. Defendant has done so with full knowledge that such acts are an infringement of
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Plaintiff’s copyright, and such acts being in violation of Plaintiff’s exclusive rights under The
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Copyright Act.
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35.
Defendant’s past and present acts violate Plaintiff’s exclusive rights under
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Section 106 of the Copyright Act, 17 U.S.C. §106, and constitute willful and intentional
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infringement of the Plaintiff’s copyright in his work “Shadows.”
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Defendant has realized unjust profits, gains and/or advantages as a
proximate result of its infringement.
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As evidenced by Defendant’s copying, public performance, display and
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prominent use of Plaintiff’s protected work for his own gain, Defendant’s disregard of
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Plaintiff’s previous demands and his misappropriation of Plaintiff’s copyrighted and
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registered work, Defendant has infringed upon Plaintiff’s copyright.
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38.
As a direct and proximate result of Defendant’s copyright infringement,
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Plaintiff has suffered monetary damages and irreparable injury to his business, reputation
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and goodwill.
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COMPLAINT
LV 419,730,139
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Plaintiff has complied in all respects with the statutory requirements for the
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creation and enforcement of the copyright in his work “Shadows;” therefore, Plaintiff is
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entitled to an award of statutory damages for Defendant’s infringement or, in the
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alternative, Plaintiff’s actual damages and Defendant’s profits.
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Furthermore, since Defendant’s conduct has made it necessary for Plaintiff to
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engage the services of outside legal counsel to file this suit, Plaintiff is entitled to recover
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his reasonable attorney fees and court costs incurred in connection herewith.
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SECOND CLAIM FOR RELIEF
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(Unfair Competition under the Lanham Act, 15 U.S.C. § 1125(a))
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Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
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Plaintiff repeats and realleges each and every allegation in the preceding
paragraphs as though set forth fully herein.
42.
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Defendant’s use in commerce of his work “The Rose & Her Shadow,” which is
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confusingly similar to Plaintiff’s signature piece “Shadows,” in connection with Defendant’s
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entertainment services and related goods constitutes a false designation of origin and/or a
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false or misleading description or representation of fact, which is likely to cause confusion,
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cause mistake, or deceive as to affiliation, connection, or association with Plaintiff, or as to
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the origin, sponsorship, or approval of Defendant’s services, goods and commercial
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activities.
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Defendant’s use in commerce of his work “The Rose & Her Shadow,” which is
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confusingly similar to Plaintiff’s signature piece “Shadows,” with the knowledge that Plaintiff
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owns and has used and performed, and continues to use and perform, his signature piece
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“Shadows” constitutes intentional conduct by Defendant to make false designations of
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origin and false descriptions about Defendant’s services, goods and commercial activities.
44.
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As a direct and proximate result of such unfair competition, Plaintiff has
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suffered, and will continue to suffer, monetary loss and irreparable injury to his business,
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reputation, and goodwill.
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///
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COMPLAINT
LV 419,730,139
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PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests for judgment in his favor and against
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Defendant, granting the following relief:
A.
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A declaration that Defendant has infringed Plaintiff’s copyright in the work
“Shadows;”
B.
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A
permanent
injunction
preventing
Defendant
from
using
Plaintiff’s
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copyrighted work in any way, including but not limited to ceasing all use and offers for sale
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of Defendant’s infringing work “The Rose & Her Shadow;”
C.
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Awarding to Plaintiff, pursuant to 17 U.S.C. §504, all actual damages suffered
by Plaintiff and all additional profits earned by Defendant attributable to the copyright
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Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
10
infringement; or, in the alternative, awarding to Plaintiff the statutory damages provided by
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17 U.S.C. §504;
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D.
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Awarding to Plaintiff, pursuant to 17 U.S.C. §505, a reasonable sum as
attorneys’ fees and costs incurred in prosecuting Plaintiff’s claim for copyright infringement;
E.
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A preliminary and permanent injunction prohibiting Defendant, his respective
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officers, agents, servants, employees and/or all persons acting in concert or participation
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with him, from using Plaintiff’s signature piece “Shadows” or confusingly similar variations
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thereof, in commerce or in connection with any business or for any other purpose;
F.
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An award of compensatory, consequential, statutory, and punitive damages to
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Plaintiff in an amount to be determined at trial;
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COMPLAINT
LV 419,730,139
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G.
An award of interests, costs, and attorneys’ fees incurred by Plaintiff in
prosecuting this action; and
H.
All other relief to which Plaintiff is entitled.
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DATED: April 11th, 2012.
GREENBERG TRAURIG, LLP
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/s/ Mark G. Tratos
Mark G. Tratos (Bar No. 1086)
Peter H. Ajemian (Bar No. 9491)
3773 Howard Hughes Parkway
Suite 400 North
Las Vegas, Nevada 89169
Counsel for Plaintiff
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Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 792-3773
(702) 792-9002 (fax)
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COMPLAINT
LV 419,730,139
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