Teller v. Dogge

Filing 1

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)
[e-mail]
Peter H. Ajemian (Bar No. 9491)
[e-mail]
GREENBERG TRAURIG, LLP
3773 Howard Hughes Parkway
Suite 400 North
Las Vegas, Nevada 89169
Telephone: [phone]
Facsimile: [phone]

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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
[phone]
[phone] (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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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
[phone]
[phone] (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.
6.

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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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8.

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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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
[phone]
[phone] (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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13.

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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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
[phone]
[phone] (fax)

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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 <www.losdosdeamberes.com>, 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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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
[phone]
[phone] (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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26.

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
[phone]
[phone] (fax)

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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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32.

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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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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
[phone]
[phone] (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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36.

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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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.
40.

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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
[phone]
[phone] (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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43.

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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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
[phone]
[phone] (fax)

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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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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
[phone]
[phone] (fax)

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COMPLAINT
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