Owerko v. U-God

7/29/2019 Owerko v. U-God

http://slidepdf.com/reader/full/owerko-v-u-god 1/11

1 3 CV 64201JS 44C/SDNY

REV. 5/2010

CIVIL CO VE R S H EE T

JUDGE OETKENThe JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service "fJjj^P 1 £ 7T] [3pleadings or other papers as required by law, except as provided bylocal rules of court. This form, approved bytheJudicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose of

initiatingthe civildrfbketshe et.

PLAINTIFFS

LYLE OWERKO

DEFENDANTS

SOUL TEMPLE ENTERTAINMENT, LLC; an d LAMONT JODY

HAWKINS, a/k/a U-GOD

ATTORNEYS (FIRM NAME, ADDRESS,AND TELEPHONE NUMBER ATTORNEYS (IFKNOWN)

Nelson & McCulloch LLP, 155 Eas t 56th Street, New York,

New York 10022 646-704-4900

CAUSEOF ACTION (cite th e u.s. civil statute under which you ar e filing and write a brief statement of cause)(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Copyright infringement, 17 U.S.C. §§101, etseq.

Hasthisora similar case been previously filed inSDNY atanytime? No? [7] Yes? JudgePreviously Assigned

If yes, was this case Vol.D Invol. D Dismissed. Nod Yes D If yes, give date. & Ca s e No .

(PLACEAN [x] INONEBOX ONLY) NATURE OF SUIT

ACTIONS UNDER STATUTES

TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

PERSONAL INJURY PERSONAL INJURY [ ]610 AGRICULTURE [ ] 422 APPEAL [ ]400 STATE

CONTRACT| ]620 OTHER FOOD & 2 8 U SC 1 58 REAPPORTIONMENT

I 1310 AIRPLANE [ ]362 PERSONAL INJURY - DRUG [ ] 423 WITHDRAWAL [ ]410 ANTITRUST

[ ] 110 INSURANCE [ ]315 AIRPLANE PRODUCT MED MALPRACTICE 1 1625 DRUG RELATED 28 US C 15 7 [ I 4 30 BANKS & BANKING

[ ]120 MARINE LIABILITY [ ]365 PERSONAL INJURY SEIZURE OF [ ]450 COMMERCE

[ ]130 MILLERACT [ ]320 ASSAULT, LIBEL & PRODUCT LIABILITY PROPERTY [ ]460 DEPORTATION

[ ] 140 NEGOTIABLE SLANDER [ ]368 ASBESTOS PERSONAL 21 USC 88 1 PROPERTY RIGHTS [ ]470 RACKETEER INFLU

INSTRUMENT [ ]330 FEDERAL INJURY PRODUCT [ ]630 LIQUOR LAWS ENCED & CORRUPT

[ ]150 RECOVERY OF EMPLOYERS' LIABILITY [ ]640 RR & TRUCK K820 COPYRIGHTS ORGANIZATION ACT

OVERPAYMENT & LIABILITY [ ]650 AIRLINE REGS [ ]830 PATENT (RICO)

ENFORCEMENTOF [ ]340 MARINE PERSONAL PROPERTY [ ]660 OCCUPATIONAL [ ] 840 TRADEMARK 11480 CONSUMER CREDIT

JUDGMENT [ ]345 MARINE PRODUCT SAFETY/HEALTH 11490 CABLE/SATELLITE TV

[ ] 151 MEDICAREACT LIABILITY [ ]370 OTHER FRAUD [ ]690 OTHER 1)810 SELECTIVE SERVICE

[ ]1S2 RECOVERY OF [ ]350 MOTOR VEHICLE [ ]371 TRUTH IN LENDING SOCIAL SECURITY ( ]850 SECURITIES/

DEFAULTED [ ]355 MOTOR VEHICLE [ ]380 OTHER PERSONAL COMMODITIES/

STUDENT LOANS PRODUCT LIABILITY PROPERTY DAMAGE LABOR [ ]861 HIA(1395ff) EXCHANGE

(EXCLVETERANS) [ ]360 OTHER PERSONAL [ ]385 PROPERTY DAMAGE [ ] 862 BLACKLUNG(923) [ I 875 CUSTOMER

[ ]153 RECOVERY OF INJURY PRODUCT LIABILITY 1 I 710 FAIR LABOR [ ] 863 DIWC/DIWW (405(g)) CHALLENGE

OVERPAYMENT OF STANDARDSACT [ ] 86 4 SSID TITLE XVI 12 US C 3410

VETERAN'S BENEFITS I ]720 LABOR/MGMT [ ] 865 RSI (405(g)) [ ]890 OTHER STATUTORY

[ ] 160 STOCKHOLDERSSUITS RELATIONS ACTIONS

I ) 190 OTHER CONTRACT [ ]730 LABOR/MGMT [ ]891 AGRICULTURAL ACTS

[ ] 195 CONTRACT PRODUCT REPORTING & FEDERAL TA X SUITS I 1892 ECONOMIC

LIABILITY DISCLOSURE ACT STABILIZATIONAC T

[ J196 FRANCHISE [ ]740 RAILWAY LABOR AC T [ ]870 TAXES (U.S. Plaintiffor [ ]893 ENVIRONMENTAL

ACT IONS UNDER STATUTES [ ]790 OTHER LABOR Defendant) MATTERS

LITIGATION [ ] 871 IRS-THIRD PARTY 1 1894 ENERGY

CIVIL RIGHTS PRISONER PETITIONS [ ]791 EMPL RE T IN C 26 US C 7609 ALLOCATION AC T

REAL PROPERTYSECURITYACT [ ]895 FREEDOM OF

[ ]441 VOTING [ ]510 MOTIONS TO INFORMATION ACT

[ ]210 LANDCONDEMNATION [ ]442 EMPLOYMENT VACATE SENTENCE IMMIGRATION [ ]900 APPEAL OF FE E

[ ] 220 FORECLOSURE [ I 443 HOUSING/ 20 US C 2255 DETERMINATION

[ ] 2 30 RENT LEASE & ACCOMMODATIONS [ ]530 HABEAS CORPUS I )462 NATURALIZATION UNDER EQUAL ACCES

EJECTMENT [ ]444 WELFARE [ ]535 DEATH PENALTY APPLICATION TO JUSTICE

[ ] 240 TORTS TO LAND [ ]445 AMERICANS WITH 11540 MANDAMUS & OTHER I M6 3 HABEAS CORPUS- [ ]950 CONSTITUTIONALITY

[ ]245 TORT PRODUCT DISABILITIES - | ]S50 CIVIL RIGHTS AL IEN DETAINEE OF STATE STATUTES

LIABILITY EMPLOYMENT | ]555 PRISON CONDITION 11465 OTHER IMMIGRATION

[ ]290 ALLOTHER ( ]446 AMER ICANSWITH ACTIONS

REAL PROPERTY

[ ]440

DISABILITIES -OTHER

OTHER CIVIL RIGHTS

Check if demanded in complaint:

CHECK IF THIS IS ACLASS ACTIONUNDER F.R.C.P. 23

DEMAND $_ OTHER

Check YES only ifdemanded in complaint

JURY DEMAND: 0 YES NO

DO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PEND ING IN S.D.N.Y.?

IF SO , STATE:

JUDGENO

DOCKET NUMBER

NOTE: Please submit at the t ime of filingan explanation of why cases are deemed related.



(PLACEAN x INONEBOX ONLY)

H 1 OriginalProceeding

ORIGIN

I I 2a. Removed from I I3 Remanded from I I 4 Reinstated or LJ 5 Transferred from LJ 6 MultidistrictState Court Appellate Court Reopened (Specify District) Litigation

I I 2b.Removed fromS t a t e Cou r t AND

a t l e as t o n e

party is pro se .

I I 7 Appeal toDistrictJudge from

Magistrate Judge

Judgment

(PLACE AN x INONEBOXONLY) BASIS OF JURISDICTION

1 U.S. PLAINTIFF 2 U.S. DEFENDANT 0 3 FEDERAL QUESTION Q4 DIVERSITY(U.S. NOT A PARTY)

IF DIVERSITY, INDICATE

CITIZENSHIP BELOW.(28 USC 1322, 1441)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiffand one box for Defendant)

CITIZEN OF THIS STATE

PTF D EF

[11 [1 1 CITIZEN O R S UB JE CT O F A

F ORE IGN COUNT RY

PTF DEF

[ 1 3 []3

PT F DEF

INCORPORATED and PRINCIPAL PLACE []5 []5

OF BUS INESS IN ANOTHER STATE

CITIZEN OF ANOTHER STATE [ ] 2 []2 INCORPORATED or PRINCIPAL PLACE [ ] 4 |] 4

OF BUS INES S IN THIS STATE

PLAINTIFF(S)ADDRESS(ES) ANDCOUNTY(IES)

LYLE OWERKO

366 BROADWAY

NEW YORK, NY 10013

DEFENDANT(S) ADDRESS(ES) ANDCOUNTY(IES)

SOUL TEMPLE ENTERTAINMENT, LLC

3000 MARCUS AVE., SUITE 3W4

LAKE SUCCESS, NY 11042

FORE IGN NATION [ 1 6 [ 16

DEFENDANT(S)ADDRESS UNKNOWNREPRESENTATION IS HEREBYMADE THAT, ATTHISTIME, IHAVE BEENUNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN THE

RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

LAMONT JODY HAWKINS

NEW YORK, NY

Checkone: THIS ACTION SHOULD BE ASSIGNED TO: WHITE PLAINS \7\ MANHATTAN(DO NOT check either box ifthis a PRISONER PETITION.)

DATE9/12/13

RECEIPT #

SIGNATURE OF ATTORNEY OF RECORD

A <0

ADMITTED TO PRACTICE IN THIS DISTRICT

[ ] NO Q6 09i( l YES (DATEADMITTED Mo. _ Yr.Attorney BarCode #DN4940

MAG, JUDGE EMSagistrate Judge is to be designa ted by the Clerk of the Court

Magistrate Judge is so Designated.

Ruby J. Krajick, Clerk of Court by. Deputy Clerk, DATED

UNITED STATES DISTRICTCOURT (NEW YORKSOUTHERN)



JUDGE OETKEIV

Danial A. Nelson (DN4940)

Kevin P. McCulloch (KM0530)

nelson & Mcculloch llp

155 East 56th Street

New York, New York 10022

T: (212)355-6050

F: (646) 308-1178

Counselfor Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

LYLE OWERKO,

Plaintiff,

SOUL TEMPLE ENTERTAINMENT, LLC; andLAMONT JODY HAWKINS, a/k/a U-GOD;

Civil Action No.:

COMPLAINT AND o " ^

DEMAND FOR A JURYJRIAL

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Plaintiff Lyle Owerko ("Owerko" or "Plaintiff), by and through undersigned counsel,

pursuant to the applicable Federal Rules of Civil Procedure and the Local Rules of thisCourt,

demands a trial by jury of all claims and issues so triable, and for his Complaint against

Defendants Soul Temple Entertainment, LLC ("Soul Temple") and Lamont Jody Hawkins, a/k/a

U-God ("Hawkins") (collectively referred to herein as "Defendants"), hereby asserts and alleges

as follows:



JURISDICTION AND VENUE

1• Plaintiff is aresident of the State of New York who resides at 366 Broadway,NewYork, New York 10013.

2. Plaintiff is the registered copyright owner of the creative photographic works

identified herein and tha, are the subject of this action (the "Subject Photographs").

3. Defendant Soul Temple is aNew York coloration with its principle place ofbusiness a, 3000 Marcus Ave, Suite 3W4, Lake Success, New York, 11042.

4- Defendant Hawkins isamusicai artist and amember of the hip-hop collective the

Wu-Tang Clan. Upon information and beiief, Defendant Hawkins is aresident of New YorkCity.

5- This is an action for copyright infringement and related claims brought byPlaintiff, the holder of copyrights in the Subject Photographs, again, Defendants for

unauthorized uses of the Subject Photographs in conjunction with the cover artwork, packagingadvertising, and other promotional material for the musical album n. Keynole Speaker wi

other unauthorized uses of the Subject Photographs.

6. Jurisdiction for Plaintiffs c,aims lies with ,he Unj,ed ^ ^.^ ^ ^ ^

Southern District of New York pursuant ,„ the Copyright Act of ,976, 17 U.S.C. §§ ,01, el seq.,

28 U.S.C. §,331 (conferring original jurisdiction "of all civil actions arising under theConstitution, laws, or treaties of the United States"), and 28 U .S.C . , 1338(a) (conferringoriginal jurisdiction over claims arising under any ac, ofCongress relating to copyrights).

7- Venue is proper in this Court under 28 U.S.C. « ,39,(b) since aportion of thea„eged misconduct by Defendants giving rise to the Cairns asserted herein occutred in this

District and 28 U.S.C. , 1400(a) since Defendants reside or may be found in this District



Further, Defendants conduct substantial business in the State of New York, including

advertising, promoting, selling, and distributing the infringing album inNew York, and they are

therefore subject to jurisdiction in the State of New York. Defendants also have infringed

Plaintiffs copyrights in the State ofNew York as described herein.

GENERAL ALLEGATIONS

8. Plaintiff is a professional photographer who makes his living by taking and

licensing photographs.

9. Among other works and collections, Plaintiff is known for his stylized and highly

recognizable photographs of boomboxes that he included as partof his book titled The Boombox

Project: the machines, the music, and the urban underground (ISBN 978-0810982758).

10. Plaintiff created the photographs that are featured in The Boombox Project,

including the Subject Photographs at issue here, and owns all copyrights in these images.

11. Attached hereto as Exhibits 1 and 2 are true and correct copies of the Subject

Photographs that Defendants usedwithoutpermission.

12. For ease of reference, the photograph attached hereto as Exhibit 1 is identified

herein as "Clairtone Boombox" and the photograph attached hereto as Exhibit 2 is identified

herein as "Helix Boombox."



Exhibit 1: "Clairtone Boombox"

Exhibi t

2:"Hel ix Boombox"

13. Defendant Soul Temple is a record label founded by Wu-Tang Clan member the

Robert Fitzgerald Diggs (a/k/athe "RZA").

14. Upon information and belief, Defendant Soul Temple created the album artwork

and related promotional materials for The Keynote Speaker which incorporated Plaintiffs

Clairnote Boombox photograph without Plaintiffs permission.

15. A true and correct copy of the infringing album artwork is attached hereto as

Exhibit 3.



Jtsai

Exhibit 3: The Keynote Speaker album cover

16. Defendant Soul Temple also infringed Plaintiffs copyrights in his Helix

Boombox by incorporating a copy of Plaintiffs photo on the front of a tee shirt that it offers for

sale through its website.

17. A trueand correct copy ofthe infringing tee shirt is attached hereto asExhibit 4.

/ AM E

^""T^

Exhib i t 4

Because information regarding Defendants' uses of Plaintiffs photographs



remains inDefendants' possession, the full and complete scope ofDefendants' infringing uses of

Plaintiffs creativeworks has not yet been fully ascertained.

19. Upon information and belief, a reasonable opportunity for further investigation

and discovery will yield evidence that Defendants' unauthorized, unlicensed, and infringing use

and exploitation ofPlaintiffs copyrighted works is not limited to the Subject Photographs and is

not limited to the infringements identified herein.

20. Defendants, by their willful, knowing, and/or reckless actions, injured Plaintiff by

engaging in the unlicensed, unauthorized, and uncompensated use of Plaintiffs creative work

and, as such, deprived Plaintiff of his control over, and rightful compensation for the use of his

creat ive work.

COUNT I

(COPYRIGHT INFRINGEMENT)

21. Plaintiff repeats and re-alleges each allegation set forth inthe paragraphs above as

if set forth fully herein.

22. Plaintiff has registered his copyrights in the Subject Photographs with theUnited

States Copyright Office.

23. Plaintiff registered his copyrights in the Subject Photographs with the United

States Copyright Office priorto the infringements at issue.

24. As alleged herein, Defendants used, published, distributed, and/or exploited

Plaintiffs photographs identified herein as the "Clairnote Boombox" and "Helix Boombox"

without permission or authorization to do so.

25. Defendants have and continue to financially benefit from the uncompensated use

of Plaintiffs creat ive work.

26. Defendants' unlicensed, unauthorized, and uncompensated use of Plaintiffs



creative works injured Plaintiff, including by depriving Plaintiff ofhis rightful compensation for

the use of his creative work and infringing his exclusive rights to control the reproduction, use,

distribution, and sale of his creative work.

27. Defendants misappropriated Plaintiffs intellectual property for their own profit,

causing Plaintiff significant injuries, damages, and losses in amounts tobe determined at trial.

28. Defendants' unauthorized and uncompensated uses of the Subject Photographs

were willful.

29. As parties with experience in copyright and intellectual property matters,

Defendants are or should have been aware that they could not use photographs without a license

that they know that they did not own.

30. Defendants' conduct alleged herein demonstrates reckless disregard for Plaintiffs

exclusive rights as the owner of the copyrights in the Subject Photographs.

31. Given the notoriety and public recognition oftheDefendants and their works and

products, Defendants' misappropriation ofPlaintiffs photographs caused significant damages,

including by diminishing the value of his works as fine art prints and impeding his ability to

license his works to other music artists.

32. Plaintiff seeks all damages recoverable under the Copyright Act, including

statutory or actual damages, including Defendants' profits attributable to the infringing uses of

Plaintiffs creative work, and the damages suffered as a result ofthe lack ofcompensation, credit,

and attribution. Plaintiff also seeks all attorneys' fees and any other costs incurred in pursuing

and litigating this matter.

WHEREFORE, Plaintiff respectfully prays for judgment on his behalf and for the following

relief:



1. A preliminary and permanent injunction against Defendants from copying,

displaying, distributing, advertising, promoting, and/or selling the infringing materials identified

herein, and requiring Defendants to deliver to the Court for destruction or other appropriate

disposition all relevant materials, including digital files of Plaintiff s photographs and all copies

of the infringing materials described in this complaint that are in the control or possession or

custody ofDefendants;

2. All allowable damages under the Copyright Act, including, but not limited to,

statutory oractual damages, including damages incurred as a result ofPlaintiffs loss of licensing

revenue, damage to the value of the copyrighted works, and Defendants' profits attributable to

the infringements, and damages suffered as a result of the lack of credit andattribution;

3. Plaintiffs full costs, including litigation expenses, expert witness fees, interest,

and any other amounts authorized under law, and attorneys' fees incurred in pursuing and

litigating this matter;

4. All allowable damages caused by and/or resulting from Defendants' violation and

infringement of Plaintiffsmoral rights inandto thiscreative visual work;

5. Any other relief authorized by law, including punitive and/or exemplary damages;

and

Forsuch other and further reliefastheCourt deems just and proper.



JURY TR I A L DEMANDED

Dated September 12, 2013

New York, New York.

By:

Respectfully submitted,

nelson & Mcculloch llp

A^

Danial A. Nelson (DN4940)

Kevin P. McCulloch (KM0530)

155 East 56th Street

New York, New York 10022

T: (212)355-6050

F:(646) 308-1178

[email protected]@nelsonmcculloch.com

Attorneysfor Plaintiff

Owerko v. U-God

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