Yoko Ono- Amended Complaint

8/22/2019 Yoko Ono- Amended Complaint

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------ XSmashing Starlets LLC, et al.,

Plaintiffs,

-against-

Opening Ceremony, LLC, et al.,Defendants.

:::

:::::::

INDEX NO.: 1:13-cv-01502(RRM)(JMA)

Amended Complaint and JuryDemand

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Smashing Starlets LLC and Haleh Nematzadeh (collectively referred to as Plain-

tiff)by and through Plaintiff's attorneys, The Aboushi Law Firm, PLLC,and for Plain-tiff's causes of action against the above-named Defendants, states as follows:

INTRODUCTION

This case is about a Yoko Ono and multi-million dollar fashion company who to-

gether stole the works of art of an up and coming designer and pawned them off as their

own. It involves the theft by the Defendants of the Plaintiffs unique and cutting edge

works of art. The Defendants willfully and intentionally copied all of the Plaintiffs

works of art and presented them as their own collection issued by the Defendants. De-

fendants tortious and illegal conduct allowed them to reap millions of dollars in sales,

good will, and publicity.

JURISDICTION AND VENUE

1. This is an action for copyright infringement arising under the Copyright Act of1976, 17 U.S.C.A. 101 et seq. (the Copyright Act) and other related causes of

Case 1:13-cv-01502-RRM-JMA Document 13 Filed 08/05/13 Page 1 of 15 PageID #: 57


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action.

2. This court has exclusive jurisdiction over this action pursuant to 28 U.S.C.A. 1338(a) and original jurisdiction under 28 U.S.C.A. 1331.

3.

This court also has jurisdiction pursuant to 28 U.S.C.A. 1338(b), and under its

supplemental jurisdiction over pendent claims.

4. Venue is proper pursuant to 28 U.S.C.A. 1391 and 1400.PARTIES

5. Plaintiff, Smashing Starlets LLC is a limited-liability company, with its principalplace of business in Brooklyn, New York.

6. Plaintiff Haleh Nematzadeh is an up and coming designer who resides in Brook-lyn, New York.

7. Defendant Opening Ceremony (OC), upon information and belief, is a Califor-nia Corporation with its principal place of business in New York, NY that gener-

ates millions of dollars per year in retail sales.

8. Defendant Yoko Ono (Ono) upon information and belief, is a resident of NewYork, NY.

9. John and Jane Does 1-10 represents Defendants whose identity is not yet known tothe Plaintiffs.

10.XYZ Corporations 1-10 represents Defendant corporations whose identity is notyet known to the Plaintiffs.

11.Defendants Opening Ceremony and Ono are collectively referred to in this Com-plaint as Defendants.



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BACKGROUND AND FACTUAL ALLEGATIONS APPLICABLE TO ALL CAUSESOF ACTION

12.Plaintiff is engaged in the business of creating, composing, producing, distrib-uting, publishing and marketing unique works of art applied to clothing and acces-

sories.

13.Plaintiff is the copyright proprietor of a unique works of art titled Gonna Walkthe Night (herein referred to as the Collection orWorks of art) and an appli-

cation has been filed with, and was registered by, the United States Copyright Of-

fice under registration number VA0001849755.

14.Plaintiffs works of art was created by Plaintiffs own skill, labor and judgment,and is copyrightable subject matter under the laws of the United States.

15.Plaintiff was introduced to photographers working for OC to do a photo shoot ofthe works of art in July 2012.

16.The intention was to photograph Plaintiffs works of art so that it may be featuredfor sale in OCs catalog and stores worldwide.

17.Plaintiff agreed to show the sketches and pictures of the works of art to OCspho-tographers. Moreover, Plaintiff shared her vision, intention, ideas, and inspiration

with OCs photographers.

18.After the OC photographers saw Plaintiffs sketches and pictures, they cancelledthe photo shoot.

19.Plaintiff attempted to reschedule the photo shoot but OCs photographers refusedto do so, stating that they had other projects to work on.



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20.Plaintiff nonetheless had another photographer shoot the works of art.21.Plaintiff published the works of art on or about October 2012. Defendants knew

that Plaintiff published her works of art.

22.Soon after the Plaintiff published her works of art, the Defendants published iden-

tical works of art (Offending Collection). The offending collection copied ex-

act works of art as well as imitated the works of art and concepts from Plaintiffs

Collection. The Defendants did not have Plaintiffs permission to copy, replicate,

or reproduce the Collection.

23.The offending collection was offered for sale in New York and worldwide, andwas purchased by many consumers in New York.

24.In order to conceal their thievery of Plaintiffs works of art, Defendants renamedthe collection and called it a collection for men.

25.Despite Defendants feeble attempt at disguising the unlawful use of Plaintiffsworks of art, it is clear that Defendants copied Plaintiffs works of art.

26.One piece of the work of art, for example, is a bra like creation.27.Defendants copied this work of art and used a male to model it.28.The ridiculousness of this farce stands on its face.29.It is the same product as Plaintiffs bra work of art, but used on a male.30.What is more, Defendant Ono admitted that the works of art used by the Defend-

ants were novel territory because while the offending collection was allegedly

geared for men, this was the first time Ono has ever designed clothing for men.

31.Indeed, the offending collection was nothing more than a rip off of Plaintiffs Col-



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lection.

32.Defendants tried to cover up the theft of the offending collection by using Plain-tiffs work of art as a mens collection and utilizing males to model the clothing.

33.Defendants represented to consumers, the public, and the media that they created

the works of art on the clothing.

34.In fact, the works of art were that of the Plaintiff.35.Defendants theft of Plaintiffs works of art has caused them to reap millions of

dollars in sales, publicity, and notoriety.

36.The fashion industry heralded the Defendants offending collection as cuttingedge, brilliant, and genius.

37.The offending collection, however, was Plaintiffs works of art.38.In no uncertain terms, Defendants copied Plaintiffs works.39.Upon information and belief, the scheduled photo shoot with OCs photographers

was a ruse to gain access to Plaintiffs confidential and propriety works of art and

sketches.

40.Once OCs photographers gained access, they usurped the works of art andsketches for the unlawful benefit of Defendants.

41.After the launch of the offending collection, Defendant Ono even posed for pic-tures showing her alleged sketches of the works of art.

42.Defendant Ono full well knew the photo opportunity was a sham as she did notcreate the offending collection and full well knew Plaintiff created the works of art

and owned the rights to the work of art.



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43.When the Defendants launched the offending collection, Defendant OC boasted:In 1969, YOKO ONO presented John Lennon with a series of sketches as a weddinggift. The illustrations were designs for clothing and accessories intended to celebrateJohn's "hot bod." As ONO explains, I was inspired to create 'Fashion for Men,' [because

I was] amazed at how my man was looking so great. I felt it was a pity if we could not

make clothes emphasizing his very sexy bod. This season, 48 years after John andONO's wedding, ONO and Opening Ceremony have worked together to bring her sketch-es to life! http://www.openingceremony.us/entry.asp?pid=6993

44.Defendants full well knew that the foregoing statement was completely false andthat the works of art were created by, and belong to, the Plaintiff.

45.The above-described unauthorized actions is an act of copyright infringement, inviolation of the Copyright Act, as amended, including, but not limited to, 17

U.S.C.A. 106, and is therefore unlawful.

46.Moreover, each such unauthorized action was committed willfully.47.The above-described actions of Defendants have served to usurp Plaintiff's exclu-

sive right to determine whether, when, and under what terms the works of art

would be used for commercial purposes.

48.In addition, the unlawful actions of Defendants have materially diminished the fu-ture value of the works of art should Plaintiff wish to make it available for future

commercial opportunities.

49.Defendants actions caused the Plaintiff to miss an entire season of commercial vi-ability for her works of art.

50.Defendants infringement can be broken down into three distinct categories.

http://www.openingceremony.us/entry.asp?pid=6993http://www.openingceremony.us/entry.asp?pid=6993


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51.The first category is the infringement on the plastic bra work of art.52.The Plaintiffs work of art consists of a plastic bra, with a covering for the nipples.53.Defendants infringing work is the same plastic bra, with a covering of the nipples.54.Both works are also anchored around the neck of the user.55.The second category is infringement of the black hand on the crotch work of art.156.The hand used in Plaintiffs work of art is, in fact, a replica ofPlaintiffs hand.57.The hand used in the Defendants infringing work, is also replica of Plaintiffs

hand.

58.The third category is the infringement on the cutouts on the knee work of art.59.Exhibit A are copies of Plaintiffs works of art (as modeled by female models) and

the Defendants infringement (as modeled by male models).

60.In Exhibit A, Plaintiffs works of art is followed by Defendants infringing materi-als.

COUNT I. FEDERAL COPYRIGHT INFRINGEMENT (17 U.S.C.A. 101 et seq.)

61.Plaintiff incorporates by reference all paragraphs of this Complaint as if fully real-leged and restated here in this Complaint.

1Defendants maintain several versions of this infringing work, but only a sample are provided in connection with

the Complaint.



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62.Plaintiff is the lawful and sole proprietor of the copyright to the works of art.63.Defendants have not been granted a license to reproduce, distribute, publicly per-

form, or in any way use, compile, or exploit Plaintiffs work of art.

64.As alleged above, Defendants have had access to, and have illegally copied sub-

stantial parts, if not all of, Plaintiffs work of art.

65.Defendants have distributed, reproduced, publicly usurped, made available, andplaced into the stream of commerce illegal copies of Plaintiffs works of art.

66.Plaintiff is entitled to an injunction restraining Defendants, their agents and em-ployees and all persons acting in concert with them, from engaging in any further

acts in violation of the copyright laws and infringements of Plaintiff's rights under

the copyright laws.

67.Defendants direct and willful acts of infringement have and will cause irreparableharm to unless such conduct is preliminarily and permanently enjoined, since the

reproduction and distribution of the works of art has a special and unique value in

the fashion industry.

68.Plaintiff is further entitled to recover from Defendants the damages, including at-torney's fees, sustained and that will be sustained, and any gains, profits, and ad-

vantages obtained by Defendants as a result of Defendants acts of infringement

alleged above.

69.At present, the amount of such damages, gains, profits, and advantages cannot befully ascertained by Plaintiff, but are reasonably believed to exceed $10,000,000.

70.Plaintiff has no adequate remedy at law for Defendants' wrongful conduct for the



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reason that: (a) plaintiff's copyrights are unique and valuable property that have no

readily determinable market value; (b) the infringement by Defendants constitutes

an interference with Plaintiff's good will and contractual relationships; and (c) De-

fendants' wrongful conduct, and the damages resulting to plaintiff from such

wrongful conduct, is continuing. Defendants' acts of copyright infringement have

caused Plaintiff irreparable injury and Defendants have the ability to continue to

commit these acts.

71.Accordingly, Plaintiff is entitled to damages as well as to injunctive relief pursuantto 17 U.S.C.A. 502, and to an order under 17 U.S.C.A. 503 that the infringing

products be impounded.

COUNT II. UNFAIR COMPETITION


73.Defendants' wrongful acts of unfair competition consist of utilizing the works ofart for the specific purpose of creating the false impression that Plaintiff has en-

dorsed Defendants collection.

74.Defendants, by imitation or unfair device, have induced the general public to be-lieve that they had the right to distribute and use the works of art and/or that Plain-

tiff commercially endorse their products.

75.Defendants have received and obtained substantial gains, profits, advantages, andbenefits that Plaintiff rightfully deserves, by reason of their wrongful acts of unfair

competition.



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76.Defendants, by way of their wrongful acts of unfair competition, have appropriat-ed to themselves the value of the reputation that Plaintiff has acquired by way of

their creation, production, and publication of the Collection.

77.A natural, probable, and foreseeable consequence of the Defendants' wrongful acts

of unfair competition resulted in substantial deception to the general public.

78.Defendants' wrongful acts constitute unfair competition under the laws of NewYork.

79.Plaintiff is entitled to recover from Defendants the monetary damages suffered byPlaintiff as a result of Defendants' wrongful acts of unfair competition.

80.Plaintiff is further entitled to recover from Defendants the gains, profits, ad-vantages, and benefits Defendants have received and obtained as a result of the un-

fair acts of unfair competition.

81.Defendants have acted intentionally, recklessly, willfully, and in bad faith, andplaintiff is therefore entitled to exemplary damages because of Defendants' wrong-

ful acts of unfair competition.

COUNT III. UNJUST ENRICHMENT


83.Defendants have received and obtained substantial gains, advantages, and benefitsby creating the false impression that Plaintiff has endorsed Defendants offending

collection.

84.Moreover, Defendants reaped the benefits of Plaintiffs toil in creating the works



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of art.

85.It is inequitable and unjust for the Defendants to retain those gains, advantages,and benefits.

86.Defendants have enriched themselves at the expense and to the detriment of Plain-

tiff.

87.To the extent Defendants inferred a false endorsement of their goods and servicesby Plaintiff, Plaintiff has conferred a benefit on Defendants.

88.To the extent Defendants exploit Plaintiffs works of art as their own, Defendantshave retained such benefit without adequately compensating Plaintiff for the bene-

fit.

89.Defendants should not in equity and good conscience be permitted to retain thebenefit bestowed on them by Plaintiff.

90.As a result of the retention of the benefit, Defendants have been unjustly enrichedand are jointly and severally liable to Plaintiff.

91.As a result of the unjust enrichment of Defendants, Plaintiff has incurred damagesin an amount to be determined at trial, plus applicable interest, attorney's fees, and

costs.

92.Plaintiff is entitled to receive and obtain from the Defendants the reasonable valueof an endorsement by Plaintiff.

Count IV-Violation of New York GBL Section 349




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94.Defendants falsely claimed to residents of the State of New York, and the World,in an incalculable number of articles and press events that John Lennon inspired

the offending collection.

95.This misrepresentation had the sole purpose of deceiving the public into thinking

that Plaintiffs works of art belonged to Yoko Ono, and was inspired by Jon Len-

non.

96.The Defendants goal in their misrepresentation was to deceive the public intobuying the offending collection.

97.Because of these and other misrepresentations discussed in the Complaint, the De-fendants cheated New York consumers into buying the fraud that is the offending

collection.

98.Such deceptive practices were calculated, premeditated, and aimed at deceivingthe public as a whole simply to enrich the Defendants.

99.Indeed, the lore of John Lennon, and any product associated with him, has alwaysinspired voracious commercial activity when it otherwise would not exist.

100. Defendants created a market for the offending collection by falsely associ-ating it with John Lennon.

101. The materially misleading association with John Lennon enriched the De-fendants millions of dollars at the expense of the unsuspecting public.

102. Plaintiff and the Public were harmed by fraud perpetrated by the Defend-ants.

103. Amongst other things, Plaintiff had her works of art counterfeited and the



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public was duped out of their money.

104. Moreover, the public is deprived from the opportunity to make an informedand free will based decision on whether or not they would purchase the offending

collection absent the false connection to John Lennon.

105. Consumers no doubt relied on these misrepresentations in purchasing theoffending collection.

Count V-Violation of New York GBL Section 350

106. Plaintiff incorporates by reference all paragraphs of this Complaint as iffully realleged and restated here in this Complaint.

REQUEST FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this court enter a final judgment in

Plaintiff's favor and against the Defendants, jointly and severally, as follows:

1. The court find that Defendants have infringed on Plaintiff's copyright in the Com-

position;

2. Defendants, their agents, employees, and all other persons in active concert or priv-

ity or in participation with them, be enjoined from directly or indirectly infringing

Plaintiff's copyright in the works of art or from continuing to market, offer, sell, dis-

pose of, license, lease, transfer, display, advertise, reproduce, develop, or manufacture

any works derived, copied, and/or sampled from the works of art, in whatever medi-

um, or to participate or assist in any such activity;

3. This court order Defendants, and all their representatives, agents, servants, employ-

ees, officers, directors, partners, attorneys, subsidiaries, and all persons under their



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control or acting in active concert or participation with them, to immediately post a

notice on the Web site of each Defendant stating that the prior use of the works of art

was unauthorized and illegal;

4. This court order that Defendants, their affiliates and licensees, immediately cease

and desist from any further recording, reproduction, distribution, transmission, or oth-

er use of the works of art;

5. Defendants be enjoined and ordered to deliver on oath, to be impounded during the

pendency of this action and destroyed pursuant to judgment in this action, all origi-

nals, copies, or duplicates of any work shown by the evidence to infringe any copy-

right in the works of art;

6. Judgment be entered for Plaintiff and against Defendants for Plaintiff's actual dam-

ages and for any profits attributable to infringements of Plaintiff's copyright in the

works of art, pursuant to the Copyright Act of 1976, 17 U.S.C.A. 101 et seq.;

7. Judgment be entered for Plaintiff and against Defendants for statutory damages

based on Defendants' acts of infringement, pursuant to the Copyright Act of 1976, 17

U.S.C.A. 101 et seq., including 17 U.S.C.A. 504(B) and/or (C)(1) and (2), an

election to be made during the pendency of this action;

8. Judgment be entered for Plaintiff and against Defendants for Plaintiff's actual dam-

ages and for any profits attributable to infringements of Plaintiff's rights, including at-

torney's fees and costs of suit;

9. All gains, profits, and advantages derived by Defendants from their acts of in-

fringement and other violations of law be deemed to be held in constructive trust for



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the benefit of Plaintiff;

10. Defendants be ordered to furnish to Plaintiff a complete and accurate accounting

of all profits earned in connection with their use of the offending collection; and

11. The court grant such other, further, and different relief as the court deems just,

proper, and equitable under the circumstances.

Dated: August 5, 2013 The Aboushi Law Firms/Aymen A. Aboushi,Aymen A. Aboushi, Esq.EDNY Bar ID: AA58041441 Broadway, 5th FloorNew York, NY 10018Tel: 212.391.8500Fax: 212.391.8508Email: [email protected]

mailto:[email protected]://www.aboushi.com/http://www.aboushi.com/mailto:[email protected]


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Yoko Ono- Amended Complaint

Documents

Transcript of Yoko Ono- Amended Complaint