Wheat-dogg’s world
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08-cv-3813-SHS filed 4/22/2008 in US District Court, Southern District, New York State

SHUKAT ARROW HAFER WEBER &

HERBSMAN, L.L.P.

Attorneys for Plaintiffs

111 West 57th Street, Suite 1120

New York, NY10019

(212)245-4580

Dorothy M. Weber, Esq. (DW-4734)

Peter S. Shukat, Esq. (PS-8074)

COMPLAINT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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YOKO ONO LENNON, SEAN ONO LENNON,

JULIAN LENNON, and EMI BLACKWOOD

MUSIC, INC.,

Plaintiffs,

-against-

PREMISE MEDIA CORPORATION, L.P., C&S

PRODUCTION L.P. d/b/a RAMPANT FILMS,

PREMISE MEDIA DISTRIBUTION L.P. AND

ROCKY MOUNTAIN PICTURES, INC.,

Defendants.

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Plaintiffs, Yoko Ono Lennon, Sean Ono Lennon, Julian Lennon and EMI

Blackwood Music, Inc., by their attorneys, Shukat Arrow Hafer Weber & Herbsman,

LLP, allege for their complaint, upon knowledge and belief as to their own acts and

upon information and belief as to the acts of all others, as follows:

THE PARTIES, JURISDICTION AND VENUE

1. Plaintiff Yoko Ono Lennon is an individual residing in the State of New

York. She is the widow of the late John Lennon, who was one of the most successful

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and influential musicians of all time. Mrs. Lennon succeeded to all copyright,

trademark and other intellectual property interests owned by John Lennon on his

death, including, but not limited to, the trademark in “Imagine” (the “Mark”) and is

one of the renewal claimants for the music and lyrics to the song “Imagine” (the

“Song”).

2. Plaintiff Sean Ono Lennon is a citizen and resident of the State of New

York and is a son of the late John Lennon. He is also a renewal claimant on the

copyright registration for the Song.

3. Plaintiff Julian Lennon is a citizen of the United Kingdom and resident

of Italy and is a son of the late John Lennon. He is also a renewal claimant on the

copyright registration for the Song.

4. Plaintiff EMI Blackwood Music, Inc., is the publishing administrator of

the Song. EMI Blackwood Music, Inc., is a Connecticut Corporation and has its

principal place of business at 75 Ninth Avenue, New York, New York 10011

5. Defendant Premise Media Corporation is a Delaware limited

partnership with its principal place of business in Dallas, Texas.

6. Defendant C&S Production, LP, d/b/a Rampant Films, is a Delaware

limited partnership with its principal place of business in Gonzales, Texas.

7. Defendant Premise Media Distribution LP is a Delaware Limited

Liability company with its principal place of business in Dallas, Texas.

8. Defendant Rocky Mountain Pictures, Inc., is a Utah Corporation with its

principal place of business in Salt Lake City, Utah.

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9. This Court has exclusive jurisdiction over the subject matter of this

action pursuant to 28 U.S.C §§ 1331, § 1332 and 1338 and Section 43(a) of the

Lanham Act (15 U.S.C. § 1125(a)) and principles of pendent jurisdiction. The claims

herein arise under Sections 106, 201, 501 and 504 of the Copyright Act (17 U.S.C. §§

106, 201, 501 and 504) and the common law.

10. This Court also has jurisdiction based upon the diversity of the parties

(28 U.S.C. § 1332), as this is a civil action between citizens of different states in which

the amount in controversy exceeds the sum of $75,000 exclusive of interests and costs.

11. Venue is proper in the Southern District of New York pursuant to 28

U.S.C. § 1391(a) and (b) as there is complete diversity between Plaintiffs and

Defendants, and since a substantial part of the events that are the subject matter of

this lawsuit occurred in this judicial district, including, but not limited to, sales and

distribution of the infringing Film, as defined hereinbelow, in this judicial district.

BACKGROUND FACTS

12. John Lennon was a musician, artist and political activist whose status

as an artistic genius and musical icon of the twentieth century cannot be disputed.

His achievements as a musician, writer, artist and humanitarian are legendary and

were cut short by his tragic and shocking assassination in 1980.

13. The distinctive artistic brilliance that has come to be associated with

John Lennon’s music is of inestimable value to his heirs.

14. The Song appeared on John Lennon’s album entitled “Imagine.” The

December 4, 2004 issue of Rolling Stone magazine entitled the “500 Greatest Songs

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of all Time” ranked the Song at number three (3). The Imagine album and single

have sold multi-millions of copies worldwide. Simply, Imagine is one of the most

recognizable songs in the world.

15. The Mark has been used in commerce since at least 1988 in connection

with the sale and advertising of Plaintiff’s products and services and has achieved

secondary meaning through substantial usage and sales and the attendant consumer

recognition. “Imagine” was also the title of the critically acclaimed David Wolper

documentary on the life of John Lennon, produced with the participation of Plaintiff,

Yoko Ono Lennon.

16. As a result of publicity, advertising and marketing efforts with respect

to the Song, it has acquired secondary meaning as Lennon’s “signature” song.

Accordingly, the Song has become closely associated with and is synonymous with

John Lennon and associated with Plaintiffs.

17. Through sponsorship and promotion of charitable and educational

events, such as the John Lennon Educational Tour Bus and Imagine Peace

Tower, and through music, art and multimedia events regarding the musical legacy

of John Lennon, Plaintiff Yoko Ono Lennon has intentionally associated the mark

with John Lennon’s vision.

THE FILM

18. On or about April 15, 2008, press reports were posted in Internet news

sites incorrectly stating that Plaintiffs had licensed or otherwise authorized the use

of the Song in a motion picture entitled “Expelled: No Intelligence Allowed” (the

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“Film”). This was the first time that Plaintiffs became aware of the Film or the use

of the Song in the Film. Defendants are the producers, distributors or otherwise

involved with and profit from the Film.

19. None of the Plaintiffs granted permission for the use of the Song in the

Film.

20. Internet “bloggers” immediately began accusing Mrs. Lennon of “selling

out” by licensing the Song to Defendants.

21. On April 18, 2008, at a public showing of the Film at 11:40 a.m. at the

E-Walk Stadium 1 Cinemas located at 247 West 42nd Street in New York City, the

Film prominently featured the use of John Lennon’s recording of the Song, together

with a reproduction, by subtitle, of a portion of the lyrics of the Song on the screen.

22. The Film also contains other musical compositions, including “All Along

The Watchtower” written by Bob Dylan, “Spirit In The Sky” written and performed

by Norman Greenbaum “All These Things That I’ve Done” written by Brandon

Flower, Dave Brent Keuning, Mark August Stoermer and Ronnie Vannucci Jr. and

performed by the artist “The Killers” and “Personal Jesus” written by Martin Lee

Gore and performed by the artist “Depeche Mode.”

23. On information and belief, the filmmakers obtained and/or applied for

synchronization licenses for the use of the foregoing musical compositions and

masters but did not obtain permission for use of the Song.

24. Rolling credits at the end of the movie state ownership, credit and

permissions information for each such song licensed.

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25. “Imagines” ownership and credit information is also displayed among

the similar information for the other music used, but close inspection of the

momentary reference reveals that the “permission granted” line was omitted in the

case of the Song.

26. Members of the consuming public are likely to perceive this credit

information in the Film as suggesting that the Song was properly licensed. Indeed,

commentators in the press have widely speculated that such use was approved by the

owners of the intellectual property associated with “Imagine”.

27. Upon information and belief, Defendants have intentionally and

willfully used the Song without authorization because they knew that they would

likely be unable to secure permission from Plaintiffs and/or because they wished to

avoid the costs associated with lawfully licensing these works and paying royalties.

28. Upon information and belief, Defendants have also intentionally and

willfully used the Song in a fashion that suggests to the public that such use was

authorized, endorsed or sponsored by the Plaintiffs.

FIRST CLAIM FOR RELIEF
(Copyright Infringement)

29. Plaintiffs repeat and reallege the allegations contained in paragraphs 1

through 28 with the same force and effect as if fully set forth herein.

30. At all relevant times, Plaintiffs are and have been the rightful owners

and/or administrators of the copyrights in and to the Song.

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31. Plaintiffs Ono, Sean Ono Lennon and Julian Lennon have filed with the

United States Copyright Office the deposit, application, and fee required for

registration of the Song pursuant to 17 U.S.C. §§ 408, 409 and Copyright

Registration RE-796-356 was issued on December 31, 1998, a copy of which is annexed

hereto as Exhibit A. The Song was originally registered on September 15, 1971 and

bears registration number EU277294, a copy of which is annexed as Exhibit B.

32. Defendants have no license or any other form of permission to copy,

duplicate, or claim copyright ownership in the Song, or to sell or distribute any

portion of the Song.

33. Defendants have infringed Plaintiffs’ copyright in the Song, in violation

of the Copyright Act, 17 U.S.C. §§ 501 and 106, by copying, publishing and

distributing the Song.

34. Such infringement is willful pursuant to the Copyright Act, 17

U.S.C. § 504.

35. Defendants’ unauthorized exploitation of the Song in the Film is in

derogation of and injurious to Plaintiff’s exclusive rights as the owner and/or

administrator of the copyright to the Song, all to Plaintiffs’ substantial damage.

36. By reason of the foregoing acts of copyright infringement, Plaintiffs are

entitled both to a permanent injunction enjoining Defendants from continuing the

aforesaid acts of infringement, and to an award of damages in an amount to be

proved at trial.

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SECOND CLAIM FOR RELIEF
(Injunction)

37. Plaintiffs repeat and reallege the allegations contained in paragraphs 1

through 37 with same force and effect as if fully set forth herein.

38. At all times herein Plaintiffs Yoko Ono Lennon, Sean Lennon and

Julian Lennon were the owners of the copyright in and to the Song.

39. By Defendants’ public dissemination of the Song, Defendants have

violated Plaintiffs’ copyright interests in the Song.

40. Plaintiffs have been damaged by Defendants’ public dissemination of the

Song, and will continue to suffer damage in the future if Defendants continue to

publicly disseminate the Song.

41. This Court is authorized by 17 U.S.C. § 502 to enjoin the future

infringement of Plaintiffs’ copyright in the Song.

THIRD CLAIM FOR RELIEF BY YOKO ONO LENNON
(Violation of § 43(a) of the Lanham Act)

42. The Plaintriff, Yoko Ono Lennon, repeats and realleges the allegations

set forth in paragraphs 1 through 41 as if fully set forth herein.

43. Yoko Ono Lennon was the Executrix of the Estate of John Lennon.

44. The name “Imagine” is distinctive and arbitrary and has acquired

secondary meaning. “Imagine” is entitled to protection from misappropriation and

from use on unauthorized goods and products.

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45. Defendants have used, and continue to use, “Imagine” in connection

with the Film in a way which is likely to cause confusion and/or mistake among

consumers by falsely suggesting and implying that the Film is authorized, approved

and/or sponsored by the Plaintiff or is in some way affiliated, connected to associated

with unauthorized uses.

46. Defendants’ conduct constitutes a violation of Section 43(a) of the

Lanham Act, 15 U.S.C. § 1125(a).

47. The acts and conduct of Defendants have caused, and unless restrained

and enjoined by this Court will continue to cause, great and irreparable harm to

Plaintiffs in that there is a likelihood of confusion by the public as to the source or

sponsorship of the Film, and that the offering for sale and sale of the Film usurps and

perverts the market for licensed uses of the Song. Such irreparable harm cannot be

adequately compensated or measured by money alone.

48. Plaintiff has no adequate remedy at law.

49 By reason of the foregoing, Plaintiff is entitled to both a permanent

injunction enjoining Defendants from continuing the aforesaid violations of §43(a) of

the Lanham Act, and to an award of damages in an amount not less than three times

Defendants’ profits or damages, whichever is greater, and reasonable attorney fees.

WHEREFORE, Plaintiffs demand judgment against Defendants as follows:

a. On Count I:

i. Finding that the Defendants have infringed the Plaintiffs’ copyright

interests in the Song;

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ii. Permanently enjoining and restraining Defendants, their agents,

affiliates and representatives from producing, manufacturing, printing,

distributing, selling, marketing, promoting, advertising and/or

otherwise exploiting the Film, or causing the foregoing activities to take

place, and from otherwise infringing Plaintiffs’ copyright interests in

the Song;

iii. Entering judgment for Plaintiffs and against Defendants, jointly and

severally, for Plaintiffs’ actual damages plus Defendants’ additional

profits, or, in the alternative, statutory damages, pursuant to 17 U.S.C.

§ 504, in an amount yet to be determined, and directing Defendant to

provide an accounting of all sales of and profits derived from the

exploitation of the Film;

iv. ordering Defendants to account for all profits, gains and advantages

derived from their acts of infringement and for its other violations of

law;

v. That all gains, profits and advantages derived by Defendants from their

acts of infringement be deemed to be held in constructive trust for the

benefit of the Plaintiffs; and

vi. ordering Defendants to turn over all copies of the Film that are now

within Defendant’s ownership or control;

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b. On Count II, permanently enjoining and restraining Defendants, their agents,

affiliates and representatives from producing, manufacturing, printing, distributing,

selling, marketing, promoting, advertising and/or otherwise exploiting the Film, or

causing the foregoing activities to take place, and from otherwise infringing the

Plaintiffs’ copyright interests in the Song;

c. On Count III:

i. permanently enjoining and restraining Defendants, their agents,

affiliates and representatives from continuing use of the mark

“Imagine” in connection with the Film in a way which is likely to cause

confusion and/or mistake among consumers by falsely suggesting and

implying that the Film is authorized, approved and/or sponsored by the

Plaintiffs or that Plaintiffs are in some way affiliated, connected or

associated with the Defendants’ unauthorized uses, and from producing,

manufacturing, printing, distributing, selling, marketing, promoting,

advertising and otherwise exploiting the Film; and

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ii. awarding Plaintiff damages against Defendants, jointly and severally, in

an amount to be proven at trial, but in no event less than Seventy-Five

Thousand ($75,000) Dollars and not less than three times Defendants’

profits or damages, whichever is greater, and reasonable attorney fees;

and

d. Awarding Plaintiffs such other and further relief as may be just and proper.

Dated: New York, New York

April 22, 2008

SHUKAT ARROW HAFER WEBER

& HERBSMAN, L.L.P.

Attorneys for Plaintiffs

111 West 57th Street

New York, New York 10019

By: Dorothy M. Weber, Esq. (DW 4734)

Peter S. Shukat, Esq. (PS 8074)

Annexed: Exhibits A and B