dekooning v. keno auction complaint.pdf

8/10/2019 DeKooning v. Keno Auction complaint.pdf

1/13

JS 44C/SDNY

REV.

4/2014

PLAINTIFFS f

THE

WILLEM DE KOONING

FOUNDATrCW

w

CIVIL

COVER

,85.0 3

5fp2014

The JS-44 civilcover

sheet

and the informationcontained hereifceifrTBBBplace nV4uppement the

filing

pleadings orother papers as required by

law

except as provideonSy local rules ofcourt. This

form

apprm

Judicial

Conference

oftheUnited States in September 1974 isrequired

or

useoftheClerk ofCouRMr

initiating theivil

docket

sheet. ^

EFEN NTS

KENOAUCTIONS,

LLC

an d LEIGH KENO

ATTORNEYS (FIRM

NAME,

ADDRESS, ANDTELEPHONENUMBER

Robert

W. Clanda,

88 5

Third Avenue,20th Floor, New York, NY 10022

ATTORNEYS (IF KNOWN)

CAUSE OF ACTION (CITETHEU.S.

CIVIL

STATUTE UNDER WHICH YOU ARE FILING AND WRITEA BRIEFSTATEMENT OF CAUSER

(DO NOTCITE JURISDICTIONAL STATUTESUNLESS DIVERSITY)

Pursuant

to 17 U.S.C. 101 - Plaintiff

seeks

damages

Has this

action, case, or proceeding, or

one essentially

the same been

previously filed

in

SDNY

atany time? NcEJ esIbudge

Previously

Assigned

Ifyes, was this case Vol.

Invol.

Dismissed. No [~j Yes If yes,give date &Case No.

No

0 Yes

STHIS AN INTERNATIONAL ARBITRATION CASE?

PLACE

AN[x]INONEBOX

ONLY

TORTS

CONTRACT

PERSONALINJURY

1)110

INSURANCE [ ] 310 AIRPLANE

[ ]120

MARINE [ ] 316 AIRPLANEPRODUCT

I

]130

MILLER

AC T

LIABILITY

[]140

NEGOTIABLE

[ ] 320 ASSAULT, LIBEL&

INSTRUMENT

SLANDER

[ ]150

RECOVERY OF [ ] 330 FEDERAL

OVERPAYMENT &

EMPLOYERS

ENFORCEMENT

LIABILITY

OF JUDGMENT

[ ] 340 MARINE

[ ] 1 51

MEDICARE ACT [ ] 345 MARINEPRODUCT

[]152

RECOVERY OF

LIABILITY

DEFAULTED

[ ] 350 MOTORVEHICLE

STUDENT LOANS [ ] 355 MOTORVEHICLE

(EXCLVETERANS)

PRODUCT LIABILITY

[J153

RECOVERY

OF

[ ] 360 OTHER PERSONAL

OVERPAYMENT

INJURY

OF

VETERAN S

[ ] 362 PERSONAL INJURY-

BENEFITS

MED MALPRACTICE

[ ]160

STOCKHOLDERS

SUITS

[]190 OTHER

CONTRACT

[ ]195

CONTRACT

PRODUCT ACTIONS

UNDER

STATUTES

LIABILITY

[ ] 196 FRANCHISE

CIVIL RIGHTS

[ J440 OTHER CIVILRIGHTS

REAL PROPERTY

(Non-Prisoner)

[ ] 441 VOTING

[

1210

LAND

[ ] 442 EMPLOYMENT

CONDEMNATION

[ )

443

HOUSING/

[ ]220 FORECLOSURE

ACCOMMODATIONS

[ ]230

RENT LEASE &

[ ] 445 AMERICANSWITH

EJECTMENT

DISABILITIES -

[ ]240 TORTS TO LAND

EMPLOYMENT

[ ]245

TORT PRODUCT

[ ]

446

AMERICANS WITH

LIABILITY

DISABILITIES

-OTHER

[ ]290 ALL

OTHER

REAL

PROPERTY

[ ]

448

EDUCATION

Checkifdemanded incomplaint

CHECK

IF

THIS

IS A

CLASS ACTION

UNDER F.R .C .P .

23

DEMAND $

OTHER

Check

YES

onlyifdemandedincomplaint

JURY DEMAND: E YES LNO

NATURE OF SUIT

PERSONAL INJURY FORFEITURE PENALTY

[ ] 367 HEALTHCARE/

PHARMACEUTICAL

PERSONAL

, , 6 25 DRUG RELATED

INJURY/PRODUCT

LIABILITY SE|ZURE

QF pRopERTY

[ ] 365 PERSONAL INJURY 21 USC881

PRODUCT

LIABILITY

[ 1 368

ASBESTOS

PERSONAL

INJURY PRODUCT

LIABILITY

PERSONALPROPERTY

[ ] 370 OTHER FRAUD

[ 1371 TRUTH INLENDING

[ ] 380 OTHER PERSONAL

PROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGE

PRODUCT

LIABILITY

PRISONER PETITIONS

[ ] 463 ALIEN DETAINEE

[ ] 510 MOTIONSTO

VACATE SENTENCE

28 US C 2255

[ ] 530 HABEASCORPUS

[ ] 535 DEATH PENALTY

[ ] 5 40

MANDAMUS

&OTHER

PRISONERCIVILRIGHTS

[ ] 550 CIVILRIGHTS

[ ] 555 PRISON CONDITION

56 0

CIVIL DETAINEE

) 69 0 OTHER

L BOR

[ ] 710 FAIRLABOR

STANDARDS

AC T

[ ] 720 LABOR/MGMT

RELATIONS

[ ] 740 RAILWAYLABOR ACT

[ ] 751 FAMILY MEDICAL

LEAVEACT (FMLA)

[ ] 790 OTHER LABOR

LITIGATION

[ ]791 EMPLRET INC

SECURITY

AC T

IMMIGRATION

[ ] 462 NATURALIZATION

APPLICATION

[ ]465 OTHER IMMIGRATION

ACTIONS

CONDITIONS

OF

CONFINEMENT

A C T I ON S U N D ER S T A TU T E S

BANKRUPTCY

[ ] 422 APPEAL

28

USC 15 8

[ ] 423 WITHDRAWAL

28

USC 1 57

PROPERTY

RIGHTS

M 820 COPYRIGHTS

[ ] 830 PATENT

84 0 TRADEMARK

SOCIAL

SECURITY

[ ]861 HIA(1395ff)

[ ] 862 BLACKLUNG (923)

[ ] 863 DlWC/DIWW(405(g))

[ )864 SSID TITLEXVI

[ ] 865 RSI (405(g) )

FEDERAL

T X

SUITS

[ ] 870 TAXES (U.S. Plaintiffor

Defendant)

[ ] 871 IRS-THIRD PARTY

26 US C 7609

OTHER

STATUTES

I 1

37 5

FALSE CLAIMS

[ ]

400

STATE

REAPPORTIONMENT

[ ]410 ANTITRUST

[ ]430 BANKS&

BANKING

[ ]

450

COMMERCE

[ ]460 DEPORTATION

[ ] 470 RACKETEER INFLU

ENCED

&

CORRUPT

ORGANIZATION ACT

(RICO)

[ ] 480 CONSUMER CREDIT

[ ] 490 CABLE/SATELLITE TV

[ ] 850 SECURITIES/

COMMODITIES/

EXCHANGE

[ ] 890 OTHER STATUTORY

ACTIONS

[ ] 891 AGRICULTURALACTS

[ ] 8 93 ENVIRONMENTAL

MATTERS

[ ]895 FREEDOM OF

INFORMATION

ACT

[ ] 896

ARBITRATION

[ ) 899 ADMINISTRATIVE

PROCEDURE

ACT/REVIEW

APPEAL OF

AGENCY

DECI

[ ]

950

CONSTITUTIONALIT

STATE STATUTES

DO YOU CLAJM

THIS CASE

IS

RELATED

TO A CIVIL

CASE NOW

PENDING

IN

S.D.N.Y.?

JUDGE DOCKET NUMBER

NOTE: You must also submit at the time offilingthe

Statement

of Relatedness form (Form IH-


2/13

PLACEAN

x INONEBOXONLY ORIGIN

[El 1 Original 2 Removed from Ll 3

Remanded

D 4

Reinstated or

Q 5

Transferred

from 6

Multidistrict

7 Appeal to District

Proceeding State Court

from

Reopened (Specify

District)

Litigation Judge

from

ll ~ Apellate Magistrate

Judge

|_| a.

parties represented

Court

Judgment

|~~| b. At

least

one

party is prose.

PLACE

AN

x

IN

ONEBOX

ONLY

BASIS

OF JURISDICTION

IF

DIVERSITY, INDICATE

1 U.S. PLAINTIFF 2 U.S. DEFENDANT [x]3 FEDERAL

QUESTION

D4

DIVERSITY CITIZENSHIP

BELOW

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in

one

box for Plaintiffand one box for Defendant)

PTF DEF

PTFDEF

PTF

DEF

CITIZEN OFTHISSTATE []1 []1

CITIZEN

ORSUBJECT OFA [ ]3 [ ]3 INCORPORATED and PRINCIPAL PLACE [ ]S [ 5

FOREIGN COUNTRY OF

BUSINESS

IN ANOTHER STATE

CITIZEN

OFANOTHER STATE [ ]2 [ ] 2 INCORPORATED or

PRINCIPAL

PLACE [ ] 4 [ ] 4 FOREIGN NATION [ ]6 [ ]6

OF

BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

790

Madison

Avenue, New

York,

New

York

10065

DEFENDANT(S)

ADDRESS(ES)

AND COUNTY(IES)

Keno Auctions

-127

East

69th Stree t, New

York,

New

York

10021

Leigh Keno -1365 York Ave., Apt. 21F, New York, New York 10021

DEFENDANT(S)

ADDRESS

UNKNOWN

REPRESENTATION

IS

HEREBY

MADE THAT, AT

THIS

TIME, I HAVE

BEEN

UNABLE, WITH

REASONABLE

DILIGENCE, TO

ASCERTAIN

RESILIENCE

ADDRESSES OF

THE

FOLLOWING

DEFENDANTS:

Check one: THIS

ACTION SHOULD

BE ASSIGNED

TO:

WHITE

PLAINS [x] MANHATTAN

(DO NOT check either box ifthis a PRISONER PETITION/PRISONER CIVILRIGHTS

COMPLAINT.)

DATE

9/24/2014

StSbLATLIRE

OF,ATTORNEY*

Hi

YES

(DATE ADMITTED Mo. V*- Yr I

>

RECEIPT Attorney Bar

Code

Magistrate Judge is

to

be designated

by the

Clerk of ttft^uM/ai

hi Ah

Magistrate

Judge

is

so

Designated.

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

UNITED

STATES

DISTRICT COURT (NEW

YORK

SOUTHERN)


3/13

Rei t l e r Kai las

&

Rosenb l a t t LLC

Robert William Clarida

885 Third

Avenue

20th

Floor

New

York,

NY

10022

Phone:(212)209-3044

Fax: (212) 371-5500

^

Email: rclarida(a),reitlerlaw.com

Attorneyfor Plaintiff

The

Willem de Kooning Foundation

UNITED

STATES

DISTRICT COURT

SOUTHERN

DISTRICT OF

NEW

YORK

14

CV

8503

x

THE

WILLEM DE KOONING FOUNDATION

Plaintiff,

-against-

COM PL INT

JURY TR I L

DEM NDED

ENO AUCTIONS, LLC and

LEIGH KENO,

~;~ in

Defendants.

o

o

Co

~ r

x

. \

_ on

~ o

PlaintiffThe Willem de Kooning Foundation ( The

Foundation ),

by its^ J5

attorneys,Reitler Kailas & Rosenblatt LLC, alleges as follows:

N TURE OF CT ION

1. The Foundation is an artist-endowed, private, 501(c)(3) tax-exempt

operating foundation with a principal place

of

business in this judicial District.

2. The Foundation's mission is to foster the study and appreciation of the

life and work

of

the late artist Willem de Kooning through research, exhibitions and

educational programs. Through The Foundation's initiatives, it strives to encourage new


4/13

discussion and a deeper understanding

of

de Kooning, his contemporaries, and their

historical moment among scholars and the general public.

3. Plaintiff seeks damages for willful copyright infringement by the

defendants, Keno Auctions, LLC ( Keno Auctions ) and its founder and principal Leigh

Keno ( Mr. Keno )(Keno Auctions and Mr. Keno are referred to collectively hereafter as

Defendants ), arising from Defendants' unauthorized use

of

numerous original Willem de

Kooning artworks in violation

of

the United States Copyright Act, 17U.S.C. 101 et seq.

(the Copyright Act ).

4. Defendants, without any authority from the Plaintiff, prepared,

reproduced, publicly displayed and publicly performed a promotional audiovisual work (the

Video ) incorporating exact copies of dozens

of

Willem de Kooning's copyrighted

artworks, including without limitation the work registered in the U.S. Copyright Office as

registration number VAu 1-180-097 (the Registered Work ).

5. Plaintiff is the owner

of

copyright in all

of

the

Willem de Kooning

artworks incorporated in the Video, including the Registered Work.

6. Sixty-eight (68) additional Willem de Kooning artworks infringed by

the Defendants Video are identified o n th e at tached Schedule A. These additional

works

are

being submitted to the U.S. Copyright Office for registration, and Plaintiffwill seek to

amend this Complaint to add allegations

of

infringement regarding these additional works

when

those registrations

have been

issued.

7. Plaintiff seeks legal and equitable rel ief to remedy Defendants' willful

infringement

of

the Plaintiffs copyrights. Plaintiffrequests an order: (1) declaring that

Defendants' unauthorized preparation, duplication, public performance and public display

of


5/13

the Video willfully

infringes plaintiffs copyrights in

violation

of

the

Copyright

Act; (2)

prohibiting Defendants from further

infringement

ofthe Plaintiffs

copyrights;

(3)

requiring

the impoundment

and

destruction

of

all copies

of

the Video

in

Defendants' custody

or

control; and (4) awarding actual damages and profits totheextent permitted under the

Copyright Act.

JU RI SD IC TIO N N D V E N U E

8. ThisCourthas subject matterjurisdictionover this actionunderthe

copyright

laws

of

the

United

States,

17

U.S.C.

101

et

seq.

and

28

U.S.C.

1331

and

1338.

9. Upon information andbelief,thisCourthas personaljurisdictionover

the Defendants because Mr. Keno and Keno Auctions have distributed and performed the

Video in New York and this District, or have authorized others to do so, and are otherwise

doing business in this State and in this jurisdiction.

10. Venue is proper in this District under 28 U.S.C. 1391(b), 28 U.S.C.

1391(c) and 28 U.S.C. 1400(a).

P RT IES

11. PlaintiffThe Foundation is private, tax-exempt operating foundation

havinga principalplace of businessat 790MadisonAvenue,New York, New York 10065.

12. Upon information and belief, DefendantKeno Auctions is a limited

liability company established under the laws ofNewYorkhavinga principalplaceof

businessat 127East 69th Street,NewYork,New York

10021.


6/13

13. Uponinformation andbelief,Defendant LeighKenois an individual

residing or doing business in this judicial District.

14. Upon information andbelief,Defendant LeighKeno is the founder of

Defendant Keno Auctions.

T H E R E G IS TE R ED W O R K

15. Plaintiff is the copyright owner

of

the Registered Work, having

acquired the copyright from TheWillemde KooningRevocableTrust bywritten agreement

on Apri l 26, 2002.

16. The Registered Work is an original work of authorship.

17. The Registered Work has been fixed in a tangible medium of

expression.

18. The Registered Work contains substantial amounts

of

material created

by the artist's own artistic judgment and creativity.

19. TheRegistered Work is copyrightable subject matter under the laws of

t h e Un it ed States.

20. The Registered Work has never been published with the consent

of

Willem de Kooning or The Foundation.

INFR INGEMENT

21. Upon information and belief, Defendants had a reasonable opportunity

to view the Registered Work prior to the making

of

the Video.

22. Upon information and belief, Defendants obtained a photograph of the

RegisteredWork from a third party who was employed by Willem de Kooning during his

lifetime.

4


7/13

23. The photograph of the Registered Work that is incorporated into the

Video is substantially similar to the Registered Work.

24. Beginning on or about August 29, 2014, the Video was publicly

displayed and performed on the Keno Auctions website, www.kenoauctions.com, to promote

Keno Auctions and the sale by consignment

of

a painting other than the Registered Work.

25. Promptly after becoming aware

of

Defendants's unauthorized use

of

the Registered Work in the Video, The Foundation contacted Defendants and advised

Defendants that the use of any Willem de Kooning artwork in the Video was unauthorized.

26. Plaintiffhas suffered, and continues to suffer, from the infringing

activities

of

Defendants, including without limitation from the Defendants' failure to pay a

license fee commensurate

with

the value

of

their commercial, promotional

use of

the

Registered Work and from Defendants' usurping

of

Plaintiff s right to control the first

publication and the commercial use of the Registered Work.

DEFEND NT

LE IGH

K EN O

27.

The Keno

Auctions website, www.kenoauctions.com, states that

Leigh

Keno is intimately involved in

each

consignment.

28.

The

Keno

Auctions website, www.kenoauctions.com, identifies only

three employees

of

Keno Auctions, one

of

whom is the founder, Leigh Keno, and another

of

whom is

an

administrative

assistant.

29. Accordingly, upon information

and

belief, Mr. Keno at all relevant

times had actual or constructive knowledge

of

the infringing activities complained of herein.

30.

Upon

information and belief, Mr.

Keno

at all relevant times

participated materially in the infringing activities complained

of

herein.

5


8/13

31. Upon

information

and belief, Mr. Keno

at

all

relevant

times had the

right to control the infringing activities complained ofherein.

32.

Upon information and belief,

Mr. Keno

at all relevant times had the

ability

to

control

the

infringing activities complained

of

herein.

33. Upon

information

and

belief, Mr.

Keno at all

relevant

times

realized

or

stood to realizea direct financial benefit from the infringingactivities complainedof herein.

34.

Accordingly, Mr. Keno is a

contributory

and/or

vicarious

infringer of

Plaintiffs

copyright

inthe

Registered Work

andisjointly

and severally liable

for

any

damages that may be awarded in this action.

C OUN T

I

COPYRIGHT

INFRINGEMENT

35. Plaintiffrepeats and realleges the allegations contained in paragraphs 1

through 34 as if set forth fully herein.

36. Defendants' unauthorized copying ofPlaintiffs Registered Work into

the

Video,

and subsequent reproduction, public display andpublic performance of theVideo,

are

infringements

ofPlaintiffs

copyright

in violation ofthe

Copyright Act,

17

U.S.C.

106.

37. As a direct and proximate result of the foregoing acts

of

the

Defendants, the Plaintiff has been damaged in an amount to be proved at trial.

WHEREFORE, the Plaintiffrequests the following relief:

A. Actual damages and profits under 17U.S.C. 504 in an amount to be

proved at trial;


9/13

B. A permanent injunction requiring the Defendants to cease and desist

from reproducing, distributing, performing and displaying the Video without authorization

from the

Plaintiff;

C. An order requiring the impoundment

and

destruction

of

all copies

of

the Video in

Defendants

custody or control;

D. Such other

and

further

relief

as this Court deems

just

and

proper.

Dated:

New York,

New York

September^/, 2014

By:_

REITLER

KAILAS

&

ROSENBLATT,

LLC

Attorneys for

Plaintiff

Robe r t

W .

Clar ida

885 Third

Avenue,

20th Floor

New

York,

NY

10022

Tel. (212) 209-3044


10/13

SCHEDULE A


11/13

WdK photo

Title

Date

created

(00220)

Gansevoort Street

1949

(00238)

sheville

1949

(00262)

Excavation

1950

(00516)

Women

III

1952-53

(00703)

Nude

1964

(00713)

Sphinx

1964

(00888)

Pink

Woman Torso

1967

(01108)

Th e Dancer

1972

(01412)

Untitled VIII

1977

(01417)

Untitled XIII

1977

(01432)

Untitled XXVIi

1977

(01515)

Man on the

Dunes

1971

(01543)

Pirate Untitled II

1981

(01544)

Untitled

III

inprocess]

1981

(01550)

Untitled IX

1981

(01830)

UntitledXI[inprocess]

1983

(01849)

Untitled XXI

1983

(01880)

no Htle

1983

(02078)

Untitled

1988

(02095)

finprocess]

1989

(02108)

1989

(03584)

71972

(03600)

c. 1970-1977

(03609)

c.

1971

(03615)

1970-1977?

(03653)

1971?

(03666)

c. 1970-1971

(03669)

1970-1972?

(03687)


12/13

(03737)

c. 1975-1979

(03739)

1975 1978?

(03740)

c.

1966

(03827)

1982?

(03842)

Untitled mWomen

1966-1968?

(04161)

c.

1968

(04175)

1950

(04597)

1971?

(04612)

1971?

(04613)

1972?

(04614)

1972?

(04615)

n o

title>

1972?

(04616)

1972?

(04617)

1972?

(04619)

1972?

(04620)

1972?

(04621)

1972?

(04622)

1972?

(04635)

1972?

(04829)

71968

(05545)

1971

(05774)

71978

(05884)

1989

(05965)

71978

(05966)

71978

(05967)

71978

(05970)

1972?

(05971)

1972?

(05972)

1972?

(05973)

1972?

(05974)

1972?

(05975)

1972?

(05976)

1972?

(05977)

1972?


13/13

05978

dekooning v. keno auction complaint.pdf

Documents