mah na complaint.pdf

8/10/2019 Mah Na complaint.pdf

1/11

JS

44C/SDNY

REV. 4/2014

?K|;V IVIL

OV R SH T

The JS-44 civil coversheet andthe information containedherein neitherreplace norsupplementthe filing and serviceof

pleadings

orother papersas required by

law

except as provided by local rulesofcourt. This form approvedby the

Judicial Conference

oftheUnited

States in September

1974 isrequired for useoftheClerk ofCourt for the

purpose

of

initiatingthe civildocke t sheet. ~

14 CV 927

rviceof s W r

th e

f s e o f

21 ww

PLAINTIFFS

CREAZIONIARTISTICHE MUSICALI,S.r.l

DEFENDANTS

CARLINAMERICA, INC., EDWARD B. MARKS MUSICCO., and JOHN DOE

1-10

ATTORNEYS

(FIRM

NAME, ADDRESS,

AND

TELEPHONE NUMBER ATTORNEYS

(IF

KNOWN)

Reitler Kailas &Rosentblatt LLC,885 Third Avenue, 20th Floor, New York,

NY10022, (212) 209-3050

CAUSE

OF

ACTION C ITE THE U.S .

CIVIL

STATUTE UNDER

WHICH

YOU ARE

FILING AND

WRITE

A

BRIEF

STATEMENT OF CAUSE)

(DO NOTCITEJURISDICTIONAL STATUTESUNLESS DIVERSITY)

Copyright Infringement

Has this

action, case,

or

proceeding, or one essentially the

same

been previously filed in SDNY at any time? NdSfesQjudge Previously Assigned

If

yes,

was

this

case Vol.

[J

Invol.

Dismissed.

No

Yes

If yes, give date &

Case

No.

No

0 Yes

STHISAN INTERNATIONAL

ARBITRATION

CASE?

PLACE

AN[x]INONEBOX

ONLY)

TORTS

NATURE

OF

SUIT

] 110

J120

]130

]140

1150

[ ]

[ ]153

]160

]190

]195

1196

PERSONALINJURY

[ ] 310 AIRPLANE

[ ] 315 AIRPLANE PRODUCT

LIABILITY

[ ] 320 ASSAULT, LIBEL&

SLANDER

[ ] 330 FEDERAL

EMPLOYERS

LIABILITY

[ ]340 MARINE

[ ]345 MARINEPRODUCT

LIABILITY

[ J350 MOTOR VEHICLE

[ ] 355 MOTOR VEHICLE

PRODUCT

LIABILITY

[ ] 360 OTHER PERSONAL

INJURY

[ ] 362 PERSONAL INJURY -

MED MALPRACTICE

INSURANCE

MARINE

MILLER

ACT

NEGOTIABLE

INSTRUMENT

RECOVERY

OF

OVERPAYMENT &

ENFORCEMENT

OF JUDGMENT

MEDICARE ACT

RECOVERY OF

DEFAULTED

STUDENT

LOANS

(EXCLVETERANS)

RECOVERY OF

OVERPAYMENT

OF VETERAN S

BENEFITS

STOCKHOLDERS

SUITS

OTHER

CONTRACT

CONTRACT

PRODUCT

LIABILITY

FRANCHISE

REAL

PROPERTY

PERSONAL

INJURY

[ ]

36 7

HEALTHCARE/

PHARMACEUTICAL PERSONAL

, , 625

DRUG RELATED

INJURY/PRODUCT

LIABILITY

[ ] 36 5 PERSONAL INJURY

PRODUCT

LIABILITY

[ ] 3 68

ASBESTOS

PERSONAL

INJURY PRODUCT

LIABILITY

PERSONALPROPERTY

[ ] 370 OTHER FRAUD

[ ] 371 TRUTH INLENDING

[ ] 380 OTHER PERSONAL

PROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGE

PRODUCT LIABILITY

PRISONER PETITIONS

[ ]

46 3

ALIEN DETAINEE

[ ] 510 MOTIONS TO

VACATE SENTENCE

28

US C 2255

[ ] 530 HABEAS

CORPUS

[ ] 535 DEATH PENALTY

[ ] 540 MANDAMUS&OTHER

PRISONER

CIVIL

RIGHTS

[ ] 550 CIVILRIGHTS

[ ] 555 PRISONCONDITION

[ ] 560 CIVILDETAINEE

FORFEITURE/PENALTY

SEIZURE

OF PROPERTY

21 US C 88 1

]

690

OTHER

LABOR

[ ]

710 FAIR LABOR

STANDARDS

AC T

[ ] 720 LABOR/MGMT

RELATIONS

[ ] 740 RAILWAY LABOR ACT

[ ] 751 FAMILYMEDICAL

LEAVEACT (FMLA)

[ ] 790 OTHER LABOR

LITIGATION

[ ] 7 91 EMPL RET INC

SECURITY

ACT

IMMIGRATION

[ ) 462 NATURALIZATION

APPLICATION

[ ] 465 OTHER IMMIGRATION

ACTIONS

[]210

[

]220

[ ]230

[ ]240

[]245

LAND

CONDEMNATION

FORECLOSURE

RENT LEASE &

EJECTMENT

TORTS TO LAND

TORT PRODUCT

LIABILITY

ALL

OTHER

REAL PROPERTY

ACTIONSUNDER

STATUTES

CIVIL RIGHTS

[ J440 OTHER CIVILRIGHTS

(Non-Prisoner)

[ ]441 VOTING

[ ] 442 EMPLOYMENT

[ ) 443 HOUSING/

ACCOMMODATIONS

[ ] 445 AMERICANS WITH

DISABILITIES

-

EMPLOYMENT

[ ]446 AMERICANS WITH

DISABILITIES -OTHER

[ ] 448 EDUCATION

CONDITIONS

OF

CONFINEMENT

Check ifdemandedin complaint:

CHECK

IF

THIS

IS ACLASS

ACTION

UNDER

F.R.C.P.

23

ACTIONS UNDER STATUTES

BANKRUPTCY

OTHER STATUTES

1 1 37 5 FALSE CLAIMS

[ J400 STATE

] 422 APPEAL

28

US C 15 8

REAPPORTIONMENT

[ ] 42 3 WITHDRAWAL

[ ] 410 ANTITRUST

28

USC 15 7

[ ] 43 0 BANKS & BANKING

[ ]

450

COMMERCE

[ ] 460 DEPORTATION

PROPERTY

RIGHTS

[ J 47 0

RACKETEER

INFLU

ENCED & CORRUPT

\ i

820 COPYRIGHTS

ORGANIZATION ACT

[ ] 830 PATENT

(RICO)

[ ] 840 TRADEMARK

[ ]

480

CONSUMER CREDIT

[ ] 490 CABLE/SATELLITE TV

SOCIAL SECURI TY

[ J 850 SECURITIES/

COMMODITIES/

[ ]861 HIA(1395ff)

EXCHANGE

[ ] 862 BLACKLUNG (923)

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

[ ] 8 64 SSID TITLE XVI

[ ] 865 RSI (405(g) )

[ ] 89 0 OTHER STATUTORY

ACTIONS

[ ] 891 AGRICULTURALACTS

FEDERAL

TA X SUITS

[ ] 870 TAXES (U.S. Plainti ff or

Defendant)

[ J 871 IRS-THIRD PARTY

26 US C 7609

[ ] 893 ENVIRONMENTAL

MATTERS

[ ]

895

FREEDOM OF

INFORMATION ACT

[ ] 896 ARBITRATION

[ ] 899 ADMINISTRATIVE

PROCEDURE

ACT/REVIEW

O

APPEAL

OF AGENCY DECIS

[ ]

950

CONSTITUTIONALITY

STATE STATUTES

DEMAND $_

OTHER

[ O YOU CLAJM

THIS

CASE

IS RELATED TO

A

CIVIL CASE

NOW PENDING IN S.D.N.Y.?

JUDGE DOCKET NUMBER

Check YES onlyif

demanded

incomplaint

JURY DEMAND: El YES

PsiO

NOTE:

You

mustalso submitat the timeof

filing

the StatementofRelatedness

form (Form IH-32


2/11

PLACE

AN

x

IN ONEBOX

ONLY)

ORIGIN

1

Original

2

Removed from II

3

Remanded

d 4

Reinstated or

O 5

Transferred from

6

Multidistrict

7 Appeal

to

District

Proceeding

State

Court

from

Reopened (Specify

District) Litigation

Judge from

3.

a.l parties

repr.s.n,l

APPellate Magistrate Judge

1' Court Judgment

I I b. At least one

party is pr o

se .

PLACEANxINONEBOXONLY)

BASIS

OF

JURISDICTION

IF DIVERSITY,

INDICATE

1

U.S.

PLAINTIFF 2 U.S. DEFENDANT

\x\

3 FEDERAL QUESTION 4

DIVERSITY

CITIZENSHIP BELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FORDIVERSITY CASES ONLY)

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

PTF DEF

PTFDEF

PTF DEF

CITIZEN

OF THIS

STATE []1 []1 CITIZEN OR SUBJECT OFA []3[]3 INCORPORATED and PRINCIPAL

PLACE

[]S [] 5

FOREIGN COUNTRY OF

BUSINESS

INANOTHER STATE

CITIZEN OF ANOTHER STATE []2 []2 INCORPORATED orPRINCIPAL PLACE []4[]4 FOREIGN NATION [] 6 [16

OF

BUSINESS

IN THIS STATE

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

CREAZIONI

ARTISTICHE

MUSICALI,

S.r.l.,Galleria del Corso 4, 20122

Milano,

Italy

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

CARLIN

AMERICA, INC.,

126

East

38th Street, New York, NY

10016

EDWARD B. MARKS MUSIC CO.,

126

East 38th

Street,

New York, NY

10016

DEFENDANT(S) ADDRESS UNKNOWN

REPRESENTATION IS

HEREBY

MADE THAT, ATTHISTIME, I

HAVE

BEEN

UNABLE, WITH

REASONABLE DILIGENCE,

TO

ASCERTAIN

RE9IBENCE ADDRESSES OF THE FOLLOWINGDEFENDANTS:

John Does

1-10

Check one: THIS ACTION

SHOULD

BE

ASSIGNED

TO:

WHITE PLAINS

[x]

MANHATTAN

(DO NOT check

either

box if thi s a

PRISONER PETITION/PRISONER

CIVIL RIGHTS

COMPLAINT.)

DATE

11/21/2014

JSTSfclATURE.OF

ATJOR^Y

OF

RECORD

ADMITTED

TO PRACTICE

IN

THIS DISTRICT

I I N0

.

i l

M

YES

DATE ADMITTED Mo. J

I Yr.

f

RECEIPT # Attorney BarCode#

Magistrate

Judge

is to be designated by the Clerk of the Court.

Magistrate

Judge jsso

Designated.

Ruby J. Krajick,

Clerk

ofCourt by Deputy

Clerk,

DATED .

UNITED STATESDISTRICT COURT(NEWYORKSOUTHERN)


3/11

1 4

' * W J

i i t

Rei t l e r

Kai la s

& 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(5),reitlerlaw.com

Attorney rPlaintiffCreazioniArtisticheMusicali S.r.l.

UNITED STATES DISTRICT

COURT

SOUTHERN

DISTRICT OF

NEW YORK

x

CREAZIONI ARTISTICHE MUSICALI, S.r.l.

Plaintiff,

-against-

COMPLAINT

OS

C O

CO

:. -;

CD

rr

JURY TRIAL DEMANeSd


4/11

registered in the U.S. Copyright Office as registration number PAu3-700-309 (the

Registered Work ).

3. Defendants Carlin

America,

Inc., Edward B.,

Marks

Music Co., and

John Does 1-10 (referred to collectively hereafter as Defendants ), without any authority

from the Plaintiff, have within the three years preceding the commencement of this action

prepared, reproduced, and publicly performed derivative works

of

the Registered Work, or

authorized others to do so, in violation

of

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

et seq. (the Copyright Act ).

4. Plaintiff seeks legal reliefto remedy Defendants' willful infringement

of

the Plaintiffs copyright. Plaintiffrequests an order: (1) declaring that Defendants'

unauthorized preparation, reproduction, distribution, and public performance of derivative

works of the Registered Work, and/or authorization

of

others to engage in such acts,

infringes

Plaintiffs

copyright in violation

of

the Copyright Act; and (2) awarding actual

damages and profits to Plaintiff, to the extent permitted under the Copyright Act.

J U R IS D I CT IO N A N D

VENUE

5. This Court has subject matter jurisdiction over this action under the

copyright laws

of

the United States, 17 U.S.C. 101 et seq. and 28 U.S.C. 1331 and

1338.

6. Upon information and belief, this Court has personal jurisdiction over

the Defendants because the Defendants have prepared, reproduced, and publicly performed

derivative works of

the

Registered Work, or authorized others to do so, in New

York

and this

District, and are otherwise doing business in this State and in this jurisdiction.

2


5/11

7. 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 A R T I E S

8. PlaintiffCAM is an Italian corporation having a principal place

of

business at Galleria del Corso 4, 20122 Milano, Italy

9.

Upon

information

and

belief, Defendant Carlin

America

Inc. ( Carlin )

is aNew York corporation having a principal place ofbusiness at 126

East

38th

Street, New

York,

NY

10016.

10. Upon information and belief, Defendant Edward B. Marks Music Co.

( Marks ) is a partnership organized under the laws

of

the state

of

New York having a

principal place ofbusiness at

126

East

38th

Street, New York,

New

York

10016.

11.

Upon

information

and

belief, Defendant

Marks

is a subsidiary of

Defendant

Carl in.

12.

Upon

information

and

belief, Defendants

John Does

1-10 are

individuals and/or corporate entities whose identity is presently unknown, residing or doing

business in this judicial District, but whose identity will become known through discovery in

this action.

13. Upon information and belief, John Does 1-10 have prepared,

reproduced, and publicly performed derivative works

of

the Registered Work under the

ostensible authority of licenses issued by Defendants Carlin or Marks, which authority Carlin

and Marks did not ever and do not now possess.


6/11

A. Ownership and Registration of

the

RegisteredWork

14. Plaintiff is the copyright owner of the Registered Work, having

acquiredthe copyrightby written agreementwith the composer, Piero Umiliani ( Umiliani ),

dated October 4, 1966.A copy of that agreement has been recorded with the U.S. Copyright

Office as V3620 D649, page 55, and is attached hereto as Exhibit 1.

15. The Registered Work was written as part

of

the soundtrack for a 1966

I ta l ian action

fi lm entit led

Duello

nel Mondo.

16. The October 4, 1966 agreement concerning CAM's ownership

of

the

Registered Work was registered with SIAE, the Italian music-rights society, December 31,

1966.

17. The original 1966 open-reel tape recordings from the soundtrack

recording session

of

Duello Nel Mondo are in Plaintiffs' possession, and copieswill be

made available to the Court upon request in such audio format as the Court may direct.

18. The Registered Work is an original work

of

authorship.

19. The Registered Work has been fixed in a tangible medium

of

expression.

20. The Registered Work contains substantial amounts ofmaterial created

by the composer's own skill, judgment and creativity.

21. The Registered Work is copyrightable under the laws

of

the United

States .


7/11

B. Access and Substantial Similarity

22. Upon information and belief, in June 1968, after having written the

Registered Work in 1966, Umiliani wrote music for a Swedish film, Svezia Inferno e

Paradiso ( Sweden, Heaven and Hell ).

23. This film score, registered in the U.S. Copyright Office May 1, 1969by

Defendant Marks (Reg. No. Eu 113247), contained the composition that is now listed on

Defendant Carlin s website under the t it le Mah Na Mah Na.

24. Umiliani, having previously composed the Registered Work, had

access to it prior to composing MahNa Mah Na.

25. The 1968 Umiliani composition Mah Na Mah

Na

is identical,

virtually note-for-note, to the 1966 Registered Work.

26. The aggregate

of

similarities between the Registered Work and Mah

Na Mah Na is striking, and Mah Na Mah Na could not have been created without having

heavily copied from and having been based on the Registered Work.

27. An audio recording containing both works will be made available to the

Court upon request in such audio format as the Court may direct.

28. Under the title Mah

Na

Mah Na, the Defendants unauthorized

derivativeworkhas become extremely successful in recordings and film soundtracks by the

Muppets, among

many

others.

29. After becoming aware

of

Defendants' unauthorized use

of

the

Registered Work,

CAM

contacted Defendant Carlin

and

advised it

of

the

unauthorized use.

30. Plaintiffs efforts to resolve the matter short

of

litigation have been

unsuccessful.

5


8/11

31. Plaintiffhas suffered, and continues to suffer, fromthe infringing

activities of

Defendants, including without

limitation from the Defendants'

failure

topaya

licensefee commensurate with the value of their use of the RegisteredWork as embodiedin

the infringing MahNa Mah

Na

derivative work.

O U N T

OPYRIGHT

INFRING M NT

32. Plaintiffrepeats and reavers the allegationscontained in paragraphs 1

through 31 as

if

set forth fully herein.

33. Defendants' unauthorized preparation, reproduction, distribution, and

public performance

of

derivative works

of

the Registered Work, and/or authorization of

others to engage in such acts, are infringements of Plaintiffs copyright in violation of the

Copyright Act, 17 U.S.C. 106.

34. 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 17 U.S.C. 504 in an amount to be

proved at trial;

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

fromreproducing, distributing, or publiclyperformingthe RegisteredWork or anyderivative

work thereof, or authorizing and third parties to do so, without authorization from the

Plaintiff;


9/11

Such otherand further reliefas this

Court

deems just andproper.

Dated:

New

York,

New York

November 0,2014

REITLER KAILAS &

ROSENBLATT, LLC

Attorneys for

Plaintiff

Rober t W.

Clar ida

885ThirdAvenue,

20th

Floor

New York, NY

10022

Tel. (212)209-3044


10/11

EXHIBIT

1


11/11

mah na complaint.pdf

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