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MITCHELL D. KAMARCK
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
ALYSSA MILANO, an individual, Plaintiffs, vs. EIGHT BALL, INC., a business entity of unknown form; A.D.E. INC., a business entity of unknown form; WIMSEY INFORMATION SERVICES, INC., a business entity of unknown form; PAUL ANAND, an individual; and DOES 1-25. Defendants. JURY TRIAL DEMANDED Case No. 98-3245
COMPLAINT FOR: Plaintiffs ALYSSA MILANO and MICHAEL O'CONNOR, by their attorneys, Rosenfeld, Meyer & Susman, LLP, for their Complaint against defendants Eight Ball, Inc., A.D.E. Inc., Wimsey Information Services, Inc., Does 1-25 and Paul Anand allege:
2. Jurisdiction over Michael O'Connor's claim under the Copyright Act arise under 28 U.S.C. Section 1331 and 1338(a). Jurisdiction over Alyssa Milano's claims under the Lanham Act arises under 28 U.S.C. Section 1331 and 1338(a). Jurisdiction over Alyssa Milano's claims under state and common law arise under 28 U.S.C. Section 1338(b) and principles of pendent jurisdiction, and under 28 U.S.C. Section 1332(a) in that there is complete diversity of citizenship and the amount in controversy exceeds $75,000, exclusive of interests and costs. 3. Venue is proper in this judicial district pursuant to U.S.C. Sections 1391(b),, 1392(a) and 1400(a).
4. Plaintiff Michael O'Connor is a resident of the County of Los Angeles, California. 5. Plaintiff Alyssa Milano is a resident of the County of Los Angeles, California, and utilizes her name, Alyssa Milano, in her profession as an actress and a musician. 6. Upon information and belief, defendant A.D.E. Inc. ("ADE") is a Canadian business entity of unknown form with a principal place of business at 1107 Clerihue Road, Port Coquitlam, British Columbia and is doing business in this judicial district, and is and/or was carrying out the activities and/or causing the injuries and damages complained of herein in this judicial district and elsewhere. 7. Upon information and belief, defendant Eight Ball, Inc. ("Eight Ball") is a Canadian business entity of unknown form with a principal place of business at 1107 Clerihue Road, Port Coquitlam, British Columbia and is doing business in this judicial district, and is and/or was carrying out the activities and/or causing the injuries and damages complained of herein in this judicial district and elsewhere. 8. Upon information and belief, defendant Paul Anand ("Anand") is a resident of Port Coquitlam, British Columbia with a primary residence at 2599 Diamond Crescent, Port Coquitlam or #4-915 Fort Fraizer Lise, Port Coquitlam and is doing business in this judicial district, and is and/or was carrying out the activities and/or causing the injuries and damages complained of herein in this judicial district and elsewhere. 9. Upon information and belief, Wimsey Information Services, Inc. ("Wimsey") is a Canadian business entity of unknown form with a principal place of business at 8523 Commerce Court, Burnaby, British Columbia and is doing business in this judicial district, and is and/or was carrying out the activities and/or causing the injuries and damages complained of herein in this judicial district and elsewhere. 10. Persons and entities as yet unidentified, i.e., Does 1-25 (the "Doe Defendants"), are presently unknown to Plaintiffs, and are and/or assisting, aiding, and abetting Anand, Eight Ball, ADE and/or Wimsey in carrying out the activities and/or causing the injuries and damages complained of herein. 11. Upon information and belief, at all times relevant hereto, Does 1-25, Anand, Eight Ball and ADE were the agents, servants and co-conspirator of each other, and was acting within the scope of such agency, employment and/or co-conspiracy in carrying out the activities alleged herein.
12. Plaintiff Alyssa Milano is a well-known actress having appeared in five (5) television series, seventeen (17) theatrically released motion pictures, eight (8) television motion pictures and five (5) plays. She has also recorded five (5) record albums. 13. Milano started acting at the age of eight (8) as a member of the national touring company of Annie. Following, Annie, she appeared in a series of off-Broadway plays: Jane Eyre, Wendy Wasserstein' s Tender Offer, All Night Long and Warning Signals. Her theatrical training lead to her starring in the television sitcom Who's the Boss from 1984 to 1992 as Samantha Micelli, the daughter of actor Tony Danza. During the eight year run of the show, Ms. Milano won three "Youth in Film" awards and appeared in 196 episodes. 14. During the time she was appearing in Who's The Boss, she also appeared in the theatrical motion pictures Old Enough (1984), Commando (1985), The Canterville Ghost (1986), Speed Zone! (1989), Little Sister (1992), Where the Day Takes You (1992) and the television motion pictures Dance Til' Dawn (1988) and Crash Course (1988). 15. After Who's The Boss left the air in 1992, Ms. Milano appeared in numerous theatrical and television motion picture. In 1993 alone, she starred in the theatrical releases The Webbers, Double Dragon and Conflict of Interest and the television motion pictures Confessions of A Sorority Girl, Casualties of Love and Candles in the Dark. 16. Since 1993, she has starred in eight theatrical motion pictures: Embrace of the Vampire (1994), Public Enemy # 1 (1995), Poison Ivy 2: Lily (1995), Deadly Sins (1995), Glory Daze (1996), Fear (1996), Hugo Pool (1997) and Below Utopia (1998) and appeared in three television motion pictures: The Surrogate (1995), To Brave Alaska (1996) and Goldrush (1998). 17. In addition to her appearances in motion pictures, she has appeared as a special guest star in the following television series: The Outer Limits (1995), Rebel Highway (1994) and Spin City (1997). 18. In 1997, Ms. Milano appeared as a regular cast member in the television series Melrose Place. 19. Additionally, to date she has released five albums in Asia: Alyssa, Best of the World, Look In My Heart, Locked Inside A Dream and Do You See Me? Her most recent release, Do You See Me?, sold 35,000 copies in its first two weeks in release. Her first album, Look In My Heart, was second only to Madonna in Asia and went onto platinum status. Additionally, she has performed her music at the Tokyo music festival in the world famous Budoken. 20. As a result of her extensive work in television and motion pictures, Ms. Milano has become well-known throughout the world. Most recently, she has appeared on the covers of Maxim magazine, Details magazine (as one of "The Girls That Make You Lose Remote Control"), Fit magazine and in a special pullout poster in Detour magazine. TV Guide named Ms. Milano as one of television's top 20 sexy stars for 1997. 21. Ms. Milano also maintains an official website. Her website averages approximately one thousand (1,000) visitors every week. At that website, she has various information regarding her career and she rotates photographs of herself on an almost weekly basis. She has devoted substantial time and money in promoting herself and her goods and services under her birth name, Alyssa Milano, and, in fact, the consuming public associates her name with her. Her name has become famous and distinct and is singularly associated with her. 22. Over Ms. Milano's career, photographer Michael O'Connor has had unparalleled access to Ms. Milano. Over the course of approximately fourteen (14) years, Mr. O'Connor has taken hundreds of photographs of Ms. Milano at her bequest. As to some of those photographs, he has registered or is in the process of registering his copyright in such photographs. Attached hereafter as Exhibits A, B and C, are true and correct copies of three photographs for which Mr. O'Connor has obtained or in the process of obtaining the federal copyright (collectively referred to hereafter as the "Copyrighted Photographs"). Plaintiffs will amend this Complaint to attach the applicable registrations upon receiving the copyright registrations for the Copyrighted Photographs.
23. Upon information and belief, the primary business of defendants Does 1-20, ADE, Eight Ball and Anand is the production and sale of pornographic CD-ROMS. They market these CD-ROMs in the United States, including in this judicial district, through the use of a number of websites on the World Wide Web including www.adultcd.com and www.ade.wis.net. Anand is the person primarily responsible for the design and maintenance of these websites. 24. ADE, Eight Bail and Anand promote their websites and the products sold on their websites through the manipulation of the search engines that catalog the contents of websites on the Web. These search engines are utilized by users throughout the United States, including this judicial district, to locate desired material or information on the Web. Upon information and belief, in order to advertise their website and products through the manipulation of the search engines, ADE, Eight Ball and Anand utilize the name of Ms. Milano in both the text of the actual website pages and in the metafiles for such pages. Additionally, on occasion, ADE, Eight Ball and Anand utilize a picture of Ms. Milano on the pages of their websites to advertise the type and quality of the images available on their CD-ROMS. 25. On their website, Eight Ball, ADE and Anand offer for sale a series of CD-ROMs that include photographs of celebrities, both in the nude and in clothes. Volume 1 of Nude Celebrities included approximately 38 photographs or alleged photographs of Alyssa Milano, including:
(A) A photograph of a young girl that is misidentified as Alyssa Milano (on the CD-ROM it is "Milan58.jpg"), 26. Neither Mr. O'Connor or Ms. Milano granted Anand, Eight Ball or ADE permission to use any of the photographs of Milano contained on such CD-ROM. 27. Defendants Eight Ball's, ADE's and Anand's businesses knowingly trade on and exploit Ms. Milano's identity, mark, reputation and other indicia closely associated with her. The activities of Eight Ball, ADE and Anand are for the calculated purpose of deriving a commercial benefit from Ms. Miiano's famous name. Their activities are designed to falsely suggest a connection with or sponsorship by Ms. Milano which does not exist. 28. Anand, Eight Ball and ADE have sold such CD-ROMs with the Infringing Photographs throughout the United States including this judicial district. 29. On or about November 4, 1997, on behalf of Ms. Milano and other clients, Cybertrackers contacted Anand, ADE and Eight Ball through their website, ade.com, and informed them that they were impermissibly using Ms. Milano's name and/or image and to immediately cease and desist from exploiting Ms. Milano's name or image. They failed to quit exploiting Ms. Milano's name and image despite such warning and, instead, have continued to intentionally and maliciously exploit Ms. Milano's and Mr. O'Connor's rights. 30. Defendant Wimsey is the system operator of the a series of websites including Eight Ball's and ADE's website ade.wis.net. Wimsey knows or should know that Eight Ball, Anand and ADE are violating Mr. O'Connor's and Ms. Milano's right and had the ability to stop such conduct because it acts as the system operator for one of Eight Ball's and ADE's websites. Upon information and belief, some of the photographs at issue have appeared on the website owned by Wimsey and unless enjoined such photographs will continue to appear, from time to time, on such website.
31. Mr. O'Connor repeats and realleges Paragraphs 1 through 30 as if fully set forth herein. 32. Upon information, Does 1-20, Eight Ball, ADE and Anand have directly infringed and threaten to further infringe O'Connor's Copyrighted Photographs by manufacturing or causing to be manufactured, importing or exporting, advertising, displaying, promoting, marketing, distributing, offering for sale and/or selling within this judicial district and elsewhere certain CD-ROMS containing the Copyrighted Photographs or reproducing and/or displaying such Copyrighted Photographs on their websites. The display of such infringing photographs by Does 1-20, Eight Ball, ADE and Anand is an unauthorized public display of O'Connor's Copyrighted Photographs in violation of 17 U.S.C. section 106(5). The marketing of such infringing photographs is an unauthorized distribution of copies of the Copyrighted Photographs in violation of 17 U.S.C. section 106(3). 33. The manufacture, importation, exportation, advertisement, display, promotion, marketing, distribution and/or sale of the unauthorized and infringing photographs via CD-ROM is without any permission, license or authorization from Mr. O'Connor. 34. As alleged herein, Does 1-20, Anand, Eight Ball and ADE have been notified of their infringing and illegal activity. Despite clear requests to each defendant except the Doe defendants, they have willfully and knowingly continued their unlawful infringing activity through the date of the filing of this Complaint. 35. Mr. O'Connor has no adequate remedy at law and is suffering irreparable harm and damage as a result of the aforesaid acts of infringement. Does 1-20, Anand, Eight Ball and ADE are each liable in amounts within the jurisdiction of the Court. 36. Upon information and belief, the aforementioned infringements by defendants of O'Connor's Copyrighted Photographs was and continues to be with the knowledge that the various Copyrighted Photographs are copyrighted, and that certain of the defendants, in doing the acts complained of herein, have willfully infringed O'Connor's rights under the Copyright Laws of the United States, 17 U.S.C. Section 101 et seq. 37. Upon information and belief, Does 1-20, Eight Ball, ADE and Anand have each obtained gains, profits and advantages as a result of their wrongful acts in amounts within the jurisdiction of this Court. 38. Upon information and belief, O'Connor has suffered direct and actual damages as a result of each of the defendant's wrongful conduct as alleged herein, in amounts within the jurisdiction of this Court. In order to determine the full extent of such damages, including such profits as may be recoverable under 17 U.S.C. Section 504, O'Connor will require an accounting from Does 1-20, Anand, Eight Ball and ADE of all monies generated from the manufacture, importation or exportation, distribution and/or sale of the infringing CD-ROMs alleged herein. 39. In the alternative, Mr. O'Connor may elect to recover for each of his copyrighted works infringed statutory damages pursuant to 17 U.S.C. Section 504(c). 40. Furthermore, upon information and belief, Does' 1-20, Eight Ball's, ADE's and Anand's acts as described above are or may be in willful violation of Mr. O'Connor's rights, and statutory damages against each such willfully infringing defendant in the Court's discretion up to the amount of $100,000.00 for each work infringed should be assessed by the Court pursuant to 17 U.S.C. Section 504(c). 41. Upon information and belief, defendant Wimsey is knowingly permitting defendants Eight Ball, ADE and Anand to utilize Wimsey's Internet network to sell, advertise and distribute the CD-ROMs including the Copyrighted Photographs and has materially contributed to the infringing activities alleged herein. 42. Unless enjoined by the Court, the unlawful infringement of Mr. O'Connor's Copyrighted Photographs will continue with irreparable harm and damage to Mr. O'Connor and his licensees.
43. Ms. Milano repeats and realleges Paragraphs 1 through 42 as if fully set forth herein. 44. Does' 10-25, Eight Ball's, ADE's and Anand's unauthorized use of Ms. Milano's name and likeness is likely to cause confusion, mistake, or deception as to the source, affiliation or sponsorship of defendants and defendants' goods. The public is likely to believe that defendants' goods are somehow connected with, affiliated with or related to Ms. Milano. Defendants' unauthorized use of Ms. Milano's name and image falsely represents defendants as being legitimately connected with Ms. Milano and places beyond Ms. Milano's control her own reputation and ability to control the use of her name and image. 45. Upon information and belief, defendants' acts of unfair competition are willful and deliberate and with the intent to reap the benefits of Ms. Milano's goodwill and violates Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a). 46. The aforesaid conduct is causing Ms. Milano to suffer irreparable injury and damage, which in]'uries and damages are not capable of determination or adequate remedy at law and, unless restrained, will cause further irreparable injury and damage to Ms. Milano. Ms. Milano has no adequate remedy at law.
47. Ms. Milano repeats and realleges Paragraphs 1 through 46 as if fully set forth herein. 48. Ms. Milano's name is extraordinarily famous and well-known throughout the United States having been used extensively by her for many years. By reason of Ms. Milano's extensive use of the name, this name has become highly distinctive of Ms. Milano's goods and services and is uniquely and exclusively associated with her. 49. Defendants' continued use of Ms. Milano's name in connection with goods and services that are not controlled by, affiliated with or sponsored by Ms. Milano is likely to dilute the distinctive quality of Ms. Milano's name by lessening the capacity of this name to exclusively identify and distinguish Ms. Milano and her goods and services. 50. Upon information and belief, the foregoing acts were done willfully and deliberately and with an intent to reap the benefits of Ms. Milano's goodwill and dilute the distinctiveness of Ms. Milano's mark in violation of Section 43(c) of the Lanham Act, 15 U.S.C. Section 1125(c). 51. The aforesaid conduct is causing Ms. Milano to suffer irreparable injury and damage to Ms. Milano. Ms. Milano has no adequate remedy at law.
52. Ms. Milano repeats and realleges Paragraphs 1 through 51 as if fully set forth herein. 53. Defendants Eight Ball's, ADE's and Anand unauthorized use of Ms. Milano's name and image in relationship with the creation and management of their websites and the sale of certain CD-ROMS, willfully misappropriates Ms. Milano's identity for their commercial advantage in violation of Ms. Milano's right of publicity under the common law of California and other states. Such misappropriation includes the use of Ms. Milano's name to lure people to the defendants' two websites, using Ms. Milano's name to sell the infringing CD-ROMS, and the actual sale of multiple pictures of Ms. Milano without her permission or the permission of the copyright owner in such photographs. 54. The aforesaid conduct is causing Ms. Milano to suffer irreparable injury and damage, and, unless restrained, will cause further irreparable injury and damage to plaintiff. Ms. Milano has no adequate remedy at law. 55. Anand, ADE and Eight Ball are misappropriating Ms. Milano's name and image in conscious disregard of her rights and such disregard entitles Ms. Milano to exemplary damages to make an example of defendants and to discourage the repeat of such actions.
56. Ms. Milano repeats and realleges Paragraphs 1 through 55 as if fully set forth herein. 57. Defendants Eight Ball, ADE and Anand are knowingly using Ms. Milano's name and likeness for the purposes of advertising their CD-ROM product and websites in violation of Ms. Milano's rights under California Civil Code section 3344. 58. The aforesaid conduct is causing Ms. Milano to suffer irreparable injury and damage, and, unless restrained, will cause further irreparable injury and damage to plaintiff. Plaintiff has no adequate remedy at law.
59. Ms. Milano repeats and realleges Paragraphs 1 through 58 as if fully set forth herein. 60. Defendants Eight Ball, ADE and Anand have knowingly and maliciously published photographs in their CD-ROMs that place Ms. Milano in a false light. 61. For instance, one photograph (Milan58.jpg) identified as a photograph of Ms. Milano is not a photograph of Ms. Milano but of a totally nude minor female posing next to a swimming pool. By identifying this picture as Ms. Milano, the defendants have implied that Ms. Milano posed for nude photographs when she was a minor. 62. Additionally, Anand, Eight Ball and ADE fail to identify the source of many of the photographs. By failing to identify the source, Anand, Eight Ball and ADE place Ms. Milano in a false light because it permits purchasers of the CD-ROM to believe that these are private pictures and not pictures from motion pictures or magazine shoots. 63. Eight Ball, Anand and/or ADE published the photographs in the manner described herein intentionally and with malicious intent entitling Ms. Milano to exemplary damages to make an example of defendants and to discourage the repeat of such actions.
WHEREFORE, plaintiffs demand judgment: 1. Awarding Mr. O'Connor all profits, gains and advantages received by the defendants from the sale of infringing merchandise, as provided by 17 U.S.C. Section 504; 2. Awarding Mr. O'Connor ail damages suffered by Mr. O'Connor or his licensees as a result of the acts of copyright infringement, as provided by 17 U.S.C. Section 504; 3. Statutory damages in the amounts of $20,000, or $100,000 if such acts are found to be willful, for each of the copyrighted works infringed, as provided for in 17 U.S.C. 504(c), if such amounts are greater than the amounts of item 1 and 2 above; 4. Permanently enjoining defendants, their employees, agents, licensees, attorneys, successors, affiliates, subsidiaries and assigns, and all of those in active concert and participation with any of them from infringing in any manner the Copyrighted Photographs; 5. Ordering defendants to deliver to Mr. O'Connor's attorneys all computers, machinery or other devises utilized by plaintiffs to create, copy, exploit or duplicate the Copyrighted Photographs; 6. That Mr. O'Connor have and recover his costs in this civil action including reasonable attorneys' fees and expenses. 7. That each defendant shall be jointly and severally liable for any monetary award to Mr. O'Connor. 8. That Mr. O'Connor have and recover such other and further relief as the Court may deem proper and fair. By Mr. O'Connor against Wimsey: 1. Permanently enjoining Wimsey, its employees, agents, licensees, attorneys, successors, affiliates, subsidiaries and assigns, and all of those in active concert and participation with any of them from infringing in any manner the Copyrighted Photographs; 2. That Mr. O'Connor have and recover his costs in this civil action including reasonable attorneys' fees and expenses. 3. That Mr. O'Connor have and recover such other and further relief as the Court may deem proper and fair. By Alyssa Milano against Does 10-25, Anand, Eight Bail and ADE: 1. Permanently enjoining defendants, their employees, agents, licensees, attorneys, successors, affiliates, subsidiaries and assigns, and all of those in active concert and participation with any of them from infringing or falsely utilizing Ms. Milano's name and/or image by falsely designating the origin, sponsorship of or affiliation of their business or services, from unfairly competing with Ms. Milano, from diluting the distinctive quality of Ms. Milano's name, and from commercially exploiting Ms. Milano's name, and specifically from:
(a) utilizing Ms. Milano's name, identity or image or any reasonable copy thereof in relationship with the sale of CD- ROMs containing pictures of celebrities or any website offering for sale such CD-ROMS;2. Awarding Ms. Milano damages including Ms. Milano's lost profits, defendants' profits and treble damages as permitted under 15 U.S.C. Section 1117 and 15.U.S.C. Section 1125(c) arising out of defendants' acts of unfair competition and violation of Ms. Milano's rights to privacy and publicity and such exemplary or punitive damages according to proof and prejudgement interest as may be awarded. 3. Directing that defendants deliver up to plaintiff all material incorporating or bearing plaintiff's name or image or colorable imitation thereof. 4. Directing that defendants file with the Court and serve upon plaintiff's counsel within thirty (30) days after entry of judgment a report in writing under oath setting forth in detail the manner and form in which defendants have complied with the requirements of the injunction and order. 5. Directing such other relief as the court may deem proper to prevent the public from deriving the erroneous impression that defendants or defendants' business is associated or connected with Ms. Milano or that the goods or services provided by or promoted by defendants are authorized by Ms. Milano or are related in any way to Ms. Milano. 6. That Ms. Milano have and recover her costs in this civil action including reasonable attorneys' fees and expenses. 7. That each defendant shall be jointly and severally liable for any monetary award to Ms. Milano. 8. That Ms. Milano have and recover such other and further relief as the Court may deem proper and fair. DATED: April 27, 1998
ROSENFELD, MEYER & SUSMAN, LLP
By: /s/
Plaintiffs requests a trial by jury on all issues for which they are entitled to a jury. DATED: April 27, 1998
ROSENFELD, MEYER & SUSMAN, LLP
By: /s/
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