Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 1 of 39

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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: Case No.
GIANLUCA VACCHI, :
Plaintiff, :
: COMPLAINT
v. : (JURY TRIAL DEMANDED)
:
E*TRADE FINANCIAL CORPORATION, :
:
Defendant. :
:
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Plaintiff, Gianluca Vacchi, (“Vacchi” or “Plaintiff”), by and through his attorneys, Cinotti

LLP and Carmel, Milazzo & DiChiara LLP, alleges as follows for his Complaint against

Defendant, E*TRADE Financial Corporation (“E*Trade” or “Defendant”).

INTRODUCTION

1. Gianluca Vacchi has had remarkable success as an international social media

celebrity, influencer, fashionista, and disk jockey. Plaintiff has managed to create a fundamentally

new type of a male character: an extravagant millionaire dancing with beautiful ladies in exotic

locations. Almost twelve million people are subscribed to Gianluca Vacchi’s Instagram page to

follow his adventures.

2. This action arises from E*Trade’s wrongful and unlawful attempt to convert the

persona and character created by Vacchi for its own commercial purposes and financial gain.

Specifically, in or about mid-2017, E*Trade created, produced, and published a certain

commercial containing a character that is essentially a clone of Vacchi, dancing with women on a

boat while DJ’ing: conduct that based upon numerous YouTube videos, photographs, and music

videos created and published by Vacchi, has become synonymous with the image and persona

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created by Vacchi. Indeed, E*Trade’s commercial is simply a rip-off of a number of videos created

and published by Vacchi over the years. Notably, the character of the Infringing Video, as defined

herein, made an appearance in another E*Trade’s commercial several months later. An example

of the substantial, and even striking similarity between the character of the Infringing Video, as

defined herein, and Plaintiff’s Character, as defined herein, is shown here.

Plaintiff’s character (cropped

screenshot from Instagram).
The complete screenshot from
Instagram showing that even the
rings of the characters are identical
is attached in Exhibit A.

Screenshot of Infringing Video

(second 01)

Plaintiff’s character (cropped

screenshot from Instagram).
The complete screenshot from
Instagram showing that even the
rings of the characters are identical
is attached in Exhibit A.

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3. Based upon the foregoing, Plaintiff alleges claims for copyright infringement, as

well as false endorsement and misappropriation of protectable character, protectable scenes, and

image and persona of “the coolest man on Instagram.”

THE PARTIES

4. At all times material hereto, Plaintiff was, and is, an individual residing in Milan,

Italy.

5. Upon information and belief, Defendant, E*TRADE Financial Corporation, is a

Delaware corporation having its principal place of business at 1345 6th Ave, New York, NY

10105. Upon information and belief, Defendant is a financial services company that provides

services for individuals and institutions that are investing online.

6. Upon information and belief, Defendant is the owner of the copyright of the

Infringing Video, as defined herein. Alternatively, upon information and belief, Defendant had

the power and ability to supervise or control the activities of one or more third parties that authored,

produced and published the Infringing Video and had a financial interest in the conduct of such

parties as alleged herein.

JURISDICTION AND VENUE

7. This Court has original subject matter jurisdiction over this action and the federal

claims asserted herein, pursuant to 28 U.S.C. § 1331 because this action arises under the laws of

the United States and, more specifically, Acts of Congress relating to copyrights (the Copyright

Act of 1976, as amended) and the Lanham Act of 1946, as amended. This Court has supplemental

jurisdiction pursuant to 28 U.S.C. § 1367, as Plaintiff’s claim under New York State law arise

from the same nucleus of operative facts and are part of the same case or controversy that give rise

to the claims under Federal law.

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8. This Court also has subject matter jurisdiction under 28 U.S.C. § 1332 in that

complete diversity of citizenship exists among the parties and the amount in controversy is in

excess of $75,000.00 exclusive of interest and costs.

9. This Court has personal jurisdiction over the Defendant pursuant to CPLR 301 as

it is a corporation that is licensed to do business in New York and maintains its principal place of

business in New York.

10. The venue of this action is properly laid in this Judicial District pursuant to 28

U.S.C. § 1391(b)(3) because Defendant resides in this Judicial District by maintaining its principal

place of business in this District.

FACTUAL BACKGROUND

I. Plaintiff. The Coolest Man on Instagram

11. Plaintiff is an individual resident of Milan, Italy, who is an entrepreneur, a YouTube

and Instagram celebrity, a world-renowned DJ and fashionista with more than 11.9 million

followers of his Instagram page.

12. Similarly, Vacchi has more than 1.77 million people following Vacchi’s Facebook

page.

13. Plaintiff is also employed as the President, SEA Società Europea Autocaravan

S.P.A., a large Italian manufacturing company, and is a widely-known professional snooker player.

14. Plaintiff is famous for the production and posting of short videos, pictures, and

musical clips with a character of Plaintiff’s own creation – a particularly eccentric millionaire, who

is engaging in a distinctive dance routine in the ambience of luxury surrounded by, and dancing

with, stunningly attractive young ladies and demonstrating his lavish lifestyle.

15. Plaintiff’s appearance is also distinctive. Vacchi is a mature gentleman in prime

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physical shape, has gray hair and (usually) a gray beard, and is not shy demonstrating a heavily

tattooed torso (“Plaintiff’s Character”).

16. Overall, Vacchi is not a typical Instagram star: having elected to show only specific

moments of his personal life to the general public, Vacchi took social media by a storm. He created

the icon, the image of a successful daring business person who is capable of doing things his own

way. Plaintiff’s character is centered upon enjoying life, working hard and playing hard, without

taking himself too seriously. Plaintiff’s Character received a renowned nickname: “Mr. Enjoy.”

17. Plaintiff is the author and creative director of hundreds of videos and thousands of

photographs which have been uploaded and posted on Instagram, and other social media sites, all

of which focus on and highlight Plaintiff’s Character and his not-so-typical lifestyle.

18. Plaintiff actively promotes the Plaintiff’s Character through his Instagram channel,

YouTube channel, his website, and other social media (collectively, “Plaintiff’s Social Media”).

19. Plaintiff typically uses hash-tag “#gvlifestyle” in connection with Plaintiff's Social

Media and Plaintiff’s Character.

20. Plaintiff published the first video of the “#gvlifestyle” series on July 30, 2013

(https://www.youtube.com/watch?v=f2Geicj82Fk) and continued regular publications through

Plaintiff’s Social Media about the Plaintiff’s Character and his extravagant world, utilizing his

image and likeness for both promotion of Plaintiff's Social Media and endorsing various brands

and celebrities.

21. In the year 2016, Plaintiff’s media presence rose to a crescendo. Plaintiff and

Plaintiff’s Character became a world-famous Instagram and YouTube persona, recognized in

countless magazine and internet articles, including GQ Magazine, emptylighthouse.com,

hellomagazine, vix, and many other Internet magazines and portals aggrandizing Plaintiff for his

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unique character.

22. Vacchi had been internationally recognized and commended. He was described, as

a “multimillionaire entrepreneur” (Business Insider), a “hedonism-loving playboy” (the

Independent), and a “self-made multimillionaire” (Yahoo).

23. In 2016 Plaintiff was labeled “the coolest man on Instagram” by GQ Magazine

(https://www.gq-magazine.co.uk/article/gianluca-vacchi-coolest-man-on-instagram).

24. Plaintiff was also described as “the 50-year-old millionaire who’s cooler than Dan

Bilzerian” (https://www.gqindia.com/content/gianluca-vacchi-millionaire-is-the-new-coolest-

man-on-instagram/).

25. On December 24, 2018, GQ, citing The Evening Standard, named Vacchi “as the

fourth most influential fashion Instagrammer, earning up to $16,750 for a single post.”

26. In fact, even a simple Google search for “dancing millionaire” inevitably shows

Plaintiff in the top results.

27. Plaintiff hasn't just captivated the Internet’s fashion sector. The international

business community also recognized the power of promotion with Plaintiff’s Character and

Plaintiff’s likeness.

28. For instance, in or about January, 2016 the National Bank of Georgia1 introduced a

Christmas commercial with the dancing millionaire, Plaintiff’s Character. In the commercial,

Vacchi and Giorgia Gabriele danced one of their favorite dances, with Vacchi’s torso traditionally

exposed and tattoos markedly visible. The commercial was so successful that many United States

residents registered as clients of the bank.

29. Ultimately, using his own likeness and image, Plaintiff has authored and created a

1
The country in Eastern Europe, not the State of the United States.

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unique character based on Plaintiff’s personality and managed to attract the audience by his

adventures, having become the style icon, the supermodel, and one of the most influential social

media moguls.

II. Plaintiff’s Character and his Visual Image

30. Plaintiff created and developed the unique Plaintiff’s Character.

31. The stories about Plaintiff’s Character were delivered to the general public through

Plaintiff’ Social Media.

32. Plaintiff had no intention to create just an image of a random playboy’s image – he

intentionally picked the features that would suit his personality and distinguish him from other

visually recognizable characters and Internet celebrities.

33. Plaintiff’s Character is a mature man in prime physical shape with salt-and-pepper

hair. Plaintiff’s Character’s likeness is depicted in his numerous Instagram videos and pictures and

in numerous YouTube Videos, including Plaintiff’s Instagram post dated October 20, 2016, with

393,592, shown below:

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34. Plaintiff’s Character consistently appears wearing square-shaped glasses of various

colors of a distinctive style. The images of Plaintiff’s Character from pictures and videos dated

prior to the Infringing Video are attached hereto as Exhibit A.

35. The facial hair of Plaintiff’s Character is gray/salt-and-pepper and always present

and neatly trimmed.

36. Another distinct characteristic of Plaintiff’s Character is his proudly exposed body

with an abundance of tattoos. GQ Magazine-UK described Vacchi as “a man only marginally less

tattooed than Melville's Queequeg…” (https://www.gq-magazine.co.uk/article/gianluca-vacchi-

coolest-man-on-instagram).

37. Further, Plaintiff’s Character would not be complete without the right choice of

environment and extra features that add an elegant way to show his muscular tattooed body. Vacchi

chose dancing for this purpose.

38. Flipboard noted that Vacchi is “the silver influencer who dances in his pants for a

living” (https://flipboard.com/@generalcha0s/gianluca-vacchi-%E2%80%93-the-silver-

influencer-who-dances-in-his-pants-for-a-living/a-

e99T3ZYGTw2YSsSVykdv0A%3Aa%3A4839747-b82e527c25%2Fco.uk).

39. Additionally, Plaintiff actively promoted the background legend about the

character: millionaire tired of his business routine who decides to dedicate his life to music,

dancing, and an opulent lifestyle.

40. Plaintiff’s Character represented a fresh and novel approach to the image of a

fashionista and a successful man. Plaintiff has designed the character who managed to demonstrate

his wealth through elegance, his masculinity through dancing with an exposed tattooed torso, and

his open-mindedness through not taking life too seriously and not being afraid to laugh at himself.

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Vacchi designed a new concept of a wealthy playboy who is emotional, likeable, creative, and

does not need to hide his age.

41. One of the popular backgrounds where Plaintiff’s Character typically dances is the

ambience of a luxury marine-styled environment such as beach, yacht, open-air swimming-pools.

42. Plaintiff’s Character and his likeness have been depicted in numerous photographs

and videos on Plaintiffs Social Media accounts during the period from 2013 to present developing

a unique character over time, emphasizing the most distinct grains of his character.

43. Plaintiff’s Character and Plaintiff’s likeness appeared in more than 500 videos and

thousands of photographs.

44. During that the time Plaintiff’s Character, his image, and likeness have been

internationally recognized by an audience in the millions.

45. In all instances of commercial marketing and promotion of Plaintiff’s image,

likeness, or identity by third parties, Plaintiff negotiated and expressly granted authority for such

use pursuant to agreed-upon terms and conditions and for agreed-upon compensation.

III. Plaintiff’s Likeness and Plaintiff’ Videos

46. Plaintiff owns exclusive intellectual property rights to Plaintiff’s personality,

image, likeness, and Plaintiff’s Character.

47. Plaintiff is a foreign citizen and did not register all of his videos and photos in the

United States.

48. The following motion pictures authored by Plaintiff are registered with the United

States Copyright Office:

(i) the motion picture published July 30, 2016 (registration number PA0002158110);

(ii) the motion picture published July 17, 2016 (registration number PA0002158120);

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(iii) the motion picture published July 13, 2016 (registration number PA0002158117);

(iv) the motion picture published July 30, 2016 (registration number PA0002158124);

and

(v) the motion picture published July 16, 2015 (registration number PA0002159223).

The Plaintiff’s motion pictures registered with the United States Copyright Office shall be

collectively referred to as “Plaintiff’s Videos.”

49. Plaintiff is the author of numerous motion pictures depicting Plaintiff’s Character

and Plaintiff’s likeness on Plaintiff’s Social Media that Plaintiff exclusively owns, but not

registered, within the United States (collectively, “Plaintiff’s Unregistered Videos”). URL

addresses of examples of Plaintiff’s Unregistered Videos with Plaintiff’s characters are attached

hereto as Exhibit B.

50. The photos on Plaintiff’s Social Media accounts (collectively, “Plaintiff’s Photos”)

also depict Plaintiff’s Character and his exploits.

51. Plaintiffs owns exclusive intellectual property rights to Plaintiff’s Videos,

Plaintiff’s Unregistered Videos, and Plaintiff’s Photos.

IV. Defendant’s Infringing Video

52. By the year 2017 Plaintiff’s character literally and figuratively turned heads, and

was immensely popular.

53. Upon information and belief, Defendant, as any other Internet user, had access to

Plaintiff’s social media accounts and, therefore, Plaintiff’s Videos, Plaintiff’s Photos, Plaintiff’s

Unregistered Videos, Plaintiff’s likeness and Plaintiff’s Character.

54. Upon information and belief, on June 19, 2017, Defendant, in order to promote its

services, uploaded a video commercial titled “E*TRADE Commercial – Hard Work” (hereinafter

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referred to as the “Infringing Video”) on Defendant’s YouTube channel (available at

https://www.youtube.com/watch?v=_BoUXcdFgYc).

55. Upon information and belief, on Defendant also uploaded the Infringing Video

through ispot.tv website (available at https://www.ispot.tv/ad/wOb9/etrade-hard-work).

56. The Infringing Video depicts a male character stunningly identical to Plaintiff’s

likeness partying and dancing with young ladies on a yacht. The resemblance was, in fact, so

extreme that the Internet users began associating the character in the Infringing Video with

Plaintiff’s Character.

57. For instance, ispot.tv comment’s section indicated that users clearly see the striking

resemblance and names Vacchi as the person depicted or attempted to being depicted in the

Infringing Video. (https://www.ispot.tv/ad/wOb9/etrade-hard-work)

58. Plaintiff himself found out about the existence of the Infringing Video due to

numerous questions whether he promoted Defendant’s services or was retained by Defendant.

59. The Infringing Video is comprised of short visual and audio segments arranged in

montage fashion depicting a character that is essentially identical, in appearance and character, to

Plaintiff’s Character. Both the selection of particular visual and auditory content and the particular

elements of artistic expression included in the Infringing Video are showing that the scenes and

the male subject of the Infringing Video were simply copied from the scenes of Plaintiff’s Videos

and Plaintiff’s Photos.

60. The Infringing Video featured a middle-aged male almost identical to the

appearance to Plaintiff, and possessed the same unique personal features of Plaintiff’s Character

as developed in the pictures and in the videos by Plaintiff through his social media accounts.

61. The main character of the Infringing Video concludes with the words “The harder

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you work the nicer the vacation your boss goes on.”

62. The main character of the Infringing Video shares many similarities with Plaintiff,

i.e., he is middle-aged, with gray/salt-and-pepper hair and beard, is heavily tattooed, wears black

rim glasses, is shirtless, and is in good physical shape.

63. The Infringing Video closes with a number of slogans promoting Defendant’s brand

name and services and prominently displaying that Defendant is the copyright owner of the

Infringing Video (at second 13 of the Infringing Video).

64. The Infringing Video was aired extensively on YouTube website where it received

approximately 2,566,979 views as of the date of the instant Complaint as well as featured on and

spread through various Internet platforms such as www.adsoftheworld.com

(https://www.adsoftheworld.com/media/film/etrade_hard_work), adage.com

(https://adage.com/creativity/work/hard-work/52044), ispot.tv

(https://www.ispot.tv/ad/wOb9/etrade-hard-work), digiday.com

(https://digiday.com/marketing/five-new-punchable-ads/), www.adforum.com

(https://www.adforum.com/talent/81878411-jonathan-goldmacher/work/34557621), and multiple

other websites.

65. Overall, widespread dissemination through social media insured that millions saw

the Infringing Video.

66. Furthermore, the main character of the Infringing Video made, at least, one more

appearance in Defendant’s commercials.

67. Upon information and belief, Defendant, on or about August, 2017, in order to

promote its services, disseminated a video commercial titled “E*TRADE TV Commercial, “Yacht

Life’” (hereinafter referred to as the “Second Infringing Video”) through the Internet.

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68. The Second Infringing Video currently is available through multiple sources

including the website ispot.tv (https://www.ispot.tv/ad/wB_X/etrade-yacht-life) and YouTube,

where it was apparently re-shared and disseminated by multiple channels

(https://www.youtube.com/watch?v=Uxo-Qw0OSBc – “tv commercials;”

https://www.youtube.com/watch?v=08rzC1VOO-8 – Jerilyn Longerbeam, etc.)

69. The Second Infringing Video depicts a young gentleman in an orange-shirt dancing

in an unusual manner on the board of the yacht that appears to be the yacht from the Infringing

Video. The Second Infringing Video explains that “the dumbest guy in high school just got a boat.”

70. The main character of the Infringing Video (the “E*Trade Character”) is also

present in the Second Infringing Video. The E*Trade Character is dancing in the Second Infringing

Video in the manner, identical to its appearance in the Infringing Video, again, undistinguishably

identical with the Plaintiff’s Character.

71. The Second Infringing Video indicates Defendant as the copyright owner of the

Second Infringing Video (at second 28 of the Second Infringing Video).

72. Plaintiff has never licensed or otherwise authorized Defendant to copy, distribute,

or publicly disseminate the Plaintiff’s likeness or Plaintiff’s Character, the Plaintiff’s Videos,

Plaintiff’s Unregistered Videos, Plaintiff’s Photos, or to make derivative works based upon them.

73. Defendants’ conduct is unlawful. It is proscribed by the United States Copyright

Act, by Lanham Act, and by N.Y. Civ. Rights Law § 51. In this action, Plaintiff seeks damages

attributable to the infringement.

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V. Similarities Between the Plaintiff’s Character, Plaintiff’s likeness and the

E*Trade Character

74. The Infringing Video is a commercial promoting Defendant’s goods and services

depicting a scene on a yacht with a male main character and his beautiful female friend dancing.

75. The focus of the Infringing Video is the male subject character that apparently

represents “YOUR BOSS” who is having “the nicer the vacation” at the expense of the viewer.

76. The male subject of the Infringing Video does not have an appearance of a typical

boss. Rather, the E*Trade Character is a heavily-tattooed male with bare torso dancing with a

beautiful female companion.

77. As is evident from a visual comparison of the scenes in the Infringing Video and in

the Plaintiff’s Videos, and from a visual comparison of the Plaintiff’s Character together with

Plaintiff’s likeness and the male subject of the Infringing Video, the Infringing Video

misappropriates the Plaintiff’s likeness, Plaintiff’s Character, mood, setting, theme, pace, and total

content and feel of the Plaintiff’s Videos and Plaintiff’s Character.

78. There are many apparent similarities between the male subject of the Infringing

Video and the Plaintiff’s Character. For example, both have gray/salt-and-pepper hair with the

same hairstyle, both have well-manicured gray beards, both wear eyeglasses square in shape and

of a similar look, both are shirtless with heavily tattooed bodies, both are in excellent physical

condition, and they wear similar clothing.

79. The portraits of the subject character of the Infringing Video and the Plaintiff’s

Character are illustrated below.

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Plaintiff’s Character in the video Registration # PA0002158110

E*Trade Character:

Plaintiff’s Character on Plaintiff’s Instagram in 2016

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80. Comparisons of screenshots are additionally attached as Exhibit B.

81. The total concept and feel of the Infringing Video is, as a whole, substantially

similar to the Plaintiff’s Videos, as well as the Plaintiff’s Unregistered Videos, and Plaintiff’s

Social Media photographs. As evidenced by the screenshots of the Infringing Video and Plaintiff’s

Videos, the Infringing video simply depicts the entire portrait of Plaintiff’s Character in the

environment Plaintiff’s Character typically appears.

Scenes from Plaintiff’s Videos with Plaintiff’s character

Scene from the Infringing Video

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82. The images of the E*Trade Character of the Infringing Video’s are strikingly

similar to the likeness of Plaintiff and to Plaintiff’s Character: (i) both characters are white males

with an identical silver-colored hair, hair styles, and the styles of facial hair; (ii) both characters

wear a pair of square-shaped s sunglasses; (iii) both characters are depicted with their torso

unclothed; (iv) the nude parts of torso of the both characters are covered with various similar

tattoos; (v) both characters are dancing; (vi) the dancing partner of both characters is a younger

good-looking woman; and (vii) both characters are dancing in on a yacht demonstrating lavish

lifestyle and luxury; (viii) both characters are dancing with their main partner: a beautiful younger

woman in a swimming suit.

83. Not only is the visual similarity striking, when the terms “vacchi e*trade” or

“Gianluca e*trade” are searched on Google, the first videos shows are the Infringing Video

publications. The screenshot of such searches is attached as Exhibit C2.

84. The Second Infringing Video is, analogously, a commercial promoting Defendant’s

goods and services depicting a scene on a yacht with the E*Trade Character present and dancing

in the background in the same manner as in the Infringing Video.

2
To avoid any doubts the search was conducted with the names of random individuals and E*Trade. These searches
did not return a result with the Infringing Video.

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85. Apparently, the E*Trade Character, recreating the image of the Plaintiff’s

Character, became so popular that Defendant made a decision to utilize it for multiple Defendant’s

promotional materials.

86. As a result, the general public perceive the Infringing Video and the Second

Infringing Video as a video with a Plaintiff’s Character and/or as a video endorsed by or in

connection with Plaintiff.

COUNT I -- COPYRIGHT INFRINGEMENT – VIDEOS

87. Plaintiff repeats and realleges each and every allegation in the above paragraphs as

if set forth fully herein.

88. Plaintiff’s Videos and Plaintiff’s Unregistered Videos are original works of

authorship fixed in a tangible medium of expression that constitutes a motion picture and/or

audiovisual work pursuant to 17 U.S.C. § 102(a), subject to copyright protection under the

Copyright Act, 17 U.S.C. §§ 101, et seq.

89. Plaintiff’s Photos are original works of authorship fixed in a tangible medium of

expression that pictorial works pursuant to 17 U.S.C. § 102(a), subject to copyright protection

under the Copyright Act, 17 U.S.C. §§ 101, et seq.

90. Plaintiff has the right and standing to enforce his exclusive rights to the Plaintiff’s

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Videos, Plaintiff’s Unregistered Videos, Plaintiff’s Photos, and their respective copyrightable

component parts.

91. Defendant had access to the Plaintiff’s Videos, Plaintiff’s Unregistered Videos,

Plaintiff’s Photos.

92. By producing, transmitting, and distributing the Infringing Video and the Second

Infringement Video Defendant has reproduced, prepared derivative works based upon, publicly

performed, and distributed copies of substantial portions of the protectable scenes of Plaintiff’s

Videos, Plaintiff’s Unregistered Videos, Plaintiff’s Photos, without Plaintiff’s permission or

authorization: all in violation of 17 U.S.C. §§ 106 and 501. Defendant continues to do so.

93. Defendant’s conduct constituted, and continues to constitute, infringement upon

Plaintiff’s exclusive rights to reproduce, prepare derivative works based upon, publicly perform,

and distribute of the protectable scenes of Plaintiff’s Videos, Plaintiff’s Unregistered Videos,

Plaintiff’s Photos.

94. Defendant’s infringement was, and continues to be, intentional, deliberate, willful,

malicious, and in blatant disregard of Plaintiff’s exclusive rights.

95. Defendant’s infringing conduct has caused Plaintiff to suffer damages and harm,

including, but not limited to, lost derivative market exploitation opportunity, lost revenues and

profits, loss of creative attribution, and other damages, the exact nature of which will be proven at

trial.

96. Plaintiff is entitled to an award against Defendant for the recovery of Defendant’s

profits attributable to the infringement and/or Plaintiff’s actual damages, and other statutory

damages and attorneys’ fees pursuant to 17 U.S.C. §§ 504 and 505.

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COUNT II -- COPYRIGHT INFRINGEMENT – PLAINTIFF’S CHARACTER

97. Plaintiff repeats and realleges each and every allegation contained in the above

paragraphs as if set forth fully herein.

98. Plaintiffs Videos and Plaintiff’s Unregistered Videos are original works of

authorship fixed in a tangible medium of expression that constitutes a motion picture and/or

audiovisual work pursuant to 17 U.S.C. § 102(a), subject to copyright protection under the

Copyright Act, 17 U.S.C. §§ 101, et seq..

99. Plaintiff’s Photos are original works of authorship fixed in a tangible medium of

expression that pictorial works pursuant to 17 U.S.C. § 102(a), subject to copyright protection

under the Copyright Act, 17 U.S.C. §§ 101, et seq.

100. Plaintiff has the right and standing to enforce his exclusive rights to the Plaintiff’s

Videos, Plaintiff’s Unregistered Videos, Plaintiff’s Photos, and their respective copyrightable

component parts.

101. Defendant had access to the Plaintiff’s Videos, Plaintiff’s Unregistered Videos,

Plaintiff’s Photos.

102. By producing, transmitting, and distributing the Infringing Video and the Second

Infringing Video, Defendant has reproduced, prepared derivative works based upon, publicly

performed, and distributed copies of substantial portions of the protectable character, Plaintiff’s

Character, of Plaintiff’s Videos, Plaintiff’s Unregistered Videos, Plaintiff’s Photos, without

Plaintiff’s permission or authorization: all in violation of 17 U.S.C. §§ 106 and 501. Defendant

continues to do so.

103. Defendant’s conduct constituted, and continues to constitute, infringement upon

Plaintiff’s exclusive rights to reproduce, prepare derivative works based upon, publicly perform,

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and distribute of the protectable character, Plaintiff’s Character, of Plaintiff’s Videos, Plaintiff’s

Unregistered Videos, Plaintiff’s Photos.

104. Defendant’s infringement was, and continues to be, intentional, deliberate, willful,

malicious, and in blatant disregard of Plaintiff’s exclusive rights.

105. Defendant’s infringing conduct has caused Plaintiff to suffer damages and harm,

including, but not limited to, lost derivative market exploitation opportunity, lost revenues and

profits, loss of creative attribution, and other damages, the exact nature of which will be proven at

trial.

106. Plaintiff is entitled to an award against Defendant for the recovery of Defendant’s

profits attributable to the infringement and/or Plaintiff’s actual damages, and damages and

attorneys’ fees pursuant to 17 U.S.C. §§ 504 and 505.

COUNT III -- VIOLATION OF 15 U.S.C. § 1125(A)

107. Plaintiff repeats and realleges each and every allegation contained in the above

paragraphs as if set forth fully herein.

108. Defendant has effected a false endorsement of Defendant’s services featuring

Plaintiff’s likeness in the Infringing Video. Defendant’s conduct has implied, falsely, that Plaintiff

and or Plaintiff’s character endorse the Defendants services.

109. Defendant’ conduct further amounts to a misappropriation of Plaintiff’s celebrity

persona, the trademark of which is owned by Plaintiff.

110. Defendant’ conduct further amounts to both false association and unfair

competition as defined in the Lanham Act.

111. Defendant’ conduct has caused Plaintiff to suffer losses in an amount equal to the

full extent of recoverable damages permitted under the Lanham Act. Specifically, Plaintiff seeks

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 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 22 of 39

to recover his actual damages (including a reasonable license fee), the Defendants’ profits, treble

damages, attorney’s fees, costs of suit, and interest.

COUNT IV-- VIOLATION OF N.Y. CIVIL RIGHTS LAW §51

112. Plaintiff repeats and realleges each and evert allegation contained in the above

paragraphs as if set forth fully herein.

113. As alleged above, Defendant knowingly, intentionally, and maliciously, used,

published, and disseminated, and continue to knowingly use, publish and disseminate, Plaintiff’s

likeness, persona, picture, and/or image within the State of New York, for purposes of advertising

and/or trade, to promote the sale Defendant’s services, without Plaintiff’s written consent; and

Defendants have caused to be transferred, circulated, sold, distributed, used, displaced, advertised,

reproduced and/or published, both directly and indirectly, through diverse media, certain

unauthorized representations of Plaintiff’s likeness, persona, picture, and/or image. Defendants’

conduct, which continues unabated, constitutes an unauthorized use of Plaintiff’s likeness,

persona, picture, and/or image, for an advertising and/or trade purpose, as defined under and/or

pursuant to N.Y. Civil Rights Law § 51.

114. Defendant’s conduct has caused Plaintiff to suffer losses in an amount equal to the

full extent of the damages permitted under N.Y. Civil Rights Law § 51. Specifically, he seeks to

recover his actual damages (including a reasonable license fee), the Defendant’s ill-gotten profits

gained from the aforesaid wrongful conduct, punitive damages, litigation costs, and interest.

115. Defendant has engaged in this exploitation of Plaintiff’s identity and persona for its

own personal and commercial gain, and Defendant has maliciously and unlawfully invaded

Plaintiff’s privacy and/or publicity rights in violation of §§ 50 and 51 of the N.Y. Civil Rights

Law.

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 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 23 of 39

116. Defendant has caused Plaintiff to suffer serious irreparable harm, and caused him

to be held to public view in a damaging manner, and as a direct and proximate result, Plaintiff has

suffered and continues to suffer severe damages, including but not limited to a loss of personal and

professional reputation and goodwill, lost earnings, and lost potential earnings, all in a sum not

less than $1,000,000.00.

117. Plaintiff’s measure of compensatory damages, likewise, includes the extent to

which Defendants’ use of Plaintiff’s image, persona, likeness, and/or picture, increased, and

continues to increase, Defendant’s profits.

118. In addition, the reprehensibility of Defendant’s conduct, in knowingly and

maliciously using, publishing, and disseminating Plaintiffs image, persona, likeness, and/or

picture, and Defendant’s prolonged knowing and malicious continued use, publication and

dissemination, as aforesaid, in wanton and reckless disregard of the harm caused to Plaintiff, and

for the selfish motivation of increasing their profits, gives rise to punitive damages in favor of

Plaintiff and against Defendants in a sum not less than $1,000,000.00.

DEMAND FOR RELIEF

WHEREFORE, Plaintiff demands judgment against Defendants follows:

(a) Declaring that Defendant's conduct was willful and that Defendant was aware of its

infringing activity;

(b) Permanently (i) enjoining Defendant, its officers, agents, employees, licensees and

assigns, and all persons acting in concert with them, from misappropriation of

Plaintiff's likeness and Plaintiff’s Character in any manner; and (ii) enjoining

Defendants, their officers, agents, employees, licensees and assigns, and all persons

acting in concert with them, from engaging in or authorizing the production,

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 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 24 of 39

reproduction, distribution and/or exploitation of any motion pictures based in whole

or in part on the misappropriated scenes from Plaintiff’s Videos, Plaintiff’s

Unregistered Videos, and Plaintiff’s Photos, misappropriated Plaintiff’s Character,

and Plaintiff’s likeness.

(c) On Count I, in favor of Plaintiff an against Defendant, for compensatory damages

in an amount to be determined at trial and/or for statutory damages (or, should

Plaintiff so elect, in lieu thereof, statutory damages as provided by 17 U.S.C. §

504(c) of up to $150,000 for each infringement), and for exemplary and punitive

damages, arising from contravention of the Copyright Act of 1976, 17 U.S.C. §§

501 together with attorneys’ fees and costs pursuant to 17 U.S.C. § 505 and

otherwise according to law;

(d) On Count II, in favor of Plaintiff and against Defendant for compensatory damages

in an amount to be determined at trial and/or for statutory damages (or, should

Plaintiff so elect, in lieu thereof, statutory damages as provided by 17 U.S.C. §

504(c) of up to $150,000 for each infringement), and for exemplary and punitive

damages, arising from contravention of the Copyright Act of 1976, 17 U.S.C. §§

501 together with attorney's fees and costs pursuant to 17 U.S.C. § 505 and

otherwise according to law;

(e) On Count III, in favor of Plaintiff and against Defendant, for compensatory

damages in an amount to be determined at trial, but in no event less than

$1,000,000.00, plus treble damages, and attorney’s fees;

(f) On Count IV, in favor of Plaintiff and against Defendant, for compensatory

damages in an amount to be determined at trial, but in no event than $1,000,000.00,

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 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 25 of 39

plus punitive damages in a sum not less than $1,000,000.00, and attorney’s fees

together with costs and disbursement incurred in this action; and

(g) For his costs and disbursement in this action, including his reasonable attorneys’

fees; and

(h) For such other and further relief as the Court deems just and proper.

Dated: New York, New York

April 19, 2019

CARMEL, MILAZZO & DiCHIARA LLP

By: /s/ Christopher P. Milazzo

Christopher P. Milazzo
55 West 39th Street, 18th Floor
New York, New York 10018
(212) 658-0458 (tel.)
(646) 838-1311 (fax)
[email protected]

CINOTTI LLP

By: /s/ Jake Brainard

Jake Brainard
11 Broadway, Suite 368
New York, New York 10004
(212) 825-0489 (tel.)
(646) 478-9147 (fax)
[email protected]

Attorneys for Plaintiff

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 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 26 of 39

Exhibit A

1. Screenshot from Instagram https://www.instagram.com/p/BMdG5YnjB_X/

1
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 27 of 39

2. Screenshot from Instagram https://www.instagram.com/p/BMSOrgiDHi0/

2
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 28 of 39

3. Screenshot from Instagram https://www.instagram.com/p/BMSOrgiDHi0/

3
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 29 of 39

4. Screenshot of Plaintiff’s Video, second 12

4
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 30 of 39

5. Screenshot Instagram video https://www.instagram.com/p/BJsez0UDoQ-/

5
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 31 of 39

6 Instagram https://www.instagram.com/p/BJIV87Oj8lp/

6
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 32 of 39

7 Instagram https://www.instagram.com/p/BI2P-mljP5e/

7
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 33 of 39

8. Instagram https://www.instagram.com/p/BImuBzWDB8y/

8
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 34 of 39

9. Instagram https://www.instagram.com/p/BIfPokGD8WN/

9
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 35 of 39

10 Instagram https://www.instagram.com/p/BHpiKVODE20/

10
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 36 of 39

Exhibit B

Portrait Comparison

Protagonist of the Infringement Video:

Plaintiff’s Character:

1
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 37 of 39

Plaintiff’s Character:

Protagonist of Infringing Video:

2
 Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 38 of 39

Dancing Couple on Infringing Video

Dancing couple of Plaintiff’s Videos

3
Case 1:19-cv-03505-DLC Document 1 Filed 04/19/19 Page 39 of 39

Exhibit C