08-cv-3813-SHS filed 4/22/2008 in US District Court, Southern District, New York State
SHUKAT ARROW HAFER WEBER &
Attorneys for Plaintiffs
111 West 57th Street, Suite 1120
New York, NY10019
Dorothy M. Weber, Esq. (DW-4734)
Peter S. Shukat, Esq. (PS-8074)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
YOKO ONO LENNON, SEAN ONO LENNON,
JULIAN LENNON, and EMI BLACKWOOD
PREMISE MEDIA CORPORATION, L.P., C&S
PRODUCTION L.P. d/b/a RAMPANT FILMS,
PREMISE MEDIA DISTRIBUTION L.P. AND
ROCKY MOUNTAIN PICTURES, INC.,
Plaintiffs, Yoko Ono Lennon, Sean Ono Lennon, Julian Lennon and EMI
Blackwood Music, Inc., by their attorneys, Shukat Arrow Hafer Weber & Herbsman,
LLP, allege for their complaint, upon knowledge and belief as to their own acts and
upon information and belief as to the acts of all others, as follows:
THE PARTIES, JURISDICTION AND VENUE
1. Plaintiff Yoko Ono Lennon is an individual residing in the State of New
York. She is the widow of the late John Lennon, who was one of the most successful
and influential musicians of all time. Mrs. Lennon succeeded to all copyright,
trademark and other intellectual property interests owned by John Lennon on his
death, including, but not limited to, the trademark in “Imagine” (the “Mark”) and is
one of the renewal claimants for the music and lyrics to the song “Imagine” (the
2. Plaintiff Sean Ono Lennon is a citizen and resident of the State of New
York and is a son of the late John Lennon. He is also a renewal claimant on the
copyright registration for the Song.
3. Plaintiff Julian Lennon is a citizen of the United Kingdom and resident
of Italy and is a son of the late John Lennon. He is also a renewal claimant on the
copyright registration for the Song.
4. Plaintiff EMI Blackwood Music, Inc., is the publishing administrator of
the Song. EMI Blackwood Music, Inc., is a Connecticut Corporation and has its
principal place of business at 75 Ninth Avenue, New York, New York 10011
5. Defendant Premise Media Corporation is a Delaware limited
partnership with its principal place of business in Dallas, Texas.
6. Defendant C&S Production, LP, d/b/a Rampant Films, is a Delaware
limited partnership with its principal place of business in Gonzales, Texas.
7. Defendant Premise Media Distribution LP is a Delaware Limited
Liability company with its principal place of business in Dallas, Texas.
8. Defendant Rocky Mountain Pictures, Inc., is a Utah Corporation with its
principal place of business in Salt Lake City, Utah.
9. This Court has exclusive jurisdiction over the subject matter of this
action pursuant to 28 U.S.C §§ 1331, § 1332 and 1338 and Section 43(a) of the
Lanham Act (15 U.S.C. § 1125(a)) and principles of pendent jurisdiction. The claims
herein arise under Sections 106, 201, 501 and 504 of the Copyright Act (17 U.S.C. §§
106, 201, 501 and 504) and the common law.
10. This Court also has jurisdiction based upon the diversity of the parties
(28 U.S.C. § 1332), as this is a civil action between citizens of different states in which
the amount in controversy exceeds the sum of $75,000 exclusive of interests and costs.
11. Venue is proper in the Southern District of New York pursuant to 28
U.S.C. § 1391(a) and (b) as there is complete diversity between Plaintiffs and
Defendants, and since a substantial part of the events that are the subject matter of
this lawsuit occurred in this judicial district, including, but not limited to, sales and
distribution of the infringing Film, as defined hereinbelow, in this judicial district.
12. John Lennon was a musician, artist and political activist whose status
as an artistic genius and musical icon of the twentieth century cannot be disputed.
His achievements as a musician, writer, artist and humanitarian are legendary and
were cut short by his tragic and shocking assassination in 1980.
13. The distinctive artistic brilliance that has come to be associated with
John Lennon’s music is of inestimable value to his heirs.
14. The Song appeared on John Lennon’s album entitled “Imagine.” The
December 4, 2004 issue of Rolling Stone magazine entitled the “500 Greatest Songs
of all Time” ranked the Song at number three (3). The Imagine album and single
have sold multi-millions of copies worldwide. Simply, Imagine is one of the most
recognizable songs in the world.
15. The Mark has been used in commerce since at least 1988 in connection
with the sale and advertising of Plaintiff’s products and services and has achieved
secondary meaning through substantial usage and sales and the attendant consumer
recognition. “Imagine” was also the title of the critically acclaimed David Wolper
documentary on the life of John Lennon, produced with the participation of Plaintiff,
Yoko Ono Lennon.
16. As a result of publicity, advertising and marketing efforts with respect
to the Song, it has acquired secondary meaning as Lennon’s “signature” song.
Accordingly, the Song has become closely associated with and is synonymous with
John Lennon and associated with Plaintiffs.
17. Through sponsorship and promotion of charitable and educational
events, such as the John Lennon Educational Tour Bus and Imagine Peace
Tower, and through music, art and multimedia events regarding the musical legacy
of John Lennon, Plaintiff Yoko Ono Lennon has intentionally associated the mark
with John Lennon’s vision.
18. On or about April 15, 2008, press reports were posted in Internet news
sites incorrectly stating that Plaintiffs had licensed or otherwise authorized the use
of the Song in a motion picture entitled “Expelled: No Intelligence Allowed” (the
“Film”). This was the first time that Plaintiffs became aware of the Film or the use
of the Song in the Film. Defendants are the producers, distributors or otherwise
involved with and profit from the Film.
19. None of the Plaintiffs granted permission for the use of the Song in the
20. Internet “bloggers” immediately began accusing Mrs. Lennon of “selling
out” by licensing the Song to Defendants.
21. On April 18, 2008, at a public showing of the Film at 11:40 a.m. at the
E-Walk Stadium 1 Cinemas located at 247 West 42nd Street in New York City, the
Film prominently featured the use of John Lennon’s recording of the Song, together
with a reproduction, by subtitle, of a portion of the lyrics of the Song on the screen.
22. The Film also contains other musical compositions, including “All Along
The Watchtower” written by Bob Dylan, “Spirit In The Sky” written and performed
by Norman Greenbaum “All These Things That I’ve Done” written by Brandon
Flower, Dave Brent Keuning, Mark August Stoermer and Ronnie Vannucci Jr. and
performed by the artist “The Killers” and “Personal Jesus” written by Martin Lee
Gore and performed by the artist “Depeche Mode.”
23. On information and belief, the filmmakers obtained and/or applied for
synchronization licenses for the use of the foregoing musical compositions and
masters but did not obtain permission for use of the Song.
24. Rolling credits at the end of the movie state ownership, credit and
permissions information for each such song licensed.
25. “Imagines” ownership and credit information is also displayed among
the similar information for the other music used, but close inspection of the
momentary reference reveals that the “permission granted” line was omitted in the
case of the Song.
26. Members of the consuming public are likely to perceive this credit
information in the Film as suggesting that the Song was properly licensed. Indeed,
commentators in the press have widely speculated that such use was approved by the
owners of the intellectual property associated with “Imagine”.
27. Upon information and belief, Defendants have intentionally and
willfully used the Song without authorization because they knew that they would
likely be unable to secure permission from Plaintiffs and/or because they wished to
avoid the costs associated with lawfully licensing these works and paying royalties.
28. Upon information and belief, Defendants have also intentionally and
willfully used the Song in a fashion that suggests to the public that such use was
authorized, endorsed or sponsored by the Plaintiffs.
FIRST CLAIM FOR RELIEF
29. Plaintiffs repeat and reallege the allegations contained in paragraphs 1
through 28 with the same force and effect as if fully set forth herein.
30. At all relevant times, Plaintiffs are and have been the rightful owners
and/or administrators of the copyrights in and to the Song.
31. Plaintiffs Ono, Sean Ono Lennon and Julian Lennon have filed with the
United States Copyright Office the deposit, application, and fee required for
registration of the Song pursuant to 17 U.S.C. §§ 408, 409 and Copyright
Registration RE-796-356 was issued on December 31, 1998, a copy of which is annexed
hereto as Exhibit A. The Song was originally registered on September 15, 1971 and
bears registration number EU277294, a copy of which is annexed as Exhibit B.
32. Defendants have no license or any other form of permission to copy,
duplicate, or claim copyright ownership in the Song, or to sell or distribute any
portion of the Song.
33. Defendants have infringed Plaintiffs’ copyright in the Song, in violation
of the Copyright Act, 17 U.S.C. §§ 501 and 106, by copying, publishing and
distributing the Song.
34. Such infringement is willful pursuant to the Copyright Act, 17
U.S.C. § 504.
35. Defendants’ unauthorized exploitation of the Song in the Film is in
derogation of and injurious to Plaintiff’s exclusive rights as the owner and/or
administrator of the copyright to the Song, all to Plaintiffs’ substantial damage.
36. By reason of the foregoing acts of copyright infringement, Plaintiffs are
entitled both to a permanent injunction enjoining Defendants from continuing the
aforesaid acts of infringement, and to an award of damages in an amount to be
proved at trial.
SECOND CLAIM FOR RELIEF
37. Plaintiffs repeat and reallege the allegations contained in paragraphs 1
through 37 with same force and effect as if fully set forth herein.
38. At all times herein Plaintiffs Yoko Ono Lennon, Sean Lennon and
Julian Lennon were the owners of the copyright in and to the Song.
39. By Defendants’ public dissemination of the Song, Defendants have
violated Plaintiffs’ copyright interests in the Song.
40. Plaintiffs have been damaged by Defendants’ public dissemination of the
Song, and will continue to suffer damage in the future if Defendants continue to
publicly disseminate the Song.
41. This Court is authorized by 17 U.S.C. § 502 to enjoin the future
infringement of Plaintiffs’ copyright in the Song.
THIRD CLAIM FOR RELIEF BY YOKO ONO LENNON
(Violation of § 43(a) of the Lanham Act)
42. The Plaintriff, Yoko Ono Lennon, repeats and realleges the allegations
set forth in paragraphs 1 through 41 as if fully set forth herein.
43. Yoko Ono Lennon was the Executrix of the Estate of John Lennon.
44. The name “Imagine” is distinctive and arbitrary and has acquired
secondary meaning. “Imagine” is entitled to protection from misappropriation and
from use on unauthorized goods and products.
45. Defendants have used, and continue to use, “Imagine” in connection
with the Film in a way which is likely to cause confusion and/or mistake among
consumers by falsely suggesting and implying that the Film is authorized, approved
and/or sponsored by the Plaintiff or is in some way affiliated, connected to associated
with unauthorized uses.
46. Defendants’ conduct constitutes a violation of Section 43(a) of the
Lanham Act, 15 U.S.C. § 1125(a).
47. The acts and conduct of Defendants have caused, and unless restrained
and enjoined by this Court will continue to cause, great and irreparable harm to
Plaintiffs in that there is a likelihood of confusion by the public as to the source or
sponsorship of the Film, and that the offering for sale and sale of the Film usurps and
perverts the market for licensed uses of the Song. Such irreparable harm cannot be
adequately compensated or measured by money alone.
48. Plaintiff has no adequate remedy at law.
49 By reason of the foregoing, Plaintiff is entitled to both a permanent
injunction enjoining Defendants from continuing the aforesaid violations of §43(a) of
the Lanham Act, and to an award of damages in an amount not less than three times
Defendants’ profits or damages, whichever is greater, and reasonable attorney fees.
WHEREFORE, Plaintiffs demand judgment against Defendants as follows:
a. On Count I:
i. Finding that the Defendants have infringed the Plaintiffs’ copyright
interests in the Song;
ii. Permanently enjoining and restraining Defendants, their agents,
affiliates and representatives from producing, manufacturing, printing,
distributing, selling, marketing, promoting, advertising and/or
otherwise exploiting the Film, or causing the foregoing activities to take
place, and from otherwise infringing Plaintiffs’ copyright interests in
iii. Entering judgment for Plaintiffs and against Defendants, jointly and
severally, for Plaintiffs’ actual damages plus Defendants’ additional
profits, or, in the alternative, statutory damages, pursuant to 17 U.S.C.
§ 504, in an amount yet to be determined, and directing Defendant to
provide an accounting of all sales of and profits derived from the
exploitation of the Film;
iv. ordering Defendants to account for all profits, gains and advantages
derived from their acts of infringement and for its other violations of
v. That all gains, profits and advantages derived by Defendants from their
acts of infringement be deemed to be held in constructive trust for the
benefit of the Plaintiffs; and
vi. ordering Defendants to turn over all copies of the Film that are now
within Defendant’s ownership or control;
b. On Count II, permanently enjoining and restraining Defendants, their agents,
affiliates and representatives from producing, manufacturing, printing, distributing,
selling, marketing, promoting, advertising and/or otherwise exploiting the Film, or
causing the foregoing activities to take place, and from otherwise infringing the
Plaintiffs’ copyright interests in the Song;
c. On Count III:
i. permanently enjoining and restraining Defendants, their agents,
affiliates and representatives from continuing use of the mark
“Imagine” in connection with the Film in a way which is likely to cause
confusion and/or mistake among consumers by falsely suggesting and
implying that the Film is authorized, approved and/or sponsored by the
Plaintiffs or that Plaintiffs are in some way affiliated, connected or
associated with the Defendants’ unauthorized uses, and from producing,
manufacturing, printing, distributing, selling, marketing, promoting,
advertising and otherwise exploiting the Film; and
ii. awarding Plaintiff damages against Defendants, jointly and severally, in
an amount to be proven at trial, but in no event less than Seventy-Five
Thousand ($75,000) Dollars and not less than three times Defendants’
profits or damages, whichever is greater, and reasonable attorney fees;
d. Awarding Plaintiffs such other and further relief as may be just and proper.
Dated: New York, New York
April 22, 2008
SHUKAT ARROW HAFER WEBER
& HERBSMAN, L.L.P.
Attorneys for Plaintiffs
111 West 57th Street
New York, New York 10019
By: Dorothy M. Weber, Esq. (DW 4734)
Peter S. Shukat, Esq. (PS 8074)
Annexed: Exhibits A and B