owerko v. u-god
TRANSCRIPT
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1 3 CV 64201JS 44C/SDNY
REV. 5/2010
CIVIL CO VE R S H EE T
JUDGE OETKENThe JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service "fJjj^P 1 £ 7T] [3pleadings or other papers as required by law, except as provided bylocal rules of court. This form, approved bytheJudicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose of
initiatingthe civildrfbketshe et.
PLAINTIFFS
LYLE OWERKO
DEFENDANTS
SOUL TEMPLE ENTERTAINMENT, LLC; an d LAMONT JODY
HAWKINS, a/k/a U-GOD
ATTORNEYS (FIRM NAME, ADDRESS,AND TELEPHONE NUMBER ATTORNEYS (IFKNOWN)
Nelson & McCulloch LLP, 155 Eas t 56th Street, New York,
New York 10022 646-704-4900
CAUSEOF ACTION (cite th e u.s. civil statute under which you ar e filing and write a brief statement of cause)(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Copyright infringement, 17 U.S.C. §§101, etseq.
Hasthisora similar case been previously filed inSDNY atanytime? No? [7] Yes? JudgePreviously Assigned
If yes, was this case Vol.D Invol. D Dismissed. Nod Yes D If yes, give date. & Ca s e No .
(PLACEAN [x] INONEBOX ONLY) NATURE OF SUIT
ACTIONS UNDER STATUTES
TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
PERSONAL INJURY PERSONAL INJURY [ ]610 AGRICULTURE [ ] 422 APPEAL [ ]400 STATE
CONTRACT| ]620 OTHER FOOD & 2 8 U SC 1 58 REAPPORTIONMENT
I 1310 AIRPLANE [ ]362 PERSONAL INJURY - DRUG [ ] 423 WITHDRAWAL [ ]410 ANTITRUST
[ ] 110 INSURANCE [ ]315 AIRPLANE PRODUCT MED MALPRACTICE 1 1625 DRUG RELATED 28 US C 15 7 [ I 4 30 BANKS & BANKING
[ ]120 MARINE LIABILITY [ ]365 PERSONAL INJURY SEIZURE OF [ ]450 COMMERCE
[ ]130 MILLERACT [ ]320 ASSAULT, LIBEL & PRODUCT LIABILITY PROPERTY [ ]460 DEPORTATION
[ ] 140 NEGOTIABLE SLANDER [ ]368 ASBESTOS PERSONAL 21 USC 88 1 PROPERTY RIGHTS [ ]470 RACKETEER INFLU
INSTRUMENT [ ]330 FEDERAL INJURY PRODUCT [ ]630 LIQUOR LAWS ENCED & CORRUPT
[ ]150 RECOVERY OF EMPLOYERS' LIABILITY [ ]640 RR & TRUCK K820 COPYRIGHTS ORGANIZATION ACT
OVERPAYMENT & LIABILITY [ ]650 AIRLINE REGS [ ]830 PATENT (RICO)
ENFORCEMENTOF [ ]340 MARINE PERSONAL PROPERTY [ ]660 OCCUPATIONAL [ ] 840 TRADEMARK 11480 CONSUMER CREDIT
JUDGMENT [ ]345 MARINE PRODUCT SAFETY/HEALTH 11490 CABLE/SATELLITE TV
[ ] 151 MEDICAREACT LIABILITY [ ]370 OTHER FRAUD [ ]690 OTHER 1)810 SELECTIVE SERVICE
[ ]1S2 RECOVERY OF [ ]350 MOTOR VEHICLE [ ]371 TRUTH IN LENDING SOCIAL SECURITY ( ]850 SECURITIES/
DEFAULTED [ ]355 MOTOR VEHICLE [ ]380 OTHER PERSONAL COMMODITIES/
STUDENT LOANS PRODUCT LIABILITY PROPERTY DAMAGE LABOR [ ]861 HIA(1395ff) EXCHANGE
(EXCLVETERANS) [ ]360 OTHER PERSONAL [ ]385 PROPERTY DAMAGE [ ] 862 BLACKLUNG(923) [ I 875 CUSTOMER
[ ]153 RECOVERY OF INJURY PRODUCT LIABILITY 1 I 710 FAIR LABOR [ ] 863 DIWC/DIWW (405(g)) CHALLENGE
OVERPAYMENT OF STANDARDSACT [ ] 86 4 SSID TITLE XVI 12 US C 3410
VETERAN'S BENEFITS I ]720 LABOR/MGMT [ ] 865 RSI (405(g)) [ ]890 OTHER STATUTORY
[ ] 160 STOCKHOLDERSSUITS RELATIONS ACTIONS
I ) 190 OTHER CONTRACT [ ]730 LABOR/MGMT [ ]891 AGRICULTURAL ACTS
[ ] 195 CONTRACT PRODUCT REPORTING & FEDERAL TA X SUITS I 1892 ECONOMIC
LIABILITY DISCLOSURE ACT STABILIZATIONAC T
[ J196 FRANCHISE [ ]740 RAILWAY LABOR AC T [ ]870 TAXES (U.S. Plaintiffor [ ]893 ENVIRONMENTAL
ACT IONS UNDER STATUTES [ ]790 OTHER LABOR Defendant) MATTERS
LITIGATION [ ] 871 IRS-THIRD PARTY 1 1894 ENERGY
CIVIL RIGHTS PRISONER PETITIONS [ ]791 EMPL RE T IN C 26 US C 7609 ALLOCATION AC T
REAL PROPERTYSECURITYACT [ ]895 FREEDOM OF
[ ]441 VOTING [ ]510 MOTIONS TO INFORMATION ACT
[ ]210 LANDCONDEMNATION [ ]442 EMPLOYMENT VACATE SENTENCE IMMIGRATION [ ]900 APPEAL OF FE E
[ ] 220 FORECLOSURE [ I 443 HOUSING/ 20 US C 2255 DETERMINATION
[ ] 2 30 RENT LEASE & ACCOMMODATIONS [ ]530 HABEAS CORPUS I )462 NATURALIZATION UNDER EQUAL ACCES
EJECTMENT [ ]444 WELFARE [ ]535 DEATH PENALTY APPLICATION TO JUSTICE
[ ] 240 TORTS TO LAND [ ]445 AMERICANS WITH 11540 MANDAMUS & OTHER I M6 3 HABEAS CORPUS- [ ]950 CONSTITUTIONALITY
[ ]245 TORT PRODUCT DISABILITIES - | ]S50 CIVIL RIGHTS AL IEN DETAINEE OF STATE STATUTES
LIABILITY EMPLOYMENT | ]555 PRISON CONDITION 11465 OTHER IMMIGRATION
[ ]290 ALLOTHER ( ]446 AMER ICANSWITH ACTIONS
REAL PROPERTY
[ ]440
DISABILITIES -OTHER
OTHER CIVIL RIGHTS
Check if demanded in complaint:
CHECK IF THIS IS ACLASS ACTIONUNDER F.R.C.P. 23
DEMAND $_ OTHER
Check YES only ifdemanded in complaint
JURY DEMAND: 0 YES NO
DO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PEND ING IN S.D.N.Y.?
IF SO , STATE:
JUDGENO
DOCKET NUMBER
NOTE: Please submit at the t ime of filingan explanation of why cases are deemed related.
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(PLACEAN x INONEBOX ONLY)
H 1 OriginalProceeding
ORIGIN
I I 2a. Removed from I I3 Remanded from I I 4 Reinstated or LJ 5 Transferred from LJ 6 MultidistrictState Court Appellate Court Reopened (Specify District) Litigation
I I 2b.Removed fromS t a t e Cou r t AND
a t l e as t o n e
party is pro se .
I I 7 Appeal toDistrictJudge from
Magistrate Judge
Judgment
(PLACE AN x INONEBOXONLY) BASIS OF JURISDICTION
1 U.S. PLAINTIFF 2 U.S. DEFENDANT 0 3 FEDERAL QUESTION Q4 DIVERSITY(U.S. NOT A PARTY)
IF DIVERSITY, INDICATE
CITIZENSHIP BELOW.(28 USC 1322, 1441)
CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X] in one box for Plaintiffand one box for Defendant)
CITIZEN OF THIS STATE
PTF D EF
[11 [1 1 CITIZEN O R S UB JE CT O F A
F ORE IGN COUNT RY
PTF DEF
[ 1 3 []3
PT F DEF
INCORPORATED and PRINCIPAL PLACE []5 []5
OF BUS INESS IN ANOTHER STATE
CITIZEN OF ANOTHER STATE [ ] 2 []2 INCORPORATED or PRINCIPAL PLACE [ ] 4 |] 4
OF BUS INES S IN THIS STATE
PLAINTIFF(S)ADDRESS(ES) ANDCOUNTY(IES)
LYLE OWERKO
366 BROADWAY
NEW YORK, NY 10013
DEFENDANT(S) ADDRESS(ES) ANDCOUNTY(IES)
SOUL TEMPLE ENTERTAINMENT, LLC
3000 MARCUS AVE., SUITE 3W4
LAKE SUCCESS, NY 11042
FORE IGN NATION [ 1 6 [ 16
DEFENDANT(S)ADDRESS UNKNOWNREPRESENTATION IS HEREBYMADE THAT, ATTHISTIME, IHAVE BEENUNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN THE
RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
LAMONT JODY HAWKINS
NEW YORK, NY
Checkone: THIS ACTION SHOULD BE ASSIGNED TO: WHITE PLAINS \7\ MANHATTAN(DO NOT check either box ifthis a PRISONER PETITION.)
DATE9/12/13
RECEIPT #
SIGNATURE OF ATTORNEY OF RECORD
A <0
ADMITTED TO PRACTICE IN THIS DISTRICT
[ ] NO Q6 09i( l YES (DATEADMITTED Mo. _ Yr.Attorney BarCode #DN4940
MAG, JUDGE EMSagistrate Judge is to be designa ted by the Clerk of the Court
Magistrate Judge is so Designated.
Ruby J. Krajick, Clerk of Court by. Deputy Clerk, DATED
UNITED STATES DISTRICTCOURT (NEW YORKSOUTHERN)
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JUDGE OETKEIV
Danial A. Nelson (DN4940)
Kevin P. McCulloch (KM0530)
nelson & Mcculloch llp
155 East 56th Street
New York, New York 10022
T: (212)355-6050
F: (646) 308-1178
Counselfor Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
LYLE OWERKO,
Plaintiff,
SOUL TEMPLE ENTERTAINMENT, LLC; andLAMONT JODY HAWKINS, a/k/a U-GOD;
Civil Action No.:
COMPLAINT AND o " ^
DEMAND FOR A JURYJRIAL
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Plaintiff Lyle Owerko ("Owerko" or "Plaintiff), by and through undersigned counsel,
pursuant to the applicable Federal Rules of Civil Procedure and the Local Rules of thisCourt,
demands a trial by jury of all claims and issues so triable, and for his Complaint against
Defendants Soul Temple Entertainment, LLC ("Soul Temple") and Lamont Jody Hawkins, a/k/a
U-God ("Hawkins") (collectively referred to herein as "Defendants"), hereby asserts and alleges
as follows:
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JURISDICTION AND VENUE
1• Plaintiff is aresident of the State of New York who resides at 366 Broadway,NewYork, New York 10013.
2. Plaintiff is the registered copyright owner of the creative photographic works
identified herein and tha, are the subject of this action (the "Subject Photographs").
3. Defendant Soul Temple is aNew York coloration with its principle place ofbusiness a, 3000 Marcus Ave, Suite 3W4, Lake Success, New York, 11042.
4- Defendant Hawkins isamusicai artist and amember of the hip-hop collective the
Wu-Tang Clan. Upon information and beiief, Defendant Hawkins is aresident of New YorkCity.
5- This is an action for copyright infringement and related claims brought byPlaintiff, the holder of copyrights in the Subject Photographs, again, Defendants for
unauthorized uses of the Subject Photographs in conjunction with the cover artwork, packagingadvertising, and other promotional material for the musical album n. Keynole Speaker wi
other unauthorized uses of the Subject Photographs.
6. Jurisdiction for Plaintiffs c,aims lies with ,he Unj,ed ^ ^.^ ^ ^ ^
Southern District of New York pursuant ,„ the Copyright Act of ,976, 17 U.S.C. §§ ,01, el seq.,
28 U.S.C. §,331 (conferring original jurisdiction "of all civil actions arising under theConstitution, laws, or treaties of the United States"), and 28 U .S.C . , 1338(a) (conferringoriginal jurisdiction over claims arising under any ac, ofCongress relating to copyrights).
7- Venue is proper in this Court under 28 U.S.C. « ,39,(b) since aportion of thea„eged misconduct by Defendants giving rise to the Cairns asserted herein occutred in this
District and 28 U.S.C. , 1400(a) since Defendants reside or may be found in this District
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Further, Defendants conduct substantial business in the State of New York, including
advertising, promoting, selling, and distributing the infringing album inNew York, and they are
therefore subject to jurisdiction in the State of New York. Defendants also have infringed
Plaintiffs copyrights in the State ofNew York as described herein.
GENERAL ALLEGATIONS
8. Plaintiff is a professional photographer who makes his living by taking and
licensing photographs.
9. Among other works and collections, Plaintiff is known for his stylized and highly
recognizable photographs of boomboxes that he included as partof his book titled The Boombox
Project: the machines, the music, and the urban underground (ISBN 978-0810982758).
10. Plaintiff created the photographs that are featured in The Boombox Project,
including the Subject Photographs at issue here, and owns all copyrights in these images.
11. Attached hereto as Exhibits 1 and 2 are true and correct copies of the Subject
Photographs that Defendants usedwithoutpermission.
12. For ease of reference, the photograph attached hereto as Exhibit 1 is identified
herein as "Clairtone Boombox" and the photograph attached hereto as Exhibit 2 is identified
herein as "Helix Boombox."
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Exhibit 1: "Clairtone Boombox"
Exhibi t
2:"Hel ix Boombox"
13. Defendant Soul Temple is a record label founded by Wu-Tang Clan member the
Robert Fitzgerald Diggs (a/k/athe "RZA").
14. Upon information and belief, Defendant Soul Temple created the album artwork
and related promotional materials for The Keynote Speaker which incorporated Plaintiffs
Clairnote Boombox photograph without Plaintiffs permission.
15. A true and correct copy of the infringing album artwork is attached hereto as
Exhibit 3.
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Jtsai
Exhibit 3: The Keynote Speaker album cover
16. Defendant Soul Temple also infringed Plaintiffs copyrights in his Helix
Boombox by incorporating a copy of Plaintiffs photo on the front of a tee shirt that it offers for
sale through its website.
17. A trueand correct copy ofthe infringing tee shirt is attached hereto asExhibit 4.
/ AM E
^""T^
Exhib i t 4
Because information regarding Defendants' uses of Plaintiffs photographs
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remains inDefendants' possession, the full and complete scope ofDefendants' infringing uses of
Plaintiffs creativeworks has not yet been fully ascertained.
19. Upon information and belief, a reasonable opportunity for further investigation
and discovery will yield evidence that Defendants' unauthorized, unlicensed, and infringing use
and exploitation ofPlaintiffs copyrighted works is not limited to the Subject Photographs and is
not limited to the infringements identified herein.
20. Defendants, by their willful, knowing, and/or reckless actions, injured Plaintiff by
engaging in the unlicensed, unauthorized, and uncompensated use of Plaintiffs creative work
and, as such, deprived Plaintiff of his control over, and rightful compensation for the use of his
creat ive work.
COUNT I
(COPYRIGHT INFRINGEMENT)
21. Plaintiff repeats and re-alleges each allegation set forth inthe paragraphs above as
if set forth fully herein.
22. Plaintiff has registered his copyrights in the Subject Photographs with theUnited
States Copyright Office.
23. Plaintiff registered his copyrights in the Subject Photographs with the United
States Copyright Office priorto the infringements at issue.
24. As alleged herein, Defendants used, published, distributed, and/or exploited
Plaintiffs photographs identified herein as the "Clairnote Boombox" and "Helix Boombox"
without permission or authorization to do so.
25. Defendants have and continue to financially benefit from the uncompensated use
of Plaintiffs creat ive work.
26. Defendants' unlicensed, unauthorized, and uncompensated use of Plaintiffs
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creative works injured Plaintiff, including by depriving Plaintiff ofhis rightful compensation for
the use of his creative work and infringing his exclusive rights to control the reproduction, use,
distribution, and sale of his creative work.
27. Defendants misappropriated Plaintiffs intellectual property for their own profit,
causing Plaintiff significant injuries, damages, and losses in amounts tobe determined at trial.
28. Defendants' unauthorized and uncompensated uses of the Subject Photographs
were willful.
29. As parties with experience in copyright and intellectual property matters,
Defendants are or should have been aware that they could not use photographs without a license
that they know that they did not own.
30. Defendants' conduct alleged herein demonstrates reckless disregard for Plaintiffs
exclusive rights as the owner of the copyrights in the Subject Photographs.
31. Given the notoriety and public recognition oftheDefendants and their works and
products, Defendants' misappropriation ofPlaintiffs photographs caused significant damages,
including by diminishing the value of his works as fine art prints and impeding his ability to
license his works to other music artists.
32. Plaintiff seeks all damages recoverable under the Copyright Act, including
statutory or actual damages, including Defendants' profits attributable to the infringing uses of
Plaintiffs creative work, and the damages suffered as a result ofthe lack ofcompensation, credit,
and attribution. Plaintiff also seeks all attorneys' fees and any other costs incurred in pursuing
and litigating this matter.
WHEREFORE, Plaintiff respectfully prays for judgment on his behalf and for the following
relief:
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1. A preliminary and permanent injunction against Defendants from copying,
displaying, distributing, advertising, promoting, and/or selling the infringing materials identified
herein, and requiring Defendants to deliver to the Court for destruction or other appropriate
disposition all relevant materials, including digital files of Plaintiff s photographs and all copies
of the infringing materials described in this complaint that are in the control or possession or
custody ofDefendants;
2. All allowable damages under the Copyright Act, including, but not limited to,
statutory oractual damages, including damages incurred as a result ofPlaintiffs loss of licensing
revenue, damage to the value of the copyrighted works, and Defendants' profits attributable to
the infringements, and damages suffered as a result of the lack of credit andattribution;
3. Plaintiffs full costs, including litigation expenses, expert witness fees, interest,
and any other amounts authorized under law, and attorneys' fees incurred in pursuing and
litigating this matter;
4. All allowable damages caused by and/or resulting from Defendants' violation and
infringement of Plaintiffsmoral rights inandto thiscreative visual work;
5. Any other relief authorized by law, including punitive and/or exemplary damages;
and
Forsuch other and further reliefastheCourt deems just and proper.
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JURY TR I A L DEMANDED
Dated September 12, 2013
New York, New York.
By:
Respectfully submitted,
nelson & Mcculloch llp
A^
Danial A. Nelson (DN4940)
Kevin P. McCulloch (KM0530)
155 East 56th Street
New York, New York 10022
T: (212)355-6050
F:(646) 308-1178
[email protected]@nelsonmcculloch.com
Attorneysfor Plaintiff