Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 1 of 36 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------X NICK KATSORIS and THE LOUKOUMI MAKE A DIFFERENCE FOUNDATION, INC. Plaintiffs, Case No. VERIFIED COMPLAINT -againstWME IMG, LLC, IMG PRODUCTIONS, LLC and VIACOM INC. d/b/a NICKELODEON JURY TRIAL DEMANDED Defendants. -------------------------------------------------------------------X Plaintiffs NICK KATSORIS and THE LOUKOUMI MAKE A DIFFERENCE FOUNDATION, INC., by their attorneys DUNNINGTON, BARTHOLOW & MILLER LLP, allege as follows: PRELIMINARY STATEMENT 1. This is an action for copyright and trademark infringement pursuant to the Copyright Act, 17 U.S.C. §101 et seq. and the Lanham Act, 15 U.S.C. § 1501 et seq., together with a claim for a declaratory judgment concerning the character “Loukoumi the Lamb” and related intellectual property as well as New York State claims for trademark infringement, dilution, unfair competition, violations of Gen. Bus Law § 349, breach of fiduciary duty, and breach of contract, or, in the alternative, breach of implied contract. Additionally, Plaintiffs seek an injunction in aid of arbitration. 2. Nicholas Katsoris, known professionally as Nick Katsoris (“Katsoris”), is the sole author of an award-winning series of children’s books featuring the copyrighted character “Loukoumi the Lamb” as seen in the graphic below (the “Loukoumi character” or “Loukoumi”). 1 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 2 of 36 3. Having spent over a decade publishing and promoting the Loukoumi series, Katsoris has registered multiple copyrights and trademarks with the U.S. Copyright Office and Patent and Trademark Office (“PTO”), respectively, concerning the Loukoumi character. 4. A website concerning the Loukoumi character, http://www.Loukoumi.com, offers Loukoumi books, audio books and other Loukoumi merchandise for sale. Loukoumi products are also offered for sale at other websites including Amazon.com and BN.com and by retailers across the United States. 5. Over the years, Katsoris has donated a substantial portion of the profits from Loukoumi books to multiple children’s charities and schools including St. Jude Children’s Research Hospital and The Make-A-Wish Foundation. To support this charitable mission, Katsoris has donated certain rights in the Loukoumi character to Plaintiff The Loukoumi Make A Difference Foundation (the “Foundation”). 6. For years, many celebrities have endorsed Loukoumi books and Loukoumi- related activities and supported the work of the Foundation including, but not limited to, Jennifer Aniston, Morgan Freeman, Olympia Dukakis, Gloria Gaynor, Eli Manning, Ernie Anastos, Cat Cora and Nia Vardalos. 2 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 3 of 36 7. In 2007, Katsoris launched a national Dream Day Contest for children. The contest involved children drawing a picture of themselves with Loukoumi in their dream career and completing the phrase: “I WANT TO BE A____________ BECAUSE…” as pictured below: After a successful first year, the contest was adapted to become a video contest where children recorded videos including the sentence: “When I grow up I Wanna Be…” More information about this contest is found at http://www.loukoumifoundation.org/dream_day.html. 8. In 2012, Katsoris pitched a reality show based on the Dream Day Contest to the entertainment and production company IMG. Based on the pitch, IMG agreed to work with Katsoris in representing Loukoumi and the Dream Day project. IMG and Katsoris pitched the Dream Day project to a number of potential purchasers. Katsoris also pitched the Dream Day project to Nickelodeon, a channel owned by Viacom Inc. 9. After a number of unsuccessful efforts, the Foundation hired IMG Productions LLC. IMG produced a pilot television special titled “Make A Difference With Loukoumi” 3 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 4 of 36 which aired on FOX broadcast stations across the United States, including Fox-5 in New York, in October 2014 (the “Special”). 10. The Special, produced by IMG pursuant to a work-for-hire agreement for which IMG was paid in excess of one hundred thousand dollars ($100,000) by the Foundation, featured videos of children expressing their dreams of what they would like to be when they grow up. The Special featured one girl named Sophia actually living her dream day of being a Broadway star. In another video featured in the Special, a child named Jordan discussed his dream of being a professional football player, which Katsoris also made come true by having Jordan meet New York Giants football stars Eli Manning and Odell Beckham, Jr. 11. In August 2011 and July 2015, Katsoris and The Foundation pitched the Special and a Dream Day Reality Television series based on the Special to Nickelodeon. 12. On September 22, 2015, Nickelodeon announced the 2016 launch of a children’s television series titled “I Wanna Be” starring and executively produced by Cam Newton. Newton is an IMG client and the star quarterback for the Carolina Panthers National Football League (“NFL”) team. 13. As set forth above, Nickelodeon and IMG had access to Katsoris’ and The Foundation’s valuable copyrighted and trademarked materials as well as other information constituting trade secrets or otherwise confidential materials. As described more fully below, the Nickelodeon “I Wanna Be” television series is a derivative work that infringes upon protected elements of Katsoris’ copyrights as well as the distinctive trademark phrase “I Wanna Be” in violation of the Lanham Act as well as New York’s trademark and unfair competition laws. Because “I Wanna Be” has not yet been published by Nickelodeon, additional evidence of 4 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 5 of 36 infringement is likely in the exclusive custody of Defendants and therefore cannot be pleaded at this time. Plaintiffs require discovery to supply additional relevant evidence in this action. 14. The production and publication of Nickelodeon’s infringing “I Wanna Be” series would be likely to cause consumer confusion, tarnish the “I Wanna Be” mark and dilute the strong Loukoumi brand that Katsoris and the Foundation have created over the years. Because of this imminent and irreparable harm, temporary and permanent injunctive relief is warranted. 15. Apart from the statutory claims, this action involves a breach of trust and a breach of fiduciary duty between Katsoris and IMG, his agent of many years. As described more fully below, IMG acted as a wolf in sheep’s clothing in using the Foundation’s money and the fluffy little lamb, Loukoumi, to open doors for IMG’s pecuniary gain at the Foundation’s expense. Specifically, once Katsoris and Loukoumi opened the doors at Viacom, IMG usurped Katsoris’ and the Foundation’s business opportunity by swapping Loukoumi for IMG’s client, football star Cam Newton, despite the clear duties owed to Katsoris. IMG’s conduct robbed Katsoris and the Foundation of a valuable business opportunity with Viacom channel Nickelodeon and worse, deprived charities supported by Katsoris and the Foundation of donations. Thus, even if the finder of fact were to find aspects of Katsoris’ work unprotected by federal copyright or trademark law, New York laws of contract, agency, unfair competition, unjust enrichment and equity generally would protect Katsoris’ labors and interests in developing Loukoumi, the Special, the reality show, and associated property, including the phrase “I Wanna Be”, from use by Defendants without permission and just compensation. 16. Given the relation in time between the Special, the pitch and negotiations with Nickelodeon, it is clear that “I Wanna Be” infringes upon the materials developed by Katsoris and the Foundation. As such, any contract between Nickelodeon and IMG or its client, Cam 5 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 6 of 36 Newton, is based on the unlawful copying, infringement and misappropriation of the work and corporate opportunities belonging to Katsoris and the Foundation and should be voided, rescinded or equitably amended. 17. To preserve the status quo ante, pending an arbitration between The Foundation and IMG, Plaintiffs respectfully request that, pursuant to the Federal Arbitration Act (“FAA”), a preliminary injunction be issued restraining Defendants from creating, broadcasting or disseminating a derivative work based on Plaintiffs’ intellectual property or trade secrets. PARTIES 18. Plaintiff The Loukoumi Make A Difference Foundation, Inc. is a 501(c)(3) New York not-for-profit corporation with a principal place of business in New York. The Foundation’s mission statement is “Teaching children to make a difference in their lives and the lives of others.” 19. Plaintiff Nick Katsoris is the sole creator of the Loukoumi character, author of the Loukoumi children’s book series, President of the Foundation, and a resident of Eastchester, New York. 20. Defendant WME IMG, LLC is a Delaware corporation doing business in New York County with a principal place of business located at 200 5th Avenue, 7th Floor New York, New York. 21. Defendant IMG Productions, LLC is a New York corporation doing business in New York County with a principal place of business located at 432 West 45th Street, New York, New York. 6 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 7 of 36 22. Upon information and belief, WME IMG, LLC is the successor-in-interest or parent of or otherwise responsible for satisfying any judgment against IMG Productions, LLC (together, “IMG”). 23. Defendant Viacom Inc. is a Delaware corporation with a principal place of business located at 1515 Broadway, 52nd Floor, New York, New York. Viacom is a global massmedia company with interests in, among other things, cinema and cable television, including the Nickelodeon channel. JURISDICTION AND VENUE 24. The Court has exclusive subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338 with respect to Plaintiff’s claims arising under the Copyright Act and the Lanham Act and related unfair competition claims and may assert supplemental jurisdiction over all other claims pursuant to 28 U.S.C. § 1367. 25. Defendants reside in and do business in the Southern District of New York and are subject to personal jurisdiction. Additionally, a substantial portion of the acts giving rise to this action occurred in the Southern District of New York. Accordingly, venue is properly laid in this District under 28 U.S.C. §§ 1391 (b) and (c) and 1400 (a) 26. The damages suffered by Plaintiffs exceed seventy-five thousand dollars ($75,000) exclusive of costs. FACTUAL HISTORY A. KATSORIS’ EFFORTS TO BENEFIT AND INSPIRE CHILDREN THROUGH THE LOUKOUMI BOOK SERIES 27. Katsoris is an attorney admitted to practice in the State of New York. 7 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 8 of 36 28. Katsoris is a graduate of Fordham Law School, having served as an editor of the Fordham International Law Journal, and has clerked for a federal judge in the U.S. Court of International Trade. 29. Katsoris has served as General Counsel to a group of companies in New York City for over twenty years. 30. Katsoris is the father of two children and created the character Loukoumi following the birth of his son. 31. Katsoris has registered the mark LOUKOUMI with the PTO under Registration No. 2759303, dated September 2, 2003, in International Class 19 for children’s books and coloring books. 32. Katsoris has registered the mark LOUKOUMI TOYS with the PTO under Registration No. 3103995, dated June 13, 2006, in International Class 28 for plush toys. 33. In or about 2005, Katsoris authored and published the first book in the Loukoumi book series, titled Loukoumi, featuring a lamb named “Loukoumi.”1 CBS-2 News has described Loukoumi as “a fluffy little lamb that just wants to make the world a better place.” 34. Each Loukoumi book teaches children life lessons including believing in and pursuing their dreams, doing good deeds, and preventing bullying. 35. The Loukoumi series is comprised of seven books: Loukoumi (narrated on CD by Olympia Dukakis), Growing up with Loukoumi (narrated by Gloria Gaynor), Loukoumi’s Good Deeds and Loukoumi’s Gift (narrated by Jennifer Aniston and John Aniston), Loukoumi and the Schoolyard Bully (narrated by Nia Vardalos and Morgan Freeman), Loukoumi In The Basket (to 1 Loukoumi is a type of jelly candy topped with powdered sugar popular in Greece. 8 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 9 of 36 be released in February 2016), and Loukoumi’s Celebrity Cookbook, featuring favorite childhood recipes by over 50 celebrities including Jennifer Aniston, Beyoncé, Ellen DeGeneres, Celine Dion, Neil Patrick Harris, Nicole Kidman, Miranda Lambert, Matt Lauer, Jay Leno, Eli Manning, Al Roker, Taylor Swift, Justin Timberlake, Marlo Thomas, Mark Wahlberg, Betty White, Oprah Winfrey, Reese Witherspoon, and many others. 36. Over 100 celebrities have donated their time to participate in the books and in programs related to promoting the lessons found in the Loukoumi books. 37. Since 2005, over 100 news outlets have reported on Loukoumi, including ABC- TV’s The View, FOX & Friends, People Magazine, The Martha Stewart Show, Entertainment Tonight, Good Day New York, Good Day LA, The Late Late Show with Craig Ferguson, The Nate Berkus Show, Parents Magazine, Disney’s Family Fun, Us Weekly, USA Weekend, USA Today, NPR, The New York Times, The New York Post, The New York Daily News, The Washington Post, Parents, Good Housekeeping, Ladies Home Journal, Scholastic Parent and Child, and many others. A Loukoumi TV Press Reel can be found at the following YouTube link: https://www.youtube.com/watch?v=_s5a15_Cqes. 38. Since 2005, Katsoris has made donations from the Loukoumi book series to numerous charities including: St. Jude Children’s Research Hospital, The Make-A-Wish Foundation, Chefs for Humanity, The National Ladies Philoptochos Society, Kiwanis International, The Food Allergy and Anaphylaxis Network/FAAN, The New Rochelle Humane Society, and others. 39. Katsoris has also donated over 10,000 books to schools and organizations including St. Jude Children’s Research Hospital, The Wounded Warriors Project, The Make-AWish Foundation, The Pajama Program, The Ronald McDonald House, Hope 4 Kids, The 9 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 10 of 36 Hellenic Times Scholarship Fund, Kiwanis International, The National Ladies Philoptochos Society, and many others. 40. Katsoris and the Loukoumi book series have won several awards, including two iParenting Media Awards, two Mom’s Choice Awards, two World Cookbook Awards, The Family Choice Award, and a National Make A Difference Award from USA Weekend magazine. 41. The National Make a Difference Award was awarded to the Make A Difference with Loukoumi project, which unites thousands of children each October to do good deeds, inspired by Loukoumi’s Good Deeds, narrated by Jennifer Aniston, of which $2 from the sale of each book is donated to St. Jude Children’s Research Hospital. In 2015, approximately 50,000 children and adults participated in this project at events across the country. Katsoris also partnered with several of the aforementioned national organizations for this project as well as PACER’s National Bullying Prevention Center and the Just Keep Livin’ Foundation. 42. In May 2014, Katsoris formed the Foundation to teach children to make a difference in their lives and the lives of others. 43. The Foundation sponsored the Make A Difference with Loukoumi TV Special and is also creating a Make A Difference With Loukoumi Exhibit at the Westchester Children’s Museum in Rye, New York. 44. In sum, Katsoris has worked for over a decade to create a valuable, famous, copyrighted and otherwise protected character, Loukoumi, and to ensure that charities benefitting children are the beneficiaries of the intellectual property he created and continues to create. 10 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 11 of 36 B. KATSORIS CREATES A “DREAM DAY” CONTEST FOR CHILDREN 45. In November 2006, Katsoris released Growing Up With Loukoumi. Annexed hereto as Exhibit A is U.S. Copyright Office Registration No. TXu001285181 (book); annexed hereto as Exhibit B is Copyright Registration SR0000392978 (audio narration of book). 46. Growing Up With Loukoumi discusses what children want to be when they grow up and teaches that if they believe in themselves, their dreams can come true. In the audio narration of the book, Loukoumi, voiced by news anchor Alexis Christoforous, when pondering what she wants to be when she grows up, repeatedly uses the phrase “I Wanna Be.” 47. Based on Growing Up With Loukoumi, in 2007, Katsoris created the Growing Up with Loukoumi Dream Day Contest. As discussed above, the first contest in 2007 involved children drawing pictures of themselves with Loukoumi in their dream careers and completing the sentence “I WANT TO BE____________.” Details of the contest can be found at: http://www.loukoumifoundation.org/dream_day.html. Annexed hereto as Exhibit C are contest materials from the Loukoumi website. 48. Following the first contest in 2007, the contest was amended to become a video contest. Many children have entered subsequent Dream Day Contests submitting videos stating: “When I grow up I wanna be…” 49. May 2008 Dream Day Contest winner Sophie lived her dream day of becoming a Mars Rover engineer by watching the Phoenix spacecraft land on Mars from NASA’s Jet Propulsion Lab in Pasadena, California. 50. May 2008 Dream Day Contest winner Lionel lived his dream day of becoming a soccer star by playing soccer with the New York Red Bulls Major League Soccer (“MLS”) team, attending a team practice and receiving a private lesson from several players. 11 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 12 of 36 51. Sophie and Lionel’s dream days were featured on News-4 New York (http://www.loukoumi.com/press_reviews/video6.html) and in other news stories. 52. May 2008 Dream Day Contest winner Nika lived her dream day of becoming a TV Chef by cooking on the air with CBS Channel 2 news Food Editor Tony Tantillo, visiting TV star Rachael Ray on her show’s set, and submitting a recipe for the Every Day with Rachael Ray magazine. C. KATSORIS CREATES A “DREAM DAY” REALITY SHOW INCLUDING IMG PRODUCERS AS CONTEST JUDGES 53. In 2007, Fox Television agreed to televise the New York Greek Independence Day Parade (the “Parade”). 54. Fox recommended IMG as a producer to members of the Parade committee. 55. IMG, according to its website, “is a global leader in sports, events, media and fashion, operating in more than 25 countries. The company represents and manages some of the world’s greatest sports figures and fashion icons; stages thousands of live events and branded entertainment experiences annually; and is the world’s largest independent producer and distributor of sports media. IMG also specializes in sports training; league development; and marketing, media and licensing for brands, sports organizations and collegiate institutions.” See www.img.com (last accessed January 4, 2016). In 2014, IMG was acquired by WME to form WME IMG. 56. IMG presented a budget proposal, and Katsoris was part of a group involved in the telecast of the Parade (“Parade Telecast”). 57. Working together, Katsoris and IMG have produced the Parade Telecast on My9, channel 9 in New York City every year since 2007. 12 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 13 of 36 58. Katsoris has served as the Entertainment Producer for the Parade Telecast. His role was to secure participation of Greek and Greek-American performers and to work with IMG in selecting and producing entertainment segments of the telecast. 59. In or about February 2007, through working on the Parade Telecast, Katsoris met Steve Mayer and Karen DeMasi of IMG, who have served, respectively, as Executive Producer and Producer of the Parade (the “IMG Producers”). 60. At Katsoris’ suggestion, and with the IMG Producers’ enthusiastic approval, the 2007 Parade Telecast included a segment with a costumed actor playing Loukoumi while the singer Gloria Gaynor performed the original song “Believe” which she wrote and recorded for the Growing Up With Loukoumi CD. Since 2007, Loukoumi has also been mentioned on the Parade Telecast at other times and has appeared in the Parade on a float almost every year. 61. In 2008, Katsoris created and copyrighted development materials that outlined topics for a reality television show titled “Loukoumi Dream Day Reality Show”, with each episode featuring children having the opportunity to live their dream careers. Annexed hereto as Exhibit D is Copyright Registration No. TXu001589714. 62. In 2009, actress Jennifer Aniston narrated an updated version of the audiobook for “Growing Up With Loukoumi” in which the three winners of the Dream Day Contest, Sophia, Lionel and Nika, narrated their dreams. Aniston’s recording was distributed as part of the Loukoumi’s Good Deeds CD and on the Us Weekly magazine website, and discussed in an article on Radar Online. See http://radaronline.com/exclusives/2010/07/jennifer-aniston-lends-her- voice-third-childrens-book-cd/. 13 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 14 of 36 63. In October 2011, Katsoris launched a Loukoumi’s Secret Ingredient Dream Day Contest, garnering press including www.parents.com and Disney’s Family Fun magazine. Annexed hereto as Exhibit E is the Family Fun article on the contest. 64. Contest judges included celebrities Ernie Anastos, Cat Cora, Frank Dicopoulos, Alexis Christoforous, and Teri Watson from St. Jude Children’s Research Hospital, as well as the IMG Producers. 65. Grace, the winner, got to live her dream day of being a chef by cooking with celebrity Chef Cat Cora at Cat’s restaurant, Kouzzina, at the Walt Disney World Boardwalk in Florida. Grace’s dream day was featured on the front page of USA Today’s Life section. A copy of the USA Today article is annexed hereto as Exhibit F. D. IMG and MAKE A DIFFERENCE WITH LOUKOUMI 66. In or about April 2012, Katsoris approached IMG to represent the Loukoumi character and to represent him in pitching a television series based on Dream Day, and IMG agreed. 67. IMG and Katsoris agreed that IMG would pitch Loukoumi and the Dream Day Reality TV Series to television networks. If IMG was successful in negotiating or securing a deal, IMG would serve as the production company for the television show or series. 68. In the alternative, if a deal was reached with a channel that would not permit IMG to serve as production company, Katsoris and IMG agreed that IMG would be entitled to an agency commission of 15%. 69. Katsoris drafted a 2012 proposal for a Loukoumi reality television show (the “2012 Proposal”). Annexed hereto as Exhibit G is a copy of the 2012 Proposal. 14 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 15 of 36 70. The 2012 Proposal provides: “In this television segment kids would live their Dream Days by following a different career choice in each episode. There is nothing more powerful than making a kid’s dream come true and watching it first-hand would be inspiring for kids to reach for their own dreams.” See Exhibit G. 71. Katsoris and the IMG Producers traveled to PBS Kids’ offices in Washington, DC to pitch the Loukoumi Dream Days television series on August 15, 2012. 72. Later in 2012, IMG and Katsoris also pitched the Loukoumi Dream Day Reality Show to the SPROUT Television network. 73. In January 2013, Katsoris and the IMG Producers decided that without improved pitch materials, the project would not attract network attention. 74. To improve the project’s chance of success, the IMG Producers suggested that Katsoris self-finance or seek sponsors for the production by IMG of the entire television series, or having IMG produce a less-expensive pilot special or DVD. 75. In response to IMG’s suggestions, Katsoris requested budget proposals. 76. IMG subsequently presented several budget proposals to Katsoris, both for a television series and a television special. 77. In March 2013, Katsoris and IMG Producer DeMasi traveled to St. Jude Children’s Research Hospital in Memphis, Tennessee to pitch a Loukoumi TV Special and DVD series. 78. In May 2014, the Foundation entered into a work for hire agreement with IMG Productions to produce the Special. IMG’s involvement as producer was on a work for hire basis and “all notes, ideas…suggestions, plots,” etc. in the show are exclusively owned by Loukoumi. Annexed hereto as Exhibit H is a copy of the work for hire agreement. 15 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 16 of 36 79. In May 2014, Katsoris discussed with IMG how the Special would be designed as a pilot to pitch a Loukoumi series to networks. The parties again agreed that if IMG succeeded in securing a Loukoumi television deal, IMG would produce the content or, in the alternative, IMG would earn a 15% agency commission. 80. On May 22, 2014, IMG Producer Mayer wrote: “If we sell this to a network for you---you better make sure we are the production company…we need to be tied to the project if we sell it for you and in all due respect, you are not getting this to the next level without us.” 81. The Special was produced in the summer of 2014. 82. The Foundation paid IMG $101,730.51 to produce the Special. 83. The Special featured public service announcements for St. Jude Children’s Research Hospital, PACER’s National Bullying Prevention Center and The National Ladies Philoptochos Society in lieu of commercials. The Foundation donated the air time to the charities for these public service announcements. 84. Celebrity Chef Cat Cora hosted the Special. The Special also featured appearances by Oscar-winning actress Olympia Dukakis, Grammy-winning singer Gloria Gaynor, and Tony nominee Constantine Maroulis, and narrations and cameos by John Aniston, Alexis Christoforous, Frank Dicopoulos, Morgan Freeman, Constantine Maroulis, Gilles Marini, Jim Nantz, Nancy O’Dell, Al Roker, Nia Vardalos and Disney Channel stars Olivia Holt, Laura Marano and Jake Short. 85. IMG taped the Special’s first segment at the Loukoumi & Friends benefit concert on June 23, 2014, featuring performances by Gloria Gaynor, Olympia Dukakis, Constantine Maroulis, and international recording artists Anna Vissi and Kalomira. 16 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 17 of 36 86. In Spring 2014, Katsoris launched the 2014 Dream Day Contest, and at the concert, Katsoris presented many of the children’s dream day videos, edited by IMG, in which kids stated, “When I grow up I wanna be…” A sampling of Dream Day Contest videos can be viewed at http://www.loukoumifoundation.org/dream_day_videos.html 87. The completed Special’s highlight was a 15-minute Dream Days segment featuring children in video clips saying what they want to be followed by a video of Dream Day winner Sophia, who lived her dream of being a Broadway star. 88. The Special aired in October 2014 throughout the United States, including in New York. See https://www.youtube.com/watch?feature=youtu.be&v=MAL6ZdH-S_o&app=desktop. 89. The Special received press coverage by FOX-5 New York (see https://www.youtube.com/watch?v=WksW7fYZXUw), Fox-5 DC, USA Weekend magazine and others. A copy of the USA Weekend magazine article is annexed as Exhibit I. 90. In October 2014, the U.S. Copyright Office granted Copyright Registration No. PA0001926863 for the Special. Annexed hereto as Exhibit J is a copy of the registration. 91. In or about October 2014, IMG added the Special to its website, stating that the TV Special “encouraged children to believe in themselves and make their dreams come true.” Annexed hereto as Exhibit K is a copy of the announcement. 92. Between November 2014 and April 2015, Katsoris and IMG repeatedly discussed pitching the Special to networks as a pilot for a series. 93. Katsoris and IMG again agreed that if IMG were successful in securing a television deal, IMG would produce the content. In the alterative, if the network did not wish IMG to be the production company, IMG would be entitled to a 15% commission. 94. Katsoris and IMG Producers discussed IMG pitching Loukoumi to Nickelodeon. 17 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 18 of 36 95. In an email dated February 7, 2015 from Katsoris to Mayer, Katsoris writes: “Steve, please let me know when we can discuss next steps on the TV front. As we discussed last summer once the TV Special was done you had wanted to use it as a pilot to pitch.” 96. In January 2015, IMG presented the Special and the Loukoumi books to its parent company, The William Morris Endeavor Talent Agency (“WME”), for additional representation. 97. In April 2015, IMG invited Katsoris into their offices to cut a sizzle reel of the TV special, and in particular the Dream Day segment, for pitching to networks. The TV Special sizzle reel can be found at the following link: https://www.youtube.com/watch?v=o6faOW2RvKI. 98. On the day the sizzle reel was cut, Katsoris spoke with IMG Producers again about pitching Loukoumi and the Dream Days, which IMG Producer Mayer stated was the “most powerful part of the show,” to Nickelodeon. 99. The sizzle reel is 5:25 in length, and 3:45 of it is dedicated exclusively to the Dream Day segment. 100. After April 2015, Katsoris continued to reach out to IMG about pitching the Loukoumi TV Special and Dream Day to television networks. Despite several follow up attempts by Katsoris, IMG failed to respond. 101. Instead, on or about June 13, 2015, IMG and Nickelodeon announced a development deal for a new show starring football star Cam Newton. Cam Newton was also announced as one of the show’s executive producers. A copy of a Nick Alive news article announcing the development deal is annexed hereto as Exhibit L. 102. According to June 2015 published reports: “The currently untitled unscripted television series will help kids find their dreams.” 18 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 19 of 36 E. IMG’s PARTICIPATION IN THE 2014 DREAM DAY CONTEST 103. In April 2014, Katsoris sponsored another Dream Day Contest. 104. IMG Producers again assisted in reviewing and judging the video entries in which children stated “When I grow up, I wanna be…” Dozens of the video entries were also published on the Loukoumi Facebook page. 105. IMG Producers represented to Katsoris that they were specifically looking for children with a television presence to help the production values for the Special. 106. Four winners were selected from the 2014 contest, with one being chosen to live her dream as part of the Make A Difference With Loukoumi Special. 107. Dream Day Contest winner Sophia wanted to be a Broadway star, and in September 2014 Sophia lived her dream by singing Journey’s Don’t Stop Believin’ with Tonynominated actor Constantine Maroulis on the Broadway show Rock of Ages stage at the Helen Hayes Theater. 108. Sophia’s dream day was featured in the Make A Difference with Loukoumi TV Special, which aired during October 2014 on FOX stations across the United States and on some NBC and ABC-affiliated stations and Mega-TV internationally. See https://www.youtube.com/watch?feature=youtu.be&v=MAL6ZdH-S_o&app=desktop, with the Dream Day segment starting at 14:39. 109. The Dream Day segment includes Sophia’s Dream Day video contest entry where she sings that she wants to be a Broadway star. 110. In October 2014, Dream Day Contest winner Sylvia lived her dream of being an actress by spending the day with former Nickelodeon star Nathalia Ramos, her favorite actress. 19 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 20 of 36 111. In August 2015, Loukoumi Dream Day winner Jordan got to live his dream of becoming a professional football player by visiting the New York Giants training camp and meeting players including Eli Manning and Odell Beckham, Jr. Annexed hereto as Exhibit M is an article from the Loukoumi website concerning Jordan’s visit with the Giants. 112. In October 2014, Dream Day contest winner Panagioti was selected. He is scheduled to live his dream of being a storm chaser by meeting with meteorologist Nick Gregory. 113. In April 2015, the Loukoumi 2015 Dream Day Contest was held. Again, over 50 of the video entries were published on the Loukoumi Facebook page. 114. In July 2015, Dream Day winner Evan lived his dream of becoming a police officer by riding in a New York Police Department patrol car and on a police boat and meeting the K-9 unit. 115. 2015 Dream Day winner Nicole wants to be a journalist and will live her dream in 116. 2015 Dream Day winner Ava wants to be a pediatrician and will live her dream in 117. 2015 Dream Day winner Sam wants to be an Olympic swimmer and will live his 2016. 2016. dream in 2016. 118. 2015 Dream Day winner Annie wants to be a dancer and will live her dream day in 2016. F. Cam Newton’s Involvement With IMG And Nickelodeon 20 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 21 of 36 119. Cam Newton is the quarterback for the NFL’s Carolina Panthers. He played college football at Auburn University and was drafted as the first overall pick by the Panthers in the 2011 NFL Draft. 120. On or about February 1, 2011, IMG signed Newton to a multi-year contract. According to IMG’s press release, IMG represents “Newton in the development, organization and administration of all licensing, internet, multimedia, endorsement, modeling, speaking, appearance, film, television, theatrical, broadcast, literary opportunities and similar activities.” A copy of the IMG press release is annexed hereto as Exhibit N. 121. Former IMG Head of Production Steve Mayer, who was also the Executive Producer of the Loukoumi TV Special, has worked intimately and directly with Cam Newton on at least two projects. 122. Network. Mayer executive-produced the annual Hall of Game Awards on the Cartoon Newton appeared as a guest in 2012 and hosted the show in 2014. See http://www.examiner.com/article/colin-kaepernick-cam-newton-to-host-cartoon-network-s-4thhall-of-game-awards. 123. Mayer worked intimately with Newton in 2014 on the Hall of Game Awards, the same year that Mayer executive-produced the Special. G. Loukoumi, Viacom And Nickelodeon 124. In March 2011, Katsoris contacted Nickelodeon regarding the then-upcoming book, Loukoumi’s Celebrity Cookbook. 125. Katsoris requested and received approval from Nickelodeon to reprint the Spaghetti Taco recipe from the Nickelodeon show iCarly starring the actress Miranda Cosgrove. 21 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 22 of 36 126. In November 2011, the recipe appeared in Loukoumi’s Celebrity Cookbook on a page featuring Nickelodeon star Cosgrove. An excerpt from the book is annexed hereto as Exhibit O. H. Katsoris Meets With Nickelodeon In 2011 To Pitch The Dream Day Project 127. In August 2011 Katsoris met with Elly Kramer, head of Programming and Development for Nickelodeon. The meeting was held at Nickelodeon’s New York City offices. 128. Also at the meeting was actor Frank Dicopoulos. Dicopoulos has participated in all the Loukoumi narrations as the voice of the character “Dean the Dog.” 129. At the meeting, Katsoris pitched the Loukoumi Dream Day Reality Show. 130. At the meeting, Katsoris played for Kramer video clips showing Sophie’s dream of becoming a Mars Rover Engineer and Lionel’s dream of being a soccer star. 131. Kramer expressed enthusiasm for the project and requested more material. 132. In a follow-up email dated August 12, 2011, Katsoris wrote to Kramer saying: “Here is our NBC News coverage of our Dream Day contest. Please click here: www.loukoumi.com/negews4.html. Again this could be the basis for our Dream Day segment where real kids get to live their dream days like a reality segment for kids.” 133. Kramer responded via email dated August 16, 2011: “Thank you both for the e- mails and for sharing Loukoumi with us. It is truly incredible what you have already accomplished with this property. I was able to share Loukoumi with the rest of the development team and unfortunately it does not fit our development needs at the present time.” I. The 2015 Meeting Between Katsoris And Nickelodeon 22 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 23 of 36 134. On July 22, 2015, Katsoris had a second meeting at Nickelodeon with Elly Kramer and Rosemary Palacios. Also at the meeting was Frank Dicopoulos and Effie Samios, a co-producer of the Special. 135. Katsoris presented a PowerPoint with photos and video footage of the Loukoumi Dream Days. A copy of the PowerPoint is annexed as Exhibit P. 136. Katsoris also played the Special sizzle reel highlighting the Broadway Dream Day and Dream Day Contest entries showing children saying “When I grow up, I Wanna Be...” 137. In the meeting, Kramer expressed interest in the project and stated that the Loukoumi project “had an embarrassment of riches.” 138. On August 3, 2015, Kramer requested additional Loukoumi materials via email. 139. On August 5, 2015, Katsoris sent additional materials to Kramer and Palacios. Katsoris’ additional information stated as follows: “Our Loukoumi Dream Day contest could be showcased where we show real kids living their career dreams, thereby encouraging viewers to believe in themselves. Through our Dream Day program children have watched a spaceship land on Mars, visited Rachael Ray and cooked with Cat Cora, met their favorite actress (Nickelodeon star Nathalia Ramos), played soccer with the NY Red Bulls and football with the NY Giants, spent the day with the NYPD, sang from the Broadway stage, etc. For more on our Dream day program, please visit www.LoukoumiFoundation.org.” 140. Nickelodeon production manager Alexandra Johnson-Gamsey was copied on the emails between Katsoris and Kramer. 141. Katsoris specifically asked Kramer in person and in a follow-up e-mail: “Do you think a live action show focusing on our dream days where kids live their dream careers might be something that maybe not Nick Jr., but Nickelodeon might be interested in?” 23 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 24 of 36 142. On August 27, 2015, Kramer responded via email: “We very much appreciate what you’ve created and love the idea of encouraging kids to make a difference. Unfortunately the project does not support what we’re currently looking for.” J. Plaintiffs Engage In Negotiations With The Discovery Channel in 2015 143. In or about the summer of 2015, Katsoris provided a copy of the Special and other materials to the Discovery Network for review. Following talks in the spring and summer 2015, Discovery Channel ‘green-lighted’ a 5-10 week television series featuring Loukoumi and Dream Days, in a format identical to the “I Wanna Be” format. 144. However, as explained below, before the shows could be produced or aired, Katsoris learned that Defendants were already producing “I Wanna Be”, thus irreparably harming the potential for the Loukoumi program to air on the Discovery Channel. K. “I Wanna Be” Is Announced By Nickelodeon 145. On or about September 22, 2015, Nickelodeon announced a greenlight for a new show titled “I Wanna Be”, starring IMG client Cam Newton. 146. According to Nickelodeon’s September 22, 2015 press release: “I Wanna Be will follow Newton as he takes real kids on the ride of their lives to help make their dreams come true. The 20-episode series is slated to air in 2016 and will shoot during the NFL off seasons. From decorating award-winning cakes to landing a spot on a Broadway stage,2 kids will be mentored by experts and supported by Newton as he cheers them on, and participates in the action, every step of the way.” A copy of the Nickelodeon press release is annexed hereto as Exhibit Q. 147. 2 In November 2015, Katsoris first learned of the existence of “I Wanna Be.” Landing a spot on a Broadway stage is identical to Sophia’s Dream Day featured in the Special. 24 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 25 of 36 148. On November 24, 2015, Katsoris and the Foundation sent a cease-and-desist letter to Nickelodeon, Viacom, IMG and Magical Elves, the production company producing “I Wanna Be.” Magical Elves is also a client of WME, the parent company of IMG. 149. “I Wanna Be” is scheduled to begin taping after Cam Newton completes the current football season. 150. The Foundation intends to pursue its contract and other claims against IMG Productions through mediation and arbitration pursuant to the Work For Hire Services Agreement between the Foundation and IMG (see Exhibit H), which calls for mediation followed by arbitration. 151. At no time have plaintiffs authorized IMG, Viacom or Nickelodeon to reproduce, adapt, distribute or perform the said copyrighted material. 152. By reason of defendants’ infringement and threatened infringement, plaintiffs have sustained and will continue to sustain substantial injury, loss and damage to their ownership rights in the copyrighted work. 153. Further irreparable harm to plaintiffs is imminent as a result of defendants’ conduct, and plaintiffs are without an adequate remedy at law. Plaintiffs are entitled to an injunction restraining defendants, their officers, directors, agents, employees, representatives and all persons acting in concert with them from engaging in further such acts of copyright infringement. 154. Plaintiffs are further entitled to recover from defendants the damages sustained by plaintiffs as a result of defendants’ acts of copyright infringement, trademark infringement, unfair competition, breach of fiduciary duty, breach of contract and unjust enrichment. Plaintiffs are at present unable to ascertain the full extent of the monetary damage plaintiffs have suffered 25 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 26 of 36 by reason of defendants’ acts of copyright infringement, and such amount is to be determined by the Court. FIRST CAUSE OF ACTION COPYRIGHT INFRINGEMENT 17 U.S.C. §101 et seq. KATSORIS AGAINST DEFENDANTS AND THE FOUNDATION AGAINST VIACOM 155. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully set forth 156. As set forth above, Katsoris is the author of and owns copyrighted material found herein. in the Loukoumi Dream Day Reality show. Katsoris and the Foundation also own copyrighted material in the Make A Difference with Loukoumi television special. 157. As described more fully above, copyrights in these works have been registered with the U.S. Copyright Office. 158. As set forth more fully above, Defendants IMG and Viacom Inc. have had access to, copied, and intend to produce the television series “I Wanna Be”, which is an infringing derivative work based on Plaintiff’s copyrighted works. 159. Plaintiffs have not authorized IMG or Viacom to prepare a derivative work. 160. Defendants’ conduct violates the exclusive rights belonging to Plaintiffs as owners of the copyrights, including, without limitation, Plaintiffs’ rights under 17 U.S.C. § 106. 161. As a direct and proximate result of their wrongful conduct, Defendants will realize profits and other benefits rightfully belonging to Plaintiffs. Accordingly, Plaintiffs seek an award of damages pursuant to 17 U.S.C. §§ 504 and 505. 162. IMG and Viacom’s infringing conduct has also caused and is causing substantial and irreparable injury and damage to Plaintiffs in an amount not capable of determination, and, 26 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 27 of 36 unless restrained, will cause further irreparable injury, leaving the Plaintiffs with no adequate remedy at law. 163. As set forth above, IMG and Viacom were specifically put on notice of Plaintiffs’ rights during pitch meetings to IMG and Nickelodeon representatives. 164. Accordingly, since IMG and Viacom were put on notice of Plaintiffs’ rights and yet have intentionally copied Plaintiffs’ works, Plaintiffs are entitled to the maximum statutory damages allowable. 165. In the alternative, the Copyright Act permits Plaintiffs to elect to pursue actual damages at any time prior to trial. Plaintiffs are thus entitled to pursue actual damages in an amount to be determined at trial. 166. Upon information and belief, WME IMG, LLC is the successor-in-interest to IMG; accordingly, judgment should be awarded against WME IMG, LLC on this cause of action for all claims stated against IMG. SECOND CAUSE OF ACTION UNFAIR COMPETITION 15 U.S.C. §1501 et seq. PLAINTIFFS AGAINST VIACOM AND KATSORIS AGAINST IMG 167. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully set forth herein. 168. Section 43(a) of the Lanham Act protects registered and unregistered trademarks. 169. Katsoris and the Foundation developed a trademark phrase “I Wanna Be” at the beginning of many of the Make A Difference Contest videos. 170. The phrase “I Wanna Be” is featured in Loukoumi CDs. 27 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 28 of 36 171. The phrase “I Wanna Be” became recognized as a source identifier by consumers and acquired secondary meaning and fame. 172. The phrase “I Wanna Be” was incorporated without Plaintiffs’ permission in the title of Viacom’s upcoming production. 173. IMG and Viacom’s use of the phrase “I Wanna Be” will confuse consumers, leading consumers to believe that Katsoris and the Foundation have endorsed Viacom’s production. 174. IMG and Viacom’s use of the phrase “I Wanna Be” followed pitch meetings by Katsoris and the Foundation in which Nickelodeon representatives viewed the trademark “I Wanna Be” phrase used repeatedly in connection with a reality show and contest entries for a dream day on which children have an opportunity to realize their dreams for a day. 175. As described above, IMG and Viacom’s use of the phrase “I Wanna Be” occurred following events that put Viacom on notice of Plaintiff’s rights, and thus Viacom’s use of Plaintiff’s trademark was intentional. 176. By intentionally concealing Katsoris’ and the Foundation’s authorship and ownership of the phrase “I Wanna Be” in connection with the production of a television show where children realize their dreams, IMG and Viacom engaged in “reverse passing off” in violation of Section 43(a) of the Lanham Act. 177. IMG and Viacom’s intended use of the phrase “I Wanna Be” will dilute Plaintiffs’ trademark. 178. IMG and Viacom’s intended use of the phrase “I Wanna Be” will tarnish Plaintiffs’ trademark. 28 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 29 of 36 179. Because IMG and Viacom’s infringement of Plaintiffs’ trademark was willful, this is an “exceptional case” under the Lanham Act, and damages and attorneys’ fees should be determined at trial and awarded by the court. 180. Upon information and belief, WME IMG, LLC is the successor-in-interest to IMG; accordingly, judgment should be awarded against WME IMG, LLC on this cause of action for all claims stated against IMG. THIRD CAUSE OF ACTION DECLARATORY JUDGMENT 28 U.S.C. §§ 2201 & 2202 PLAINITFFS AGAINST ALL DEFENDANTS 181. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully set forth herein. 182. As set forth above, Defendants are infringing upon intellectual property owned by Katsoris, including, but not limited to, the phrase “I Wanna Be” and other elements of the Loukoumi brand. 183. The intellectual property is subject to protections of both the Copyright Act and Lanham Act, as well as under the common law. 184. Because this claim presents an actual case or controversy that would be resolved by declaratory relief, Plaintiffs seek a declaration of ownership rights concerning Loukoumi and the associated intellectual and other property along with preliminary and permanent injunctive relief pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. FOURTH CAUSE OF ACTION UNFAIR COMPETITION/DILUTION NEW YORK GENERAL BUSINESS LAW §360-1 29 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 30 of 36 PLAINTIFFS AGAINST VIACOM AND KATSORIS AGAINST IMG 185. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully set forth 186. New York General Business Law §360-1 protects registered and unregistered herein. trademarks against dilution. 187. New York law protects unregistered common law trademarks from infringement. 188. Katsoris and the Foundation developed a trademark phrase “I Wanna Be” within Dream Day Contest videos. 189. The phrase “I Wanna Be” became recognized as a source identifier by consumers and acquired secondary meaning and fame. 190. The phrase “I Wanna Be” was incorporated without Plaintiffs’ permission in the title of IMG and Viacom’s upcoming production. 191. IMG and Viacom’s use of the phrase “I Wanna Be” will confuse consumers, leading consumers to believe that Katsoris and the Foundation have endorsed Viacom’s production. 192. IMG and Viacom’s use of the phrase “I Wanna Be” followed pitch meetings by Katsoris and the Foundation in which Nickelodeon representatives viewed the trademark “I Wanna Be” phrase being used repeatedly in connection with a reality show in which children have an opportunity to realize their dreams for a day. 193. As described above, IMG and Viacom’s use of the phrase “I Wanna Be” occurred following circumstances that put Viacom on actual notice of Plaintiffs’ rights, and thus Viacom’s use of Plaintiffs’ trademark was intentional. 30 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 31 of 36 194. By intentionally concealing Katsoris’ and the Foundation’s authorship and ownership of the phrase “I Wanna Be” in connection with the production of a television show where children realize their dreams, IMG and Viacom engaged in “reverse passing off” in violation of Section 43(a) of the Lanham Act. 195. IMG and Viacom’s intended use of the phrase “I Wanna Be” will dilute Plaintiffs’ trademark. 196. IMG and Viacom’s intended use of the phrase “I Wanna Be” will tarnish Plaintiffs’ trademark. 197. Upon information and belief, WME IMG, LLC is the successor-in-interest to IMG; accordingly, judgment should be awarded against WME IMG, LLC on this cause of action for all claims stated against IMG. 198. Because IMG and Viacom’s infringement of Plaintiffs’ trademark was willful, damages and attorneys’ fees should be determined at trial and awarded by the court. FIFTH CAUSE OF ACTION N.Y. GEN BUS. LAW § 349 PLAINTIFFS AGAINST ALL DEFENDANTS 199. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully set forth 200. New York State General Business Law Section 349 prohibits deceptive acts and herein. practices. 201. Subsection (h) of Gen. Bus Law § 349 provides for a private right of action including injunctive relief. 31 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 32 of 36 202. Defendants’ anticipated production of “I Wanna Be” is based upon their intentional infringement of Plaintiffs’ intellectual property. 203. In light of the promotional materials and other materials in the public domain, Defendants’ anticipated production of “I Wanna Be” has intentionally caused and will continue to intentionally cause actual deception and confusion to consumers in the State of New York. 204. Therefore, Defendants are liable to Plaintiffs for violations of Gen Bus. Law § 349, and the Court should award damages, treble damages, attorneys’ fees and injunctive relief. SIXTH CAUSE OF ACTION BREACH OF FIDUCIARY DUTY/ TORTIOUS INTERFERENCE WITH ACTUAL AND PROSPECTIVE BUSINESS OPPORTUNITIES/ACCOUNTING KATSORIS AGAINST IMG 205. Plaintiffs repeat and reallege the foregoing allegations and incorporate them herein by reference. 206. IMG worked as Katsoris’ agent from April 2012 until the present. 207. As agent for Katsoris, IMG owes a fiduciary duty as well as duties of care, loyalty and good faith to Katsoris. IMG’s duties require it to operate prudently in the operation of Katsoris’ business, to discharge actions in good faith, to act in Katsoris’ best interests, and to put Katsoris’ business before its own. 208. As described above, IMG contracted with Katsoris to act as his agent in exchange for the opportunity to produce the Special for the Foundation as well as for the opportunity to serve as producer on future Loukoumi productions or, in the alternative, receive a 15% commission if the broadcast network chose another producer. 209. Katsoris fully performed his part of the agreement by delivering materials in a timely matter, attending pitch meetings and fulfilling all reasonable requests. 32 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 33 of 36 210. IMG breached its fiduciary duties to Katsoris and engaged in self-dealing by diverting an opportunity that Katsoris had worked many years to develop to itself. 211. Specifically, Katsoris worked with IMG through the Foundation to develop opportunities for a charity to sponsor a reality show that would permit children to realize their dreams and that would benefit children’s charities. 212. At all times, IMG knew that Katsoris was trying to develop opportunities to benefit charities. 213. IMG used Katsoris’ resources and indeed Katsoris himself to develop an opportunity for a show with Nickelodeon. 214. When the opportunity for a television show with Nickelodeon arose following Katsoris’ efforts, IMG diverted the opportunity to itself and to its client, Cam Newton, without Katsoris’ knowledge or consent. 215. A work for hire agreement between the Foundation and IMG provided for a fifteen-day exclusive right of first negotiation for “any similar television special” in the event a representative of the Foundation secured a broadcast or syndication deal. 216. IMG has thus been unjustly enriched at Katsoris’ expense and at the expense of the charities he supports. 217. The development deal with IMG and Nickelodeon for the show “I Wanna Be” appears identical to the Loukoumi Dream Day Reality show that IMG pitched to television networks and others on behalf of Katsoris. 218. IMG breached its fiduciary duties of loyalty and good faith by diverting the development deal to another client and to another production company. 219. Katsoris has been damaged by IMG’s breach of its fiduciary duties to him. 33 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 34 of 36 220. By profiting from Katsoris’ labors without justly compensating him, IMG has been unjustly enriched. 221. Based on the foregoing, Plaintiffs are entitled to an accounting from IMG and a delivery of all property, contracts and benefits received as a result of IMG’s usurpation of opportunities created using Katsoris’ resources. SEVENTH CAUSE OF ACTION INJUNCTION IN AID OF ARBITRATION UNDER THE FEDERAL ARBITRATION ACT THE FOUNDATION AGAINST IMG 222. Plaintiffs repeat and reallege the foregoing allegations and incorporate them herein by reference. 223. The Foundation entered into a work for hire agreement with IMG pursuant to which all rights to the Special would be owned by the Foundation. 224. The work for hire agreement contractually binds the Foundation and IMG to mediation and arbitration. 225. IMG has actual knowledge that the Foundation believes they are in breach of the work for hire agreement. 226. However, as set forth above, IMG and Viacom’s infringing “I Wanna Be” television series is scheduled to launch in early 2016, causing irreparable harm to Plaintiffs. 227. The Foundation has pursued mediation and arbitration with IMG, which is unlikely to resolve prior to the scheduled launch of IMG and Viacom’s infringing “I Wanna Be”. 228. Katsoris and the Foundation have no adequate remedy at law. 229. The balance of equities tips in favor of Katsoris and the Foundation. 34 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 35 of 36 230. The public interest would not be disserved by issuing injunctive relief in favor of Katsoris and the Foundation. 231. The FAA, 9 U.S.C. §§ 1 et seq., requires that courts enforce privately negotiated agreements to arbitrate . . . in accordance with their terms. The Second Circuit has recognized that a court’s power to compel arbitration is meaningless without the power to also issue injunctive relief when necessary to maintain the status quo during arbitration. 232. In this case, arbitration would become a ‘hollow formality’ absent an order preserving the status quo ante and restraining any further violations of the rights of Katsoris and the Foundation. WHEREFORE, Plaintiffs demand judgment as follows: (1) A declaratory judgment that Plaintiffs own “Loukoumi The Lamb” as well as all related intellectual property including, but not limited to, the phrase “I Wanna Be”; (2) A permanent injunction barring the Defendants from violating Plaintiffs’ rights in their intellectual property, including but not limited to the phrase “I Wanna Be”, by producing, broadcasting or otherwise disseminating the anticipated Nickelodeon show of the same title; (3) A permanent injunction enjoining Defendants and all persons acting in concert with them from manufacturing, reproducing, distributing, adapting, displaying, advertising, promoting, offering for sale and/or selling, or performing any materials that are substantially similar to Plaintiffs’ copyrighted work; (4) An injunction in aid of arbitration; 35 Case 1:16-cv-00135-RA Document 11 Filed 01/08/16 Page 36 of 36 (5) An award of statutory, actual and other damages in an amount to be determined at trial; (6) An order compelling an accounting from Defendants to ascertain the amount of profits and compensation received from the infringing work “I Wanna Be” and any other violations of Plaintiffs’ rights associated with Loukoumi generally; (7) An award of Plaintiffs’ costs and disbursements of this action, including reasonable attorneys’ fees; and (8) Any such other and further relief as to the Court may deem just, proper and equitable. Dated: New York, New York January 6, 2016 Respectfully submitted, DUNNINGTON BARTHOLOW & MILLER LLP Attorneys for Plaintiffs By: /s Samuel Blaustein____________ Raymond J. Dowd Samuel Blaustein 250 Park Avenue New York, NY 10177 Tel: (212) 682-8811 rdowd@dunnington.com sblaustein@dunnington.com 36