Case 3:16-cv-00290 Document 1 Filed 01/19/16 Page 1 of 4 4 STEVEN AMES BROWN Entertainment Law 83363 69 Grand View Avenue San Francisco, California 94114-2741 415/647-7700 Telephone 415/285-3048 Fax sabrown@entertainmentlaw.com 5 Attorney for Plaintiff 1 2 3 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 DARLENE LOVE, Plaintiff, 13 14 15 16 17 vs. GOOGLE, INC., 72 & SUNNY, INC. Defendants. ________________________________/ Civil No. COMPLAINT FOR INFRINGEMENT OF COMMON LAW RIGHT OF PUBLICITY; DEMAND FOR JURY TRIAL 18 19 20 21 22 23 24 25 26 Page 1 COMPLAINT Case 3:16-cv-00290 Document 1 Filed 01/19/16 Page 2 of 4 1 1. Jurisdiction. Plaintiff Darlene Love (“Love”) is a citizen of the state of New York. 2 Defendant Google, Inc. (“Google”) is a Delaware corporation with a principal place of 3 business in California. Defendant 72 & Sunny, Inc. (“Sunny”) is a California corporation with 4 a principal place of business in California. The matter in controversy exceeds, exclusive of 5 interest and costs, the sum of $75,000.00. This Court has diversity jurisdiction under 28 6 U.S.C. § 1332. Venue is proper pursuant to 28 U.S.C. § 1391(a)(1)&(2). 7 2. Intradistrict Assignment. Venue is proper in the San Francisco Division because a 8 substantial part of the events or omissions which give rise to the claims herein alleged 9 occurred in Contra Costa County. 10 3. Darlene Love is an icon of pop music’s golden age. Her distinctive voice is widely 11 known to millions of Americans of all ages from her recordings of He’s a Rebel (as the 12 Crystals), Zip-a-Dee-Doo-Dah (as Bob B. Soxx & the Blue Jeans), Alone on Christmas for the 13 soundtrack of the motion picture Home Alone 2 and Christmas (Baby Please Come Home) 14 which she sang on Late Night with David Letterman’s Christmas shows for 28 years, from 15 1986 through 2014 and on The View in 2015. She is also widely known for the perennial 16 holiday classic It’s a Marshmallow World. She is ranked 84 on Rolling Stone’s 100 Greatest 17 Singers. 18 Foundation Pioneer Award. She portrayed Danny Glover’s wife in the Lethal Weapon motion 19 pictures and had Broadway roles in Leader of the Pack, Carrie, Grease and Hairspray. She is a Rock & Roll Hall of Fame inductee. She holds a Rhythm & Blues 20 4. Google sells Nexus 5X and 6P mobile phones in America and advertises them to 21 the public through television commercials. Sunny is an advertising agency that produces 22 Nexus 5X and 6P commercials for Google. 23 5. Within the statutory period of limitations Google retained Sunny to produce for 24 Google and Sunny & Google jointly caused to be broadcast on television throughout America 25 over 1,400 times and around the world on the Internet over 31,000,000 times a commercial 26 which embodied Love’s identity through copying of her voice singing the song It’s a Page 2 COMPLAINT Case 3:16-cv-00290 Document 1 Filed 01/19/16 Page 3 of 4 1 Marshmallow World. Said appropriation was for Defendants’ commercial advantage, e.g., to 2 appropriate Love’s goodwill for the purpose of selling Nexus phones to consumers. 3 6. Defendants’ conduct was without Love’s consent. 4 7. As a direct and proximate result of Defendants’ conduct Love was deprived of the 5 right to control the use of her identity in connection with the advertising of goods and services 6 and was damaged in an amount in excess of $75,000.00 for the loss of the fees she had a 7 right to charge as a condition of her identity and goodwill being used to induce the public to 8 buy Google’s Nexus phones. 9 8. A voice does not end up in a commercial advertisement by accident. Rather, a 10 number of people are involved in the creation of commercials. The voice of a famous 11 performer, singing a famous song is selected for the express purpose of trading on the 12 performer’s goodwill. 13 performance of It’s a Marshmallow World for their commercials. Defendants consciously and deliberately selected Love’s vocal 14 9. However, Defendants refused to take any steps to obtain Love’s consent and had 15 no reason to believe she had or would consent to such use. Instead, Defendants took 16 deliberate measures to evade contacting her or obtaining her permission. 17 10. Love and virtually every successful recording artist records with labels which are 18 signatories to the AFTRA collective bargaining agreement commonly referred to as the 19 “Phono Code”. Defendants knew that Love recorded It’s a Marshmallow World under the 20 protection of the Phono Code. An honest company, doing business in good faith, would not 21 attempt to deprive Love of the benefits of the union protection and would have engaged a 22 SAG-AFTRA affiliated advertising agency so that the performer (and the background singers) 23 would receive at minimum, the union-mandated benefits. 24 11. However, Google engages in anti-labor advertising practices and in an effort to 25 harm Love, hired Sunny, a scab shop that utilizes recordings of artists created under the 26 protection of collective bargaining agreements, without themselves becoming signatories and Page 3 COMPLAINT Case 3:16-cv-00290 Document 1 Filed 01/19/16 Page 4 of 4 1 complying with the union-mandated obligations for the reuse of phonograph records in 2 commercials. 3 12. Defendants actions were despicable and in conscious disregard of Love’s rights. 4 They turned her into an involuntary pitchman for products of dubious quality. They created a 5 commercial that falsely implied to the public that Love had endorsed Google’s products. They 6 broadcast the commercial on television throughout America over 1,400 times and around the 7 world on the Internet over 31,000,000 times which was likely to result in Love witnessing the 8 appropriation of her identity on national television. Google’s conduct was so loathsome that 9 it intentionally hired a disreputable non-union affiliated advertising company and the two of 10 11 12 them deprived Love of her union protections, all to enrich themselves at her expense. 13. Defendants actions entitle Love to an award of exemplary damages in a sum sufficient to punish them and make examples of them to others. WHEREFORE, Plaintiff prays judgment against Defendants as follows: 13 14 1. For damages in excess of $75,000.00; 15 2. For exemplary damages; 16 3. For costs of suit; 17 4. For such other relief as the Court may deem just; 18 5. Plaintiff demands a trial by jury 19 Dated: January 19, 2015 20 Respectfully submitted, 21 /s/ 22 STEVEN AMES BROWN, Attorney for Plaintiff 23 24 25 26 Page 4 COMPLAINT