Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 1 of 11 Page ID #:1

i

2

3
4

THOMPSON COBURN LLP
MITCHELL REINIS, CSB 36131
mreinis@thompsoncoburn.com
DIANA A. SANDERS, CSB 296689
dsanders@thompsoncoburncom
2029 Century Park East, 19t Floor
Los Angeles, California 90067
Tel: 310.282.2500 / Fax: 310.282.2501

5

Attorneys for Plaintiff Patricia Ward Kelly
6

7

UNITED STATES DISTRICT COURT
8

CENTRAL DISTRICT OF CALIFORNIA
9
lo

li

PATRICIA WARD KELLY, an individual,
Plaintiff,

12
13

CASE NO. 2:16-cv-02960

COMPLAINT FOR COPYRIGHT
INFRINGEMENT

vs.

UNIVERSITY PRESS OF MISSISSIPPI,
a Mississippi Corporation, KELLI
MARSHALL, an individual, and DOES i
15 through 10,

(VERIFIED)

14

16

JURY DEMAND

Defendants.

17
18
19

Plaintiff, Patricia Ward Kelly, alleges:

20

FIRST CLAIM

21

(Copyright Infringement)

22
23

I

.

Plaintiff, Patricia Ward Kelly ("Plaintiff"), is an individual who

resides, and at all times herein concerned did reside, in Los Angeles, California. Plaintiff

24 is the surviving spouse of Eugene C. Kelly ("Gene Kelly"), an internationally known
25 dancer, director, choreographer, actor, and entertainer best known for his starring roles in
26 the classic films Singin ' in the Rain and An American in Paris. Plaintiff is the duly

27 appointed and acting Executrix ofthe Estate ofGene Kelly and the owner ofall of the
28

copyrights at issue in this case. Plaintiff is also a writer, performer, public speaker,
COMPLAINT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 2 of 11 Page ID #:2

1

archivist and authority on Gene Kelly's life and work. Plaintiff has devoted her adult life

I

2

and career to promoting and protecting all aspects of Gene Kelly's legacy by writing,

3

directing and performing works that rely on the copyrights at issue in this case.
Plaintiff is informed and believes and upon such information and

2.

4
5

beliefalleges that defendant, University Press ofMississippi ("University Press), is a non-

6

profit corporation organized under the laws of, and maintaining its principal place of

7

business in, the State ofMississippi. Plaintiffis informed and believes and upon such

8

information and belief alleges that University Press conducts a literary publishing business

9

nationally and internationally, including a sales office in the Central District of California.

10

Plaintiff is informed and believes and upon such information and

3.

il

belief alleges that defendant, Kelli Marshall, is an individual who resides in Chicago,

12

Illinois. Plaintiff is informed and believes and upon such information and belief alleges

13

that Marshall is an instructor at the DePaul University College of Communication and

14

edits and causes publication of literary works on popular culture and public figures

15

nationally, including in the Central District of California. Marshall also maintains an

16

active website on the World Wide Web that advertises her projects nationally, worldwide

17

and in the Central District of California.
4.

18
19

The true names or capacities, whether individual, corporate, associate

or otherwise ofthe defendants sued herein as Does i through 10, are unknown to Plaintiff

I

20

who, therefore, sues such defendants by fictitious names. Plaintiffwill ask leave to amend

21

this pleading to show their true names or capacities when the same have been ascertained.

22

Plaintiff is informed and believes and upon such information and belief alleges that the

23

DOE defendants are related entities, representatives, and agents ofthe named defendants

24

or conspired with and aided and abetted the other defendants to do the things complained

25

of herein.

26

27

5

.

This claim arises under the copyright laws of the United States, Title

17, United States Code, and the Court'sjurisdiction is founded upon 28 U.S.C. 1338.
I

28
2
COMPLAINT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 3 of 11 Page ID #:3

1

6.

This Court has personal jurisdiction over University Press in that the

2

alleged willful infringing conduct by University Press is expressly aimed at Plaintiff, a

3

California resident, and has a direct impact on the State of California. Further, Plaintiff is

4

informed and believes and upon such information and belief alleges that this Court has

5

personal jurisdiction over University Press in that University Press engages in continuous

6

and systematic business in California and derives revenues from its commercial activities

7

in California. Plaintiff is informed and believes and upon such information and belief

8

alleges that University Press maintains a sales office at 2031 North Craig Avenue,

9

Altadena, California, which sales office is advertised and disclosed on the official website

lo

for University Press, www.upress.state.rns.us. University Press' maintains an active

11

website whereby it includes its catalog ofworks and provides a mechanism by which

12

customers, including those in California, can purchase works online through the website.

13

Plaintiff is informed and believes and upon such information and belief alleges that

14

University Press' publications are offered for sale in California and sold domestically in

15

interstate commerce, including in the State of California.

16

7.

This Court has personal jurisdiction over Marshall in that the alleged

17

infringing conduct by Marshall is willful, expressly aimed at Plaintiff, a California

18

resident, and has a known impact on the State of California. Plaintiff is informed and

19

believes and upon such information and beliefalleges that this Court has personal

20 jurisdiction over Marshall in that Marshall engages in continuous and systematic business
21

activities in California and derives revenues from her commercial activities in California.

22 Plaintiff is further informed and believes and upon such information and belief alleges that
23

since 20 1 5, Marshall has engaged in continuous commercial activities in California and

24 has sold and distributed literary works through I-5 Publishing, LLC, a limited liability
25

company authorized to do and doing business in California with an agent for service of

26 process in Glendale, California. Plaintiff is informed and believes and upon such
27

inforniation and belief further alleges that Marshall's book, Locating Shakespeare in the

28
3
COMPLAINT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 4 of 11 Page ID #:4

Twenty-First Century, has been targeted and sold to California residents. Further,

i

2

I

3

I

4
5
6

Marshall owns and operates the website www.kellirnarshall.net, that she utilizes to

promote herself and her publications domestically in every state, including the State of
California. Marshall's website is interactive and provides users, including California

I

users, links to engage in commercial transactions to purchase her publications. Marshall
I

also maintains an active and global online presence, promoting and advertising her name
I

7

and works through blogs, social media platforms and media outlets, including

8

www.genekellyfans .com, twitter.com/kellirnarshall, and www.chroniclevitae.com/people/

22828- kelli-marshall/articles, all ofwhich provide a direct and substantial nexus between

rj

lo

Plaintiffs claims in this case and Defendants' transaction ofbusiness with California

11

residents.
8.

12
13

I

14

I

Venue is proper in this District under Title 28 U.S.C.

1400(a) and

1391(b). It is a place where a substantial part ofthe events or omissions giving rise to the
claim occurred, where Plaintiffhas been injured and damaged, and where Defendants have

15

done and are doing business.

16

9.

Plaintiff's late husband, Gene Kelly, enjoyed great international

17

success in movies and on stage. As a result ofhis fame, he participated in various press

18

and promotional endeavors, including interviews to news and inedia publications.

19

lo.

The spoken and written words by Gene Kelly during all of his

20 interviews ("Interviews") are original works of authorship and are copyrightable subject
I

matter under the laws ofthe United States.

21

il.

22
23

I

Prior to and during Gene Kelly's marriage to Plaintiff, which lasted

until his death in 1996, Plaintiffwas designated as

MiS.

Kelly's official biographer and

24 archivist of his materials, including letters, interviews, manuscripts, holograph notes.
25

photographs, memorabilia, and related items. Plaintiff is the sole, official authority

26

entrusted by Gene Kelly to promote and protect his legacy. In these capacities, Plaintiff

27 documented his life and work, and collected, organized and catalogued his materials.
28
4
COMPLAINT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 5 of 11 Page ID #:5

including the Interviews, so that these materials could be used to write books, create online

1
I

platforms, and produce films, educational talks and shows, so as to provide an accurate

2
I

3

record of Gene Kelly's life and work.

I

12.

4

In accordance with Gene Kelly's Will and the Eugene C. Kelly

Family Trust, Plaintiffwas bequeathed and succeeded to the rights to Gene Kelly's

5
I

intellectual property, including the copyrights in and to the Interviews.

6
I

13.

7

At all times herein concerned, Plaintiffhas been and still is the sole

proprietor of all right, title, and interest in and to the copyrights in the Interviews.

8
I

14.

9

10

Among the exclusive rights granted to Plaintiffunder the Copyright

Act are the exclusive rights to reproduce, publish and distribute the Interviews and to
I

prepare derivative works based upon the Interviews.

11

12

i5.

Plaintiff is a writer, performer and public speaker in her own right and

has published numerous works, including articles and varying accounts about the life and

13
I

work ofher late husband. Following Mr. Kelly's death, and in fulfilling his wishes,

14
15

Plaintiff continues to preserve, catalogue and utilize Gene Kelly's written and recorded
I

16

words and other works, including the Interviews, to further his legacy. In 20 1 1 , as part of

17

these efforts, Plaintiff formed The Gene Kelly Legacy, Inc., a corporation established to

18

promote and protect Gene Kelly's artistry worldwide. As the official authority on Gene

19

Kelly, Plaintiff has introduced his films around the world, spoken in scores of high schools

20

and universities, participated in numerous interviews, presented awards in Mr. Kelly's

21

honor, and recorded commentary for media outlets, all of which rely heavily on the

22

Interviews. In 20 1 2, Plaintiff launched a one-woman show, GENE KELLY: THE

23

I

LEGACY An Evening with Patricia Ward Kelly, which show relies heavily on the

24 Interviews, performances, and thoughts. This show continues to tour to sold-out audiences
25 across the country and abroad.
26

16.

All ofthese endeavors, as part ofThe Gene Kelly Legacy platform,

27 have been essential to building momentum and creating a market demand in anticipation of
I

28
5

COMPLA[NT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 6 of 11 Page ID #:6

1

Plaintiff's forthcoming projects that include an official Gene Kelly memoir, an official

2

Symphonic/Cinema Tribute titled GENE KELLY: A LIFE IN MUSIC, a "virtual" GENE

3

KELLY EXPERIENCE online platform, and continued performances of her one-woman

4

show. Each of these projects incorporates Mr. Kelly's unique expressions about his life

5

and work by extensively utilizing and relying on his Interviews. The accuracy and

6

authenticity of The

I

is dependent upon Plaintiff's ability to control and

use Gene Kelly's intellectual property, especially the Interviews.

7

17.

8
9

Gene Kelly Legacy

Prior to the filing ofthis pleading, Plaintiffcomplied in all respects

with the Copyright Act and all other laws governing copyright, and filed registration
I

lo

applications to protect her exclusive rights and privileges in and to the copyrights of the

11

Interviews. Attached hereto as Exhibit A are the registration applications for the

12

Interviews believed by Plaintiffto be the subject ofDefendants' forthcoming infringing
I

publication.

13

18.

14
15

I

On or about March 29, 2016, Plaintiffwas contacted by defendant

Marshall via a Facebook message inquiring whether permission is needed to include

16

several ofthe Interviews in a printed book Marshall is planning to cause to be issued by

17

and through University Press.
19.

18
19

Ou or about March 29, 2016, Plaintiffresponded to Marshall via

Facebook message, stating, "Yes, Gene's words are his intellectual property . . as are his
.

I

20

letters, holograph notes, magazine pieces, etc.

21

them."
20.

22
23

.

.

.

You must obtain permission to use

On or about March 29, 2016, Marshall responded to Plaintiff via

Facebook message, informing Plaintiffthat Marshall is in the process ofediting a book of
I

24 Gene Kelly interviews for co-defendant, University Press, as part ofthe University Press'
25

"Conversations with Filmmakers" series (the "Book"). Marshall stated that she intends to

26

use various Gene Kelly interviews. including several interviews Gene Kelly had conducted

27 with the British Broadcasting Company ("BBC"). Marshall sought Plaintiff's permission
28
COMPLAINT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 7 of 11 Page ID #:7

for use of those Interviews.

i

21.

2

'

On or about March 29, 2016, Marshall sent several follow-up

Facebook messages to Plaintiff, asking Plaintiffto respond by week's end.

3

22.

4

Marshall is advertising on her website, www.kellirnarshall.net, the

Book as follows: "Her book Gene Kelly. Interviews.., is forthcoming from the University

5

of Mississippi Press."

6
I

7

23 .

The website for the faculty in the College of Communications at

8

DePaul University contains the following notices posted on Marshall's Faculty

9

"Instructor" page: "Her book Gene Kelly.' Interviews .

.

.

is forthcoming from the

lo

University ofMississippi Press." On the same page, under the heading of "Selected

11

Publications and Research - Books," the following item is listed: "Gene Kelly: Interviews.

12

(Ed.) (University ofMississippi Press)."

13

24.

On March 3 1 , 20 1 6, Plaintiff, through counsel, sent defendants

14

Marshall and the University Press a letter ("Cease and Desist Letter") via electronic mail

15

and certified mail. The Cease and Desist Letter advised the Defendants that no permission

16

is, or ever has been, granted to use the Interviews or any other Gene Kelly intellectual

17

property for the Book or otherwise. The Cease and Desist Letter demanded that the Book

18

project be discontinued and that written confirmation of its discontinuance be sent to

19

Plaintiff's counsel by April 7, 2016.

20
21

22
23

25.

Each ofthe Defendants received the Cease and Desist Letter and

signed for the receipt thereof. Marshall never responded to the Cease and Desist Letter.
26.

On April 1 1, 2016, University Press responded to Plaintiff's counsel

by letter, stating that University Press was going ahead with the Book upon obtaining

24 permission from unidentified third parties and would use the Interviews in the Infringing
25

26

Book, except for the Interviews with the BBC.
27.

On April 18, 2016, Plaintiff's counsel responded to University Press

27 by email (copying Marshall), stating that Plaintiffowns the copyrights to all of the
28
7
COMPLAINT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 8 of 11 Page ID #:8

i

Interviews, not just interviews with the BBC, and that Defendants have no permission to

2

use any of the Interviews for the Book or for any other purpose. In that same email,

3

Plaintiff's counsel advised University Press that the threatened publication is highly

I

damaging to Plaintiff's rights and, unless Defendants cease and desist, Plaintiffwould seek

4
I

damages, including statutory damages, for willful infringement ofthe copyrights in the

5
I

6 I Interviews.

28.

7
8

Defendants have not responded to the April 1 8, 20 1 6 email from

I Plaintiff's counsel.
29.

9

After receipt ofthe Cease and Desist Letter and the follow up email of

April 1 8, 20 1 6, Marshall did not remove or otherwise alter the advertisement about the

10
I

11

Book being published on her website, www.kellimarshall.net. As ofthe date ofthe filing

12

ofthis Complaint, Marshall continues to advertise the Book as set forth above in

13

Paragraphs 22 and 23.
I

30.

14
15

Defendants' intended and threatened publication and dissemination of

the Interviews constitutes infringement under the United States Copyright laws.
I

16

31

.

Defendants' intended and threatened publication and dissemination of

17

the Interviews is willful, deliberate and in disregard of and with indifference to the rights

18

ofPlaintiff, the owner ofthe copyrights in the Interviews.
32.

19

Plaintiff has no adequate remedy at law for the foregoing wrongful

20

conduct in that it is impossible to calculate the damage to Plaintiff. The conduct of

21

Defendants, unless enjoined and restrained by this Court, will cause Plaintiffgreat and

22

irreparable injury that cannot fully be compensated or measured in money. Pursuant to i 7

23

U.S.0

502 and 503, Plaintiffis entitled to a temporary restraining order and

24 preliminary and permanent injunctive reliefprohibiting Defendants from publishing the
25

Interviews and infringing Plaintiff's copyrights in and to the Interviews, and ordering

26 Defendants to destroy all copies ofthe Interviews made in violation ofPlaintiff's exclusive
27 rights.
28
8
COMPLAINT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 9 of 11 Page ID #:9

33.

i

As a result ofDefendants' threatened infringement of Plaintiff's

2

copyrights and her exclusive rights in and to the Interviews, Plaintiff is entitled to actual

3

and statutory damages and profits. Plaintiff is also entitled to attorney fees and costs

4

pursuantto 17 U.S.0

505.

5

WHEREF ORE, Plaintiff prays for j udgrnent as follows:

6

i

.

For a temporary restraining order and preliminary and permanent injunction

7

ordering Defendants, their agents, employees, aftorneys, and all persons in active concert

8

or participation with them to cease and refrain immediately and until a final hearing and

9

determination of this action, from duplicating, copying, posting, advertising, exploiting,

10

editing, printing, publishing, releasing, selling, offering to sell, marketing, disseminating or

ii

in any manner using the Interviews or any other copyrighted matter belonging to Plaintiff,

12

or any substantial portion thereof:

13

2. For actual and compensatory damages and profits;

14

3. For an order for destruction. deletion or elimination ofall of Defendants'

15

products and advertising and promotional material bearing, utilizing or incorporating the

16

Interviews, or any portion thereof, or any other copyrighted matter belonging to Plaintiff,

17

or any substantial portion thereof, and removal of same from the Internet;

18

4. For statutory damages for the violation ofPlaintiff's copyrights;

19

5.

20

6. For such other and further reliefas this Court may deemjust and proper.

For an award ofattorneyfees and costs as allowed by law; and

21

22 IDATED: April 29, 2016

THOMPSON COBURN LLP

23

24

By:

Is! Mitchell Remis

25

MITCHELL REINIS

26

DIANA A. SANDERS
Attorneys for Plaintiff Patricia Ward Kelly

27
28
COMPLAINT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 10 of 11 Page ID #:10

DEMAND FOR JURY TRIAL

i

2
3

Pursuant to Federal Rule of Civil Procedure 38(b). Plaintiff hereby demands a trial
by jury of all issues so triable.

4
5

DATED: April 29, 2016

THOMPSON COBURN LLP

6
7
8
9

By:

Is! Mitchell Remis

MITCHELL REINIS

DIANA A. SANDERS
Attorneys for Plaintiff Patricia Ward Kelly

lo

11

12
13

14
15
16
17
18
19

20
21

22
23

24
25
26

27
28
10
COMPLAINT FOR COPYRIGHT INFRINGEMENT (VERIFIED)

 Case 2:16-cv-02960-PA-GJS Document 1 Filed 04/29/16 Page 11 of 11 Page ID #:11

'I''l.J- (.TŒO\ O!F C OMPLAIiiT AEL C;ETIA'iI{)
(:\I FF(IiF\i

I/'! IF

_ :iLi.:

I:JITii:iii

Luji1j
.

I

I7tI

:

F IiL'

::

LI iI i

I

-

9

Ii'i

i:

i¡u.

in ut

rht

riB I

kiii' II.

£ I iiv

tt‹dd i n ia

irid

ncid IiI ion

h iriiiiiiI Ii ir Linic

i

atrn

ii

i s;j,ij1'iI‡ iur

i iriiLiin i.

i:

tv'

J'p;1ff

@lLCIk« •nra

14

5
Iii

.

r r¡'riC

nri 1:

'

II

tiir

l 'i

ihk

I u h arid
L;fII'.:'d io

7.

I

i k

.

iiii

' itcnp-auwi

Jl

tiii. naft1Ld -n iic tripnir[.

I

aid 1ILI?, 1r I It

1it1LI

I Ii

i

puijie

1

Siatci. cil

L

II

J trt. ;I!!IJl

Iiu

• lrr•\i

v hfl flus

;iirti.

rir ikI t'

t

iiiii.

i

'1

I h'.': Œ;ti j1ierd chni2J rnniJ1ktJ ur ta1nLI:d i1t;. chIib.

I dcL1:IL UT4kT pi.ria1i

1j

t;i I it

iri PIjh111

.

J ?LI1fl1b. ir crijb

Lht.

I

iTiI)riJ!1.9T lrM;r JIcIi

L.

16
11

br ti

Œ )cnLi. ‡ni

i‡vI Nari

u

10

i ii..

i'CdIIL

I

'

hi..:ti:; ; [hi:I i1hi. C tinipIinL i. riot

4

I,

I :.

' ct:iIin'

I h.0

':

i

:tmc Ii

10

I ..-

h:1

.

I..

L1iI1 I.ILN

.Iiti Itd tii

II bd

r

Iii i'

i

i

: rq.d tIu: ,iht

I din:

i

nIurunfltt,n ;LINI I

_;

ILflII1 I

n.&ica thit

Sai.c ixfC'a1itrnia aii

¡pjtir. 'IrIiir l‹ IIv- i¡th
fli

ir-g‹i i

i

curutt i

ri

LI‹i. i: rš1

fl

h.n–v k!:IgL_

n
23

I

:rJ_ .21'

(i_ ii.

I

.i.t:,

u

I':'.

..I

..

i

...-

/
.'.-.'-

---

.d

-..

...-

...

./

_jie
«

im'.i K cI I,

27

ti ;ut It'A€ I':t; 'j!

tILF.:I JFJ•AI'4

d

'...

..,'

A-.'7

rrih