Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 1 of 28 Page ID #:1 1 2 3 4 5 6 7 8 9 Stephen M. Doniger (SBN 179314) stephen@donigerlawfirm.com Scott Alan Burroughs (SBN 235718) scott@donigerlawfirm.com Trevor W. Barrett (SBN 287174) tbarrett@donigerlawfirm.com Justin M. Gomes (SBN 301793) jgomes@donigerlawfirm.com DONIGER / BURROUGHS 603 Rose Avenue Venice, California 90291 Telephone: (310) 590-1820 Attorneys for Plaintiff 10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 14 15 Case No.: JUAN MARCOS MONTES, an individual, PLAINTIFF’S COMPLAINT FOR: Plaintiff, 1. COPYRIGHT INFRINGEMENT; v. 2. VICARIOUS AND/OR CONTRIBUTORY COPYRIGHT INFRINGEMENT 16 17 18 19 20 21 22 23 C3 PRESENTS, LLC, a Texas Limited Liability Company; LIVE NATION ENTERTAINMENT, INC., a Delaware Corporation, individually and doing business as “LOLLAPALOOZA, LLC”; THE UPRISING CREATIVE, a Delaware Corporation; and DOES 1 through 10, Jury Trial Demanded Defendants. 24 25 26 27 28 -1COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 2 of 28 Page ID #:2 1 2 JUAN MARCOS MONTES (“MONTES”), by and through his undersigned attorneys, hereby prays to this honorable Court for relief based on the following: JURISDICTION AND VENUE 3 4 5 6 7 1. This action arises under the Copyright Act of 1976, Title 17 U.S.C., §§ 101 et seq. 2. This Court has federal question jurisdiction under 28 U.S.C. §§ 1331 and 1338 (a) and (b). 8 3. Venue in this judicial district is proper under 28 U.S.C. §§ 1391(c) and 9 1400(a) in that this is the judicial district in which a substantial part of the acts and 10 omissions giving rise to the claims occurred. PARTIES 11 12 13 14 4. Plaintiff MONTES is an individual artist, creating art under the name “Juan Marco,” residing in Los Angeles, California. 5. Plaintiff is informed and believes and thereon alleges that Defendant C3 15 PRESENTS, LLC (“C3”) is a limited liability company organized and existing under 16 the laws of the State of Texas, and is doing business in California and this District. 17 6. Plaintiff is informed and believes and thereon alleges that LIVE NATION 18 ENTERTAINMENT, INC., individually and doing business as “LOLLAPALOOZA, 19 LLC” (collectively “LIVE NATION”) is a corporation organized and existing under 20 21 22 23 24 25 26 27 28 the laws of the State of Delaware, and is doing business in California and this District. 7. Plaintiff is informed and believes and thereon alleges that THE UPRISING CREATIVE, (“UPRISING”) is a corporation organized and existing under the laws of the State of Delaware, and is doing business in California and this District. 8. Plaintiff is informed and believes and thereon alleges that some of Defendants Does 1 through 3, inclusive, are manufacturers and/or vendors of product, which Doe Defendants have manufactured and/or supplied and are -2COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 3 of 28 Page ID #:3 1 manufacturing and/or supplying garments comprised of product printed with 2 Plaintiff’s copyrighted artwork (as hereinafter defined) without Plaintiff’s 3 knowledge or consent or have contributed to said infringement. The true names, 4 whether corporate, individual or otherwise of Defendants Does 1-3, inclusive, are 5 presently unknown to Plaintiff, which therefore sues said Defendants by such 6 fictitious names and will seek leave to amend this complaint to show their true 7 names and capacities when same have been ascertained. 8 9 9. Defendants Does 4 through 10, inclusive, are other parties not yet identified who have infringed Plaintiff’s copyrights, have contributed to the infringement of 10 Plaintiff’s copyrights, or have engaged in one or more of the wrongful practices 11 alleged herein. The true names, whether corporate, individual or otherwise, of 12 Defendants 4 through 10, inclusive, are presently unknown to Plaintiff, which 13 therefore sues said Defendants by such fictitious names, and will seek leave to 14 amend this Complaint to show their true names and capacities when same have been 15 ascertained. 16 10.Plaintiff is informed and believes and thereon alleges that at all times 17 relevant hereto each of the Defendants was the agent, affiliate, officer, director, 18 manager, principal, alter-ego, and/or employee of the remaining Defendants and was 19 at all times acting within the scope of such agency, affiliation, alter-ego relationship 20 and/or employment; and actively participated in or subsequently ratified and 21 adopted, or both, each and all of the acts or conduct alleged, with full knowledge of 22 all the facts and circumstances, including, but not limited to, full knowledge of each 23 and every violation of Plaintiff’s rights and the damages to Plaintiff proximately 24 caused thereby. 25 26 27 28 CLAIMS RELATED TO PLAINTIFF’S ARTWORK 11. Prior to the conduct complained of herein, Plaintiff composed a number of pieces of artwork (the “Subject Works”). These works were original independent -3COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 4 of 28 Page ID #:4 1 creations of Plaintiff, and are owned exclusively by Plaintiff. Non-exclusive 2 exemplars of the Subject Works are depicted below: 3 4 SUBJECT WORKS: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 5 of 28 Page ID #:5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 6 of 28 Page ID #:6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 7 of 28 Page ID #:7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 8 of 28 Page ID #:8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 9 of 28 Page ID #:9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 10 of 28 Page ID #:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 11 of 28 Page ID #:11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 12 of 28 Page ID #:12 1 2 3 4 5 6 7 8 9 10 11 12 13 12. Plaintiff applied to register the Subject Works with the U.S. Copyright Office before this lawsuit was filed. 13. Plaintiff entered into a non-exclusive, limited license agreement with C3 14 through intermediary, UPRISING, allowing C3 to use certain of the Subject Works 15 in connection with the Lollapalooza music festival in Chicago, Illinois and Santiago, 16 Chile for a period of three years. 17 14. Plaintiff’s investigation revealed that Defendants and each of them 18 continued to use the Subject Works outside of the scope, and beyond the temporal 19 period, of the license without Plaintiff’s authorization. 20 15. Plaintiff’s investigation further revealed that Defendants and each of them 21 used the Subject Works in connection with Lollapalooza events outside of the United 22 States and Chile without Plaintiff’s authorization. 23 16. Plaintiff’s investigation further revealed that Defendants and each of them 24 sub-licensed to certain third parties the use of certain of the Subject Works without 25 Plaintiff’s authorization. 26 27 28 17. Plaintiff is informed and believes and thereon alleges that, without Plaintiff’s authorization, C3, LIVE NATION, UPRISING, and certain Doe - 12 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 13 of 28 Page ID #:13 1 defendants, created, sold, manufactured, caused to be manufactured, imported and/or 2 distributed products, marketing materials, advertisements, and installations featuring 3 art that is identical to or substantially similar to the Subject Works (“Infringing 4 Uses”) beyond the scope of the limited license provided to C3. Below are 5 comparisons of certain Subject Works and non-exclusive exemplars of Infringing 6 Uses exceeding the three year term of the limited license provided to C3. 7 8 SUBJECT WORKS: INFRINGING USES: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 14 of 28 Page ID #:14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 15 of 28 Page ID #:15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 16 of 28 Page ID #:16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18. Below are comparisons of certain Subject Works and non-exclusive exemplars of Infringing Uses outside of the United States and Chile. 26 27 28 - 16 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 17 of 28 Page ID #:17 1 SUBJECT WORKS: INFRINGING USES: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 18 of 28 Page ID #:18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 19 of 28 Page ID #:19 1 2 3 4 5 6 7 8 9 10 11 12 13 19.Below are comparisons of certain Subject Works and non-exclusive 14 exemplars of Infringing Uses created or exploited under improper purported sub- 15 licenses between C3 or LIVE NATION and Doe Defendants or third parties. 16 SUBJECT WORKS: INFRINGING USES: 17 18 19 20 21 22 23 24 25 26 27 28 - 19 COMPLAINT Case Document 1 Filed 02/09/18 Page 20 of 28 Page ID #220 Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 22 of 28 Page ID #:22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 22 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 23 of 28 Page ID #:23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 23 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 24 of 28 Page ID #:24 1 2 3 4 5 6 7 8 9 10 20.The above comparisons make apparent that the elements, composition, 11 colors, arrangement, layout, rendering, and appearance of the artworks at issue are 12 identical, strikingly similar, or at least substantially similar. 13 FIRST CLAIM FOR RELIEF 14 (For Copyright Infringement – Against All Defendants, and Each) 15 21. Plaintiff repeats, realleges, and incorporates herein by reference as though 16 fully set forth, the allegations contained in the preceding paragraphs of this 17 Complaint. 18 22. Plaintiff is informed and believes and thereon alleges that Defendants, and 19 each of them, had access to the Subject Works, including, without limitation, 20 through (a) access to Plaintiff’s library of original art; (b) access to copies of the 21 Subject Works through third-parties, such as The Uprising Collective; and (c) access 22 to the Subject Works directly from Plaintiff. 23 23. Plaintiff is informed and believes and thereon alleges that Defendants, and 24 each of them, infringed Plaintiff’s copyrights by creating, making, and/or developing 25 directly infringing and/or derivative works from the Subject Works beyond the scope 26 of any license from Plaintiff, and by producing, distributing and/or selling products, 27 28 - 24 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 25 of 28 Page ID #:25 1 marketing materials, and installations that infringe the Subject Works in connection 2 with Lollapalooza music festivals on-site and through on-line websites. 3 4 5 6 24. Due to Defendants’ acts of infringement, Plaintiff has suffered substantial damages to his business in an amount to be established at trial. 25. Due to Defendants’ acts of infringement, Plaintiff has suffered general and special damages in an amount to be established at trial. 7 26. Due to Defendants’ acts of copyright infringement as alleged herein, 8 Defendants, and each of them, have obtained direct and indirect profits they would 9 not otherwise have realized but for their infringement of the Subject Works. As such, 10 Plaintiff is entitled to disgorgement of Defendant’s profits directly and indirectly 11 attributable to Defendant’s infringement of the Subject Works in an amount to be 12 established at trial. 13 27. Plaintiff is informed and believes and thereon alleges that Defendants, and 14 each of them, have committed acts of copyright infringement, as alleged above, 15 which were willful, intentional and malicious, which further subjects Defendants, 16 and each of them, to liability for statutory damages under Section 504(c)(2) of the 17 Copyright Act in the sum of up to one hundred fifty thousand dollars ($150,000.00) 18 per infringement. Within the time permitted by law, Plaintiff will make its election 19 between actual damages and statutory damages. 20 SECOND CLAIM FOR RELIEF 21 (For Vicarious and/or Contributory Copyright Infringement - Against All 22 Defendants) 23 28. Plaintiff repeats, realleges, and incorporates herein by reference as though 24 fully set forth, the allegations contained in the preceding paragraphs of this 25 Complaint. 26 29. Plaintiff is informed and believes and thereon alleges that Defendants 27 knowingly induced, participated in, aided and abetted in and profited from the illegal 28 - 25 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 26 of 28 Page ID #:26 1 reproduction and/or subsequent sales of product, marketing materials, and 2 installations featuring the Subject Works and derivative works thereof as alleged 3 herein. 4 30. Plaintiff is informed and believes and thereon alleges that Defendants, and 5 each of them, are vicariously liable for the infringement alleged herein because they 6 had the right and ability to supervise the infringing conduct – the copying of 7 Plaintiff’s artwork – and because they had a direct financial interest in the sales and 8 distribution of the Infringing Uses. 31. By reason of the Defendants’, and each of their, acts of contributory and 9 10 vicarious infringement as alleged above, Plaintiff has suffered and will continue to 11 suffer substantial damages to its business in an amount to be established at trial, as 12 well as additional general and special damages in an amount to be established at 13 trial. 14 32. Due to Defendants’, and each of their acts of copyright infringement as 15 alleged herein, Defendants, and each of them, have obtained direct and indirect 16 profits they would not otherwise have realized but for their infringement of 17 Plaintiff’s rights in the Subject Works. As such, Plaintiff is entitled to disgorgement 18 of Defendants’ profits directly and indirectly attributable to Defendants’ 19 infringement of the Subject Works, in an amount to be established at trial. 20 33. Plaintiff is informed and believes and thereon alleges that Defendants, and 21 each of them, have committed acts of copyright infringement, as alleged above, 22 which were willful, intentional and malicious, which further subjects Defendants, 23 and each of them, to liability for statutory damages under Section 504(c)(2) of the 24 Copyright Act in the sum of up to one hundred fifty thousand dollars ($150,000.00) 25 per infringement. Within the time permitted by law, Plaintiff will make its election 26 between actual damages and statutory damages. 27 28 - 26 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 27 of 28 Page ID #:27 PRAYER FOR RELIEF 1 2 Wherefore, Plaintiff prays for judgment as follows: Against All Defendants 3 With Respect to Each Claim for Relief 4 a. That Defendants, their agents and employees be enjoined from 5 6 infringing Plaintiff’s copyrights in any manner, specifically those for the 7 Subject Works; b. That Plaintiff be awarded all profits of Defendants plus all losses of 8 Plaintiff, plus any other monetary advantage gained by the Defendants 9 10 through their infringement, the exact sum to be proven at the time of 11 trial, or, if elected before final judgment, statutory damages as available 12 under the Copyright Act, 17 U.S.C. § 101, et seq.; c. That Defendants, and each of them, account to Plaintiff for their profits 13 14 and any damages sustained by Plaintiff arising from the foregoing acts 15 of infringement; d. That Plaintiff be awarded costs, and any other damages available, per 17 16 USC § 505. 17 18 e. That Plaintiff be awarded pre-judgment interest as allowed by law; 19 f. That Plaintiff be awarded the costs of this action; and 20 g. That Plaintiff be awarded such further legal and equitable relief as the Court deems proper. 21 22 23 24 25 26 /// 27 28 - 27 COMPLAINT Case 2:18-cv-01150-SVW-JEM Document 1 Filed 02/09/18 Page 28 of 28 Page ID #:28 1 PLAINTIFF DEMANDS A JURY TRIAL ON ALL ISSUES SO TRIABLE 2 PURSUANT TO FED. R. CIV. P. 38 AND THE 7TH AMENDMENT TO THE 3 UNITED STATES CONSTITUTION. Respectfully submitted, 4 5 6 7 8 9 Dated: February 9, 2018 By: /s/ Scott Alan Burroughs Scott Alan Burroughs, Esq. Trevor W. Barrett, Esq. Justin M. Gomes, Esq. DONIGER / BURROUGHS Attorneys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 28 COMPLAINT