Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 1 of 30 PageID #: 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK __________________________________________ : XCLUSIVE-LEE, INC., : : Plaintiff, : : v. : : JELENA NOURA “GIGI” HADID, : : Defendant. : : __________________________________________: Civil Action No.: 19-cv-520 COMPLAINT AND JURY DEMAND COMPLAINT FOR COPYRIGHT INFRINGEMENT Plaintiff, XCLUSIVE-LEE, INC. (“Xclusive” or “Plaintiff”), brings this complaint in the United States District Court for the Eastern District of New York against JELENA NOURA “GIGI” HADID (“Hadid” or “Defendant”), alleging as follows: PARTIES 1. Xclusive is a New York Domestic Business Corporation with a principal place of business in Rego Park, New York. 2. Hadid is an American fashion model. In 2016, Hadid was named International Model of the Year by British Fashion Council. Hadid has modeled for Versace, Chanel, Elie Saab, Fendi, Marc Jacobs, Anna Sui, Miu Miu, Balmain, Diane Von Furstenberg, Tommy Hilfiger, Fenty, Puma, Isabel Marant, and Giambattista Valli. Hadid has also starred in advertising campaigns for Guess, Versace, Penshoppe, Balmain F/W 2015, Topshop, Max Mara, and Stuart Weitzman. Hadid has appeared on the covers of magazines such as Vogue (United States, Paris, Italy, Britain, Japan, Spain, Australia, Brazil, the Netherlands, Germany, Italy, Complaint Page 1 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 2 of 30 PageID #: 2 China), Schön!, Numéro, Allure, W Magazine and Teen Vogue as well as WSJ Magazine, Elle Canada, Dazed and Harper’s Bazaar.1 Hadid maintains and is personally responsible for her official Instagram account, which has over 44 million followers worldwide. Hadid resides in New York, New York. JURISDICTION AND VENUE 3. This is a civil action seeking damages for copyright infringement under the copyright laws of the United States (17 U.S.C. § 101 et seq.). 4. This Court has jurisdiction under 17 U.S.C. § 101 et seq.; 28 U.S.C. § 1331 (federal question); and 28 U.S.C. § 1338(a) (copyright). 5. Defendant is subject to personal jurisdiction in New York. 6. Venue is proper in this district under 28 U.S.C. § 1391(b) and (c) and 1400(a) because the events giving rise to the claims occurred in this district, Defendant engaged in infringement in this district, Plaintiff resides in this district, and Defendant is subject to personal jurisdiction in this district. 7. This Court also has personal jurisdiction over Defendant, and venue in this District is proper under 28 U.S.C. § 1400(a). This Court also has personal jurisdiction over Defendant, and venue in this District is proper under 28 U.S.C. § 1400(a). 1 https://en.wikipedia.org/wiki/Gigi_Hadid Complaint Page 2 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 3 of 30 PageID #: 3 FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS 8. Xclusive is the copyright holder of “Gigi Hadid on Oct 11, 2018” (“Copyrighted Photograph”), which was captured on October 11, 2018 in New York City. [Exhibit 1]. 9. On October 12, 2018, Hadid copied and uploaded Copyrighted Photograph to Hadid’s Instagram account. 10. As a result of Hadid’s actions described in Paragraph 11, Copyrighted Photograph was posted and publicly displayed to the following URLs: • www.instagram.com/gigihadid/?hl-en. (Last visited October 15, 2018) [Exhibit 3] • www.instagram.com/p/Boz7ASBHBDt/?hl=en&taken-by=gigihadid (Last visited October 15, 2018). [Exhibit 4]. (together “Instagram Posts”) 11. Hadid copied and posted Copyrighted Photograph to Hadid’s Instagram account without license or permission from Xclusive. 12. Hadid’s Instagram account is followed by more than forty-three million (43,000,000) individuals throughout the world. [Exhibit 4]. 13. More than 1.6 million (1,600,00) followers commented on Instagram Posts within four days of October 12, 2018. [Exhibit 4]. 14. Prior to October 12, 2018, Hadid had first-hand knowledge that copying and posting photographs, of herself or other subject matters, to her Instagram or other social media accounts that she did not properly license or otherwise receive permission from the copyright holder constituted copyright infringement. 15. Specifically, Hadid was named as a defendant and served with a copy of a complaint and summons in a suit alleging copyright infringement, Peter Cepeda v. Jelena Noura “Gigi” Hadid and IMG Worldwide, Inc., 1:17-cv-00989-LMB-MSN (E.D. Va.) (2017). Complaint Page 3 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 4 of 30 PageID #: 4 16. Although the case was settled prior to the discovery stage of litigation, the facts alleged in Cepeda are nearly identical to the facts alleged in the present case, including the allegation Hadid copied and posted Plaintiff Cepeda’s copyrighted photograph (of Hadid on a public street in New York City) to Hadid’s Instagram and Twitter accounts without license or permission from Cepeda. 17. As of the date of this filing, Hadid’s Instagram account includes at least fifty (50) examples of uncredited photographs of Hadid in public, at press events, or on the runway. [Exhibit 5]. Most if not all of these photographs were posted by Hadid without license or permission from the copyright holder. Complaint Page 4 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 5 of 30 PageID #: 5 COUNT I: INFRINGEMENT OF COPYRIGHT PURSUANT TO 17 U.S.C. § 101 ET SEQ. 18. Xclusive incorporates herein by this reference each and every allegation contained in each paragraph above. 19. Xclusive is the copyright owner or licensee of exclusive rights under United States copyright with respect to Copyrighted Photograph, which is the subject of a valid and complete application before the United States Copyright Office for Certificate of Copyright Registration by the Register of Copyrights. 20. Among the exclusive rights granted to each Xclusive under the Copyright Act are the exclusive rights to reproduce and distribute the Copyrighted Photograph to the public. 21. Xclusive is informed and believes Hadid, without the permission or consent of Xclusive, copied and used Copyrighted Photograph on Hadid’s Instagram account. In doing so, Hadid violated Xclusive’s exclusive rights of reproduction and distribution. Hadid’s actions constitute infringement of Xclusive’s copyright and exclusive rights under copyright. 22. Xclusive is informed and believes that the foregoing act of infringement was willful and intentional, in disregard of and with indifference to the rights of Xclusive. 23. As a result of Hadid’s infringement of Xclusive’s copyright and exclusive rights under copyright, Xclusive is entitled to statutory damages, including any profits realized by Hadid attributable to the infringement, pursuant to 17 U.S.C. § 504 for Hadid’s infringement of Copyrighted Photograph. Complaint Page 5 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 6 of 30 PageID #: 6 COUNT II: CONTRIBUTORY INFRINGEMENT 24. Xclusive is informed and believes that Hadid, without the permission or consent of Xclusive, knowingly made available Copyrighted Photograph to innumerable individuals and media outlets by posting Copyrighted Photograph to Hadid’s 43 million (43,000,000) Instagram followers. 25. Xclusive is informed and believes that Hadid, without the permission or consent of Xclusive, had knowledge or reason to know of such contributory infringement. 26. As a result of Hadid’s actions, Xclusive is entitled to actual damages or such other and further relief as is just and proper. PRAYER FOR RELIEF WHEREFORE, Xclusive prays for judgment against Hadid as follows: A. Declaring that Hadid’s unauthorized conduct violates Xclusive’s rights under the Federal Copyright Act; B. Immediately and permanently enjoining Hadid, its officers, directors, agents, servants, employees, representatives, attorneys, related companies, successors, assigns, and all others in active concert or participation with them from copying and republishing Xclusive’s Copyrighted Photograph without consent or otherwise infringing Xclusive’s copyright or other rights in any manner; C. Ordering Hadid to account to Xclusive for all gains, profits, and advantages derived by Hadid by their infringement of Xclusive’s copyright or such damages as are proper, and since Hadid intentionally infringed Xclusive’s copyright, for the maximum allowable statutory damages for each violation; Complaint Page 6 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 7 of 30 PageID #: 7 D. Awarding Xclusive actual and/or statutory damages for Hadid’s copyright infringement in an amount to be determined at trial; E. Awarding Xclusive his costs, reasonable attorney’s fees, and disbursements in this action, pursuant to 17 U.S.C. § 505; and F. Awarding Xclusive such other and further relief as is just and proper. JURY DEMAND Xclusive hereby demands a trial by jury on all claims for which there is a right to jury trial. Respectfully submitted, Dated: January 28, 2019 REESE LLP /s/ Michael R. Reese Michael R. Reese 100 West 93rd Street, 16th Floor New York, New York Telephone: (212) 643-0500 Facsimile: (212) 253-4272 Email: mreese@reesellp.com - and - David C. Deal The Law Office of David C. Deal, P.L.C. P.O. Box 1042 Crozet, VA 22932 Telephone: (434) 233-2727 Facsimile: (888) 965-8083 Email: david@daviddeal.com Counsel for Plaintiff Complaint Page 7 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 8 of 30 PageID #: 8 EXHIBIT 1 Complaint Page 8 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 9 of 30 PageID #: 9 Complaint Page 9 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 10 of 30 PageID #: 10 EXHIBIT 2 Complaint Page 10 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 11 of 30 PageID #: 11 Complaint Page 11 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 12 of 30 PageID #: 12 EXHIBIT 3 Complaint Page 12 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 13 of 30 PageID #: 13 Complaint Page 13 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 14 of 30 PageID #: 14 EXHIBIT 4 Complaint Page 14 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 15 of 30 PageID #: 15 Complaint Page 15 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 16 of 30 PageID #: 16 EXHIBIT 5 Complaint Page 16 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 17 of 30 PageID #: 17 Complaint Page 17 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 18 of 30 PageID #: 18 Complaint Page 18 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 19 of 30 PageID #: 19 Complaint Page 19 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 20 of 30 PageID #: 20 Complaint Page 20 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 21 of 30 PageID #: 21 Complaint Page 21 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 22 of 30 PageID #: 22 Complaint Page 22 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 23 of 30 PageID #: 23 Complaint Page 23 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 24 of 30 PageID #: 24 Complaint Page 24 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 25 of 30 PageID #: 25 Complaint Page 25 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 26 of 30 PageID #: 26 Complaint Page 26 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 27 of 30 PageID #: 27 Complaint Page 27 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 28 of 30 PageID #: 28 Complaint Page 28 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 29 of 30 PageID #: 29 Complaint Page 29 of 30 Case 1:19-cv-00520-PKC-CLP Document 1 Filed 01/28/19 Page 30 of 30 PageID #: 30 Complaint Page 30 of 30 Case 1:19-cv-00520-PKC-CLP Document 1-1 Filed 01/28/19 Page 1 of 2 PageID #: 31 CIVIL COVER SHEET JS 44 (Rev. 11/15) The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS (b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) NOTE: (c) Attorneys (Firm Name, Address, and Telephone Number) (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) II. BASIS OF JURISDICTION (Place an “X” in One Box Only) ’ 1 U.S. Government Plaintiff ’ 3 Federal Question (U.S. Government Not a Party) ’ 2 U.S. Government Defendant ’ 4 Diversity (Indicate Citizenship of Parties in Item III) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) PTF Citizen of This State ’ 1 DEF ’ 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place ’ 4 ’ 4 of Business In This State Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place of Business In Another State ’ 5 ’ 5 Citizen or Subject of a Foreign Country ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ TORTS 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property ’ ’ ’ ’ ’ ’ ’ PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education FORFEITURE/PENALTY PERSONAL INJURY ’ 365 Personal Injury Product Liability ’ 367 Health Care/ Pharmaceutical Personal Injury Product Liability ’ 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY ’ 370 Other Fraud ’ 371 Truth in Lending ’ 380 Other Personal Property Damage ’ 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: ’ 463 Alien Detainee ’ 510 Motions to Vacate Sentence ’ 530 General ’ 535 Death Penalty Other: ’ 540 Mandamus & Other ’ 550 Civil Rights ’ 555 Prison Condition ’ 560 Civil Detainee Conditions of Confinement ’ 625 Drug Related Seizure of Property 21 USC 881 ’ 690 Other BANKRUPTCY ’ 422 Appeal 28 USC 158 ’ 423 Withdrawal 28 USC 157 PROPERTY RIGHTS ’ 820 Copyrights ’ 830 Patent ’ 840 Trademark LABOR ’ 710 Fair Labor Standards Act ’ 720 Labor/Management Relations ’ 740 Railway Labor Act ’ 751 Family and Medical Leave Act ’ 790 Other Labor Litigation ’ 791 Employee Retirement Income Security Act ’ ’ ’ ’ ’ SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS ’ 870 Taxes (U.S. Plaintiff or Defendant) ’ 871 IRS—Third Party 26 USC 7609 IMMIGRATION ’ 462 Naturalization Application ’ 465 Other Immigration Actions OTHER STATUTES ’ 375 False Claims Act ’ 376 Qui Tam (31 USC 3729(a)) ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/ Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information Act ’ 896 Arbitration ’ 899 Administrative Procedure Act/Review or Appeal of Agency Decision ’ 950 Constitutionality of State Statutes V. ORIGIN (Place an “X” in One Box Only) ’ 1 Original Proceeding ’ 2 Removed from State Court ’ 3 Remanded from Appellate Court ’ 4 Reinstated or Reopened ’ 5 Transferred from Another District (specify) ’ 6 Multidistrict Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): VI. CAUSE OF ACTION Brief description of cause: ’ CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DATE CHECK YES only if demanded in complaint: ’ Yes ’ No JURY DEMAND: DEMAND $ DOCKET NUMBER SIGNATURE OF ATTORNEY OF RECORD FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE CERTIFICATION OF ARBITRATION ELIGIBILITY Case 1:19-cv-00520-PKC-CLP Document 1-1 Filed 01/28/19 Page 2 of 2 PageID #: 32 Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000, exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the threshold amount unless a certification to the contrary is filed. Case is Eligible for Arbitration I, __________________________________________, counsel for____________________________, do hereby certify that the above captioned civil action is ineligible for compulsory arbitration for the following reason(s): monetary damages sought are in excess of $150,000, exclusive of interest and costs, the complaint seeks injunctive relief, the matter is otherwise ineligible for the following reason DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7.1 Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks: RELATED CASE STATEMENT (Section VIII on the Front of this Form) Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a) provides that “A civil case is “related” to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to the same judge and magistrate judge.” Rule 50.3.1 (b) provides that “ A civil case shall not be deemed “related” to another civil case merely because the civil case: (A) involves identical legal issues, or (B) involves the same parties.” Rule 50.3.1 (c) further provides that “Presumptively, and subject to the power of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be “related” unless both cases are still pending before the court.” NY-E DIVISION OF BUSINESS RULE 50.1(d)(2) 1.) Is the civil action being filed in the Eastern District removed from a New York State Court located in Nassau or Suffolk County? Yes No 2.) If you answered “no” above: a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or Suffolk County? Yes No b) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in the Eastern District? Yes No c) If this is a Fair Debt Collection Practice Act case, specify the County in which the offending communication was received:______________________________. If your answer to question 2 (b) is “No,” does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or Suffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassau or Yes No Suffolk County?___________________________________ (Note: A corporation shall be considered a resident of the County in which it has the most significant contacts). BAR ADMISSION I am currently admitted in the Eastern District of New York and currently a member in good standing of the bar of this court. Yes No Are you currently the subject of any disciplinary action (s) in this or any other state or federal court? Yes (If yes, please explain No I certify the accuracy of all information provided above. Signature: ____________________________________________________ Print Save As... Reset Last Modified: 11/27/2017 Document 1-2 Filed 01/28/19 Page 1 of 1 PageID 33 2) Summons in a Civil Action UNITED STATES DISTRICT COURT for the Eastern District of New York Xclusive-Lee, Inc. Plaintif?s) V- Civil Action No. 19-CV-520 Jelena Noura "Gigi" Hadid Defendant(s) SUMMONS IN A CIVIL ACTION T0: (Defendant ?s name and address) Jelena Noura "Gigi" Hadid 10 Bond Street New York, New York 10012 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff? attorney, whose name and address are: Michael R. Reese REESE LLP 100 West 93rd Street, 16th Floor New York, New York 10025 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. DOUGLAS C. PALMER CLERK OF COURT Date: Signature of Clerk 0r Deputy Clerk