Case 2:19-cv-07600 Document 1 Filed 09/02/19 Page 1 of 21 Page ID #:1 1 2 3 4 5 6 7 8 DANIEL M. PETROCELLI (S.B. #097802) dpetrocelli@omm.com AMY R. LUCAS (S.B. #264034) alucas@omm.com MAYA ZAGAYER (S.B. #318080) mzagayer@omm.com O’MELVENY & MYERS LLP 1999 Avenue of the Stars, 8th Floor Los Angeles, California 90067-6035 Telephone: +1 310 553 6700 Facsimile: +1 310 246 6779 Attorneys for Plaintiffs Ariana Grande-Butera and GrandAri Inc. UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ARIANA GRANDE-BUTERA, p/k/a ARIANA GRANDE, an individual; and GRANDARI, INC., a Florida Corporation, Plaintiffs, v. FOREVER 21, INC., a California Corporation; RILEY ROSE LLC, a California Company; and DOES 1-10, inclusive, Defendants. Case No. COMPLAINT FOR DAMAGES 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 3344 (CAL. CIV. CODE § 3344); 2. VIOLATION OF COMMONLAW RIGHT OF PUBLICITY; 3. FALSE ENDORSEMENT UNDER THE LANHAM ACT (15 U.S.C. § 1125(A)); 4. TRADEMARK INFRINGEMENT (15 U.S.C. § 1114(1)(A)); 5. COMMON LAW TRADEMARK INFRINGEMENT; AND 6. COPYRIGHT INFRINGEMENT (17 U.S.C. § 501) Unlimited Civil Case DEMAND FOR JURY TRIAL 25 26 27 28 COMPLAINT Case 2:19-cv-07600 Document 1 Filed 09/02/19 Page 2 of 21 Page ID #:2 1 2 Plaintiffs Ariana Grande-Butera, p/k/a/ “Ariana Grande” and GrandAri Inc. allege as follows: INTRODUCTION 3 4 1. Ariana Grande is an internationally renowned singer, songwriter and 5 actress who, through years of hard work and dedication to her craft, has developed 6 a personal brand and global following unparalleled by any of her peers. Indeed, 7 Ms. Grande is one of the most successful artists in pop culture today, has the 8 largest social media following of any female celebrity in the world. Given her 9 stature and influence, Ms. Grande is highly sought after by companies hoping to 10 secure her endorsement of their products, and those companies are willing pay 11 enormous sums of money to engage Ms. Grande to help promote their brands. 12 Even a single social media post by Ms. Grande can garner fees of several hundred 13 thousand dollars, and her longer-term endorsement arrangements command fees in 14 the millions of dollars. 15 2. Hoping to benefit from Ms. Grande’s celebrity and influence, in or 16 around early 2019, Forever 21, Inc. (“Forever 21”) sought her endorsement of its 17 clothing and accessory products, which she explicitly declined due to Forever 21’s 18 unwillingness to pay the fair market value for a celebrity of Ms. Grande’s stature. 19 Fearing irrelevance in a rapidly evolving market with increasing competition from 20 other fast fashion brands, rather than pay Ms. Grande, Forever 21 and Riley Rose, 21 the beauty company started by the daughters of Forever 21’s founders 22 (collectively, “Defendants”), instead stole her name, likeness, and other intellectual 23 property to promote their brands for free. 24 3. Forever 21’s and Riley Rose’s unauthorized use of Ms. Grande’s 25 name, image, likeness, and music to promote their brands and products are blatant 26 and willful violations of her statutory and common law rights of publicity, and 27 constitute infringement of Plaintiffs’ copyrights and trademarks under the 28 Copyright Act and Lanham Act, respectively. By this action, Plaintiffs seek an 2 COMPLAINT Case 2:19-cv-07600 Document 1 Filed 09/02/19 Page 3 of 21 Page ID #:3 1 award of actual damages, the disgorgement of Forever 21’s ill-gotten profits, and 2 an award of punitive damages to deter Forever 21 and Riley Rose from future 3 violations of Plaintiffs’ personal and intellectual property rights. JURISDICTION AND VENUE 4 5 4. The Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 6 1338(a). This is a civil action arising under federal law, the Lanham Act of 1946 7 as amended (codified at 15 U.S.C. §§ 1051, et seq.). The pendent state law claims 8 are so related to the federal claims that they form part of the same case or 9 controversy pursuant to Article III of the United States Constitution. The court 10 therefore has supplemental jurisdiction over those claims pursuant to 28 U.S.C. 11 § 1367(a). 12 5. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) 13 for several independent reasons, including that: Defendants “reside” in this 14 judicial district for venue purposes under 28 U.S.C. § 1391(c)(2); a substantial part 15 of the events or omissions giving rise to the claims occurred in this district; and a 16 substantial part of property that is the subject of the action is situated in this 17 district. PARTIES 18 19 20 21 22 23 6. Plaintiffs Ariana Grande-Butera is an individual and resident of Los Angeles County, California. 7. Plaintiffs GrandAri Inc. is a Florida corporation with its principal place of business in Los Angeles, California. 8. Plaintiffs are informed and believe, and based thereon allege, that 24 Defendant Forever 21 is a California corporation, with its principal place of 25 business in Los Angeles, California. 26 9. Plaintiffs are informed and believe, and based thereon allege, that 27 Defendant Riley Rose is a California-based limited liability company, with its 28 principal place of business in Los Angeles, California. 3 COMPLAINT Case 2:19-cv-07600 Document 1 Filed 09/02/19 Page 4 of 21 Page ID #:4 1 GENERAL ALLEGATIONS 2 3 4 I. Ms. Grande’s Fame and Influence 10. Ariana Grande is one of the biggest stars in pop culture today. As a 5 Grammy Award-winning singer, songwriter, and actor, Ms. Grande has not only 6 performed at sold-out stadium tours all over the world, but her music and videos 7 have amassed over 30 billion streams on platforms such as YouTube, Spotify, and 8 Apple Music, making her the most listened-to female artist on the latter two. 9 11. Ms. Grande’s career continues to defy norms and break records in the 10 music industry. All five of Ms. Grande’s full-length albums have been certified 11 platinum by the Recording Industry Association of America (“RIAA”), and she is 12 the first artist to have the lead singles from each studio album debut within the top 13 ten in the United States. 14 12. Upon the release of her fifth album Thank U, Next in 2019, Ms. 15 Grande again broke a string of records. The album’s title track, Thank U, Next, 16 debuted at number one on the US Billboard Hot 100, and held the record for the 17 most-played song in a single day by a female artist on Spotify. The track was 18 dethroned from the top spot by Ms. Grande’s other singles, 7 Rings and Break Up 19 with Your Girlfriend, I’m Bored, making Ms. Grande the first female artist to 20 replace herself at number one on the charts, and the first solo artist to 21 simultaneously hold the top three spots on the Billboard Hot 100 chart. 22 13. Ms. Grande’s fame, following, and social influence are equally 23 unparalleled and record-breaking. As of February 2019, Ms. Grande became the 24 most-followed woman on Instagram in the world, amassing more than 160 million 25 Instagram followers; a title she continues to hold through the date of filing this 26 Complaint. Ms. Grande has another 64 million followers on Twitter. 27 28 14. TIME Magazine named Ms. Grande one of “The 25 Most Influential People on the Internet” in 2019, and one of “The 100 Most Influential People in 4 COMPLAINT Case 2:19-cv-07600 Document 1 Filed 09/02/19 Page 5 of 21 Page ID #:5 1 the World” in both 2016 and 2019. Billboard recognized Ms. Grande as the 2 “Woman of the Year” in 2018 after she hosted the One Love Manchester benefit, 3 which helped raise $29 million dollars for the victims of a suicide bombing attack 4 outside an arena in Manchester, England, where Ms. Grande had just finished 5 performing. 6 15. Ms. Grande’s success and star power have enabled her to expand her 7 career beyond the music industry through various commercial endorsement deals. 8 Still, Ms. Grande is selective of the brands with whom she chooses to partner, and 9 frequently turns down endorsement proposals. And when she does choose to 10 collaborate with a company or endorse its products or services, Ms. Grande often 11 works closely with third-parties to curate products and images that coincide with 12 her personal brand. 13 16. Ms. Grande’s control over the use of her name, image, likeness, and 14 intellectual property in promoting third-party products and services is critical to 15 safeguard her reputation, and to prevent the public from being misled into 16 believing that she has associated herself with a product or service that she does not, 17 in fact, endorse. 18 17. As alleged in further detail below, in complete disregard of Plaintiffs’ 19 intellectual property rights and rights of publicity, Defendants have repeatedly and 20 willfully used Ms. Grande’s name, image, likeness, and music without 21 authorization to generate renewed interest in their brands and social media 22 platforms, and to elicit sales of their products. 23 24 II. Forever 21’s Declining Success 18. Plaintiffs are informed and believe, and based thereon allege, that 25 Forever 21 is a privately-owned clothing retailer with approximately 815 stores in 26 57 countries around the world. With over 30,000 employees, Forever 21 sells 27 clothing, shoes, handbags, and accessories, among other things, to mostly women 28 and girls ranging in age from 14 to 24. 5 COMPLAINT Case 2:19-cv-07600 Document 1 Filed 09/02/19 Page 6 of 21 Page ID #:6 1 19. Since being founded in 1984, Forever 21 has become a staple in nearly 2 every shopping mall around the world by capitalizing on its then-revolutionary 3 techniques of rapidly producing inexpensive clothing, making it one of the most 4 well-known “fast fashion” brands in the world. 5 20. Indeed, Forever 21’s annual revenue totaled approximately $3.4 billion 6 in 2017. Recently, however, Forever 21 has faced competition from new online 7 fast fashion companies which do not have the practical limitations and financial 8 burdens that come with brick-and-mortar stores. As a result of Forever 21’s online 9 competition, Defendant Forever 21 is reportedly experiencing a financial downturn 10 and has been looking for ways to develop its business, including by expanding its 11 brand into beauty products and cosmetics by launching the beauty boutique, Riley 12 Rose in 2017. 13 21. Riley Rose founders Esther and Linda Chang, daughters of Forever 21 14 founder and CEO, Do Wan Chang, reportedly stated that “Forever 21 and Riley 15 Rose have a similar customer base,” but that the goal when creating Riley Rose 16 was to make something “very trendy and Instagram-worthy” as the ultimate 17 “homage to millennials.” 1 The beauty boutique sells makeup, skincare, haircare 18 and home décor through its website, www.rileyrose.com, and via 13 storefronts in 19 shopping malls across the United States. 20 III. Defendants Resort to Unlawful Conduct as a Desperate Attempt to Stay Relevant and Profitable 21 22 22. Following the record-breaking release of Ms. Grande’s single Thank 23 U, Next on or around November 3, 2018, and in anticipation of the album’s release 24 in February 2019, Forever 21 contacted Ms. Grande’s representatives to discuss 25 the possibility of having her endorse the fast fashion Forever 21 brand given that 26 27 28 Mau, Dhani, How New Beauty Store Riley Rose Was Designed to Be the Ultimate ‘Homage to Millennials,’ FASHIONISTA, Feb. 4, 2018, (last accessed Aug. 30, 2019 at https://fashionista.com/2017/10/riley-rose-forever-21-beauty-store). 1 6 COMPLAINT Case 2:19-cv-07600 Document 1 Filed 09/02/19 Page 7 of 21 Page ID #:7 1 Ms. Grande’s fans are squarely within Forever 21’s target market. 2 23. Notably, the endorsement deal Forever 21 sought with Ms. Grande 3 centered around social media marketing, including, but not limited to, Twitter 4 posts, Instagram posts, and Instagram stories. 2 5 24. The importance and influence derived from social media marketing to 6 consumers in today’s market cannot be overstated. Indeed, platforms such as 7 Instagram and Twitter are premier forms of marketing for most companies today, 8 and paying influential celebrities with large social media followings such as Ms. 9 Grande is the modern-day equivalent of buying television ads 20 years ago. 10 25. Given her stature, influence, and social media following, the market 11 value for even a single Instagram post by Ms. Grande is well into the six figures, 12 and she commands in the mid-seven figures to over eight figures for longer-term 13 endorsement deals, marketing campaigns, and/or licensing deals for use of her 14 name and likeness. 15 26. Negotiations between Forever 21 and Ms. Grande’s representatives 16 took place in or around December 2018 and January 2019, but the proposed 17 endorsement deal never came to fruition because the amounts that Forever 21 18 offered to pay for the right to use Ms. Grande’s name and likeness were 19 insufficient for an artist of her stature. Ms. Grande’s representatives 20 communicated as much to Forever 21. 21 27. Rather than pay for that right as the law requires, Defendants simply 22 stole it by launching a misleading campaign across its website and social media 23 platforms primarily in January and February 2019. The campaign capitalized on 24 the concurrent success of Ms. Grande’s album Thank U, Next by publishing at least 25 30 unauthorized images and videos misappropriating Ms. Grande’s name, image, 26 27 28 An “Instagram story” is a picture and/or video, potentially set to music, posted onto an Instagram account holder’s page for up to 24 hours. Account holders can also permanently archive Instagram stories by posting them onto their page as “Highlights.” 2 7 COMPLAINT Case 2:19-cv-07600 Document 1 Filed 09/02/19 Page 8 of 21 Page ID #:8 1 likeness, and music in order to create the false perception of her endorsement. A 2 chart depicting Forever 21’s and Riley Rose’s unauthorized uses, and an 3 explanation of why each is wrongful, is attached as Exhibit 1. Examples of the 4 unauthorized posts depicting Ms. Grande published by Defendants Forever 21 and 5 Riley Rose are included below, and a complete list is attached hereto as Exhibit 2: 6 7 8 9 torwH21 8Htgptiot, i,.,ts atol~ blct . Ge! "- lhri~ande #LreWihF21 Load,,,oreOOffllMfftS 11:rbk• IS.l wt.n you SW F21 g,t Co,,,,boy Ee bop merch It V jul ia,-ry f) catiak>sp)llirama1i• 0 10 11 12 13 14 15 forever21 Friday function vibe O Tag ~ur SQuad .,, @arianagrancle l'LifeWithF21 Load more comments lts_ellella_stokman Lucky my SQUad are 0rfGinal.. not copycat. iamtiinnaa Whal's the name ol 1he app (theme of the pie) 16 17 18 19 20 21 22 23 24 25 26 Liked by yenirevs and 97,484 others 27 forever21 Tag your squad for the night. @arianagrande #lifeWithF21 28 View all 13 c rnrnent .< 8 COMPLAINT