Professional Documents
Culture Documents
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JUDGt WOODS
REV. 4/2014
The JS-44 civil cover sheet and theinformation contained herein neither replace nor supplement the filing and servicejjf
pleadings or other papers asrequired by law, except asprovided by localrulesoUMwrty This form, ap"~'u,**u" "
4-f re
Judicial Conference of the United States in September 1974rfl
requ/d for usfl oWig f lerk of Court
VV
1
DEFENDANTS
PLAINTIFFS
Maria Niro
Caitlin Trainor
Unknown
"
CAUSE OFACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? NtEVesLludge Previously Assigned
If yes, was this case Vol. [~J Invol. fj Dismissed. No
IS THIS AN INTERNATIONAL ARBITRATION CASE7
No Kj
TORTS
[
[
[
[
]110
1120
]130
1140
[ J150
I 1151
[ 1152
PERSONAL INJURY
INSURANCE
MARINE
MILLER ACT
NEGOTIABLE
INSTRUMENT
RECOVERY OF
OVERPAYMENT &
ENFORCEMENT
OF JUDGMENT
MEDICARE ACT
RECOVERY OF
[ ]310 AIRPLANE
DEFAULTED
STUDENT LOANS
[ ] 330 FEDERAL
EMPLOYERS'
I 1160
[ 1190
I 1195
RECOVERY OF
OVERPAYMENT
OF VETERAN'S
BENEFITS
STOCKHOLDERS
SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT
LIABILITY
[ ]196 FRANCHISE
[ J 340 MARINE
[ ] 345 MARINEPRODUCT
LIABILITY
[ [220
[ )230
CONDEMNATION
FORECLOSURE
RENT LEASE &
[ 1240
[ ]245
INJURY
( (400STATE
28 USC 157
INJURY PRODUCT
PROPERTY RIGHTS
LIABILITY
REAPPORTIONMENT
28 USC 158
[ ] 423 WITHDRAWAL
[ ] 690 OTHER
PERSONAL PROPERTY
SOCIAL SECURITY
PRODUCT LIABILITY
STANDARDS ACT
[ ] 720 LABOR/MGMT
[
I
[
I
[
]410 ANTITRUST
] 430 BANKS& BANKING
] 450 COMMERCE
] 460 DEPORTATION
1470 RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT
(RICO)
[ ] 441 VOTING
I ] 442 EMPLOYMENT
[ 1443 HOUSING/
ACCOMMODATIONS
EJECTMENT
TORTS TO LAND
EMPLOYMENT
ALL OTHER
REAL PROPERTY
]861
] 862
] 863
1864
J 865
HIA(1395ff)
BLACKLUNG (923)
DIWC/DIWW (405(g))
SSID TITLE XVI
RSI (405(g))
COMMODITIES/
EXCHANGE
(Non-Prisoner)
DISABILITIES -
TORT PRODUCT
VACATE SENTENCE
28 USC 2255
[
[
[
[
[
RELATIONS
PRISONER PETITIONS
LIABILITY
1 ]290
[ ] 422 APPEAL
PRODUCT LIABILITY
REAL PROPERTY
LAND
OTHER STATUTES
[ 1210
BANKRUPTCY
[ ] 367 HEALTHCARE/
LIABILITY
(EXCL VETERANS)
[ 1153
FORFEITURE/PENALTY
PERSONAL INJURY
CONTRACT
&Case No.
] 893 ENVIRONMENTAL
MATTERS
1895 FREEDOM OF
INFORMATION ACT
26 USC 7609
1 896 ARBITRATION
] 899 ADMINISTRATIVE
IMMIGRATION
[ ] 462 NATURALIZATION
[ ] 550 CIVIL RIGHTS
[ ]555 PRISON CONDITION
APPLICATION
PROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISIO
[ 1950 CONSTITUTIONALITY O
STATE STATUTES
ACTIONS
CONDITIONS OF CONFINEMENT
[ 1448 EDUCATION
DO YOU CLAJM THIS CASE IS RELATED TOACIVIL CASE NOW PENDING IN S.D.N.Y?
UNDERF.R.C.P. 23
DEMAND $_
OTHER
JUDGE
DOCKET NUMBER
NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32)
Ixj 1 Original
Proceeding
ORIGIN
LJ 2 Removed from
state Court
a. ,llp.,tir.pr.nted
II 3 Remanded LJ 4 Reinstated or
frorn
Reopened
Litigation
AnDeiiatP
Magistrate Judge
court
Judgment
I | b. At least one
party is pro se.
(PLACEANxINONEBOXONLY)
1 U.S. PLAINTIFF
BASIS OF JURISDICTION
IFDIVERSITY, INDICATE
4 DIVERSITY
CITIZENSHIP BELOW.
PTF
DEF
[ ]1
[]1
PTFDEF
CITIZEN OR SUBJECT OF A
[]3[]3
FOREIGN COUNTRY
[ ]2
[ ]2
PTF
DEF
[)5
[]5
[ ]6
[ ]6
[ ]4 [ ]4
FOREIGN NATION
Checkone:
WHITE PLAINS
[xj MANHATTAN
(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)
DATE
Y/f//Y <~^/60
' i t / ^^ ' cC*^?
RECEIPT*
[]N0
IN
YES <DATE ADMITTED Mo. /ii
^-
^j^ttnw*
Magistrate Judge
is so Designated.
Yr^
JUDGE WOODS
Jay W. Cho, Esq. (JC 0102)
SEYFARTH SHAW LLP
MARIA NIRO,
COMPLAINT
Plaintiff,
CO
- against -
CAITLIN TRAINOR,
Defendant.
1.
use and public display of Plaintiff s original copyrighted film entitled Air Turned White in
violation of the Copyright Act of the United States, 17 U.S.C. 101 etseq. Plaintiff seeks to
enjoin Defendant's unlawful activities and recover damages and profits resulting from
Defendant's willful misconduct.
2.
3.
This action is brought under the copyright laws of the United States, 17
4.
This Court has original subject matter jurisdiction of this action under 28
U.S.C. 1338 because this action arises out of the Copyright Act of 1976, 17 U.S.C. 101, et
seq.
5.
because Defendant resides or does business within this District and a substantial part of the
events giving rise to the claims occurred in this District.
THE PARTIES
6.
Plaintiff is a citizen of the State of New York, residing at 305 East 21st
7.
York, residing at 62 West 87th Street, Apt. 2R, New York, New York 10024.
FACTS COMMON TO ALL COUNTS
I.
BACKGROUND
8.
focuses primarily on creating art video films and documentaries. Plaintiffs work has appeared in
many festivals and galleries throughout the world and garnered critical acclaim for her films.
9.
10.
compliment Plaintiff on her art video work and to inquire about collaborating on a project.
11.
Defendant.
Plaintiff informed Defendant that she was not interested in working with
12.
about the possibility of working together. Plaintiff agreed to meet with Defendant.
13.
On or about July 17, 2012, the Parties met in person for the first time at a
Starbucks in Manhattan to discuss the potential for collaborating on a project (the "July 2012
Meeting").
14.
During the July 2012 Meeting, the Parties discussed the possibility of
At the July 2012 Meeting, Plaintiff informed Defendant that she had no
interest in collaborating with Defendant if Plaintiff s work was merely to be used as a short video
backdrop to Plaintiffs live dance performance.
16.
Parties could collaborate on a specific project that Plaintiff had previously conceived on her own
prior to meeting Defendant.
17.
creating an "art film" of a dancer that would be projected onto a screen, in front of which the
dancer would perform live as a response to the dancer's movements captured by Plaintiff on
film.
18.
Defendant agreed and recognized that the art film created by Plaintiff
would not simply serve as a backdrop to her dance. Rather, the film ~ which would be projected
as a video art piece to Defendant's live solo dance performance would have a direct, cohesive
and interactive relationship to Defendant's live solo dance performance, yet stand on its own
piece at the same time as Defendant's dance.
19.
collaboration agreement governing the rights and obligations of the Parties with respect to the
anticipated collaborative project, including the Parties' separate ownership of each artist's
20.
Shortly after the July 2012 Meeting, Plaintiff met with Defendant twice at
a dance studio located at Barnard College to share some abstract footage previously created by
Plaintiff and to propose various visual ideas for the project that she discussed in her initial
meeting with Defendant.
21.
During Plaintiffs second visit to the Barnard dance studio, she conceived
and initiated the project that came to be known as "Air Turned White" (the "Project").
22.
performing her one minute improvisational work in progress entitled "Air", which film would
then be edited by Plaintiff and projected onto a screen while Defendant performed a reconfigured
version of her dance called "Air" live against a video backdrop. Thus, the Project was comprised
of two components: (1) the art video, including sound, created by Plaintiff (the "Video"); and
(2) Defendant's live performance with the Video projected behind her (the "Live Performance").
23.
processes. First, Plaintiff staged a white background with a white sheet based on her editorial
concept. Second, Plaintiff filmed several versions of Defendant's one minute improvisation
against the white sheet on the floor and against a white wall, which footage was eventually used
by Plaintiff to create the Video portion of the Project. Third, Plaintiff directed Defendant to
move and perform in the outer edges of the white sheet, which utilized the space of the outer
edges as part of the Video that created the sense of Defendant floating in white space. Fourth,
once Plaintiff captured Defendant's movements that Plaintiff directed, Plaintiff devoted
substantial time editing and stylizing the Video that turned the short improvisations into a seven
minute artistic Video that reactualized Defendant's dance. Fifth, Plaintiff color corrected the
Video to create the impression that Defendant was in a white room rather than a dance studio
where Plaintiff filmed Defendant. Finally, Plaintiff inserted a sound in the Video that was
created prior to meeting Defendant and edited the sound to further enhance the mood of the
Video.
24.
The Video does not simply document Defendant's dance. Rather, the
Video captures snippets of Defendant's dance movements that were rearranged by Plaintiff
through video editing, including slicing and repositioning Defendant's movements in time,
repeating, slowing down and speeding up certain movements, and reversing parts of her
performance.
25.
improvisation as if the camera rechoreographed the dance. This highly stylized and deftly edited
piece reinterpreted Defendant's movements to which she could respond in a live performance
setting while the Video was projected onto a wall behind her.
26.
III.
THE AGREEMENT
27.
While Plaintiff finalized the Video, on or about August 22, 2012, she
28.
29.
Meeting, that: (1) the Project would not be a joint work; (2) Plaintiff would own the copyright in
the Video only; and (3) Defendant would own the copyright in the Live Performance only.
30.
31.
about November 4, 2012, the Parties executed the Collaboration Agreement (the "Agreement"),
that governs their respective rights and obligations with respect to the Project. A copy of the
Agreement is annexed hereto as Exhibit A.
32.
the Project would consist of an "original dance video with sound created by [Plaintiff]" and "an
original dance performance created and choreographed by [Defendant]." See, Agreement, pg. 1.
33.
To distinguish each contribution to the Project, the Parties agreed that the
Live Performance portion of the Project "created and performed by [Defendant]" would be
referred to as "Air" and the Video portion of the Project "created and directed by [Plaintiff]" of
the Project would be referred to as "Turned White." Id.
34.
The Agreement expressly provides that the Project was not to be deemed a
"joint work" and that "upon completion of the [Project], [the Parties] shall be the sole owners of
[their own] creation only and copyright registration will be done separately." Id.
35.
That Plaintiff would be the exclusive owner of the Video of the Project is
[Plaintiff] is the sole owner of and holds the copyright only of the footage,
sound and the video of "Turned White." She is the owner of the final dvd
36.
The Agreement also bars the Parties from publishing the Project "on the
internet including documented performances with the exception of an excerpt of the video of 60
seconds or less which can be published on their websites for promotional purposes. Publishing
excerpts on other websites must be agreed upon jointly." Id.
37.
relating and effecting any public presentation or performance of the [Project] shall be made
jointly by the Artists." Id. (Emphasis added.)
38.
profits accruing from the exploitation or performances of the [Project] shall be divided equally
among the [Parties]." Id,
IV.
39.
From the inception, the relationship between the Parties was marked by
40.
41.
42.
work together.
On or about November 26, 2012, Defendant returned all but one DVD
because, according to Defendant, she was unable to find it. Defendant assured Plaintiff that she
V.
44.
permission to use the Video in connection with a project at a dance space. Plaintiff did not give
consent and reiterated her position that the Parties should no longer work together.
45.
permission to use the Video in connection with Defendant's application to a residency. Plaintiff
did not give consent and demanded that Defendant abstain from using the Video to gain
opportunities.
46.
permission to use the Video in connection with Defendant's application to perform at a concert
in upstate New York. Plaintiff did not give consent and admonished her against using the Video
47.
On or about February 27, 2014, the United States Copyright Office issued a
certificate of registration for the Video (the "Registration"), with Plaintiff as the sole author of the
Video, including "entire motion picture, production/producer, direction/director,
48.
The Registration only covers the Video, not the Live Performance portion
of the Project.
VII.
49.
instances of Defendant's unauthorized use and public presentation of the Video in connection
with her dance performances, including, but not limited to:
a.
b.
c.
50.
Defendant also displayed the Video, without Plaintiffs authorization, at Next Move Festival of
Modern Dance in Schenectady, New York.
COUNT ONE
(Copyright Infringement)
51.
52.
expression and is copyrightable subject matter under the Copyright Act, 17 U.S.C. 102(a).
53.
On February 27, 2014, the United States Copyright Office issued the
Registration, with Plaintiffas the sole author of the Video, including the "entire motion picture,
production/producer, direction/director, cinematography/cinematographer, editing/editor, sound."
54.
From the date of creation of the Video, Plaintiff has been and still is the
sole proprietor of all rights, title, and interest in the copyright of the Video.
55.
Plaintiff did not assign, transfer or otherwise relinquish the exclusive right
to control or otherwise authorize: (a) alternate displays of the Video; (b) derivative works based
upon the Video; (c) copies of the Video in any media; or (d) compilations including the Video.
56.
infringed Plaintiffs rights, including her rights under the Copyright Act, with respect to the Video
by displaying the Video to the public without authorization.
57.
copyright, Plaintiff demanded, and continues to demand, that Defendant cease all infringing acts
that have violatedand continueto violate Plaintiffs exclusive copyright in the Video. A copy of
Plaintiffs cease and desist letter to Defendant is annexed hereto as Exhibit C.
58.
and deliberately infringe upon Plaintiffs copyright in the Video with complete and total
disregard for Plaintiffs rights.
59.
has violated and continues to violate Plaintiffs exclusive rights in the copyright of the Video.
The conduct interferes with Plaintiffs exclusive right to reproduce or license reproduction of the
copyrighted Video, to prepare derivative works based on the copyrighted Video, to publicly
display or distribute the copyrighted Video, and to license others to display or distribute the
copyrighted Video.
60.
suffered and will continue to suffer economic loss and injury to her copyright ownership in the
Video. Plaintiff has to her detriment sustained damages, including, but not limited to, the
dilution or destruction of the value of her copyrighted material, the loss of credit and all gains,
profits, and advantages derived by Defendant from her acts of infringement.
10
COUNT TWO
(Breach of Contract)
61.
62.
63.
Defendant has materially breached the Agreement by, inter alia, displaying
64.
Defendant has materially breached the Agreement by, inter alia, failing to
share all profits accrued from the unauthorized display of the Video to the public.
65.
Defendant has materially breached the Agreement by, inter alia, posting
66.
Agreement, Plaintiff has been damaged in an amount to be determined at trial plus pre-judgment
interest.
COUNT THREE
(Unjust Enrichment)
67.
68.
69.
obtained use and enjoyment of property that in equity and good conscience she should not have
obtained.
11
70.
(Conversion)
71.
73.
Defendant continues to retain the Video, and copies of the Video, without
74.
75.
76.
Plaintiff has been deprived of the ability to exercise dominion and control
of her own work and her personal possessions which Defendant has failed to return.
77.
misappropriated and converted the Video for her own benefit and self-interest.
78.
12
actual damages, damages for the injury to the value ofPlaintiffs property,
damages for loss ofPlaintiffs credits, and all other actual damages sustained
by Plaintiff, and to account for and pay to Plaintiff all gains, profits and
advantages derived by Defendant by reason of her infringement;
c. Requiring Defendant to pay Plaintiff such damages, in an amount to be
determined at trial, that Plaintiff has sustained as a result of Defendant's
f. Directing Defendant to remove the Video from Vimeo and any other websites
on which Defendant may have posted the Video;
g. Directing Defendant to remove the Video from her computer or any other
devise in Defendant's possession, custody or control;
13
k. Granting Plaintiff such other and further relief as the Court deems justand
proper.
!
i
I
t
I
I
wvci
Jay WYCho(JC
0102)
620 Eighth Avenue
New York, New York 10018-1405
Tel: (212) 218-5255
Fax:(212)218-5526
jwcho@seyfarth.com
Attorneys for Plaintiff Maria Niro
14
COLLABORATION AGREEMENT
Caitlin Trainor (hereinafter referred to by their names and as the "Artists"), agree
to work on a project tentatively titled "The Air Turned White** (hereafter referred
to as the "Work"). The work is not a joint work and it shall consist of an original
dance performance created and choreographed by Caitlin Trainor and an original
video with sound created by Maria Niro. The Dance element of the Work created
and performed by Caitlin Trainor (hereinafter referred to as "AIR"). The Video and
Sound element of the Work created and directed by Maria Niro (hereinafter
referred to as "Turned White"), The Artists acknowledge and agree that upon
completion of the Work, they shall be the sole owners of their creation only and
copyright registration will be done separately.
Maria Niro is the sole owner of and holds the copyright only of the footage,
sound and the video of "Turned White". She is the owner of the final dvd edit
master and has the rights to publish the video. Caitlin Trainor can exhibit the
video for performances, self-promotions, entry in video contests and festivals,
but she can not replicate, or publish the video.
Caitlin Trainor is the sole owner of and holds the copyright only of the dance
work AIR which she performs and choreographed. Maria Niro can exhibit the
video for art exhibitions, self-promotions, entry in video contests and festivals
but she can not have another dancer perform the dance/choreography.
The Artists agree that the entire video will not be published on the Internet
Including documented performances with the exception of an excerpt of the video
of 60 seconds or less which can be published on their websites for promotional
description pertaining to the completed creation of the Work, the video shall
include language as follows: Video Directed by Maria Niro and Sound Created by
Maria Niro. Dance and Choreography Created/Danced by Caitlin Trainor. In
situations such as exhibitions or performances where there may not be an
on program notes. Any other language pertaining to the Work shall be discussed
and determined jointly by the Artists.
3. PJCISIQN MAKING
Unless otherwise mutually agreed upon in writing, all profits accruing from
the exploitation or performances of the Work shall be divided equally among the
Artists. A profit is defined as "monies earned after expenses" In the event the
Artists wish to apply for grants separately, they must include artist fees for each
other. If grant seeking for the Work is conducted jointly, any awards shall be
divided equally.
5. EXPENSES
expenses and will not be reimbursed for said expenses. Rented performance or
rehearsal space(s), purchased by Caitlin Trainor shall be purchased at the her
own expense. Camera and video editing equipment purchased or rented by Maria
Niro shall be purchased at her own expense. If any materials relating to the Work
will be purchased or rented jointly it shall be mutually agreed upon first,
6. QERJ^Tjy.E_yvP.aKS
M : M
~ The Artists agree that they will not use any matenal(s) based on or derived
from the Work in any future work. Each Collaborator agrees not to recreate the
Work separately or with other person or persons, or use each others' ideas by
creating derivative works from the Work during and after the collaboration
and signed b^ both parties. Any waiver of a breach or default hereunder shall not
be deemed a waiver of a subsequent breach or default of either the same
provision or any other provision of this Agreement. The laws of the State of New
The parties have read this Agreement, agreed to all of its terms and
Caitlin Trainor
Ay
Date
Date
.,.
Certificate of Registration
ThisOiUhtaU < m'.li'n'
-t.'lth. t i.jiutj'i'i
Registration Number
PAu 3-710-611
/ .vMWJti
Register at t "opvnttht
it Amtru...!
Effective date of
registration:
February 27,2014
Title
Title of Work: The Air Turned White
Completion /Publication
Year of Completion: 2012
Author
Author:
Maria Niro
United States
Domiciled in:
United States
1963
Copyright claimant
Copyright Claimant: Maria Niro
305 East 21 Street #14. New York, NY, 10010, United States
Maria Niro
Email:
mnirol@grnail.com
Address:
Telephone:
646-251-5967
Certification
Name:
Date:
Maria Niro
Page 1 of
From:
Subject:
Date:
To:
Dear Caitlin:
I am writing to notify you that your unlawful use (copying, public projection and
performing) of my motion picture and sound work The Air Turned White
infringes upon my exclusive copyrights. Accordingly, you are hereby directed to
CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT.
l
f
I am the sole creator and copyright owner of the video and sound of The Air
Turned White. Under United States copyright law, my copyrights have been in
effect since the year 2012 when the work was created. All copyrightable
aspects of The Air Turned White are copyrighted under United States copyright
law.
It has come to my attention that you have been copying and performing The Air
Turned White. Ihave evidence of your unlawful copy and use of my work to
preserve as evidence.
Idemand that you immediately (A) cease and desist your unlawful copying of
The Air Turned White and (B) provide me with prompt written assurance within
twenty-four (24) hours that you will cease and desist from further infringement
of my copyrighted work.
If you do not comply with this cease and desist demand within this time period,
Iam entitled to use your failure to comply as evidence of "willful infringement"
and seek monetary damages and equitable relief for your copyright
infringement. In the event you fail to meet this demand, please be advised that
my law firm will be asked to communicate to you that it will contemplate
pursuing all available legal remedies, including seeking monetary damages,
injunctive relief, and an order that you pay court costs and attorney's fees. Your
liability and exposure under such legal action could be considerable.
Before taking these steps, however, Iwish to give you one opportunity to
discontinue your illegal conduct by complying with this demand within twentyfour (24) hours. Accordingly, please reply to this notice as soon as possible to
Mniro1@gmail.com.