Kramer v. Hysteric Glamour PDF

Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 1 of 23 Page ID #:1
1 Heather L. Blaise, SBN 261619

LAW OFFICE OF HEATHER L. BLAISE, P.C.
2 20 N. Clark St. Suite 3100
Chicago, Illinois 60602
3 Telephone: (312) 448-6602
Facsimile: (312) 803-1940
4 E-Mail:
heather.blaise@gmail.com
5 Justin Righettini, SBN 245305
BRYAN CAVE LLP
6 120 Broadway, Suite 300
Santa Monica, CA 90401-2386
7 Telephone: (310) 576-2100
Facsimile: (310) 576-2200
8 E-Mail:
justin.righettini@bryancave.com
BRYAN CAVE LLP

120 BROADWAY, SUITE 300
SANTA MONICA, CA 90401-2386
9 Attorneys for Plaintiffs

WAYNE KRAMER and MARGARET SAADI KRAMER
10
11
IN THE UNITED STATES DISTRICT COURT
12
FOR THE CENTRAL DISTRICT OF CALIFORNIA
13
14 WAYNE KRAMER, an individual, and
MARGARET SAADI KRAMER an
15 Individual,
16
Plaintiffs,
17
vs.
18 HYSTERIC GLAMOUR, a Japanese

Corporation, HYSTERIC GLAMOUR
19 USA, a California Corporation, Ken
Kawaminami, an individual, Atom Age
20 Industries, LLC, a California Limited
Liability Company, Robert Arce, an
21 individual, and DOES 1 through 10,
inclusive,
22
Defendants.
23
24
Case No. __________

COMPLAINT FOR:
1. COPYRIGHT INFRINGEMENT
2. CONTRIBUTORY COPYRIGHT
INFRINGEMENT
3. VIOLATION OF STATUTORY
RIGHT OF PUBLICITY (CAL.
CIV. CODE 3344.1)
4. FALSE ENDORSEMENT
(SECTION 43(A) OF THE
LANHAM ACT, 15 U.S.C.
1125(A))
5. EQUITABLE ESTOPPEL
Date:
Time:
Courtroom:
25
26
27
28
289144.1
COMPLAINT
JURISDICTION AND VENUE
1.
This action arises under the Copyright Act of 1976, 17 U.S.C. 101 et
3 seq. and the Lanham Act, 15 U.S.C. 1051 et seq. This Court has subject matter
4 jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1338(a).
5
2.
This Court also has subject matter jurisdiction under 28 U.S.C.
6 1367(a) over Plaintiffs claims seeking damages for violations of state law because
7 said claims arise out of the same case or controversy for which, as set forth above,
8 this Court already has proper subject matter jurisdiction.
9
3.
This Court has personal jurisdiction over Defendants in that, among
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10 other things, Defendants do business in this Judicial District, and Plaintiffs do

11 business and are suffering harm in this Judicial District.
12
4.
Venue is proper in this Judicial district pursuant to 28 U.S.C.
13 1391(b)-(d) and 1400(a).

14
THE PARTIES
15
5.
Plaintiff WAYNE KRAMER is now, and at all times mentioned in this
16 Complaint was, a citizen of the United States, residing in Studio City, California.
17
6.
Plaintiff MARGARET SAADI KRAMER, and at all times mentioned
18 in this Complaint was, a citizen of the United States, residing in Studio City,
19 California.
20
7.
Defendant HYSTERIC GLAMOUR LTD (HYSTERIC JAPAN), is
21 now, and at all times mentioned in this complaint was, a corporation organized and
22 existing under the laws of Japan.
23
8.
Defendant HYSTERIC GLAMOUR USA (HYSTERIC USA), is
24 now, and at all times mentioned in this Complaint was, a corporation organized and
25 existing under the laws of the state of California, with its principal place of business
26 in Los Angeles, California.
27
9.
Defendant ATOM AGE INDUSTRIES, LLC (ATOM AGE), is now,
28 and at all times mentioned in this Complaint was, a limited liability company
289144.1
1
COMPLAINT
1 organized and existing under the laws of the state of California, with its principal
2 place of business in Lakewood, California.
3
10.
Defendant KEN KAWAMINAMI (KAWAMINAMI) is now, and at
4 all times mentioned in this complaint was, an individual residing in Los Angeles,
5 California.
6
11.
Defendant ROBERT ARCE (ARCE) is now, and at all times
7 mentioned in this complaint was, an individual residing in Lakewood, California.

8
12.
Plaintiffs are informed and believe that HYSTERIC JAPAN,
9 HYSTERIC USA, ATOM AGE, KAWAMINAMI, and ARCE were and are
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10 working in conjunction with respect to the use of publicity rights, trademarks, and
11 copyrighted materials owned or controlled (via exclusive license) by Plaintiffs. All
12 of the Defendants have engaged in deeds, acts, or conduct in connection with the use
13 of publicity rights owned by Plaintiff, along with plaintiffs trademarks and other
14 copyrighted materials in the United States and in the state of California through one
15 or more of their officers, directors, agents, employees or representatives.
16
13.
Plaintiffs are informed and believe that HYSTERIC USA is an agent or
17 representative of HYSTERIC JAPAN doing business in the State of California.

18
14.
At all times herein mentioned, Defendants, HYSTERIC USA and
19 HYSTERIC JAPAN, both individually and collectively, are and were agents and/or
20 joint venturers of each other, and in doing the acts alleged herein were acting within
21 the course and scope of such agency.
22
15.
Each of the Defendants had actual and/or constructive knowledge of
23 the acts of the other Defendants as described herein, and ratified, approved, joined
24 in, acquiesced in, and/or authorized the acts of the other, and/or retained the benefits
25 of said acts.
26
BACKGROUND
27
16.
Plaintiff Wayne Kramer was the founder of legendary band the MC5.
28 Kramer is widely cited by both critics and fellow musicians as having co-created the
289144.1
2
COMPLAINT
1 prototype for the musical genres punk rock and heavy metal. In 1969, the MC5
2 released the politically incendiary and musically revolutionary hit album Kick Out
3 The Jams on Elektra Records. In addition to having an illustrious musical career as
4 well as being cited by Rolling Stone Magazine as a Top 100 Guitarist of All Time,
5 Mr. Kramer is a prominent and vigorous social activist. A true music legend, Mr.
6 Kramer is much more than a widely respected sonic innovator. He is also a devoted
7 activist who has channeled his personal journey into a commitment to social change
8 spanning decades. In furtherance of his activism, Mr. Kramer co-founded Jail
9 Guitar Doors, a Los Angeles based 501(c)(3) non-profit organization that provides
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10 guitars for use in prisoner rehabilitation.

11
17.
Guided by a deep belief in the power of positive personal
12 transformation through music, Mr. Kramers work with the incarcerated through Jail
13 Guitar Doors serves as an inspiration for artists everywhere to use their platforms
14 toward positive social change. Mr. Kramer has been the subject of several
15 documentaries and television programs highlighting both his musical and
16 philanthropic endeavors, including the PBS Special Series Lifecasters: The Beast
17 and The Angel. Mr. Kramer is the recipient of a number of prestigious awards,
18 including: (1) a special recognition proclamation by the City of Los Angeles for his
19 accomplishments and service to Los Angeles County via Jail Guitar Doors; (2) a
20 California Lawyers for the Arts Artistic License Award in recognition of his work
21 using music as rehabilitation in the communities of both male and female adult and
22 juvenile incarcerated population; (3) The Future of Music Coalition Voice of
23 Change honor in recognition of his lifelong commitment to creative expression;
24 (4) the Psychiatric Rehabilitation Association Board of Directors Award for the
25 use of his experience and talent to advance recovery; and (5) the recipient of various
26 music awards including the prestigious Kerrang Magazines Icon Award. He is
27 also a guest lecturer at California Institute of the Arts, University of California Los
28
289144.1
3
COMPLAINT
1 Angeles, Loyola University New Orleans, Georgetown University, and numerous

2 others.
3
18.
John Sinclair is a prolific American poet from Detroit, the one-time
4 manager of the MC5, and co-founder of the White Panther Party from November
5 1968 to July 1969. The White Panther Party was a progressive countercultural
6 group formed to give young people a voice in national affairs in the turbulent 1960s.
7 Sinclair is the author of the book Guitar Army: Street Writings, Prison Writings
8 (Guitar Army) published and copyrighted in 1972. A recognized manifesto of the
9 times, Guitar Army was written partly during Sinclairs imprisonment and the rest
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10 written in the form of cultural observation as a bona fide voice of young America.
11 Guitar Army is considered one of the few literary holy grails of that era. The book
12 contains photographs taken by Mr. Sinclairs then-wife Leni Sinclair renowned
13 in her own right that feature both Mr. Kramer and Mr. Sinclair. Along with the
14 literary prose by John Sinclair, and illustrations of Mr. Sinclair including the
15 Nation illustration that has come to be known as Guitar Armys insignia, (Nation
16 Illustration) the book includes phrases of special counter-cultural significance
17 that were written by Sinclair while imprisoned.
18
19.
Margaret Saadi Kramer is the wife and manager of Mr. Kramer and,
19 based on a written agreement, the exclusive licensee of Mr. Sinclairs right to use
20 content embodied in the literary work Guitar Army in various products and
21 merchandise, including t-shirts, jeans, jerseys, sweatshirts, programs, posters,
22 pictures, buttons, and lights. By way of the same written agreement, Mr. Sinclair
23 granted Mrs. Saadi Kramer an exclusive license to use his publicity rights as
24 captured in the photographs embodied in the literary work in connection with
25 merchandising, including the right to seek redress for past, present, and future
26 infringements of the copyrights in and to the copyrighted materials contained in the
27 literary work and Mr. Sinclairs publicity rights.
28
289144.1
4
COMPLAINT
20.
Mr. Kramers image and likeness is captured in a collection of
2 photographs taken by Michael Barich during a 1969 MC5 concert.

3
21.
Photographer Barich assigned all interests in said photographs to Mr.
4 Kramer and the latter owns all right, title, and interest in and to the copyrights in
5 said photographs, including the right to seek redress for past, present, and future
6 infringements of the copyrights in and to the photographs.
7
22.
Mr. Kramer is a joint owner of the MC5 trademark first used in
8 commerce in 1967 and registered on November 25, 2003 under number 2785351
9 and is incontestable pursuant to Section 15 of the Lanham Act. Among others, the
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10 MC5 trademark is registered under the following description of goods:

11
IC 025. US 022 039. G & S: CLOTHING AND SPORTSWEAR,

NAMELY, T-SHIRTS, SWEATSHIRTS, [ POLO SHIRTS, GOLF
SHIRTS, JOGGING SUITS, ] ATHLETIC SHIRTS [ AND ] *, *
PANTS, [ TENNIS WEAR, BEACH WEAR, SHORTS, CYCLING
SHORTS, BATHING SUITS, SWIMMING SUITS, WETSUITS, ]
JACKETS, [ WIND-RESISTANT JACKETS, SOCKS, PANTS, ]
BELTS, [ FOOTWEAR, ] HATS, CAPS, [ HEADBANDS AND ]
WRISTBANDS.
12
13
14
15
16
23.
In or about 2010, Defendants created, manufactured, marketed, and
17 distributed a t-shirt identified by Defendants as MC5/Rama Lama Fafafa pt T-SH,

18 which contained a silk-screen image of a photograph taken by Rae Anne Rubinstein
19 of the MC5 band and included the image and likeness of Mr. Kramer.
20
21
22
23
24
25
26
27
24.
Defendants did not have a license or any other form of consent to use
28 Mr. Kramers image.

289144.1
5
COMPLAINT
25.
As a result of Defendants unauthorized use of Mr. Kramers image on
2 the MC5/Rama Lama Fafafa pt T-SH, Mr. Kramer and Defendants entered into a
3 settlement agreement wherein Defendant Hysteric Glamour USA paid Mr. Kramers
4 charity, Jail Guitar Doors, for Defendants unauthorized image use and would
5 continue to provide Mr. Kramer a royalty for the sell-thru of the unauthorized
6 MC5/Rama Lama Fafafa pt T-SH.
7
26.
In or about February 2011, Defendant Ken Kawaminami contacted
8 Mrs. Saadi Kramer, seeking authorization to produce apparel items featuring Mr.
9 Kramers image.
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10
27.
On or about March 2011, Defendant Ken Kawaminami sent Justin
11 McCormack, Mr. Kramers merchandising consultant and agent for that purpose, the
12 material terms of Defendants proposed license/royalty agreement for t-shirts and
13 requested approval of one (1) t-shirt design.
14
28.
On or about March 18, 2011, Justin McCormack approved via e-mail a
15 license for only one (1) group band photograph that contained Mr. Kramers image
16 and likeness for one (1) t-shirt and expressly rejected any other further license of
17 any of Mr. Kramers rights. During that March 18, 2011 email correspondence,
18 Defendant Ken Kawaminami expressly stated: At this time we only want to use the
19 one image and further states that Defendants [w]ill comply with Plaintiffs
20 approval of only one (1) design.
21
29.
Based on the on or about March 18, 2011 approval, Defendants created,
22 manufactured, marketed, and distributed the t-shirt identified by Defendants as the

23 MC5/High Times pt T-SH.
24
30.
As a result of Defendants sales of the MC5/Rama Lama Fafafa pt T-
25 SH and the MC5/High Times pt T-SH, Defendants provided Mr. Kramer with
26 royalty checks for the third and fourth quarters of 2011 to Count Time, Inc., Mr.
27 Kramers agent for accepting authorized royalty payments.
28
289144.1
6
COMPLAINT
31.
None of the Defendants hold a license for the Barich photographs taken
2 during the 1969 MC5 concert.

3
32.
None of the Defendants hold a license for any of the copyrighted
4 materials authored by Mr. Sinclair and contained in the literary work, Guitar Army.
5
33.
None of the Defendants hold a license for Mr. Kramers publicity
34.
None of the Defendants hold a license for Mr. Sinclairs publicity
35.
On information and belief, Defendants downloaded the copyrighted
6 rights.
7
8 rights.
9
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10 materials at issue in this case from servers that were located in the United States.
11
36.
Defendants reproduced, without authorization, the following
12 copyrighted works at issue in this case (Copyrighted Works):

13
a.
One of the Barich photographs from the 1969 MC5 concert,
14
which photograph contains Mr. Kramers image and likeness
15
(Barich Photograph);
16
17
18
19
20
21
22
23
24
b.
Elements from Mr. Sinclairs literary work, Guitar Army,
25
including his wholly original prose and pictorial and/or graphic
26
images, including the Nation Illustration.
27
28
289144.1
7
COMPLAINT
1
2
3
4
5
6
7
8
9
37.
Without authorization by Mr. Kramer, Mr. Barich, and/or Mr. Sinclair,
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10 Defendants created several apparel and fashion accessory items containing the
11 Copyrighted Works, the MC5 Trademark, Mr. Kramers image, and Mr. Sinclairs
12 image. Namely, Defendants created, manufactured, marketed, and distributed at
13 least the following items:
14
c.
T-shirts identified by Defendants as the John Sinclair/GA MC5
15
pt T-SH, which contains silk-screen images of the Barich
16
Photograph and the Nation Illustration available in at least the
17
two (2) colors, and that reads on the back of the t-shirt: Guitar
18
Army, along with the Nation Illustration. The inside neck of the
19
t-shirt contains the Nation Illustration and provides photo
20
copyright credit to Leni Sinclair and states that MC5 is used
21
under license to Defendant Atom Age Industries, LLC.;
22
23
24
25
26
27
28
289144.1
8
COMPLAINT
1
2
3
4
5
6
7
8
d.
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T-shirts identified by Defendants as the MC5/66 Breakout! Pt
10
T-SH and offered by Defendants in three (3) colors, which
11
contain a silk-screen image of a photograph of the MC5 band
12
members, including Mr. Kramers image, the MC5 trademark,
13
the title of a self-released MC5 record: 66 Breakout!;
14
15
16
17
18
19
20
21
22
e.
T-shirts identified by Defendants as the MC5/We are all
23
outlaws pt T-SH and offered by Defendants in three (3) colors,
24
which contain a silk-screen image of a photograph of the MC5
25
band members, including Mr. Kramers image, a silk-screen
26
image of a photograph of John Sinclair, the MC5 trademark, and
27
the following text from Mr. Sinclairs Guitar Army: We are all
28
outlaws in the eyes of Amerika [sic];

289144.1
9
COMPLAINT
1
2
3
4
5
6
7
8
f.
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T-shirts identified by the Defendants as MC5/Detroit 1969 pt T-
10
SH and offered by Defendants in three (3) colors, which contain
11
a silk-screen image of a photograph prominently featuring Mr.
12
Kramer and the MC5 trademark on the back of the t-shirt and in
13
the inside of the neck of the t-shirt;
14
15
16
17
18
19
20
21
g.
22
T-shirts identified by the Defendants as John Sinclair/GA
23
Alive! Pt T-SH and offered in two (2) color combinations,
24
which contain a silk-screen image of the deceased Abbie
25
Hoffman,1 prominently features the Nation Illustration, and that
26
reads on the back of the t-shirt: Guitar Army;
27
28
Defendants, however, erroneously marketed the image as being that of John Sinclair.
289144.1
10
COMPLAINT
1
2
3
4
5
6
7
8
h.
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T-shirts identified by the Defendants as MC5/ Rocket Reducer
10
No. 62 pt T-SH, which contain the MC5 trademark and the title
11
of an original song co-written by Wayne Kramer and created by
12
the MC5: Rocket Reducer No. 62;
13
14
15
16
17
18
19
20
i.
T-shirts identified by the Defendants as Ann Arbor 1969 USA
21
pt T-SH and USA pt T-SH, which, on information and belief,
22
contain the MC5 trademark and infringe upon Mr. Kramers
23
copyrights, Mr. Kramers right to publicity, and/or Mrs. Saadi
24
Kramers exclusive license to John Sinclairs right of publicity.
25
j.
Denim jeans identified by Defendants as the Guitar Army pt S
26
Denim pt, which contain silk-screen images of the Barich
27
Photograph containing Mr. Kramers image, the Nation
28
Illustration, the MC5 Trademark, and the following text from

289144.1
11
COMPLAINT
Mr. Sinclairs Guitar Army: We are all outlaws in the eyes of
Amerika [sic];
3
4
5
6
7
8
9
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10
11
k.
12
Various jewelry containing the elements from Mr. Sinclairs

Guitar Army; and
13
l.
Any and all other apparel items and accessories created,
14
marketed and/or distributed by Defendants that infringe on
15
Plaintiffs rights as discovered by Plaintiffs and to be shown at
16
trial.
17
38.
During the 2012 calendar year, Defendants continued to send royalty
18 payments to Count Time, Inc. for the MC5/Rama Lama Fafafa pt T-SH and
19 MC5/High Times pt T-SH t-shirts. Plaintiffs believed that said royalty checks
20 were for the two (2), then-authorized, t-shirt designs, MC5/Rama Lama Fafafa pt
21 T-SH and the MC5/High Times pt T-SH.
22
39.
On or about February 11, 2013, Mr. Kramer first became aware that
23 Defendants had impermissibly created, manufactured, marketed, and distributed

24 several apparel and fashion accessory items containing the Copyrighted Works, the
25 MC5 Trademark, Mr. Kramers image, and Mr. Sinclairs image, including some of
26 the items identified in Paragraph 37, above.
27
40.
When Plaintiffs confronted Defendants about the infringing uses,
28 Defendants claimed that the uses were authorized because they had issued royalty
289144.1
12
COMPLAINT
1 checks for the manufacture and distribution of the unauthorized apparel and
2 accessories identified in Paragraphs 37, above.
3
41.
When Plaintiffs, however, requested proof of effective licenses for the
4 apparel and fashion accessories, Defendants were unable to produce the same.
5
42.
Defendants further claimed that they did not know that the Barich
6 Photograph contained Mr. Kramers image when they placed the Barich Photograph
7 on merchandise that also contained the MC5 Trademark.
8
43.
In a February 12, 2013 email to Plaintiffs, Defendant Ken Kawaminami
9 claimed that Defendants did not know that the Barich Photograph contained
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10 Waynes image, stating: We meant no harm and would have asked for permission
11 from you if we had known it was Wayne in the photo.
12
44.
Despite Defendants claims that they did not know the Barich
13 Photograph contained Mr. Kramers image, Defendants send Mr. Kramer purported
14 royalty payments for the unauthorized merchandise.
15
45.
Only after Defendants became aware that their infringing and
16 impermissible uses of the Copyrighted Works, the MC5 Trademark, Mr. Kramers
17 image, and Mr. Sinclairs image had been revealed to Plaintiffs, did Defendants
18 attempt to obtain license(s) from Mr. Sinclair, which he refused to grant and could
19 not grant as a result of the exclusive license he granted Mrs. Saadi Kramer.
20
46.
Plaintiffs are informed and believe that Defendants routinely engage in
21 a business practice wherein they intentionally infringe upon intellectual and

22 publicity rights holders and attempt to conceal their infringing and malicious
23 business practice by issuing such rights holders unsolicited and un-negotiated
24 payments in the form of checks in hopes that such right holders will unknowingly
25 cash the checks and/or not seek further compensation for the prior and continued
26 impermissible use[.] See, e.g., Weisman v. Sanrio Far East Co., et al., 11-cv27 06033 GW (JC) (C.D. Cal. 2011), Cmplt., dated Jul. 21, 2011, at 20.
28
289144.1
13
COMPLAINT
47.
Plaintiffs are informed and believe that Defendants offered for sale and
2 distributed apparel containing the Copyrighted Works at issue in this case to

3 locations within the United States.
4
48.
Defendants displayed the apparel and accessories containing the
5 Copyrighted Works over the Internet to public audience located in the United States.
6
49.
Plaintiffs are informed and believe that Defendants continue to use the
7 Copyrighted Works, the MC5 Trademark, Mr. Kramers image and Mr. Sinclairs
8 image, which belong to and/or are controlled by Plaintiffs Kramer, for their own
9 gain.
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10
50.
The actions taken by Defendants amount to acts of oppression, fraud,
11 and/or malice consistent with the definitions of those terms as provided by Cal Civ.
12 Code 3294.
13
FIRST CLAIM FOR RELIEF
14
COPYRIGHT INFRINGEMENT (17 U.S.C. 101, ET SEQ.)
15
(Against All Defendants)
16
51.
Plaintiffs repeat, allege, and incorporate by reference Paragraphs 1
17 through 50, as though fully set forth herein.

18
52.
Plaintiffs Copyrighted Works have been unlawfully reproduced,
19 adapted, and are prominently featured in Defendants apparel and accessories.

20
53.
Plaintiffs have complied in all respects with the United States
21 Copyright Acts of 1909, 1976, and all other laws governing copyright, including by
22 applying for registration of claims to copyright in: (a) the Barich Photograph on
23 October 29, 2014 and (b) the Guitar Army book on October 29, 2014.
24
54.
Defendants deliberately and intentionally used the Barich Photograph
25 and Guitar Army book, owned by Plaintiffs without Plaintiffs permission and in
26 violation of Plaintiffs copyright rights. Specifically, the infringed images have
27 been printed on designer apparel sold in numerous retail stores and online.
28
289144.1
14
COMPLAINT
55.
Defendants acts of infringement are willful, in disregard of, and with
2 indifference to the rights of Plaintiffs.

3
56.
Defendants have substantially profited from the illegal use of Plaintiffs
4 work. As a direct and proximate result of Defendants infringements, Plaintiffs are

5 entitled to actual damages and disgorgement of Defendants non-duplicative profits
6 attributable to the infringement in amounts to be proven at trial.
7
SECOND CLAIM FOR RELIEF
CONTRIBUTORY COPYRIGHT INFRINGEMENT
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10
57.

12
58.
Defendants, with actual knowledge, have materially contributed to,
13 intentionally induced, and/or caused unauthorized reproductions and adaptations of

14 Plaintiffs Copyrighted Works in Defendants apparel and accessories.
15
59.
Defendants acts of infringement were willful, in disregard of and with
16 indifference to the rights of Plaintiffs.

17
60.
As a direct and proximate result of Defendants infringements,
18 Plaintiffs are entitled to actual damages and disgorgement of Defendants non19 duplicative profits attributable to the infringement in amounts to be proven at trial.
20
THIRD CLAIM FOR RELIEF
21
VIOLATIONS OF CALIFORNIA STATUTORY RIGHT OF PUBLICITY-
22
CAL. CIV. CODE 3344.1
23
24
61.

26
62.
No one other than Mr. Kramer holds his publicity rights, including the
27 use of Mr. Kramers name, likeness, image, and identity for commercial purposes.
28
289144.1
15
COMPLAINT
63.
On January 8, 2007 and again on January 20, 2014 Mr. Sinclair granted
2 Mrs. Saadi Kramer an exclusive license to John Sinclairs publicity rights, including
3 the use of John Sinclairs name, likeness, image, and identity for commercial
4 purposes, which includes the right to seek redress for past violations of John
5 Sinclairs publicity rights.
6
64.
Plaintiffs are informed and believe that in or about 2012, and
7 continuing to this date, Defendants have willfully and knowingly infringed on the
8 publicity rights of Mr. Kramer and Mr. Sinclair by appropriating the name, likeness,
9 image and identity of Mr. Kramer and Mr. Sinclair for their own purpose of
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10 advertising or selling, or soliciting purchases of products, merchandise, and goods.

11
65.
The appropriations were unauthorized and without Plaintiffs consent.
12
66.
The appropriations usurped Plaintiffs ability to control the subject
13 publicity rights and diluted their ability to effectively market such images, all to the
14 detriment of Plaintiffs.
15
67.
Plaintiffs are informed and believe, and on that basis, allege that as a
16 proximate result of the advantage accruing to Defendants from said appropriation,

17 Plaintiffs have been and/or will be deprived of monetary sums in an amount to be
18 determined at trial.
19
20
FOURTH CLAIM FOR RELIEF
21
UNFAIR COMPETITION AND FALSE ENDORSEMENT
22
(SECTION 43(A) OF THE LANHAM ACT, 15 U.S.C. 1125 (A))
23
24
68.

26
69.
Since approximately on or about 2012 to the date of this Complaint,
27 Defendants have created, manufactured, marketed and sold, in interstate and

28 international commerce, apparel and accessories prominently featuring Mr.
289144.1
16
COMPLAINT
1 Kramers image and likeness in conjunction with the MC5 trademark, all without
2 permission. Making matters worse, Defendants charge exorbitant prices for their
3 unauthorized merchandise. By way of example, Defendants charged $525.00 USD
4 per pair of jeans.
5
70.
Defendants, by their intentional and unauthorized appropriation and use
6 of the Mr. Kramers image and likeness and the MC5 trademark have engaged,
7 and are continuing to engage, in acts of the wrongful deception of the purchasing
8 public, including by falsely representing that Mr. Kramer and MC5 have authorized
9 the apparel and merchandise enumerated in Paragraph 37, above, wrongful
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10 designation as to the source and sponsorship of goods, along with wrongful

11 deprivation of Mr. Kramers good name and reputation.
12
71.
Defendants use of the image and likeness of Mr. Kramer and the
13 MC5 trademark constitutes a false designation or origin, false or misleading

14 description of fact, or false or misleading representation of fact, which is likely to
15 cause confusion, mistake, or to deceive as to the endorsement, affiliation,
16 connection, or association of Defendants with Mr. Kramer or the band, MC5,
17 including as to the sponsorship or approval of Defendants activities, in violation of
18 Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a). By way of one example, the
19 t-shirts identified by Defendants as John Sinclair/GA MC5 pt T-SH contain the
20 unauthorized Barich Photograph and the MC5 Trademark, and falsely states that
21 the Barich Photograph was taken by Leni Sinclair. The t-shirt also falsely states that
22 it was created, manufactured, marketed and sold pursuant to a license in favor of
23 Defendant Atom Age Industries, LLC.
24
72.
Based on the scope and nature of the Defendants use of Mr. Kramers
25 image and likeness, as well as the MC5 trademark, the potential for likelihood of
26 confusion is great.
27
73.
Defendants unauthorized and infringing activities as described herein
28 has been knowing, intentional, and malicious, and its misuses were carried out with
289144.1
17
COMPLAINT
1 the intent to trade upon the goodwill and reputation of Mr. Kramer and the band,
2 MC5, and/or to unfairly compete with the same.
3
74.
Defendants acts of false endorsement against Plaintiffs have caused
4 Plaintiffs damage in that the value of merchandise actually authorized by Plaintiffs

5 is diluted in the marketplace.
6
75.
In addition, Mr. Kramers and MC5s goodwill, reputation, and
7 business has been and will continue to be irreparably harmed by Defendants unless
8 they are enjoined from their exploitative and infringing commercial business
9 practices and from using Mr. Kramers image and likeness and the MC5
BRYAN CAVE LLP

10 trademark. Given Mr. Kramers established brand and image, professional

11 reputation, and moral commitment as a champion for the working class, he never
12 would have licensed his image or the MC5 trademark in connection with the sale of
13 Defendants exorbitantly priced merchandise.
14
76.
As a result, Mr. Kramer is appalled, disgusted, and embarrassed to see
15 his image and the MC5 trademark falsely endorsing Defendants products because
16 such unauthorized use trademark creates a perception of hypocrisy in the public eye
17 and irreparably undermines the important international social work that has been
18 Mr. Kramers adult lifes mission, the value of which is immense and cannot be
19 overstated.
20
77.
Importantly, the Wayne Kramer and MC5 fans are disappointed to see
21 Mr. Kramers image and the MC5 trademark offered in connection with purported
22 luxury goods, thereby tarnishing the reputation of Mr. Kramer and the MC5
23 trademark.
24
FIFTH CLAIM FOR RELIEF
25
EQUITABLE ESTOPPEL
26
27
78.

289144.1
18
COMPLAINT
79.
Defendants knew that they had impermissibly infringed upon Plaintiffs
2 publicity and intellectual property rights when Defendants sent purported royalty
3 checks for the unauthorized merchandise, as explained in Paragraphs 38-40, above.
4
80.
When sending the purported royalty checks for the unauthorized
5 merchandise, Defendants intended for Count Time, Inc. to cash the checks to: (a)
6 provide Defendants with a defense to a resulting lawsuit in claiming that such
7 infringing uses were implicitly consented to or waived by Plaintiffs; and/or (b) to
8 induce Plaintiffs to not seek additional compensation for such infringing uses, as
9 described in Paragraph 46, above.
BRYAN CAVE LLP

10
81.
When Count Time, Inc. received the purported royalty checks, as
11 described in Paragraphs 38-40, Count Time, Inc. assumed that the purported royalty
12 checks were for the two (2) then-authorized t-shirts.
13
82.
As a result, Plaintiffs were ignorant to the fact that Defendants were
14 actually providing purported royalty payments for unauthorized uses of Plaintiffs

15 publicity and intellectual property rights.
16
83.
As a result of Defendants concealment of their infringing uses, Count
17 Time, Inc. inadvertently cashed some of Defendants purported royalty checks

18 believing that such purported royalty checks were for authorized uses as described
19 in Paragraphs 38-40, above.
20
84.
When Plaintiffs discovered that Defendants purported royalty
21 payments were actually for unauthorized merchandise, Plaintiffs immediately

22 contacted Defendants and refused to cash any of the purported royalty checks that
23 Defendants continued to send.
24
85.
Defendants now claim that the acceptance of the purported royalty
25 checks amount to: (a) consent, (b) an implied non-exclusive license, and/or (c) a
26 waiver of Plaintiffs claims.
27
28
289144.1
19
COMPLAINT
86.
As a result of the foregoing, Defendants should be equitably estopped
2 from arguing that Plaintiffs have waived any of their rights or otherwise granted
3 Defendants an implicit license to use their publicity and intellectual property rights.
4
WHEREFORE, Plaintiffs Wayne Kramer and Margaret Saadi Kramer, by and
5 through their attorneys, respectfully pray for judgment against the Defendants
6 HYSTERIC GLAMOUR, a Japanese Corporation, HYSTERIC GLAMOUR USA,
7 Inc., a California Corporation, Ken Kawaminami, an individual, Atom Age
8 Industries, LLC, a California Corporation, Robert Arce, an individual, and DOES 1
9 through 10, inclusive, jointly and severally, for:
BRYAN CAVE LLP

10
A.
11
Compensatory damages for Defendants unauthorized use of the

Copyrighted Materials;
12
B.
Compensatory damages for Defendants unauthorized use of the Mr.

Kramers and Mr. Sinclairs images;
13
14
C.
15
Compensatory damages for Defendants unauthorized use of the MC5

trademark;
16
D.
An accounting for, and payment to the Plaintiffs as actual damages, all
17
the following sums:
18
i.
All gains, profits and advantages derived by Defendants as a
19
result of their copyright infringements, unfair trade practices,
20
unfair competition, and false endorsement;
21
ii.
All gains, profits, and advantages derived by Defendants as a
22
result of their infringement of Plaintiffs copyrights, owned or
23
controlled rights of publicity, and the MC5 trademark;
24
E.
25
Additional damages for an amount determined at trial for unfair and

deceptive trade practices, competition, and false endorsement;
26
F.
Punitive damages for willful violation of Cal Civ. Code 3344.1;
27
G.
Punitive damages for Defendants oppression, fraud, or malice as those
28
terms are defined by Cal Civ. Code 3294;

289144.1
20
COMPLAINT
H.
Reasonable attorney fees;
I.
The costs of this action including, but not limited to, expert fees;
J.
A permanent injunction enjoining Defendants from infringing upon Mr.
Kramer and Mr. Sinclairs publicity rights, the MC5 trademark, and
the Copyrighted Works in any manner whatsoever.
K.
Equitably estopping Defendants from asserting any defense relating to

their issuance of purported royalty checks for infringing uses;
L.
Pre-judgment interest according to law; and
M.
Such other and further relief as the Court deems just and proper.
BRYAN CAVE LLP

10 Dated: November 6, 2014

11
12
Heather L. Blaise
LAW OFFICE OF HEATHER L.
BLAISE, P.C.
Justin Righettini
BRYAN CAVE LLP
13
14
By: /s/ Heather L. Blaise

Heather L. Blaise
Attorneys for Plaintiffs
WAYNE KRAMER and MARGARET
SAADI KRAMER
15
16
17
18
19
20
21
22
23
24
25
26
27
28
289144.1
21
COMPLAINT
JURY TRIAL DEMANDED
Plaintiff demands a trial by jury on all issues so triable.
3
4 Dated: November 6, 2014
5
6
Heather L. Blaise
LAW OFFICE OF HEATHER L.
BLAISE, P.C.
Justin Righettini
BRYAN CAVE LLP
7
8
By: /s/ Heather L. Blaise

Heather L. Blaise
Attorneys for Plaintiffs
WAYNE KRAMER and MARGARET
SAADI KRAMER
BRYAN CAVE LLP

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
289144.1
22
COMPLAINT FOR DAMAGES

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Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 1 of 23 Page ID #:1

1 Heather L. Blaise, SBN 261619

BRYAN CAVE LLP

9 Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

18 HYSTERIC GLAMOUR, a Japanese

Case No. __________

Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 2 of 23 Page ID #:2

JURISDICTION AND VENUE

This Court also has subject matter jurisdiction under 28 U.S.C.

This Court has personal jurisdiction over Defendants in that, among

BRYAN CAVE LLP

10 other things, Defendants do business in this Judicial District, and Plaintiffs do

Venue is proper in this Judicial district pursuant to 28 U.S.C.

13 1391(b)-(d) and 1400(a).

Plaintiff WAYNE KRAMER is now, and at all times mentioned in this

Plaintiff MARGARET SAADI KRAMER, and at all times mentioned

Defendant HYSTERIC GLAMOUR LTD (HYSTERIC JAPAN), is

Defendant HYSTERIC GLAMOUR USA (HYSTERIC USA), is

Defendant ATOM AGE INDUSTRIES, LLC (ATOM AGE), is now,

Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 3 of 23 Page ID #:3

Defendant KEN KAWAMINAMI (KAWAMINAMI) is now, and at

Defendant ROBERT ARCE (ARCE) is now, and at all times

7 mentioned in this complaint was, an individual residing in Lakewood, California.

Plaintiffs are informed and believe that HYSTERIC JAPAN,

BRYAN CAVE LLP

Plaintiffs are informed and believe that HYSTERIC USA is an agent or

17 representative of HYSTERIC JAPAN doing business in the State of California.

At all times herein mentioned, Defendants, HYSTERIC USA and

Each of the Defendants had actual and/or constructive knowledge of

Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 4 of 23 Page ID #:4

BRYAN CAVE LLP

10 guitars for use in prisoner rehabilitation.

Guided by a deep belief in the power of positive personal

Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 5 of 23 Page ID #:5

1 Angeles, Loyola University New Orleans, Georgetown University, and numerous

John Sinclair is a prolific American poet from Detroit, the one-time

BRYAN CAVE LLP

Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 6 of 23 Page ID #:6

Mr. Kramers image and likeness is captured in a collection of

2 photographs taken by Michael Barich during a 1969 MC5 concert.

Photographer Barich assigned all interests in said photographs to Mr.

Mr. Kramer is a joint owner of the MC5 trademark first used in

BRYAN CAVE LLP

10 MC5 trademark is registered under the following description of goods:

IC 025. US 022 039. G & S: CLOTHING AND SPORTSWEAR,

In or about 2010, Defendants created, manufactured, marketed, and

17 distributed a t-shirt identified by Defendants as MC5/Rama Lama Fafafa pt T-SH,

28 Mr. Kramers image.

Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 7 of 23 Page ID #:7

As a result of Defendants unauthorized use of Mr. Kramers image on

In or about February 2011, Defendant Ken Kawaminami contacted

BRYAN CAVE LLP

On or about March 2011, Defendant Ken Kawaminami sent Justin

On or about March 18, 2011, Justin McCormack approved via e-mail a

Based on the on or about March 18, 2011 approval, Defendants created,

22 manufactured, marketed, and distributed the t-shirt identified by Defendants as the

As a result of Defendants sales of the MC5/Rama Lama Fafafa pt T-

Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 8 of 23 Page ID #:8

2 during the 1969 MC5 concert.

None of the Defendants hold a license for any of the copyrighted