FILED: NEW YORK COUNTY CLERK 03/25/2015 11:48 AM

NYSCEF DOC. NO. 1

INDEX NO. 650951/2015

RECEIVED NYSCEF: 03/25/2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

------------------------------------------------------------------- )(
JUDITH GLORY HILL,
Index No.
Plaintiff,
v.

SUMMONS

JOLENE CHERRY, an individual;

THE CHERRY PARTY;
JOLENE HOLDINGS, LLC,
Defendants.

------------------------------------------------------------------- )(
TO THE ABOVE NAMED DEFENDANTS:
You are hereby summoned to answer the annexed complaint in this action and to
serve a copy of your answer on the undersigned attorneys for Plaintiff within 20 days after the
service of this summons, exclusive of the day of service (or within 30 days after the service is
complete if this summons is not personally delivered to you within the State of New York); and
in case of your failure to appear or answer, judgment will be taken against you by default for the
relief demanded in the complaint.
Plaintiff designates New York County as the place of trial. The basis of venue is
contractual consent to venue in New York County.
Dated: New York, New York
March 25, 2015

Scott Himes
Peter L. Haviland (Pro hac vice motion to be submitted)
Corey Field
Scott Humphreys (Pro hac vice motion to be submitted)
BALLARD SPAHR LLP
2029 Century Park East, Suite 800
Los Angeles, CA 90067
(424) 204-4321 (telephone)
(424) 204-4350 (facsimile)
havilandp@ballardspahr. com
fieldc@ballardspahr.com
humphreyss@ballardspahr.com
-andScott Himes
BALLARD SPAHR LLP
919 Third A venue
New York, NY 10022
(212) 223-0200 (telephone)
(212) 223-1942 (facsimile)
himess@ballardspahr. com

Attorneys for PlaintiffJudith Glory Hill

Defendants' addresses:
JOLENE CHERRY
11845 W. Olympic Blvd.
Los Angeles, CA 90064
THE CHERRY PARTY
11845 W. Olympic Blvd.
Los Angeles, CA 90064
JOLENE HOLDINGS, LLC
11845 W. Olympic Blvd.
Los Angeles, CA 90064

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

-------------------------------------------------------------------

)(

JUDITH GLORY HILL,

Index No.
Plaintiff,
v.

COMPLAINT
JOLENE CHERRY, an individual;
THE CHERRY PARTY;
JOLENE HOLDINGS, LLC,
Defendants.

------------------------------------------------------------------- )(
This is an action for declaratory and injunctive relief by singer and songwriter
Plaintiff Judith Glory Hill seeking judicial orders that Ms. Hill has no contractual obligation to a
person making false claims against her, one Jolene Cherry and Cherry's so-called "Cherry Party"
label (collectively "Cherry"). Ms. Hill requests this Court to declare that Cherry is enjoined
from associating herself with Ms. Hill and Ms. Hill's valuable brand, and from interfering with
Ms. Hill's independent songwriting, recording and performing. Ms. Hill also seeks damages for
defamation and fraud against Cherry.

PRELIMINARY STATEMENT
1.

Plaintiff Judith Hill is an internationally acclaimed singer and songwriter.

Ms. Hill started her career as a backup singer to artists including Michael Jackson, Stevie
Wonder, Elton John, and Josh Groban, and was featured in the Grammy and Academy Awardwinning documentary film "Twenty Feet From Stardom."

She has also received national

recognition through her performances on NBC's television show "The Voice." Ms. Hill has
established her own personal brand in her name not only as an artist, but also through appearances

in churches, at community, charity, Christmas and sporting events, and through her numerous
social media sites, as a persona supporting freedom of expression.
2.

In 2013, Ms. Hill was approached by one Jolene Cherry, who claimed to

have a "close personal relationship" with Sony Music Enterprises ("Sony Music") Chairman and
CEO Doug Morris, about entering into a recording agreement with Sony Music. Ms. Cherry,
under color of Doug Morris' authority, made a number of false representations about what Mr.
Morris and Sony Music would do to promote Ms. Hill's career, fraudulently inducing Ms. Hill to
sign a long-term recording agreement in September 2013 with Sony Music (the "Sony
Agreement"). Ms. Cherry was temporarily given her own "label" at Sony Music called
"The Cherry Party" -- a "label" with which Sony Music then quickly severed ties -- and Ms. Hill
was told she should report to Ms. Cherry. The Sony Agreement, however, made no mention
whatsoever of The Cherry Party. Ms. Cherry proved to be incompetent, erratic, unstable, and
wholly unable to perform the obligations that Ms. Hill had been promised both orally and in
writing that Sony Music would meet as a record company.
3.

Less than a year after signing the supposedly long-term agreement with

Sony Music, Ms. Hill's personal manager received an August 6, 2014 email from Ms. Cherry
saying that Ms. Cherry was leaving Sony, stating, "Yes, I'm sorry but they [Sony] are
[expletive]. You can take all of your tracks and go pending whatever outcome is the final one
here. I'm sick of the music business and all of its trash [sic]." The reference to "take all of your
tracks and go" was not an abstraction:

Ms. Cherry knew that Ms. Hill had in fact been

approached by other recording artists with significant career opportunities. Prior to sending the
August 6, 2014 email, Ms. Cherry, had authorized and encouraged Ms. Hill's collaboration with
other artists, and knew of and approved Ms. Hill's pursuit of those opportunities.
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4.

Following the August 6, 2014 email, Ms. Cherry disappeared.

In late

October 2014, Ms. Cherry returned from her so-called "leave of absence," and orally advised
Ms. Hill's representatives that Sony Music had terminated its relationship with Ms. Cherry.
Rather than fulfill its obligations under the recording agreement with Ms. Hill, however,
Sony Music advised Ms. Hill's representatives that the "asset" of Ms. Hill's recording agreement
had been "transferred" to Ms. Cherry - a transfer never vetted with nor approved by Ms. Hill and that all continuing inquiries about such routine matters as payment for recording costs,
producer fees, and other matters necessary for the release of a record, should be directed to
Ms. Cherry.

None of them were paid.

Notwithstanding repeated requests by Ms. Hill's

representatives to both Sony Music and The Cherry Party for written evidence of the purported
"transfer" of Ms. Hill's contract to Ms. Cherry - a person who had declared she no longer
wanted anything to do with the music business - both Sony Music and Ms. Cherry steadfastly
refused to produce any writing reflecting the "transfer."

Instead, both simply abandoned

Ms. Hill.
5.

Accordingly, Ms. Hill wrote and recorded her own music independently

on projects which Cherry had known of and without objection from Cherry.

But when

representatives of Ms. Hill sought to confirm that she was no longer bound by the 2013 Sony
Agreement nor by any purported "transfer" of her contract, Ms. Cherry, who had previously
encouraged Ms. Hill to "take all of your tracks and go," then reversed course, instead asserting
that Ms. Hill owed recording obligations to Cherry. When Ms. Hill's representatives challenged
Ms. Cherry's about-face, Ms. Cherry, using Sony's servers, then engaged in a bizarre act of selfpromotion and character assassination against Ms. Hill.

6.

On January 2, 2015, soon after Sony's servers were infamously hacked by

persons whom the U.S. government believed were linked to North Korea and its dictator
Kim Jong-un, Ms. Cherry caused an associate of hers, Joseph Charles, without Ms. Hill's
knowledge or consent, and without the knowledge or consent of Ms. Hill's existing publicists or
management, to hire an imposter publicist, Gina Torres, to plant a story with the New.York Post
which falsely stated that "Sony singer" Judith Hill had "created 'A Love Letter to Kim Jongun. "' Ms. Hill, whose publicly espoused beliefs and personal brand are wholly contrary to the
threat to freedom of expression implicated by North Korea's apparent hacking, was also accused
in the Cherry press release of being a "singer signed to Sony Music" who wrote lyrics
"describing affection for the dictator." Moreover, in what was widely regarded as a racial slur
against her, Ms. Hill was described as seeking "to mediate peace between North Korea and the
US" because of her ethnicity as "Japanese- and African-American."
7.

Following the planting of this story by Ms. Cherry's agents, Ms. Hill

began to receive threats and hate mail from members of the public. Her reputation as an artist of
moral integrity supportive of freedom of expression was wrongfully damaged by this Cherryexecuted press release. Cherry has refused to publicly apologize for its role in this slander and
has refused to do anything to correct it. Nevertheless Cherry has continued to demand that
Ms. Hill act as if she is still performing for The Cherry Party under the terms of the Sony
Agreement, a demand to which neither Ms. Hill nor any other artist could conceivably be
expected to capitulate given the fraud, violations of good faith and defamation to which Cherry
has subjected her.
8.

No artist can be expected to perform for a label which intentionally smears

its own artist's reputation and violates, without remorse, the artist's core beliefs. Ms. Hill,
4

determined to defend her reputation and her freedom to pursue her artistic gifts outside of the
toxic environment of The Cherry Party, asks this court to find all Defendants liable for their
intentional wrongs against her, and to declare that any fictitious agreement with The Cherry
Party is null and void.
9.

Ms. Hill further seeks injunctive relief prohibiting The Cherry Party or

Ms. Cherry from attempting to enforce any purported recording agreement with her, and
enjoining Defendants from any attempt to promote, advertise, or make any use of Ms. Hill's
recordings, name, image, likeness and trademark name, and from falsely advertising that Ms.
Hill is in any way associated with The Cherry Party "label," and further enjoining defendants
from any attempt to interfere with Ms. Hill's career activities.
THE PARTIES

10.

Plaintiff Judith Glory Hill ("Hill" or "Plaintiff') is an acclaimed

performing and recording artist and songwriter who is a citizen of the state of California.
11.

Defendant Jolene Cherry is a citizen of the state of California.

12.

Defendant The Cherry Party is, on information and belief, a former joint

venture partnership between Jolene Cherry, Jolene Holdings, LLC, and Sony Music Enterprises.
The Cherry Party operates the website www.thecherryparty.com, and lists Plaintiff Judith Hill as
one of The Cherry Party's "artists." On information and belief, The Cherry Party has offices in
Santa Monica, California.
13.

Defendant Jolene Holdings, LLC is a California limited liability company

with Jolene Cherry as its sole Member, with an address c/o 11845 West Olympic Boulevard,
Los Angeles, California 90064.

JURISDICTION AND VENUE

14.

The Sony Agreement between Plaintiff Judith Hill and Sony Music dated

September 10, 2013, at issue in this lawsuit provides that venue and jurisdiction concerning any
disputes over the agreement shall be in New York.
15.

This Court has jurisdiction over Defendants The Cherry Party, Jolene

Holdings, LLC, and Jolene Cherry, because, on information and belief, they claim to have
contractual rights pursuant to the Sony Agreement, and because they and/or their agents
transacted business in New York in connection with the claims asserted herein.

FACTUAL ALLEGATIONS
Judith Hill's Artistic Success and Cherry's False Promises
16.

Judith Hill quickly rose to prominence for her beautiful voice, compelling

stage presence, and her collaborations with leading artists, including being selected as Michael
Jackson's duet partner for the late singer's "This Is It" planned tour. She has composed over
fifty songs either alone or with songwriting partners.
17.

Ms. Hill, through her professional appearances, including film and

television, and her web site located at www.judithhill.com, and her social media accounts
including her Facebook page and twitter account at @Judith_Hill, has established her "brand"
and valuable persona with the public and consumers.

As a result of her growing audience

acclaim and following her national exposure on The Voice, in 2013, Ms. Hill was approached by
Defendant Jolene Cherry to enter into a recording agreement with Sony Music. Ms. Hill was
promised all the benefits of a major record label supporting her career, including legendary Sony
Music label brands such as Columbia and Epic Records, and promised direct access to and
support from Doug Morris, Sony's Chairman and CEO, whom Ms. Cherry assured Ms. Hill was
6

a "close" personal friend and associate of Ms. Cherry's, and who would take a personal interest
in and be supp011ive of Ms. Hill's career on behalf of Sony. In addition, Ms. Hill was assured
that trusted and reliable Artist and Repertoire ("A&R") and other support staffknown to Ms. Hill
would oversee her recordings and career.
18.

In reliance on these representations and assurances, Ms. Hill entered into

a letter agreement with Sony Music dated September 10,2013 (the "Sony Agreement").
19.

Among the material provisions of the Sony Agreement is Paragraph 7,

"Creative Control," which grants to Ms. Hill joint approval with Sony Music over artistic and
commercial matters including compositions, number of sides on an album, producers, mixers,
studios, recording dates, as well as meaningful consultation rights on matters such as marketing
plans, and third party synchronization licenses for film, television, and other media. Ms. Hill
would not have entered into the Sony Agreement if she was not granted rights to creative control
over her career.
Under Jolene Cherry The Relationship with Sony Music Fails

20.

In fact, Ms. Hill was not given such creative control. Instead, Jolene

Cherry was placed "in charge" of Judith Hill's career.

With Ms. Cherry "in charge," the

recording agreement never generated a released record. An initial project to record four "EPs"
(extended play singles) of winter holiday songs chosen by Ms. Cherry was quickly completed
and delivered by Ms. Hill, but then inexplicably shelved by Ms. Cherry.

Inaction,

unresponsiveness, and missed opportunities became the status quo. The A&R staff promised
Ms. Hill were fired without explanation.

During this chaotic time, Ms. Cherry encouraged

Ms. Hill to write and record her own music and approved her work with other artists.

21.

During this dispiriting period of chaos, on August 6, 2014, Ms. Cherry

emailed Ms. Hill's manager that Ms. Cherry was leaving Sony, stating "Yes, I'm sorry but they
are [explicative]. You can take all ofyour tracks and go pending whatever outcome ifthefinal
one here. I'm sick of the music business and all of its trash. "
22.

Ms. Cherry, who was unavailable without any further definitive word or

news for about two months, then returned to communications in October of 2014, informing
Ms. Hill's manager that her purported "label" imprint, The Cherry Party, which had never
released a record, was going to have a different future relationship with Sony Music: it would be
distributed by Sony Music's "RED" distribution arm but otherwise self-funded and stand alone
and apart from Sony Music entirely.
23.

Ms. Hill and her management were alarmed at this news, which implied

that the assurances that she would be on the Sony Music label, which she had relied upon in
signing with Sony Music, were untrue. Being on "The Cherry Party" faux "label," and having
her valuable name and brand on The Cherry Party website, had never been the understanding of
Ms. Hill, whose only agreement was with Sony Music, not with the unknown, untried, and
unfunded vanity label of Ms. Cherry.
24.

Sony Music's budgetary commitment to producing recordings of Ms. Hill

under her agreement collapsed. Ms. Hill began to underwrite her own recording costs and to find
studio space on her own. In addition, Sony Music failed to pay engineering fees or to make
payments to Ms. Hill's freelance producer, Isabella Summers of the group "Florence and the
Machine" on several tracks, including the track that became the focus of Sony Music's
defamation campaign against Ms. Hill, "James Franco."

The "James Franco" Song Parody Version And "The Interview" Film

25.

In March 2014, Judith Hill composed a song with co-writer Isabella

Summers titled "James Franco," - after the actor James Franco - and produced a demonstration
("demo") recording. "James Franco" is a song about the "cute" appearance of a man- not James
Franco - with a chorus that teasingly suggests that the man is better looking than the actor. The
words of the chorus, the only reference to James Franco in the song, are: "James Franco ain't
got nothing on you."
26.

When Jolene Cherry returned from her extended absence, on October 29,

2014, she met with Ms. Hill and her manager, and, announced the alleged new business
relationship between Sony Music and herself.

Ms. Cherry also proposed a small project

connected with the pending and not yet completed Sony Pictures comedy starring James Franco
and Seth Rogen, "The Interview."
27.

Ms. Cherry's proposal was that perhaps the producers of The Interview

film would be interested in "placing" the "James Franco" song either in the film or in the
advertising for the film. But to facilitate such a proposal, and because "The Interview" plot dealt
with a fictional assassination of North Korean leader Kim Jong-un, Ms. Cherry suggested that
Kim Jong-un's name be added to the song's chorus, changing "James Franco ain't got nothing on
you" to "Kim Jong-un, James Franco ain't got nothing on you." "Placement" of a song in a film
or its advertising generates publicity for the record label.

At Ms. Cherry's suggestion, a

reference to "Kim Jong-un" was dubbed into the chorus refrain of this parody version of the
James Franco song.
28.

At that time, in October, 2014, the now-infamous "Sony Hack" was not

yet known to anyone, or revealed to the world by its perpetrators the "Guardians of Peace," and
9

"The Interview" had not yet become the focus of international attention as the possible
motivation for the Sony Hack on the part ofNorth Korea.
29.

On November 24, 2014, the infamous "Sony Hack," an extraordinary and

unprecedented act of cybercrime and invasion of privacy and business secrets, became generally
known, but the perpetrators, the "Guardians of Peace," made no statements regarding any
motivation connected to the portrayal of Kim Jong-un in "The Interview."
Cherry Leaks the Parody James Franco Song Completely Out-of-Context With a Libelous
Press Release that Ms. Hill Had Written a "Love Song" to Dictator Kim Jong-un

30.

At the time the parody version of the James Franco song was created,

Ms. Hill's manager and publicity team had misgivings regarding the suitability of the "parody"
version of the "James Franco" song vis-a-vis Ms. Hill's career objectives, and expressed
concerns to Jolene Cherry and Joseph Charles that any intentional "leak" of the parody song
aimed at generating publicity would be wholly inappropriate and unacceptable unless the track
was officially connected with the movie, "The Interview," or endorsed by its stars as something
fun and exciting.
31.

On December 11, 2014, in a phone call between Ms. Gale, Ms. Cherry,

and Mr. Charles, Ms. Gale, on behalf of her client Ms. Hill, expressly declined to approve any
further use of the parody song or any publicity regarding it. Ms. Cherry, apparently adamant that
the parody song should be somehow "leaked" to generate publicity, including for Ms. Cherry's
own label The Cherry Party, disregarded the objection, stating that Ms. Cherry would
nevertheless "find someone who will" leak and publicize the parody song.

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32.

On December 16, 2014, the so-called "Guardians of Peace," claiming

responsibility for the Sony Hack, for the first time mentioned "The Interview" and threatened to
take terrorist action if the film was released.
33.

On December 17, 2014, Sony Pictures cancelled the release of

The Interview and Ms. Hill's manager and publicist exchanged emails with Joseph Charles,
expressing their relief that Ms. Hill was not caught up in the controversy and that the decision
had previously been made to not use the parody song in any way.
34.

Despite the clear instructions of Ms. Hill's publicist and manager, Jolene

Cherry and Joseph Charles conspired to arrange to have the parody song "leaked" to the press
within New York, along with a false press release regarding Ms. Hill.

Sometime prior to

December 28, 2014, Ms. Cherry and Mr. Charles engaged publicist Gina Torres to act for them
on behalf of The Cherry Party, and on information and belief provided Ms. Torres with a
"leaked" copy of the parody song, and a false press release to give the press, with the
understanding that the leaked parody and publication of the press release was in fact covert
advertising for The Cherry Party label, and not in any way a genuine news story.
35.

On information and belief, beginning on or about December 28, 2014 and

unknown to Ms. Hill, her manager, or her publicist, Gina Torres, acting at the direction of and
for the benefit of Defendants, contacted and began to send a string of approximately twenty
emails to the New York Post in New York City, including the leaked parody song and the false
press release camouflaged as a "story" that was published by the New York Post in its "Page Six"
feature on January 2, 2015.
36.

On information and belief, the New York Post was falsely told by Gina

Torres that Ms. Hill approved the false "story" and wanted the parody song leaked, and the
11

New York Post printed the press release, essentially as conveyed to it in the emails from
Ms. Tones, based on Ms. Tones' false assertions that she spoke for Ms. Hill. At the same time
that the New York Post published the defamatory content of the press release, it also published
the "leaked" song on its official "SoundCloud" webpage and linked the song to the newspaper
article. That music file was co-opted by celebrity entertainment website TMZ.com, and other
media outlets.
37.

Following publication of the New

York Post story, Ms. Hill's

representatives contacted the New York Post, who advised them that Ms. Tones was the source
of the press release and Ms. Tones' assertions that the story was approved by Ms. Hill, and also
disclosed the existence of approximately twenty emails to and from Ms. Tones.
38.

In a phone conversation between Ms. Tones and Ms. Hill's actual

publicist, Bobbie Gale, that took place shortly thereafter, Ms. Torres confirmed that in all
respects she was hired by Joseph Charles and conveyed the false advertising information he had
provided to her.
39.

The New York Post "story," which is actually a piece of false advertising

concocted by Jolene Cheny and Joseph Charles and delivered to the New York Post with false
assurances of its veracity, was widely quoted and used as a source on the world wide web,
including on celebrity news website TMZ.com, and Ms. Hill's representatives scrambled to have
the false and defamatory story, and the leaked parody song, removed.
40.

The New York Post story contains multiple damaging falsehoods, stating

as if true that Ms. Hill composed a "love song" to Kim Jong-un, a notorious dictator who
opposes every freedom, equality and artistic principle that Ms. Hill stands for, and that in the

12

face of international outrage over the Sony Hack, Ms. Hill, due to her Asian heritage, somehow
imagined herself to be an appropriate ambassador to North Korea.
41.

The complete text of the New York Post "story" as fed to the paper by

Gina Torres on behalf of Sony Music, is as follows:

Sony singer writes 'love letter' to Kim Jong-un
In a bizarre twist in the Sony hacking scandal, a stunning singer signed to Sony
Music has recorded a love song that applauds Kim Jong-un and disses "The
Interview" star James Franco.
Former Michael Jackson backup singer Judith Hill originally wrote the song to
submit to Sony for its "Interview" soundtrack, a source claiming to rep Hill's label
Cherry Party told Page Six But when it didn't make the cut - and the North
Korean hacking scandal blew up- she changed the lyrics in attempt to mediate
peace between North Korea and the US. Hill, who's Japanese- and AfricanAmerican, created "A Love Letter to Kim Jong-un," with lyrics playfully
describing affection for the dictator while belittling Franco.
"You got me light as a feather," goes the tune, "you got me transcending
heaven/So don't be confused/James Franco ain't got nothing on you."
The catchy chorus continues: "Kim Jong-un/James Franco got nothing on
you/Yeah yeah/Kim Jong-un/James Franco got nothing on you."
Hill also praises Kim by referencing Franco's Oscar-nominated role in "127
Hours," with the lyrics, "I could wait here 127 hours/It's true/There's only one
Oscar and baby it goes to you."
We hear the song was originally called "A Love Letter to James Franco." But Hill
changed the lyrics after the hack- and heated responses from North Korea to the
controversial comedy.
The song's not included on the soundtrack, but it's been leaked online, Page Six
has learned. No word yet on any reaction from North Korea or from Franco.
Hill was signed by Sony last year and is working on a forthcoming album for the
label. The soul singer's best known for performing with Jackson and appearing on
NBC's crooning competition show, "The Voice."
The FBI has said North Korea was behind the Sony hack, while independent
security experts have suggested it was the work of a disgruntled employee and
other individuals. After being pulled from cinemas, "The Interview" made $15
million in an online release in four days.

13

42.

These three paragraphs were added to the end of the story only after it

had been published and Ms. Hill's team contacted the New York Post:
A rep for Hill subsequently claimed that it was Sony that asked her to create a
"parody version" of a song she'd written about a guy who looks like Franco.
'"Franco' was written and recorded by Judith Hill and Isa Machine in March
2014," the rep said. "The song is/was meant to be released on Judith's debut
record, which will come out this year (20 15). In October, Sony Music asked for a
parody version of the song to include in or with the film. This association never
happened and the parody version of the song was shelved." He added, "The song
title was never changed from 'Franco' to 'A Love Letter to Kim Jong Un' as Page
Six said."
Hill's people said "Kim Jong Un's name was dropped into the already written
song" before "the hacking scandal blew up" and "did not applaud Kim Jong Un
nor dis James Franco."

43.

The numerous false and damaging statements presented for the purpose of

advertising The Cherry Party, include that Ms. Hill changed the lyrics after the Sony Hack
"blew up," implying she is opportunistic and insensitive; that she wrote a "love song" to a
despotic dictator; that she wrote the song after it became known that the Sony Hack was in part
motivated by objections to "The Interview" and the attempt by North Korea to censure free
speech.

These statements were damaging to Ms. Hill's reputation and disseminated false,

misleading, deceptive, and confusing information to her extensive consumer fan base,
information which was especially harmful given that it was disseminated by persons claiming to
be Ms. Hill's representatives associated with Cherry.
44.

Following this astonishing conduct by Cherry, Plaintiffs representatives

sent letters to Jolene Cherry on January 9 and 19, 2015 outlining the unlawful conduct and
defamatory statements.

14

45.

On January 20, 2015, in response to these letters, Jolene Cherry responded

"Please do not bother me with this utter nonsense ... I don [sic] not tolerate this behavior well, so
I really hope your client has sufficient funds to play."
46.

Incredibly, The Cherry Party continues to act as though it has rights under

the Sony Agreement and is authorized to release Ms. Hill's recordings. On February 19, 2015,
The Cherry Party emailed Ms. Hill's manager, using The Cherry Party email addresses and logos,
with alleged plans still to release recordings by Ms. Hill and to shoot a music video with her.
47.

For its part, Sony Music has completely abandoned Judith Hill and

repudiated the Sony Agreement, claiming that it has "transferred" or otherwise assigned the Sony
Agreement to Ms. Cherry and/or The Cherry Party and terminated its joint venture relationship
with The Cherry Party.
48.

Accordingly, Ms. Hill has pursued other opportunities and now seeks a

determination from this Court that any claim by Cherry to an assignment of the Sony Agreement
is invalid and that she has no further obligations to Cherry whatsoever. Ms. Hill seeks injunctive
relief prohibiting Cherry from any attempt to promote, advertise, or make any use of Plaintiffs
recordings, name, image, and likeness and from continuing to falsely advertise that Plaintiff is on
The Cherry Party label or is in any way associated with The Cherry Party or any person
associated with The Cherry Party, and to cease falsely advertising, misleading, and deceiving
Ms. Hill's extensive consumer fan base via use of the trademark name Judith Hill, and further
enjoining Defendants from any attempt to interfere with or enjoin Plaintiffs touring, recording
and/or releasing records with other artists.

15

FIRST CAUSE OF ACTION

(Defamation)

49.

Plaintiff repeats, realleges, and incorporates by reference the allegations of

paragraphs 1 through 48 of this Complaint as if fully set forth herein.

50.

Plaintiff carefully monitors and controls her reputation for artistic

excellence, freedom of expression, and moral, human rights.

51.

Defendants intentionally distributed and arranged for publication in

New York of defamatory statements of fact regarding Plaintiff, including that she wrote a love
song to a despotic dictator, and capitalized on the Sony Hack and wrote a song directly arising
from it, all exposing Plaintiff to public hatred as shown in social media comments and messages
such as "Why don't you move to North Korea," and to shame, contempt, ridicule, aversion,
ostracism, degradation and disgrace, and generally impugning the basic integrity of Plaintiff.
52.

The defamatory statements were false and were published by Defendants

to the New York Post as a press release calculated to generate free commercial advertising for
The Cherry Pmiy, and were then published to hundreds of thousands of third parties around the
world first through the New York Post article and then through other media outlets which linked
to the New York Post article and repeated the defamatory statements.
53.

Defendants intentionally arranged for publication of the false, defamatory

statements by the New York Post via a concerted effort to mislead the public and by falsely
claiming to the New York Post that the "story" was approved by Plaintiff. These purposeful
activities were a deliberate and malicious attempt to injure Plaintiff out of hatred, ill-will, or
spite, for reasons to be further determined via discovery in this case, but likely arising from
Jolene Cherry's anger over Plaintiffs questioning numerous capricious and vicious acts
16

including firing of staff, failure to perform contractual obligations, and resentment over
Plaintiffs career choices including Plaintiffs desire to take advantage of other career
opportunities. By their actions, including the purposeful delivery of this false commercial press
release to the New York Post, Defendants, individually and in concert among themselves and
others including with their agent Gina Torres, transacted business within New York.
54.

The false, defamatory statements are per se actionable because they state

facts, including that Plaintiff, who was a "[f]ormer Michael Jackson backup singer" and "was
signed by Sony Music last year and is working on a forthcoming album for the label" had written
a "love song that applauds Kim Jong-un" and describes "affection for the dictator while belittling
[James] Franco" which impugn the basic integrity of Plaintiffs ability to write songs and clearly
tend to injure Plaintiff in her business and trade as a singer and songwriter, as evidenced by
threats and public hatred expressed by former fans and others who had listened to her music.
55.

As a direct and proximate result of Defendants' acts, Plaintiff has been,

and continues to be, damaged, and is entitled to recover from Defendants damages in such
amounts to be determined at trial. Defendant's acts were willful, wanton, malicious and in
conscious disregard of Plaintiffs rights, entitling Plaintiff to recover punitive damages.
56.

Furthermore, Plaintiff has no adequate remedy at law to compensate her

fully for the injury caused by Defendants' unlawful acts and which would be caused by any
further infringement of Plaintiffs rights. Accordingly, the Court should enjoin Defendants from
committing future unlawful acts and infringements as requested herein.

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SECOND CAUSE OF ACTION

(Declaratory Judgment)

57.

Plaintiff repeats, realleges, and incorporates by reference the allegations of

paragraphs 1 through 56 of this Complaint as if fully set forth herein.

58.

An actual and justiciable controversy exists regarding Plaintiffs rights and

obligations under the Sony Agreement.

59.

Plaintiff and Sony Music entered into the Sony Agreement on or about

September 10, 2013. Sony Music has since repudiated all of its rights and obligations under the
Sony Agreement, and claims that it "transferred" the Sony Agreement to The Cherry Party.
The Cherry Party, through its attorneys, have claimed that the Sony Agreement "remains in full
force and effect," yet both Sony Music and The Cherry Party have refused to disclose any
evidence of the purported "transfer" to Plaintiff.
60.

Plaintiff wishes to proceed with her career as a recording artist and to

pursue additional career opportunities, which requires certainty as to whether Defendants have
any rights under the Sony Agreement.
61.

Plaintiff is entitled to a declaration from this Court that Defendants have

no rights vis-a-vis Plaintiff and that Plaintiff is free to proceed with her career as she sees fit and
to record and release albums and to tour with other artists because (i) the purported assignment
of the Sony Agreement from Sony Music to Jolene Cherry and/or The Cherry Party does not
exist and/or is not legally valid; and (ii) to the extent that Jolene Cherry and/or The Cherry Party
are deemed to have been the recipient of the Sony Agreement, their material breaches of the
Sony Agreement and malicious defamation of Plaintiff in the New York Post as alleged herein
have wholly defeated the core purpose of the Sony Agreement and the object of the parties in
18

making the Sony Agreement such that it

IS

null and void and Plaintiff no longer has any

obligations under the Sony Agreement.

62.

The declaration sought is necessary to clarify this legal issue and to

finalize any controversy between the parties and to offer relief from uncertainty. Plaintiff has no
adequate remedy at law to compensate her fully for the wrongs complained of herein.
THIRD CAUSE OF ACTION
(Violation of New York Civil Rights Law Sections 50 and 51)

63.

Plaintiff repeats, realleges, and incorporates by reference the allegations of

paragraphs 1 through 62 ofthis Complaint as if fully set forth herein.

64.

Through her national and international fame and success as a musical

artist, Plaintiff has established her valuable right of publicity in her name, picture, image, and
likeness for commercial advertising purposes.
65.

Defendants have used Plaintiffs name, picture, image and likeness within

the State of New York for advertising purposes or for the purpose of trade without Plaintiffs
consent, specifically as alleged herein Defendants used a professional publicist to intentionally
feed a false and defamatory press release for advertising of Defendants, after Defendants were
expressly instructed not to do so.
66.

None of Defendants' actions were in connection with mere promotion of

genuine and authorized musical performances or recordings by Plaintiff. Instead, Defendants'

actions were entirely unauthorized, untruthful, and arising from what was a confidential "demo"
parody recording that was expressly unauthorized for any use whatsoever.
67.

None of Defendants' actions were in any way a bona fide "news story" as

they arose entirely from a false commercial "press release" fed to the New York Post,
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accompanied by Defendants' false assurances that the "press release" was authorized by
Plaintiff, and that it was a "story." All Defendants' assurances were false, and there was no
"story" -- only Defendants' attempts to create free publicity for themselves at the expense of
Ms. Hill.
68.

Defendants' use of Plaintiffs name, picture, image and likeness for

unauthorized commercial advertising was willful, malicious and in conscious disregard of

Plaintiffs rights.
69.

Defendants have purposefully used Plaintiffs name, picture, image, and

likeness in a manner that they knew to be unlawful pursuant to Sections 50 and 51 of the New
York Civil Rights Law. Defendants' conduct violates Plaintiffs rights under Sections 50 and 51
of the Civil Rights Law of the State ofNew York.
70.

As a result of Defendants' unauthorized use of Plaintiffs name, picture,

image, and likeness, Plaintiff has been, and continues to be, damaged. Plaintiff is entitled to
recover from Defendants all damages for her injuries sustained by reason of Defendants'
unlawful actions, as well as exemplary and punitive damages, under Section 51 of the New York
Civil Rights Law in such amounts to be determined at trial.
71.

Furthermore, Plaintiff has no adequate remedy at law to compensate her

fully for the injury caused by Defendants' unlawful acts and which would be caused by any
further infringement of Plaintiffs rights. Accordingly, the Court should enjoin Defendants from
committing future unlawful acts and infringements as alleged here.

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FOURTH CAUSE OF ACTION

(Fraud in the Inducement)

72.

Plaintiff repeats, realleges, and incorporates the allegations of paragraphs

1 through 71 as if fully set forth herein.

73.

In the alternative, to the extent that Defendants are deemed to have been

the recipient of the Sony Agreement, Plaintiff seeks damages for fraud in the inducement as
follows:
74.

Defendants,

acting

by

and

through

Jolene

Cherry,

made

misrepresentations and/or omissions of material fact to Ms. Hill in order to induce her to enter
into the Sony Agreement, including that she would have her recordings on a major Sony Music
label, that she would be a priority for Doug Morris, the Chairman and CEO of Sony Music,
because of his close personal connection to Jolene Cherry, that trusted and reliable A&R and
other support staff known to Ms. Hill would oversee her recordings and career, and that Sony
Music would always maintain its obligations to Ms. Hill under the Sony Agreement regardless of
any assignment of that agreement.
75.

At all times, Defendants knew these misrepresentations and/or omissions

to be false and made them with the intent to defraud Ms. Hill and to induce Ms. Hill's reliance
thereon, as a hidden agenda to promote Ms. Cherry's untested "The Cherry Party" label and to
deprive Ms. Hill of her legitimate expectations regarding Sony Music.
76.

At all times Ms. Hill justifiably relied on the materially false

representations and omissions made by Defendants and did, in fact, as a consequence enter into
the Sony Agreement as a result of such reliance.

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77.

Ms. Hill has been and continues to be enormously harmed and damaged as

a direct consequence of Defendants' deceit, has foregone important career opportunities and has
been the victim of intentionally defamatory acts by Defendants, causing her damages in an
amount to be proven at trial. Defendant's acts were willful, wanton, malicious and in conscious
disregard of Plaintiff's rights, entitling Plaintiff to recover punitive damages.
FIFTH CAUSE OF ACTION
(Breach of Contract)

78.

Plaintiffrepeats, realleges, and incorporates by reference the allegations of

paragraphs 1 through 77 of this Complaint as if fully set forth herein.

79.

In the alternative, to the extent that Defendants are deemed to have been

the recipient of the Sony Agreement, Plaintiff seeks damages for breach of contract as follows:
80.
the Sony Agreement.

On or about September 10, 2013, Sony Music and Plaintiff entered into
Under the "Creative Control" provision in paragraph 7 of the Sony

Agreement, Sony Music represented and promised to Plaintiff that she would have joint approval
with Sony Music over artistic and commercial matters including compositions, number of sides
on an album, producers, mixers, studios, recording dates, as well as meaningful consultation
rights on matters such as marketing plans, and third party synchronization licenses for film,
television, and other media.

The creative control provision is a material term of the Sony

Agreement the breach of which fundamentally destroys the purpose and intent of the contract.
Plaintiff never would have entered into the Sony Agreement if she would not have been given
the right to maintain creative control over the process by which Sony Music promoted and
marketed her music career.
81.

Plaintiff has performed her obligations under the Sony Agreement.

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82.

To the extent the Sony Agreement was transferred to Defendants, they

willfully breached the Sony Agreement, and in particular the "Creative Control" provision, by
leaking the egregious and false defamatory story to the New York Post that Plaintiff had written a
love song to Kim Jung-un -- one of the most vicious and loathed dictators in the world -- in
direct violation of the express instructions of Plaintiffs management and publicity team that
Plaintiff would not authorize the release of the song.
83.

Defendants further materially breached the Sony Agreement by failing to

release any of the music tracks provided by Plaintiff, including the four EPs of winter holiday
music, forcing Plaintiff to underwrite her own recording costs and to find studio space on her
own, and refusing to pay engineering fees or to make payments to Plaintiffs freelance producer,
Isabella Summers.
84.

As a direct and proximate result of these material breaches, Plaintiff has

suffered damages in an amount to be proven at trial.

SIXTH CAUSE OF ACTION
(Breach of the Implied Covenant of Good Faith and Fair Dealing)

85.

Plaintiff repeats, realleges, and incorporates by reference the allegations of

paragraphs 1 through 84 of this Complaint as if fully set forth herein.

86.

In the alternative, to the extent that Defendants are deemed to have been

the recipient of the Sony Agreement, Plaintiff seeks damages for breach of the implied covenant
of good faith and fair dealing as follows:
87.

On or about September 10, 2013, Sony Music and Plaintiff entered into

the Sony Agreement. To the extent the Sony Agreement was transferred to Defendants, they
owed Plaintiff a duty to act in good faith and fair dealing with Plaintiff in the exercise of its
23

rights under the Sony Agreement, including the general management of Plaintiff's recording
career and the marketing and public disclosure of all recordings made by Plaintiff pursuant to the
Sony Agreement, which included the "James Franco" parody song.
88.

Defendants breached that duty by, inter alia, allowing the course of

dealing with Plaintiff to be chaotic, ill-managed, and capricious under Jolene Cherry, including
through intentionally harmful acts such as leaking the parody song and placement of the
defamatory story in the New York Post contrary to the express instructions of Plaintiff's
management and publicity team. Defendants further breached their duty to act in good faith and
deal fairly with Plaintiff by failing to release any of the music tracks provided by Plaintiff,
including the four EPs of winter holiday music, forcing Plaintiff to underwrite her own recording
costs and to find studio space on her own, and refusing to pay engineering fees or to make
payments to Plaintiff's freelance producer, Isabella Summers.
89.

As a direct and proximate result of this breach of the duty of good faith

and fair dealing Plaintiff has been deprived of her right to receive benefits under the Sony
Agreement and has further suffered damages in an amount to be proven at trial.

SEVENTH CAUSE OF ACTION

(Injunctive Relief- Preliminary and Permanent)
90.

Plaintiff repeats, realleges, and incorporates by reference the allegations of

paragraphs 1 through 89 ofthis Complaint as if fully set forth herein.

91.

Plaintiff has a likelihood of ultimate success on the merits of her claims

alleged herein including on her claims for defamation, declaratory judgment, violation of the
New York Civil Rights Law, fraudulent inducement, breach of contract, and breach of the duty
of good faith and fair dealing.
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92.

In addition to Defendants' utterly malicious and defamatory acts as

alleged herein, all of which have already injured Plaintiffs good name and reputation, and
infringed on her valuable trademark name, Plaintiff will continue to suffer additional irreparable
harm if Defendants attempt to promote, advertise, or make any use of Plaintiffs recordings,
name, image, or likeness and continue to falsely advertise on The Cherry Party website or
elsewhere that Ms. Hill is associated with Jolene Cherry or The Cherry Party "label" or is in any
way professionally associated with any person related to Jolene Cherry or The Cherry Party.
Plaintiff will suffer further irreparable harm if Defendants seek to sue Plaintiff or otherwise to
enjoin her from pursuing other options to advance her career, including recording additional
records with other artists and going on tour with other musicians.
93.

Because Defendants' own bad and malicious acts already have caused

extensive irreparable harm to Plaintiff and would continue to cause Plaintiff further irreparable
harm if she is associated in any way with Defendants, or if Defendants seek to prevent Plaintiff
from advancing her career separate and apart from Defendants, the balance of equities
overwhelmingly favors granting injunctive relief, both preliminary and permanent, against
Defendants as requested herein. Plaintiff has no adequate remedy at law to compensate her fully
for the wrongs complained of herein.
RELIEF REQUESTED

WHEREFORE,

Plaintiff respectfully demands judgment or an

order against

Defendants as follows:
(a)

on the First Cause of Action for Defamation, awarding Plaintiff (i) damages in an

amount to be determined at trial; and (ii) exemplary and punitive damages; and (iii) reasonable
attorney fees and costs;
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(b)

on the Second Cause of Action for Declaratory Judgment, declaring from this

Court: (i) that Plaintiff has no recording or other legal obligations to Defendants, and is free to
proceed with her career as she sees fit and to record and release albums and to tour with other
artists; and (ii) that Defendants do not have any right to promote, advertise, or make any use of
Plaintiffs recordings, name, image, or likeness or to falsely advertise that Plaintiff is in any way
associated with any Defendants;
(c)

on the Third- Cause of Action for Violation of New York Civil Rights Law

Sections 50 and 51, awarding Plaintiff (i) damages for her injuries sustained by reason of
Plaintiffs unlawful actions; (ii) exemplary and punitive damages; and (iii) reasonable attorney
fees and costs;
(d)

on the Fourth Cause of Action for Fraud in the Inducement, awarding Plaintiff

(i) damages according in an amount to be determined at trial; and (ii) exemplary and punitive
damages;
(e)

on the Fifth Cause of Action for Breach of Contract, awarding Plaintiff damages

in an amount to be determined at trial;

(f)

on the Sixth Cause of Action for Breach of the Implied Covenant of Good Faith

and Fair Dealing, awarding Plaintiff damages in an amount to be determined at trial;

(g)

on the Seventh Cause of Action for Injunctive Relief, entering a preliminary and

permanent injunction (i) prohibiting Defendants from any attempt to enforce the Sony
Agreement in any court of law or otherwise; (ii) prohibiting Defendants from any attempt to
promote, advertise, or make any use of Plaintiffs recordings, name, image, or likeness and from

26

continuing to falsely advertise that Plaintiff is associated with or is on The Cherry Party "label"
or is in any way associated with Jolene Cherry or any person at The Cherry Party, and
(iii) prohibiting Defendants from any attempt to interfere with or enjoin Plaintiff's ongoing
career including touring with, recording and/or releasing records with other artists;

(h)

and for such other and further relief as this Court deems just and proper.

New York, New York

Dated: March 25,2015
By: ____~--~--~~--------------
Scott Himes
Peter L. Haviland (Pro hac vice motion to be submitted)
Corey Field
Scott Humphreys (Pro hac vice motion to be submitted)
BALLARD SPAHR LLP
2029 Century Park East, Suite 800
Los Angeles, CA 90067
(424) 204-4321 (telephone)
(424) 204-4350 (facsimile)
havilandp@ballardspahr.com
fieldc@ballardspahr.com
humphreyss(a),ballardspahr. com
-andScott Himes
BALLARD SPAHR LLP
919 Third Avenue
New York, NY 10022
(212) 223-0200 (telephone)
(212) 223-1942 (facsimile)
himess@ballardspahr.com
Attorneys for PlaintiffJudith Glory Hill

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