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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/14/2018

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
--------------------------------------------------------------------X
DAVE JOHNSON, VERIFIED
COMPLAINT

Plaintiff, Index #:__________

-against-

TILTING POINT MEDIA, LLC. and

THIRD TIME, INC.,

Defendants.
-------------------------------------------------------------------X

Plaintiff, DAVE JOHNSON, by his attorney, ANDREW J. MOLLICA, ESQ. as and for

his Verified Complaint against Defendants, respectfully alleges as follows:

INTRODUCTION

1. Plaintiff, Dave Johnson (Mr. Johnson”) brings this action pursuant to New York Civil

Rights Law (“Civil Rights Law”) §§ 50 and 51, and the case law interpreting the same, seeking

injunctive relief, compensatory damages, and exemplary damages arising from Defendants, Tilting

Point Media, LLC (“Titling Point”) and Third Time, Inc.’s (‘Third Time”) (collectively

“Defendants”) unauthorized use of Mr. Johnson’s image, portrait and/or likeness to advertise and

further trade of their video game: “Horse Racing Manager 2018” (the “Game”).

THE PARTIES

2. Mr. Johnson is an individual and resident of the County of New York, and State of New

York.

3. Mr. Johnson is a world renown and acclaimed horse racing caller and television/radio

personality.

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4. Mr. Johnson served as the voice of the Kentucky Derby and the Triple Crown for ABC

as well as having served as both a race caller and on-air “personality” for both the CBS and NBC

television networks and also hosted a weekly series on thoroughbred racing for ESPN.

5. Mr. Johnson hosts a weekly radio show called “Down the Stretch,” that is broadcasted

worldwide on Sirius XM Radio and upon information and belief as of this filing has more than

31,000,000 paid subscribers and can be heard worldwide on the World Wide Web.

6. Mr. Johnson served as the voice of thoroughbred and harness racing at the New York

Racing Association, Meadowlands, as well having been the voice of Santa Anita Park in

California, Hialeah Park in Florida, Fairmont Park in Illinois and Cahokia Downs in East St. Louis

Missouri and has been calling races professionally for decades.

7. Mr. Johnson has been engaged in endorsements and licensing of his celebrity persona

and regularly performs voice over work for numerous projects, including but not limited to

theatrical releases, commercials and special events and has been compensated for same.

8. Upon information and belief, Defendant Tilting Point was and is at all relevant times a

foreign (Delaware) limited liability corporation authorized to do business and doing business in

the State of New York with a usual place of business located at 521 5th Avenue, New York, NY

10175.

9. Upon information and belief, Defendant Third Time was and is at all relevant times a

foreign (Florida) corporation doing business and/or transacting business in New York by virtue of

its partnership and relationship with Tilting Point and by its sales of its video games in New York,

through Titling Point and upon information and belief through other mediums.

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10. This Court has jurisdiction over Third Time pursuant to CPLR 302, inter-alia, as Third

Time contracted to do business and transacted business in New York to promote and/or sell the

Game and this suit arises out of those transactions.

11. Upon information and belief (the source of which is Defendants Tilting Point and Third

Time’s websites and LinkedIn page), Defendants are engaged in the business and practice of

funding, developing and/or promoting video games and publishing them for profit.

12. Horse Racing Manager 2018 (the “Game”) is a video game created, published and/or

promoted by Defendants Titling Point and Third Time.

13. In or around May 5, 2018, the Game was released and available for download in New

York State through various platform such as the Apple App Store and Google Play.

14. Upon information and belief, Defendants, Titling Point and Third Time, transacted and

conducted business within the State of New York or contracted to supply goods and/or services in

the State of New York, including but not to the Game and other video games for download and

sale.

15. Upon information and belief, at all times hereinafter mentioned, Defendants, Titling

Point and Third Time, regularly do or solicit business or engage in other persistent courses of

conduct or derive substantial revenue from goods sold in the State of New York, including

promotion and selling or video games.

16. Defendants, Titling Point and Third Time, are engaged in the business and practice of

developing, trading and selling, advertising and marketing and distributing certain products for

consumer use and especially publishing products known as “video games” for profit.

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17. From at least May 7, 2018 to the present, Defendants, Titling Point and Third Time,

have advertised and promoted the Game through various commercial advertising platforms,

including but not limited to Youtube.com and gaming.youtube.com. The posting on

gaming.youtube.com and youtube.com was used in, or as part of, an advertisement or solicitation

for patronage.

18. In or around 2018, and certainly by May 7, 2018, Defendants, Titling Point and Third

Time, in the course of their trade and business made available for sale, marketing and distribution

the Game which was distributed and sold nationally, including in the City and State of New York,

through various platforms including iOS Apple App Store, gaming.youtube.com and Google Play.

19. Upon release of and in the aforesaid video game, the Defendants used one and/or

several portraits of Mr. Johnson in the Game.

20. Defendants used Mr. Johnson’s portrait without his written consent.

21. Defendants knowingly used Mr. Johnson’s portrait without his written consent.

22. Defendants used Mr. Johnson’s portrait and imparted voice signatures to Mr.

Johnson without his knowledge or consent.

23. Defendants used Mr. Johnson’s portraits in the Game to be generally published and

distributed nationally and internationally and in the State of New York for trade and advertising

purposes, without his written consent, in various platforms including but not limited to

youtube.com and gaming.youtube.com.

24. The portraits of Mr. Johnson used in the Game by Defendant’s were unauthorized and

unlawful.

25. The portraits of Mr. Johnson used by Defendants incorporated his image, likeness,

clothing, work outfits, work equipment and iconic hand gestures.

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26. Defendants misappropriated Plaintiff’s portrait in the Game for the purposes of

advertising or trade of the Game and incorporated numerous personal aspects of Mr. Johnson’s

identity, including but not limited to his face and hand gestures.

27. Mr. Johnson’s portrait is unaltered and is not used as a fictional character in the Game.

28. Mr. Johnson’s portrait is not used in connection with a newsworthy event.

29. Mr. Johnson’s portrait is not used in a satirical context in the Game.

30. Defendants used Mr. Johnson’s likeness/portrait in the Game to add authenticity and

create a real-life racing experience and to provide the user with a horse racing simulation.

31. Defendants have benefited and been unjustly enriched by the use of Plaintiff’s portraits,

images and likeness without obtaining his consent.

32. Sections 50 and 51 of the New York Civil Rights Law prohibit the use of a person’s

name, portrait, picture or voice for the purpose of advertising or trade without the written consent

of the subject.

33. Defendants acts of using Plaintiff’s name and likeness in the aforesaid video game were

solely to attract customers and generate sales.

34. Defendants aforesaid acts were done without Plaintiff’s consent and constitute a

blatant violation of the Civil Rights Law of the State of New York and invasion of his privacy.

FIRST CAUSE OF ACTION

Violation of Privacy Right Under New York CPLR §50 and 51
(Titling Point and Third Time, jointly and severally)

35. The Plaintiff re-alleges and re-incorporates herein by reference each and every

allegation set forth in the foregoing paragraphs.

36. This action is for violation of Plaintiff’s statutory right of privacy pursuant to sections

50 and 51 of the New York Civil Rights Law.

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37. Defendants have, knowingly, and without Plaintiff’s prior consent, violated Plaintiff’s

right of privacy by appropriating Plaintiff’s portrait and likeness in its Game.

38. Defendants have, knowingly, and without Plaintiff’s prior consent, violated Plaintiff’s

right of privacy by appropriating Plaintiff’s portrait and likeness by including his portraits and

“likeness” in its video Game.

39. The appropriation of Plaintiff’s portrait and likeness was unauthorized and without the

prior consent of Plaintiff.

40. Defendants’ aforesaid acts, both in concert and severally, have caused and are causing

great and irreparable hardship and damage to Plaintiff, and unless a TRO, a preliminarily and

permanently injunction is granted by this Court, irreparably injury will continue.

41. As a result of the Defendants’ knowing violation of the Civil Rights Law, punitive

damages should be assessed against Defendants.

42. Plaintiff also seeks to recover damages sustained as a result of Defendants’ unlawful

acts, together with an accounting of Defendants’ profits arising from such activities, and that the

Court exercise its discretion and enter a judgment for such additional sums as the Court shall be

just, according to the egregious nature of the acts of Defendant(s).

WHEREFORE, Plaintiff demands judgment against the Defendants for:

(1) Damages in a sum that exceeds the jurisdictional limits of all lower courts;

(2) Restraining the use of Plaintiff’s image and likeness;

(3) Awarding punitive and/o exemplary damages;

(4) Requiring Defendants to account to Plaintiff for all proceeds derived from their

wrongful conduct, including endorsements, “in app purchases” and money received from

advertising and any other promotion profits; and awarding

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(5) Such other and further relief as to the Court may seem just and proper.

Dated: Augus 2018

Garden ity, New York

Yours etc,
'
AND J. L1C/dtt XS~

20 Middleton Road,
Garden City, New York 11530
- 528-1311
(516)
nlig'
Attorney for Plaintiff

Dave Johnson

TO:

Tilting Point Media, LLC

521 5th Ave, New York, NY 10175

Third-Time, Inc.

1001 N. Orange Avenue, Orlando, Florida32801

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VERIFICATION

STATE OF NEW YORK

)ss.:

COUNTY OF NEW YORK

DAVE JOHNSON, being duly sworn, deposes and says:

I am the Plaintiff in the above-entitled action which at all times relevant to this litigation

and that I have read the

foregoing Verified Complaint and I know the contents thereof; I

know the contents thereof; that the same is true to my knowledge, except as to those

matters therein stated to be alleged upon information and belief, and as to those matters I

believe them to be true.

DAVE HN N

Sworn before me this

day of August 2018.

Notary Public

MOLUCA
ANDREW J
York
State of New
Public,
Notary 02MO6236968
No.
Nassau County
Qualified in
March 14, 20
Commission Expires

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