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NYSCEF DOC. NO. 1
INDEX NO. 153735/2014 RECEIVED NYSCEF: 04/17/2014
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X RICKY SPICER, Index No.: Plaintiff, -againstCONDE NAST ENTERTAINMENT, LLC, SUMMONS
Defendant. ---------------------------------------------------------------------X TO: THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your Answer, or, if the Complaint is not served with this Summons, to serve a notice of appearance, on the plaintiff’s attorney within 20 days after service of this Summons, exclusive of the day of service, where service is made by delivery upon you personally within the state, or within 30 days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. The basis of the venue is the Defendant’s principal places of business and the location in which this cause of action arose. Dated: New York, New York April 17, 2014 ______________________ Brittany Weiner, Esq. Vincent Imbesi, Esq. IMBESI CHRISTENSEN 450 Seventh Avenue, 14th Floor New York, NY 10123 TO: Conde Nast Entertainment, LLC c/o Sabin Bermant & Gould LLP 4 Times Square, 23rd Floor New York, New York 10036
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X RICKY SPICER, Index No.: Plaintiff, -againstCONDE NAST ENTERTAINMENT, LLC, COMPLAINT AND JURY DEMAND
Defendant. ---------------------------------------------------------------------X I. 1. INTRODUCTION
Plaintiff Ricky Spicer, by his attorneys Imbesi Christensen, brings this action
against Defendant Conde Nast Entertainment, LLC (“Defendant” or “Conde Nast”) seeking an injunction and damages for Defendant’s violations of New York Civil Rights Law § 51 (“NYCRL”), unjust enrichment and common law copyright infringement. II. 2. JURISDICTION AND VENUE
This court has personal jurisdiction over Defendant pursuant to N.Y. C.P.L.R. §
301 because Defendant is a foreign limited liability company authorized to conduct business in the State of New York. 3. Venue is proper in this case pursuant to N.Y. C.P.L.R. § 503(c) because
Defendant’s principal place of business is located in New York County. III. 4. Mr. Spicer is a resident of Ohio. PARTIES
Defendant Conde Nast is a foreign limited liability company authorized to conduct
business in the State of New York and maintains its principal place of business in the State of New York. 6. Defendant Conde Nast is a media company which owns and publishes several
popular magazines, including Vogue. IV. A. Background 7. In 1968, at the age of eleven (11), Mr. Spicer and two (2) of his siblings were STATEMENT OF FACTS
admitted to a group home operated by the state of Ohio. Nine (9) months later, Mr. Spicer’s sister was admitted to a home for girls and Mr. Spicer and his brother were admitted to a home for boys named Ohio Boys Town. 8. During his time at Ohio Boys Town, Mr. Spicer began to sign with other boys in
his neighborhood. 9. In 1969, Mr. Spicer and his friends auditioned for a talent contest at a local high
school and performed exceptionally well. The following night, Mr. Spicer and his friends returned to the school to perform for a second time. Because of the group’s performance on the previous night, many people attended, including individuals from the recording business. 10. After his performance, Mr. Spicer and his friends were approached by Tony
Wilson. Mr. Wilson gave Mr. Spicer his business card and informed him that he wanted to attempt to record songs with another local group at a studio operated by Mr. Wilson’s boss and owner of Saru Records, Chuck Brown.
In the subsequent days, Mr. Brown introduced Mr. Spicer to the members of the
singing group The Ponderosa Twins. Mr. Brown convinced Mr. Spicer to record songs with members of The Ponderosa Twins. 12. The boys sung well together and formed the group The Ponderosa Twins plus One.
Mr. Spicer represented the “plus One.” 13. The Ponderosa Twins plus One recorded several songs. In or about 1970, the
Ponderosa Twins plus One recorded “Bound.” 14. Mr. Spicer was the lead vocalist when the group recorded Bound. His voice can be
distinctly heard throughout the song, including the chorus, which contains the following verse sung by Mr. Spicer: Bound, bound Bound to fall in love 15. The Ponderosa Twins plus One were initially managed by Mr. Brown. The group
released several songs and toured for several months throughout 1970. 16. Although the Pondera Twins plus One were promised payment for their
performances, Mr. Brown and Saru failed to make any payments to Mr. Spicer for his performances. 17. Although Mr. Spicer was only twelve (12) years of age, he accomplished success
in the music industry, releasing several popular songs and performing with Gladys Knight and James Brown. 18. Mr. Spicer was not fairly compensated. Lacking substantial parental protection, Mr.
Brown took advantage of Mr. Spicer’s work product. 19. Mr. Brown even attempted to become Mr. Spicer’s legal guardian to facilitate the
execution of documents allegedly in the best interest of Mr. Spicer. Mr. Brown’s attempt failed
and the executed contracts were declared invalid by the probate court of the State of Ohio, Cuyahoga County. B. Defendant’s Use of Mr. Spicer’s Audio Recording Without his Authorization or Consent 20. In 2013, while listening to the radio, Mr. Spicer heard his voice in Kanye West’s
“Bound 2.” The chorus, which contains Mr. Spicer’s lead vocal, is heard at least four (4) times throughout “Bound 2,” including the beginning, middle and end of the song. 21. Mr. Spicer’s voice is sampled exactly as he recorded it and his voice, altered by the
producers of the song, is also heard several times. 22. The April 2014 issue of Vogue, published by Defendant, features Kim Kardashian
and Kanye West on the cover. A video containing behind the scenes footage is prominently featured on Vogue’s website.1 23. 24. The April 2014 issue is projected to sell between 300,000 and 400,000 copies. An edited version of “Bound 2” is used as the background music for the video. Mr.
Spicer’s voice can be heard five (5) times throughout the song. 25. Mr. Spicer’s voice is used substantially throughout the video, comprising
approximately 44% of the vocals. 26. Defendant knowingly used the voice audio recording of Mr. Spicer without his
authorization or consent. As a result, Defendant has generated revenue and continues to generate revenue using Mr. Spicer’s work. 27. Defendant has failed to compensate Mr. Spicer for the use of his voice recording.
COUNT I VIOLATION OF NEW YORK CIVIL RIGHTS LAW § 51 28. herein. 29. NYCRL § 51 sets forth: Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use if the defendants shall have knowingly used such person’s name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article; the jury, in its discretion, may award exemplary damages.” 30. Mr. Spicer was a member of the Ponderosa Twins plus One, a music group who Plaintiff hereby repeats and realleges all allegations set forth as if fully set forth
recorded numerous songs. As a member of the Ponderosa Twins plus One, Mr. Spicer performed with many well-known singers. 31. 32. “Bound 2”contains Mr. Spicer’s voice signing the chorus. Defendant utilizes the song “Bound 2” in a video on its website, visible in New
York State and throughout the world. 33. Mr. Spicer’s vocals can be heard multiple times throughout the song on Defendant’s
website. Mr. Spicer’s voice is sampled exactly as he recorded it in 1970. 34. The appearance of Mr. Spicer’s voice in the song creates the appearance and
impression that Mr. Spicer is presently connected with the Defendant. 35. Mr. Spicer did not give consent or in any way authorize the use of his voice in the
Defendant’s video. 36. Defendant has knowingly and intentionally used Mr. Spicer’s voice without his
consent and authorization in violation of NYCRL § 51.
The use by Defendant of Mr. Spicer’s voice was for advertising purposes and for
purposes of trade and commercial benefits as the Defendant has profited from the release of “Bound,” which includes Mr. Spicer’s voice, sales of its magazines and avertisements on its website. 38. Defendant has acted knowingly, willfully and in bad faith, such that Mr. Spicer
should be awarded exemplary damages. COUNT II UNJUST ENRICHMENT 39. herein. 40. Defendant knowingly and willfully used Mr. Spicer’s voice in its behind the scenes Plaintiff hereby repeats and realleges all allegations set forth as if fully set forth
video on Vogue’s website. 41. As a result of Defendant’s unauthorized commercial use of Mr. Spicer’s voice on
its website, Defendant has been unjustly enriched to the detriment of Mr. Spicer and Mr. Spicer is entitled to damages. REQUEST FOR RELIEF AND JURY DEMAND WHEREFORE, Plaintiff requests relief against Defendant as follows: a. Awarding to Plaintiff such damages as he shall prove to have sustained and a jury shall find and/or as provided by law; b. Awarding exemplary damages pursuant to New York Civil Rights Law § 51; c. An immediate injunction enjoining Defendants from any further unauthorized use or exploitation of Plaintiff’s name; d. Reasonable costs and attorney’s fees;
e. Awarding Plaintiff judgment in his favor together with such further relief as this Court deems just, equitable and appropriate. Dated: New York, New York April 17, 2014
Respectfully submitted, Imbesi Christensen
____________________ Brittany Weiner, Esq. Vincent Imbesi, Esq. 450 7th Avenue, 14th Floor New York, NY 10123 Tel: (646) 380-9555 Fax: (212) 658-9177