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Case 1:16-cv-00068-WHP Document 3 Filed 01/06/16 Page 1 of 4

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
In re Petition of
MIREILLE PORTE a/k/a ORLAN,

Action No. 16-cv-00068

Petitioner,
pursuant to 28 U.S.C. 1782 to issue subpoenas upon
NICOLA FORMICHETTI and BILLY BRASFIELD
for the production of documents and oral testimony
for use in foreign proceedings.

DECLARATION OF ALAN E. SASH IN SUPPORT OF PETITION


FOR AN ORDER PURSUANT TO 28 U.S.C. 1782
TO CONDUCT DISCOVERY FOR USE IN FOREIGN PROCEEDINGS
Alan E. Sash, hereby declares under penalty of perjury, pursuant to 28 U.S.C. 1746, that
the following is true and correct:
1. I am an attorney duly licensed to practice law in the State of New York and in the
District Court of the Southern District of New York. I am a member of the law firm of
McLaughlin & Stern, LLP, counsel for MIREILLE PORTE a/k/a ORLAN (ORLAN). I make
this declaration in support of her application for an order to conduct discovery within this district
for use in a French proceeding.
Background
2. In 2014, ORLAN commenced a lawsuit against UMG Recordings, Inc., Universal
Musical France, and Stefani Germanotta (better known as the singer/songwriter Lady Gaga)
(collectively, the French Defendants) in the District Court of Paris (hereinafter French
Action).
3. All parties were served with the French Action and they are currently litigating it in

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the French courts. A true and correct copy of the French Action (without exhibits) in French and
English is annexed hereto as Exhibits A and B, respectively.
4. ORLAN is a French citizen residing in Paris. She is an artist whose work is devoted
to the human body and social pressures associated on ones body and its appearance. Since
1964, ORLANs art reveals how the body can be beautiful in unconventional ways.

She

underwent plastic surgery for the sake of her art including implants to her cheekbones which she
inserted on either side of her forehead. See, Exhibit B.
5. ORLAN created a new form of contemporary art called Charnel Art which wavers
between disfiguration and re-figuration. Her plastic surgery was photographed and broadcast
live in Paris, New York and Canada. ORLANs photographs were exhibited at the Pompidou
Museum in Paris and the Musee du Quai Branly (both in Paris), the Andy Warhol Museum in
Pittsburg, the Pushkin Museum in Moscow, and the Miro Foundation in Barcelona. Id.
6. In May 2011, Lady GaGa released here third album entitled Born this Way. It was
produced by UMG Recordings, Inc. and distributed by Universal Musical France. The album
contains 14 songs. One of the songs was called Born this Way which was released prior to the
album. Born this Way debuted at number one on the Billboard Hot 100 Chart and made the
top of the charts in numerous countries including France, Australia, the United Kingdom and the
United States. Id.
7. The cover on the single was Lady Gagas body transformed into a hybrid person
whose body is covered in excrescences on the forehead and shoulders. In order to promote the
album, Lady Gaga performed the song Born this Way in a musical video bearing the same
title. Id.

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Infringement of ORLANs Work


8. Lady Gaga infringed and exploited ORLANs work without permission to do so on
both the cover of the Born this Way album and in the Born this Way video. In particular,
Lady Gaga copied a sculpture created by ORLAN in 1989 entitled Bumpload wherein ORLAN
transformed her face into a mutant whose body is covered with excrescences. This work by
ORLAN was well publicized in 2009 on television, the Internet and in museums. Lady Gaga
also reproduced this work by ORLAN on the homepage of her official website. Id.
9.

Lady Gaga also infringed upon and exploited one of ORLANs most famous works

called Woman with Head dated 1996 in the Born this Way video. The Woman with Head
shows ORLANs decapitated head on a table. In the Born this Way video, Lady Gaga is
wearing a blunt haircut like ORLAN and is resting her head on a sheet of Plexiglas like that of
the decapitate ORLAN. Id.
10. The similarities between Lady Gagas album cover/video and ORLANs artwork did
not go unnoticed by either ORLAN or the international press. As a result, ORLAN commenced
the French Action against the French Defendants. Id.
The Need to Conduct Discovery for Use in the French Action
11. There are two witnesses located in this district who were part of Lady Gagas
creative team that worked on the Born this Way cover and video -- NICOLA
FORMICHETTI (FORMICHETTI) and BILLY BRASFIELD (BRASFIELD) who
according to public records maintain residences on White Street and West 23rd Street, respectively,
12. Upon information and belief, FORMICHETTI was (a) Lady Gagas fashion director
for the Born this Way project; (b) responsible for styling Lady Gaga in the Born this Way
video; and (c) credited with creation and fashion director on the Born this Way album and

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styling on the Born this Way video. Accordingly, it is respectfully submitted that
FORMICHETTI has relevant information regarding the creative processes and techniques used
in the Born this Way project and how ORLANs works played a role in it. The proposed
subpoena for FORMICHETTI is annexed hereto as Exhibit C.
13. Upon information and belief, BRASFIELD was the makeup artist for Lady Gagas
Born this Way video and gave Lady Gaga the intricate skeleton look therein. BRASFIELD
should have information regarding the Lady Gagas appearance for the video, the inspiration for
it and the genesis of the idea. The proposed subpoena for BRASFIELD is annexed hereto as
Exhibit D.
14.

The French courts do not have jurisdiction over either FORMICHETTI or

BRASFIELD in the French Action. ORLAN needs both documents and deposition testimony
from these individuals to aid in the prosecution of her case in France. Without the
implementation of 28 U.S.C. 1782, material evidence cannot be obtained in the French Action.
Accordingly, we respectfully requests that this Court grant the within application in its entirety.
Dated: New York, New York
January 6, 2016
s/ Alan E. Sash
Alan E. Sash