Duffey v Perseus - Complaint

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JUDGE OETKEN 13 CIV 1354UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKTODD DUFFEY,

Plaintiff,-against-

PERSEUS, L.L.C. AND JOHN DOES 1-10,Defendants.

ECF CaseJury Trial DemandedCOMPLAINTCase#:

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The Plaintiff, by and through his undersigned attorney, alleges upon knowledge as tohimself and his own acts, and as to all other matters upon information and belief, and brings thisComplaint against the above-named Defendants, and in support thereof alleges the following:

PRELIMINARY STATEMENT1. This action is brought by the Plaintiff, the actor who portrayed the character

"Chotchkie's Waiter" in the 1999 movie Office Space. The Plaintiff seeks monetary andinjunctive relief against the Defendants for the unauthorized use of his photograph.

JURISDICTION AND VENUE2. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. 1331 as the

Plainti ffs claim is brought pursuant to Section 43(a) ofthe Lanham Act (15 U.S.C. 1125(a)).3. Venue is proper in this District pursuant to 28 U.S.C. 1391 because the

Defendants are located within this district.PARTIES

4. The Plaintiff, Todd Duffey (the "Plaintiff'), is an individual residing in LosAngeles County, California.

5. Based upon information and belief, the Defendant, Perseus, L.L.C. is a Delawarecorporation with a principal place of business located at 250 West 57th St., 15th Floor, New

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York, New York 10107.6. Based upon information and belief, John Does 1-10 are affiliates and/or

subsidiaries of Perseus who, in conjunction with Perseus, manufactured and sold merchandisewhich used the Plaintiffs photograph without his authorization.

FACTUAL ALLEGATIONS7. On or about May 12, 1998, the Plaintiff entered into a "Theatrical Motion Picture

Day Player Employment Agreement" with Cubicle, Inc. (the "Agreement") to portray thecharacter "Chotchkie's Waiter" (the "Character") in the movie Office Space (the "Film").

8. The Agreement was silent as to the Producer's right to use the Plaintiffsphotograph for purposes of producing consumer merchandise related to the Film.

9. The Film was released by Twentieth Century Fox Film Corporation on or aboutFebruary 19, 1999.

10. According to the Defendants' website, the Defendants began selling the OfficeSpace Box ofFlair by Jennifer Leczkowski in interstate commerce on or about October 2, 2007(the "Box ofFlair"). (A picture of the Box ofFlair is attached as Exhibit "A" hereto).

11. The Plaintiffs photograph appears on the front of the Box ofFlair.12. The Box of Flair includes a 32-page book and fifteen "flair" buttons. The

Plaintiffs photograph appears on one of the "flair" buttons.13. In 2010, the Plaintiff learned for the first time that his photograph was being used

on the Box ofFlair.14. On or about January 24, 2013, the Plaintiff requested a full accounting ofthe sales

of the Box ofFlair.15. The Defendants refused to provide an accounting of sales.

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16. The Defendants' use of the Plaintiffs photograph is likely to cause confusion,mistake or deception as to: (i) the affiliation, connection, or association of the Plaintiff to theDefendants; and/or (ii) as to the origin, sponsorship, or approval of the Defendants' goods,services or commercial activities by the Plaintiff.

17. The Plaintiff has been and is likely to be damaged by the Defendants'manufacture and sale of the Box ofFlair using his photograph

CAUSES OF ACTIONCOUNT IFALSE DESIGNATIONS OF ORIGIN(15 U.S.C. 1125(a))

18. The Plaintiff repeats and realleges each of the allegations set forth above asthough they were fully set forth herein.

19. 15 U.S.C. 1125(a) prevents a person from using another's photograph in a falseor misleading way that is likely to cause confusion, mistake and/or deceive as to an affiliation,connection or association

20. The Defendants' use of the Plaintiffs photograph constitutes a false designationof origin, false or misleading description of fact, or false or misleading representation of fact inviolation of 15 U.S.C. 1125(a).

21. The Plaintiff has suffered actual damages and the Plaintiff is likely to be damagedby the Defendants' manufacture and sale of the Box ofFlair using the Plaintiffs photograph.

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WHEREFORE, the Plaintiff respectfully requests that this Court enter judgment againstthe Defendants as follows:

1. Issue a permanent injunction enJommg, restrammg and prohibiting theDefendants, their agents, servants, employees, officers, directors, successors andassigns, and all persons, firms and corporations acting in concert or participationwith the Defendants or on the Defendants' behalf, from using the Plaintiffsphotograph on or to advertise merchandise related to the Film;

2. Order the Defendants to destroy any merchandise using the Plaintiffs photographin its possession;

3. Order an award of actual damages suffered by the Plaintiff as a result of theDefendants' unauthorized use of the Plaintiffs photograph in an amount to bedetermined at trial, plus any of the Defendants' profits which are attributable tosuch unauthorized use;

4. Order an award of costs and reasonable attorney's fees to the Plaintiff; and5. Order an award of such other and further relief as the Court may deem just and

proper.DEMAND FOR TRIAL BY JURY

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby demands atrial by jury.Dated: New York, New YorkFebruary 27, 2013

By:

Respectfully submitted,RANDALL S. NEWMAN, P.C.~ ~ s - ~ ~ Randall S. Newman, Esq. (RN7862)37 Wall St., Penthouse DNew York, New York 10005Tel: (212) 797-3737Attorney for Plaintiff,Todd Duffey

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EXHIBIT A


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Duffey v Perseus - Complaint