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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`SACHA BARON COHEN, an individual,
`and PLEASE YOU CAN TOUCH, LLC,
`a California limited liability company,
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`Plaintiffs,
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`Civil Action No. __________
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`Jury Trial Demanded
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`
`SOLAR THERAPEUTICS INC., a
`Massachusetts corporation; and EDWARD
`DOW III, an individual,
`
`
`v.
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`Defendants.
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`
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`COMPLAINT
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`Plaintiffs are the film and television actor and celebrity Sacha Baron Cohen (“Mr.
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`Baron Cohen”) and his company, Please You Can Touch, LLC (“PYCT”) (collectively, the
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`“Plaintiffs”). By and through their undersigned attorneys, for their complaint (the
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`“Complaint”) against cannabis company Solar Therapeutics, Inc. (“Solar Therapeutics”) and
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`its President, Edward Dow III (“Dow”) (collectively, the “Defendants”), the Plaintiffs allege
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`as follows:
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`NATURE OF THE ACTION
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`1.
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`This is an action for willful copyright infringement, false advertising, and
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`violation of the Massachusetts statute against misappropriation of rights of publicity. Without
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`permission of any kind, the Defendants deliberately featured the portrait, picture, image,
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`likeness, and persona of Mr. Baron Cohen and his “Borat” movie character in a commercial
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`billboard (the “Billboard”) on a busy interstate highway in Massachusetts, to advertise the
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`sale of the Defendants’ cannabis products. The following is a photograph of the Billboard,
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 2 of 15
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`which, upon information and belief, reached hundreds of thousands of viewers per day for
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`several weeks:
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`2.
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`By use of the Billboard, the Defendants falsely have conveyed to the public
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`that Mr. Baron Cohen has endorsed their products and is affiliated with their business. To the
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`contrary, Mr. Baron Cohen never has used cannabis in his life. He never would participate in
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`an advertising campaign for cannabis, for any amount of money. Mr. Baron Cohen never has
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`been involved in advertising any commercial products or services anywhere in the United
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`States or the United Kingdom, despite countless opportunities to do so.
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`3.
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`The Defendants knowingly misappropriated Mr. Baron Cohen’s portrait,
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`picture, image, likeness, and persona to increase the Defendants’ sales revenues, which, upon
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`information and belief, are approximately $26 million per year. Upon information and belief,
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`the Defendants believed Mr. Baron Cohen would not learn about the Billboard, so they took a
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`gamble, guessing they could copy and use Mr. Baron Cohen’s image without ever having to
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`pay for it. In this action, Mr. Baron Cohen seeks market value compensation, statutory treble
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`damages, and punitive and other damages, estimated to be in a total amount of at least $9
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`million.
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`2
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 3 of 15
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`BACKGROUND
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`4. Mr. Baron Cohen is an internationally renowned actor, comedian, writer and
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`producer. He is a 2021 winner of two Golden Globe Awards in relation to “Borat: Subsequent
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`Moviefilm,” for “Best Performance by an Actor,” and as a producer for “Best Motion Picture
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`– Musical or Comedy.” He has been Nominated for three Academy Awards and three
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`Primetime Emmy Awards. Mr. Baron Cohen has used the comedic devices of satire and
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`parody in his films and television series, and through the characters he has developed and
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`portrayed in them, to reach and educate people around the world on important social issues,
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`including ethnocentrism, proliferation of guns, racism, holocaust denial, homophobia,
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`sexism, and anti-Semitism.
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`5. Mr. Baron Cohen helped organize the Stop Hate for Profit campaign, which
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`has been successful in holding social media companies accountable for spreading hate and
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`lies on their platforms. Mr. Baron Cohen is a leading advocate of this campaign.
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`6. Mr. Baron Cohen is highly protective of his image and persona, and those of
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`his characters. Mr. Baron Cohen is very careful with the manner in which he uses his
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`persona and his characters to interact with his fans and the general public.
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`7.
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`The reason why Mr. Baron Cohen never has used cannabis is that he does not
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`believe it is a healthy choice. With his “Ali G” character, portrayed by Mr. Baron Cohen in
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`the HBO television series Da Ali G Show, Mr. Baron Cohen has spent much of his career
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`making a mockery of “stoner” culture – a culture which the Defendants’ Billboard overtly
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`celebrates. In addition, Mr. Baron Cohen was born into an Orthodox Jewish family; he is an
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`Observant Jew; and he is proud of his cultural heritage. He does not wish to be involved in
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`the heated controversy among the Orthodox Jewish community about whether cannabis can
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`be used under Jewish traditions, customs, and rules – a controversy in which many rabbinical
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`leaders have stated that cannabis use is a violation of Jewish law.
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`3
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 4 of 15
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`8. Moreover, the sale and distribution of cannabis remains a federal crime
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`everywhere in the United States, including Massachusetts. United States citizens continue to
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`be prosecuted and imprisoned by federal law enforcement agents and courts for selling or
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`using the products that the Defendants are advertising and selling. Most recently, this year the
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`Biden Administration terminated a number of White House staffers simply because they once
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`used cannabis.
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`9.
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`For all of the above reasons, cannabis remains a controversial product that Mr.
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`Baron Cohen has no interest in endorsing, promoting, or advertising. He would be appalled if
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`his young children were to discover, mistakenly or otherwise, that he was associated with the
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`promotion of cannabis.
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`10. Mr. Baron Cohen has turned down countless opportunities to license his name
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`and/or likeness for other commercial advertising in the United States. He believes such
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`advertising would weaken his credibility as an actor and as a serious social activist. In one
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`situation, Mr. Baron Cohen turned down a $4 million offer to appear in a car commercial.
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`Mr. Baron Cohen and his company PYCT never have allowed their "Borat" character to be
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`used for advertising or marketing of any product or service anywhere, other than television
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`series or films involving Borat.
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`11. The measure of damages in a situation like this one typically is the amount of
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`money the defendant company would have to pay for the same or another celebrity -- one
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`who has reached similar stature in terms of professional achievement and commercial and
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`critical success -- if that celebrity would have been willing to allow the use, and if the
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`defendant company would have been willing to pay the market price.
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`12. The fact that the Defendants did not and do not want to pay Mr. Baron Cohen
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`any amount or might not have paid any other celebrity any amount, is irrelevant. The legal
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`test involves “a willing buyer.” The fact is that the Defendants knowingly used Mr. Baron
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`4
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 5 of 15
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`Cohen’s image and likeness and the copyright-protected Borat character without permission.
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`They now must pay the reasonably established value of that use, which would have been paid
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`by a willing buyer, as determined by expert testimony and other evidence.
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`13. This action is occurring in an environment where companies are willing to pay
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`extraordinary sums to be associated with celebrities. For example, upon information and
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`belief, celebrity Kim Kardashian is paid $300,000 per tweet for simply mentioning brand
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`names on Twitter. Upon information and belief, a jury awarded $8.9 million to basketball star
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`Michael Jordan against a grocery company for a magazine advertisement that included Mr.
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`Jordan’s image without his permission. In the advertisement, there was no endorsement by
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`Mr. Jordan, only a congratulatory message to him, which reached a smaller audience than the
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`audience for the Billboard here.
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`14.
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`In situations like this one, where the Defendants have misappropriated not
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`only the likeness of Mr. Baron Cohen, but also the copyright-protected character of Borat,
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`they also are required to pay damages to the owner of copyright in the character. In the
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`entertainment industry, the payment to the copyright owner typically is on an MFN (most
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`favored nations) basis, such that the Defendants are obligated to pay the copyright holder the
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`same amount (at a minimum) that they would be required to pay the celebrity. Because Mr.
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`Baron Cohen’s company, plaintiff PYCT, is the owner of all applicable copyright and other
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`intellectual property interests in the Borat character, the Defendants are obligated to
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`compensate both Mr. Baron Cohen and PYCT.
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`15. Mr. Baron Cohen played the character of Borat in the 2006 movie, Borat:
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`Cultural Learnings of America For Make Benefit Glorious Nation of Kazakhstan (“Borat
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`Movie”) and its 2020 sequel, Borat Subsequent Moviefilm: Delivery of Prodigious Bribe To
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`American Regime For Make Benefit Once Glorious Nation Of Kazakhstan (“Borat
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`Subsequent Moviefilm”) (collectively, the “Borat Films”).
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`5
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 6 of 15
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`16. Mr. Baron Cohen’s company, plaintiff PYCT, is the holder of the federally
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`registered copyright in the Borat character.
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`17. Defendant Solar Therapeutics Inc. is a domestic profit corporation in
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`Massachusetts. Solar Therapeutics is a cannabis dispensary that manufactures various types
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`of marijuana and marijuana-infused products. Defendant Edward Dow III (“Dow”) is its
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`President and Director. All of the actions of defendant Solar Therapeutics alleged in this
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`Complaint were specifically and personally directed, controlled, ratified, approved, and
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`implemented by Dow. In Massachusetts, a corporate officer is personally liable for a tort
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`committed by the corporation that employs him, if he personally participated in the tort by
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`directing, controlling, approving, or ratifying the act that injured the aggrieved party.
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`Accordingly, Dow is personally liable for the torts alleged in this Complaint.
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`18. The Defendants not only used Mr. Baron Cohen’s image, portrait and likeness
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`on their Billboard, but they also used the character Borat’s physical pose, characterizations,
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`style and gesture. In particular, Defendants have reproduced Mr. Baron Cohen’s likeness by
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`using a well-known image or portrait of Borat holding his thumbs up in conjunction with the
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`phrase, “It’s Nice!” The phrase, “It’s Nice,” used in the Billboard, refers to the Borat
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`catchword, “Nice!,” often used by Borat in the Borat Films and known to the general public
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`as one of Borat’s catchwords.
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`19. The unlawful actions by the Defendants amount to a willful and conscious
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`disregard of the rights of Mr. Baron Cohen and PYCT, are knowingly false, and are
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`intentionally designed to capitalize on the goodwill, recognition, and fame associated with
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`Mr. Baron Cohen and his Borat character.
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`6
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 7 of 15
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`JURISDICTION AND VENUE
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`20. This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and
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`1338(a).
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`21. This Court has subject matter jurisdiction under 28 U.S.C. § 1332 because
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`there is complete diversity among the parties and the claims alleged exceed $75,000. Further,
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`this is a civil action arising under federal law, namely, the Lanham Act of 1946 as amended
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`(codified at 15 U.S.C. §§ 1051, et seq.) and the copyright laws of the United States, 17 U.S.C.
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`§§ 101 et seq.
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`22. The pendent state law claims are so related to the federal claims that they form
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`part of the same case or controversy pursuant to Article III of the United States Constitution.
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`The Court therefore has supplemental jurisdiction over those claims pursuant to 28 U.S.C. §
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`1367.
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`23. This Court has personal jurisdiction over Solar Therapeutics because its
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`principal place of business is located in Somerset, Massachusetts, within the jurisdiction of
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`this Court. The Court has personal jurisdiction over Dow because he resides in Bourne,
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`Massachusetts, within the jurisdiction of the Court. Also, the wrongful acts described in the
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`Complaint occurred in Massachusetts, within the jurisdiction of the Court.
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`24. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)
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`because Dow resides within this District and Solar Therapeutics’ principal place of business
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`is located within this District, and the wrongful acts that led to the action occurred within this
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`District.
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`PARTIES
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`25. Plaintiff Baron Cohen is an individual and resident of Los Angeles, California,
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`who is temporarily located in Australia.
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`7
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 8 of 15
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`26. Plaintiff PYCT is a California limited liability company with its principal
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`place of business in Los Angeles, California. By assignment, PYCT holds all copyrights
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`related to Borat, apart from those granted in connection with promotion and exploitation of
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`the Borat Films.
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`27. Upon information and belief, Defendant Solar Therapeutics is a Massachusetts
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`domestic profit corporation, with its principal place of business in Somerset, Massachusetts.
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`28. Upon information and belief Defendant Dow is a resident of Bourne,
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`Massachusetts.
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`FACTS
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`29. Mr. Baron Cohen’s films, including the Borat Movie and the Borat Subsequent
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`Moviefilm, have had a wide reach in the United States and internationally. The Borat Movie
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`was the most successful comedy film in history. Borat Subsequent Moviefilm was the most
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`watched motion picture of 2020. Mr. Baron Cohen has become a household name, globally,
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`and his image and likeness, both personally and as Borat, are instantly recognizable by the
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`public.
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`30. Borat, the Kazakh journalist character, was brought to life by Mr. Baron
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`Cohen originally in UK television series, The Ali G Show, in the year 2000, and later became
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`world-famous through the US television series on HBO, Da Ali G Show, and the Borat Films.
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`31. The Borat Movie was featured in multiple “top ten” lists of films in 2006,
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`including those of the American Film Institute, Time magazine, Rolling Stone, and
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`Newsweek. Time described Borat Movie as “the Bush-era movie par excellence” and “a
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`treasure trove for future archeologists looking back on the first decade of the American 21st
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`century.” Since its release, the Borat Movie has grossed hundreds of millions of dollars in
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`ticket and DVD sales worldwide.
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`8
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 9 of 15
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`32. Borat Subsequent Moviefilm premiered on the streaming media platform,
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`Amazon Prime Video, where it became the most-watched film in Amazon’s history.
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`33. Mr. Baron Cohen’s on-screen persona, Borat, is so associated with Mr. Baron
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`Cohen that it has become inseparable from his own image in the minds of the public. Mr.
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`Baron Cohen has exclusively created and portrayed the character of Borat. The identity of
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`Borat is now synonymous with the identity of Mr. Baron Cohen.
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`34. Borat as a character invokes the persona of Mr. Baron Cohen and is, therefore,
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`of very significant commercial value. As mentioned above, companies often pay millions of
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`dollars for endorsements and/or affiliations by a celebrity like Mr. Baron Cohen.
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`35. PYCT is the holder of the federally registered copyright in the Borat character
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`(the “Copyrighted Work”). PYCT acquired the exclusive rights in the Borat character through
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`a written assignment entered among Channel 4 and Fremantle Media Limited, and PYCT (the
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`“Assignment Agreement”). The Assignment Agreement was executed on November 8, 2013,
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`and the same has been recorded with the US Copyright Office under Document No.
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`V9912D073 (Entire Copyright Document: V9912 D073 P1-2) on June 23, 2014.
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`36. The underlying copyrights in the Assignment Agreement are federally
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`registered copyrights with the US Copyright Office under Registration Numbers: (1)
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`PA0001124817; (2) PA0001124816; (3) PA0001124812; (4) PA0001148827; (5)
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`PA0001148847; (6) PA0001138201; (7) PA0001240301; (8) PA0001240303; (9)
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`PA0001240777; (10) PA0001240776; (11) PA0001240778; and (12) PA0001240774.
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`37. PYCT holds all the rights in relation to the character Borat, apart from those
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`granted in connection with the promotion and exploitation of the Borat Films.
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`38. Upon information and belief, on or about April 9, 2021, Defendants put up an
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`advertisement on an interstate highway billboard in Massachusetts promoting the Defendants’
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`product and company by name.
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`9
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 10 of 15
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`39. Upon information and belief, Defendants intentionally instructed a digital
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`artist to copy an instantly recognizable image of Mr. Baron Cohen playing Borat.
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`40. The Billboard featured Mr. Baron Cohen as Borat, next to the Defendants’
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`company name, displaying an easily understandable two-thumbs-up gesture, with the phrase,
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`“It’s Nice!” The phrase, “It’s Nice,” used in the Billboard refers to the Borat catchword,
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`“Nice!,” often used by Borat in the Borat Films. In so doing, the Defendants conveyed to the
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`public that Mr. Baron Cohen was endorsing the Defendants’ products and was affiliated with
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`them.
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`41. The Billboard also accentuated the nature of Solar Therapeutics as a cannabis
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`dispensary by designating the company as a “Sustainable Cannabis Co.,” and by prominently
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`including a cannabis-related slogan, “HAPPY 4/20!”
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`42. Without authorization of any kind, Defendants have misappropriated Mr.
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`Baron Cohen’s likeness to advertise and promote Solar Therapeutics and its products. The
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`Defendants also have reproduced and displayed the Copyrighted Work, without consent.
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`43. Hoping to benefit from Mr. Baron Cohen’s influence, the Defendants used his
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`likeness to promote their brand without consent.
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`44. Defendants are not associated or affiliated with Mr. Baron Cohen and have
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`never been authorized or otherwise licensed by Mr. Baron Cohen to use his portrait, image or
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`likeness, or any of his or PYCT’s trade names or trademarks or copyrights, in connection
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`with any goods or services. On April 24, 2021, Mr. Baron Cohen’s attorney sent a cease-and-
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`desist letter objecting to Defendants’ wrongful actions described above. Subsequently, the
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`Defendants informed the Plaintiff’s attorney that they removed the Billboard three days later,
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`on April 27, 2021. The Defendants have declined to compensate Mr. Baron Cohen for the
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`exploitation of his image and his Borat character for the benefit of the Defendants and their
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`revenues.
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`10
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 11 of 15
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`45. The Defendants’ unauthorized use of Mr. Baron Cohen’s identity, portrait,
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`image and likeness to promote their brand and products is a blatant and willful violation of
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`Mr. Baron Cohen’s statutory right of publicity and constitutes false endorsement. Further, the
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`use of the Copyrighted Work constitutes infringement of PYCT’s copyrights under the
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`Copyright Act.
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`FIRST CLAIM FOR RELIEF
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`(Violation of Mass. Gen. Laws Ann. Ch. 214, § 3A
`Against All Defendants by Mr. Baron Cohen)
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`46. Plaintiffs incorporate all prior allegations of this Complaint by this reference.
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`47. Mr. Baron Cohen is the owner of the rights of publicity in his portrait, picture,
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`image, likeness, and persona.
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`48. Defendants have willfully and without written, verbal, or any other consent
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`used Mr. Baron Cohen’s portrait, picture, image, likeness, and persona.
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`49. Defendants used Mr. Baron Cohen’s portrait, picture, image, likeness, and
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`persona to advertise and promote their business and products.
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`50. Defendants’ use of Mr. Baron Cohen’s portrait, picture, image, likeness and
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`persona constitute an unauthorized use, in violation of Mass. Gen. Laws Ann. Ch. 214, § 3A.
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`51. As a direct and proximate result of Defendants’ wrongful conduct, Mr. Baron
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`Cohen has suffered, and will continue to suffer damages, in an amount to be proven at trial,
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`estimated to be at least $9 million.
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`52. Defendants committed the unauthorized acts described above knowingly
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`without Mr. Baron Cohen’s consent, such that Mr. Baron Cohen should be awarded treble
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`damages.
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`11
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 12 of 15
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`SECOND CLAIM FOR RELIEF
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`(False endorsement (15 U.S.C. § 1125(a))
`Against All Defendants by Mr. Baron Cohen)
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`53. Plaintiffs incorporate all prior allegations of this Complaint by this reference.
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`54. Mr. Baron Cohen owns all statutory and common law rights associated with
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`his portrait, picture, image, likeness, identity and persona necessary for endorsement deals,
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`including the right to decide whether to associate his portrait, picture, name, image, likeness,
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`identity or persona with any third-party for purposes relating to sponsorship and/or
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`endorsement.
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`55. Defendants have used distinctive attributes of Mr. Baron Cohen’s portrait,
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`image, identity and likeness without permission by displaying the Billboard with an image of
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`Borat holding up two thumbs in the exact and distinct poses made by Borat in the Borat
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`Films, along with the phrase, “It’s Nice!,” referring to the Borat catchword, “Nice,” often
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`used by Borat in the Borat Films.
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`56. Defendants’ unauthorized use constitutes false or misleading representations of
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`fact to falsely imply the endorsement of Defendants’ business and products by Mr. Baron
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`Cohen.
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`57. Defendants’ unauthorized use of Mr. Baron Cohen’s image is likely to confuse
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`and deceive consumers as to Mr. Baron Cohen’s sponsorship and/or endorsement of Solar
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`Therapeutics and its products. Specifically, Defendants’ use of Mr. Baron Cohen’s portrait,
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`image and likeness is likely to cause consumers to mistakenly believe that Mr. Baron Cohen
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`is associated with Defendants or that he sponsors or endorses Defendants’ products.
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`58. As a direct and proximate result of the acts of false endorsement set forth
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`above, Mr. Baron Cohen has suffered actual damages in an amount to be proven at trial,
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`estimated to be at least $9 million. Mr. Baron Cohen is entitled to relief available under the
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`12
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 13 of 15
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`Lanham Act, 15 U.S.C. § 1117(a), for an award of actual damages and the disgorgement of
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`Defendants’ profits arising from their false or misleading act and costs of this action.
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`THIRD CLAIM FOR RELIEF
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`(Infringement of Copyright (17 U.S.C. § 501)
`Against All Defendants by PYCT)
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`59. Plaintiffs incorporate all prior allegations of this Complaint by this reference.
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`60. The Defendants have infringed PYCT’s copyright in the Borat character.
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`61. PYCT acquired all the rights to the Borat character through an assignment
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`agreement. The assignment was executed on November 8, 2013, and the same has been
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`recorded with the US Copyright Office under Document No. V9912D073 (Entire Copyright
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`Document: V9912 D073 P1-2) on June 23, 2014.
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`62. PYCT holds all the rights in relation to the character Borat, apart from those
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`granted in connection with promotion and exploitation of the Borat Films.
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`63. Plaintiff PYCT is the owner of the exclusive rights under Section 106 of the
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`Copyright Act in the Copyrighted Work.
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`64. Defendants reproduced and publicly displayed the Copyrighted Work by
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`recreating the image of Borat on the Billboard.
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`65. Defendants’ exploitation of the Copyrighted Work is without Plaintiff PYCT’s
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`consent or authorization.
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`66. Defendants’ unauthorized use has infringed Plaintiff PYCT’s valid and
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`existing copyrights in the Copyrighted Works.
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`67. Defendants’ act of infringement has been willful, intentional and purposeful,
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`in disregard of and indifferent to Plaintiff PYCT’s rights.
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`68. As a direct and proximate result of the acts of copyright infringement set forth
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`above, PYCT has suffered actual damages in an amount to be proven at trial, but estimated to
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`be at least $9 million. Plaintiff PYCT is entitled to the full range of relief available under the
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`13
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 14 of 15
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`Copyright Act, 17 U.S.C. § 504(b), including, without limitation, an award of actual damages
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`and the disgorgement of Defendants’ profits arising from the acts of copyright infringement.
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`69. Plaintiff PYCT is further entitled to costs, including reasonable attorneys’ fees,
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`pursuant to 17 U.S.C. § 505.
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`REQUEST FOR RELIEF
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` WHEREFORE, Plaintiffs seek judgment as follows:
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`1.
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` On all claims for relief, an award of actual damages in an amount to be proven
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`at trial, but estimated to be at least $9 million;
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`2. On the First Claim for Relief, an award of treble damages;
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`3. On any and all claims for relief, an award of punitive damages in an amount
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`sufficient to deter unlawful conduct by the Defendants in the future;
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`4. On the Second and Third Claims for Relief, for the disgorgement of
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`Defendants profits attributable to the alleged false endorsement or affiliation and the
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`infringement of Plaintiff PYCT’s intellectual property rights;
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`5. For a permanent injunction restraining and enjoining Defendants from using
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`Mr. Baron Cohen’s portrait, picture, images, likeness, persona and PYCT’s copyrights;
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`6. For attorneys’ fees and costs; and
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`7. For such other and further relief as the Court may deem just and proper.
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`DEMAND FOR JURY TRIAL
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`Plaintiffs hereby demand a trial by jury on all issues and claims so triable.
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` Dated: July 12, 2021
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`Respectfully submitted,
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`Sacha Baron Cohen, and
`Please You Can Touch LLC
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`14
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`Case 1:21-cv-11139-DJC Document 1 Filed 07/12/21 Page 15 of 15
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`By their attorneys,
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`/s/
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`David E. Condon
`
`David E. Condon (BBO # 642741)
`Bradford N. Louison (BBO #305755)
`LOUISON, COSTELLO, CONDON &
`PFAFF, LLP
`101 Summer Street
`Boston, Massachusetts 02110
`Telephone: (617) 439-0305
`Telefacsimile: (617) 439-0325
`
`Russell A. Smith (pro hac vice
`application in process)
`SMITHDEHN LLP
`654 San Juan Avenue
`Venice Beach
`Los Angeles, California 90291
`Telephone: (917) 239-5047
` Telefacsimile: (646) 417-7974
`
`15
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