`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW
`YORK
`
`BEVERLY STANDING
`a/k/a BEV STANDING,
`
`X
`
`Plaintiff,
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`: COMPLAINT
`
`-against-
`
`: 7:21-cv-4033
`
`BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK
`
`
`Defendants.
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` --------------------------------------------------------------------- X
`Plaintiff Beverly Standing a/k/a Bev Standing ( "Plaintiff'), for her complaint
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`against Defendant BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK ("Defendants") alleges as
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`follows:
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` NATURE OF THE ACTION and FACTUAL BACKGROUND
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`
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`1.
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`This is a civil action for injunctive relief and damages for violation of
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`Plaintiff's right of publicity, the Lanham Act, 15 U.S.C. § 1051, et seq., common law unfair
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`competition, and New York General Business Law § 349, et seq.
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`2.
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`Plaintiff is a voice over actor and is well known in the voice over industry.
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`Plaintiff's voice and likeness are well-known both in this country and abroad.
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`3.
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`Defendants, BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK is a
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`social networking service and social media platform. It is generally used to make short-form
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`videos of one minute in length or less. Among a variety of features available through the
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`platform, a user is able to add a computer generated voice to play during the user’s uploaded
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 2 of 14
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`videos. These videos, including any computer generated voices, are available for consumption
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`by the millions of TikTok users worldwide.
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`4.
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`Several years ago, Plaintiff was hired by the Institute of Acoustics to
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`perform voice work purportedly for Chinese translations.
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`5.
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`The Institute of Acoustics is a company based out of Edenborough
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`Scotland, but upon information and belief, a company from China contracted with The Institute
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`of Acoustics.
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`6.
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`Plaintiff’s work for the Institute of Acoustics related to “text to speech”
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`and artificial intelligence technology and resulted in the Institute of Acoustics’ acquisition of
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`electronic data files of Plaintiff’s voice that were recorded on Plaintiff’s equipment.
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`7.
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`Plaintiff did not have a contract with the Institute of Acoustics
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`permitting it to transfer that data to any other person or entity for later use.
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`8.
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`During November of 2020, Plaintiff discovered that her electronic voice
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`files were acquired by Defendant which is using Plaintiff’s voice as the female computer
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`generated voice of TikTok.
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`9.
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`Although the voice and likeness are Plaintiff, the TikTok user is able to
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`determine what words are spoken in Plaintiff’s voice and some videos depicting Plaintiff’s
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`voice have involved foul and offensive language.
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`10.
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`Plaintiff was not compensated for the use of her voice and likeness and
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`never gave permission for Defendant to use her voice and likeness to Defendant.
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`11. Defendants have unlawfully used Plaintiff's voice and likeness in
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`connection with the services of TikTok resulting in irreparable harm to Plaintiff. Defendants'
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`conduct ignores Plaintiff's right of publicity, violates the Lanham Act, and constitutes unfair
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`competition and deceptive trade practices in accordance with New York General Business Law §
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 3 of 14
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`349, et seq. Unless Defendants are enjoined, Plaintiff will continue to suffer irreparable and
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`permanent harm.
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`THE PARTIES
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`12.
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`Plaintiff is a Canadian citizen who resides in Welland, Ontario Canada.
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`13. On information and belief, Defendant BYTEDANCE E-
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`COMMERCE, INC d/b/a TIKTOK is a duly authorized domestic corporation registered to
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`conduct business in the State of New York and maintains registered agents Xianxi Liu of 118
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`New Main Street Yonkers, New York and Corporation Service Company of 80 State Street
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`Albany, New York and transacts substantial business in this judicial district.
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`JURISDICTION AND VENUE
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`13.
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`This Court has subject matter jurisdiction over these claims pursuant
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`to 28 U.S.C. §§ 1331, 1338, and 1367.
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`14.
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`This Court has personal jurisdiction over Defendants pursuant to New York
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`CPLR §§ 301 and 302(a)(1)-(3) because Defendants are registered in New York and conducts
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`substantial business within the State of New York related to the unlawful activities at issue in
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`this Complaint, and because the harm suffered by Plaintiff within this State flows directly
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`from such business conducted by defendants.
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`15. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)
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`because a substantial part of the events or omissions giving rise to Plaintiff's claims occurred
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`in this District, and Defendant’s main office is located in Westchester County, New York.
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`Irreparable Harm to Plaintiff
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` 16. As a direct consequence of Defendants' unauthorized conduct, Plaintiff
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`has suffered significant injury and irreparable harm.
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`17.
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`Plaintiff has invested substantial effort in preserving, protecting, and
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`honing her reputation, and has amassed substantial goodwill and a favorable reputation during
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`her career. By misappropriating Plaintiff's voice and likeness, Defendants have not only traded on
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`Plaintiff's earned goodwill, but are also depriving the Defendant of the ability to control her
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`reputation.
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`18.
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`If Defendants are not enjoined from misappropriating and continuing to
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`disseminate Plaintiff’s voice and likeness, Plaintiff will continue to suffer irreparable harm.
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`19.
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`Because Plaintiff’s reputation will be irreparably harmed if Defendants
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`are not enjoined, money damages cannot sufficiently compensate Plaintiff for the damage
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`caused by Defendants' unauthorized acts.
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`20.
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`In contrast, Defendants will not suffer any cognizable or irreparable
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`injury if they are enjoined.
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`The Voice Files are Proper Subject for Copyright
`Protection
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`
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`21.
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`Federal copyright protection, as defined by 17 U.S.C. §102(a),
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`is available for “original works of authorship fixed in any tangible medium of
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`expression, now known or later developed, from which they can be perceived,
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`reproduced, or otherwise communicated, either directly or with the aid of a machine
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`or device.”
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`22.
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`This statutory requirement has been distilled into two required
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`elements: (1) originality and (2) fixation.
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`23.
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`The Supreme Court has set a low bar for originality. In
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`Feist Publications, Inc. v. Rural Tel. Serv. Co. the Court stated that “[o]riginal, as
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`the term is used in copyright, means only that the work was independently created
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 5 of 14
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`by the author (as opposed to copied from other works), and that it possesses at least
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`some minimal degree of creativity.” 499 U.S. 340, 345 (1991). The Court went on to
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`state that the “vast majority of works make the grade quite easily, as they possess
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`some creative spark.” Id.
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`24.
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`The copyrighted voice files easily satisfy this standard for
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`originality. The various designs were created by Plaintiff who has subsequently
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`copyrighted this material. The stylization and artistic nature of the voice files is
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`certainly sufficient to satisfy the “minimal degree of creativity” requirement. Feist
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`Publications, Inc., 499 U.S. at 345.
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`25.
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`The copyrighted voice files also satisfy
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`the fixation
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`requirement. The definitions section of the Copyright Act provides that “A work is
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`‘fixed’ in a tangible medium of expression when its embodiment in a copy or
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`phonorecord, by or under the authority of the author, is sufficiently permanent or
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`stable to permit it to be perceived, reproduced, or otherwise communicated for a
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`period of more than transitory duration.” 17 U.S.C. §101. The copyrighted voice files
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`are electronically stored and permanent unless deleted, clearly stable and able to be
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`perceived for much more than a transitory duration.
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`26. Additionally, to be copyrightable, a subject must qualify as a
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`“work” under the Copyright Act. 17 U.S.C. §102(a) lists eight works-of-authorship
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`categories. Of those eight categories, tattoos are protected as copyrightable under the
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`seventh, which covers “sound recordings.” 17 U.S.C. §102(a)(7).
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`27.
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`The definitions section of the Copyright Act provides that
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`“sound recordings” are “works that result from the fixation of a series of musical,
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`spoken, or other sounds, but not including the sounds accompanying a motion picture
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`or other audiovisual work, regardless of the nature of the material objects, such as
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`disks, tapes, or other phonorecords, in which they are embodied.” 17 U.S.C. §101.
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`COUNT I
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`Right of Publicity
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`28.
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`Plaintiff incorporates by reference as though fully set forth herein the
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`allegations contained in paragraphs 1 through 20 above.
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`29. Defendants have engaged in the unlawful and unauthorized use of
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`Plaintiff’s image and likeness in connection with the services of BYTEDANCE E-
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`COMMERCE, INC d/b/a TIKTOK. Plaintiff’s right of publicity has been breached and violated
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`because her likeness has been published, on the Internet, and in connection with Defendants’
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`services, without her consent.
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`30. As a result of Defendants' conduct, Plaintiff has suffered substantial harm,
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`including but are not limited to: (1) the emotional distress of having her likeness exploited without
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`Plaintiff's consent; (2) Plaintiff's loss of the ability to control the dissemination of her likeness;
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`and (3) Plaintiff's loss of the ability to control the association of her likeness.
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`31. A causal connection exists between the use of Plaintiff's likeness by
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`Defendants, and the damages suffered by Plaintiff. The damages suffered by Plaintiff are the
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`logical, direct, and immediate consequence of Defendants' actions.
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`32. Unless Defendants are enjoined from continuing the aforementioned
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`unlawful acts, Plaintiff will continue to suffer irreparable harm.
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`COUNT II
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`Unfair Competition/False Endorsement Under the Lanham Act
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`(15 U.S.C. 4 1125(a)(1)(A))
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 7 of 14
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`33.
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`Plaintiff incorporates by reference as though fully set forth herein the
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`allegations contained in paragraphs 1 through 25 above.
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`34.
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`Defendants have engaged in the unlawful and unauthorized use of
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`Plaintiff’s likeness in interstate commerce in connection with the promotion, advertising, and
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`sale of their services. Defendants have conveyed the false and misleading representation to the
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`public that Plaintiff (a) endorses, sponsors, and approves of the goods, products, and services
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`associated with the Defendant and otherwise acquiesces in or agrees to the use of her image
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`and likeness in connection with the Defendant’s services; and (b) is affiliated with the
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`Defendant and the Unauthorized Services.
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`35.
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`Defendants' conduct, as described above, was deliberate and willful, has
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`created and will create a likelihood of confusion, mistake, and deception, as well as wrongly
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`implied and misrepresented, that Plaintiff endorsed, sponsored, or otherwise was and is
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`affiliated with the Defendant’s services, all to the commercial benefit of Defendants and the
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`detriment of the Plaintiff.
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`36.
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`Consumer confusion will occur if Defendants continue to use Plaintiff’s
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`image and likeness. Defendants intentionally or with reckless disregard adopted the use of
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`Plaintiff’s likeness in order to exploit the goodwill and reputation of Plaintiff.
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`37.
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`Defendants' unauthorized use of Plaintiff’s name, image, and likeness
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`on and in connection with their services in interstate commerce in the United States
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`constitutes a false representation and endorsement as to affiliation, sponsorship, endorsement,
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`license, or other authorization of Plaintiff with respect to her name and likeness, in violation
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`of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A).
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`38.
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`As a result of Defendants' conduct, Plaintiff has suffered substantial
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`harm.
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 8 of 14
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`39.
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`Unless Defendants are enjoined from continuing the aforementioned
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`unlawful acts, Plaintiff will continue to suffer irreparable harm.
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`COUNT III
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`Common Law Unfair Competition
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`40.
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`Plaintiff incorporates by reference as though fully set forth herein the
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`allegations contained in paragraphs 1 through 39 above.
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`41. Defendants' unauthorized use of Plaintiff’s image and likeness has
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`allowed Defendants to falsely suggest to the public that the Services of BYTEDANCE E-
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`COMMERCE, INC d/b/a TIKTOK are sponsored by or otherwise affiliated with Plaintiff when,
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`in fact, they are not.
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`42. Defendants have engaged in such acts intentionally or with reckless
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`disregard for whether the public is confused and deceived regarding the nature, approval,
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`sponsorship, endorsement, and/or authorization by Plaintiff.
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`43. Defendants' unauthorized use is likely to cause confusion, mistake, and
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`deception among consumers.
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`44. Defendants intentionally adopted the use of Plaintiff’s likeness to exploit
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`the goodwill and reputation of Plaintiff.
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`45. Defendants' conduct constitutes unfair competition and was deliberate,
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`willful, and intended to exploit unlawfully the goodwill and reputation associated with
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`Plaintiff and her likeness, for the economic and commercial benefit of Defendants, and to the
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`economic harm of Plaintiff.
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`46. As a result of Defendants' conduct, Plaintiff has suffered substantial
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`harm.
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`47. Unless Defendants are enjoined from continuing the aforementioned
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`unlawful acts, Plaintiff will continue to suffer irreparable harm.
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`COUNT IV
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`Violation of N.Y. General Business Law Section 4 349
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`48.
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`Plaintiff incorporates by reference as though fully set forth herein the
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`allegations contained in paragraphs 1 through 47 above.
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`49. Defendants' unauthorized use of Plaintiff's image and likeness
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`constitutes a deceptive trade practice in that it creates the false impression that Plaintiff has
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`endorsed and/or is affiliated with the services of BYTEDANCE, E-COMMERCE, INC d/b/a
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`TIKTOK misleading the public in violation of the New York General Business Law § 349 et
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`seq.
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`50. Defendants acts and practices of improperly and unlawfully using
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`Plaintiff's image and likeness in connection with the promotion, advertisement, and sale of the
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`services of BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK are consumer-oriented and
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`are misleading in a material way to a reasonable consumer acting reasonably under the
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`circumstances.
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`harm.
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`51. As a result of Defendants' conduct, Plaintiff has suffered substantial
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`COUNT V
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`Permanent Injunctive Relief
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`52.
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`Plaintiff incorporates by reference as though fully set forth herein the
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`allegations contained in paragraphs 1 through 51 above.
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 10 of 14
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`53. Defendants are and continue to engage in the unlawful conduct set forth
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`in this Complaint. Unless restrained and enjoined, Defendants will continue to engage in such
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`unlawful conduct.
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`54. Defendants' unauthorized use of Plaintiff’s image and likeness has
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`caused Plaintiff irreparable injury. Plaintiff has invested substantial effort in preserving,
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`protecting, and honing her reputation, and has amassed substantial goodwill and a favorable
`
`reputation during his career. By misappropriating Plaintiff's image and likeness, Defendants
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`have not only traded on Plaintiff's earned goodwill, but are also depriving the Defendant of the
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`ability to control her reputation.
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`55.
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`Plaintiff has no adequate remedy at law, rendering equitable relief
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`appropriate in that damages cannot compensate Plaintiff for the injuries she suffered.
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`56.
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`In balancing the hardships between Plaintiff and Defendants, a remedy in
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`equity is warranted.
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`57.
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`Furthermore, because the public has an interest in not being deceived, the
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`public interest would be served by a permanent injunction restraining Defendants'
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`unauthorized use of Plaintiffs image and likeness in connection with all services of
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`BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK.
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`COUNT VI
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`
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`Copyright Infringement, 17 U.S.C. §§ 106(5) AND 501)
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`58.
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`Plaintiff hereby re-alleges the allegations contained in the
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`above paragraphs 1 through 57 as if fully set forth herein and state as follows:
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`59.
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`This is a count of Copyright Infringement against Defendants
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`BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK.
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`60.
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`Through their conduct averred in the previous paragraphs,
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 11 of 14
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`Defendants have infringed Plaintiff's copyrights in their works by publicly displaying
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`the Plaintiff’s copyrighted works without authorization and in violation of 17 U.S.C.
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`§§106(5) and 501.
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`61.
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`Each infringement by Defendants of Plaintiff’s protected copyrighted works
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`creates an independent act of infringement.
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`62.
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`Defendants’ acts of infringement were made after a good faith attempt to
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`negotiate licensing by the Plaintiff, and as such Defendants acted with willful disregard for the
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`Plaintiff’s rights. See Exhibits A-B. Since the copyright infringement by the Defendants caused
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`direct and proximate harm to the Plaintiff, the Plaintiff is entitled to damages in an amount to be
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`determined at trial.
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`63.
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`In the alternative, the Plaintiff is entitled to the maximum statutory damages
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`pursuant to 17 U.S.C. § 504(c)(2) in the amount of $150,000 per infringement. Pursuant to 17
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`U.S.C. § 505, the Plaintiff is entitled to recover its full costs and reasonable attorney’s fees.
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`64.
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`As a direct and proximate result of the Defendants’ actions, the Plaintiff has
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`sustained and will continue to sustain immediate, substantial, and irreparable injury, for which
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`there is no adequate remedy at law. Based upon their history of refusal to respect the rights of the
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`Plaintiff, unless this Court enjoins their actions, the Defendants will continue to infringe upon the
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`Plaintiff’s valid intellectual property rights in the copyrighted tattoo designs. As such, the Plaintiff
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`is entitled to preliminary and permanent injunctive relief.
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`
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`JURY DEMAND
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`Plaintiff requests a jury on all issues so triable.
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 12 of 14
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff Beverly Standing a/k/a Bev Standing demands
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`judgment against the Defendants as follows:
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`(1)
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`(2)
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`Adjudging that Defendants violated Plaintiff's right of publicity;
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`Adjudging that Defendants made the false and misleading representation
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`to the public that Plaintiff (a) endorses, sponsors, and approves of the goods, products, and
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`services associated with the Defendant BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK and
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`otherwise acquiesces in or agrees to the use of his image and likeness in connection with their
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`services; and (b) is affiliated with the BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK
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`platform, in violation of the Lanham Act, 15 U.S.C. § 1125(a);
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`(3)
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`Adjudging that Defendants engaged in unfair competition by
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`misappropriating Plaintiff’s image and likeness in conjunction with the newsletter and the
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`services of BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK;
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`(4)
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`Adjudging that Defendants unauthorized use of Plaintiff’s image and
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`likeness constitutes a deceptive trade practice in accordance with New York General Business
`
`Law § 349 et seq.;
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`(5)
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`Preliminarily and permanently enjoining Defendants, their affiliates,
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`employees, agents, and representatives, and all persons acting in concert with or participating with
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`Defendants, from using, disclosing, disseminating, posting, displaying, sharing, distributing,
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`copying, advertising, or selling, in any manner whatsoever, (i) all services of BYTEDANCE E-
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`COMMERCE, INC d/b/a TIKTOK and (ii) all copies of any materials (in paper, electronic, or any
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`other form) that contain or reflect any information derived from Plaintiff's image and likeness;
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`(6)
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`Preliminarily and permanently ordering Defendants, their affiliates,
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`employees, agents, and representatives, and all persons acting in concert with or participating with
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 13 of 14
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`Defendants, to immediately and permanently dispose of: (i) all copies of the unauthorized usage;
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`and (ii) all copies of any materials (in paper, electronic, or any other form) that contain or reflect
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`any information derived from Plaintiff's image and likeness;
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`(7)
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`Preliminarily ordering Defendants, their affiliates, employees, agents, and
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`representatives, and all persons acting in concert with or participating with Defendants, to
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`turn over to the Court any proceeds that Defendants have received as a result of their
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`misappropriation and use of Plaintiff's image and likeness, such proceeds to be held in
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`constructive trust until the conclusion of this litigation;
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`(8) Awarding Plaintiff damages in connection with Counts I, III, and IV in
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`an amount to be determined at trial;
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`(9) Awarding Plaintiff restitution for Defendant’s past and unauthorized
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`use;
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`(Lanham Act);
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`(10) Awarding Plaintiff damages in accordance with 15 U.S.C. § 1117
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` ( 11) Pre-judgment and post-judgment interest;
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` (12) Awarding Plaintiff attorneys' fees, costs, and disbursements pursuant to 15
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`U.S.C. §1117 (Lanham Act);
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`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 14 of 14
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`White Plains, New York
`May 5, 2021
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`Respectfully submitted.
`ROBERT J. SCIGLIMPAGLIA, JR.
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`
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`By_____________________________
` Robert J. Sciglimpaglia, Jr.
` RJS4156
` 101 Merritt 7, Suite 300
` Norwalk, CT 06851
` (203) 663-2803
` Attorney for Beverly Standing
`
`