throbber
Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 1 of 14
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW
`YORK
`
`BEVERLY STANDING
`a/k/a BEV STANDING,
`
`X
`
`Plaintiff,
`
`: COMPLAINT
`
`-against-
`
`: 7:21-cv-4033
`
`BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK
`
`
`Defendants.
`
` --------------------------------------------------------------------- X
`Plaintiff Beverly Standing a/k/a Bev Standing ( "Plaintiff'), for her complaint
`
`against Defendant BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK ("Defendants") alleges as
`
`follows:
`
` NATURE OF THE ACTION and FACTUAL BACKGROUND
`
`
`
`1.
`
`This is a civil action for injunctive relief and damages for violation of
`
`Plaintiff's right of publicity, the Lanham Act, 15 U.S.C. § 1051, et seq., common law unfair
`
`competition, and New York General Business Law § 349, et seq.
`
`2.
`
`Plaintiff is a voice over actor and is well known in the voice over industry.
`
`Plaintiff's voice and likeness are well-known both in this country and abroad.
`
`3.
`
`Defendants, BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK is a
`
`social networking service and social media platform. It is generally used to make short-form
`
`videos of one minute in length or less. Among a variety of features available through the
`
`platform, a user is able to add a computer generated voice to play during the user’s uploaded
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 2 of 14
`
`videos. These videos, including any computer generated voices, are available for consumption
`
`by the millions of TikTok users worldwide.
`
`4.
`
`Several years ago, Plaintiff was hired by the Institute of Acoustics to
`
`perform voice work purportedly for Chinese translations.
`
`5.
`
`The Institute of Acoustics is a company based out of Edenborough
`
`Scotland, but upon information and belief, a company from China contracted with The Institute
`
`of Acoustics.
`
`6.
`
`Plaintiff’s work for the Institute of Acoustics related to “text to speech”
`
`and artificial intelligence technology and resulted in the Institute of Acoustics’ acquisition of
`
`electronic data files of Plaintiff’s voice that were recorded on Plaintiff’s equipment.
`
`7.
`
`Plaintiff did not have a contract with the Institute of Acoustics
`
`permitting it to transfer that data to any other person or entity for later use.
`
`8.
`
`During November of 2020, Plaintiff discovered that her electronic voice
`
`files were acquired by Defendant which is using Plaintiff’s voice as the female computer
`
`generated voice of TikTok.
`
`9.
`
`Although the voice and likeness are Plaintiff, the TikTok user is able to
`
`determine what words are spoken in Plaintiff’s voice and some videos depicting Plaintiff’s
`
`voice have involved foul and offensive language.
`
`10.
`
`Plaintiff was not compensated for the use of her voice and likeness and
`
`never gave permission for Defendant to use her voice and likeness to Defendant.
`
`11. Defendants have unlawfully used Plaintiff's voice and likeness in
`
`connection with the services of TikTok resulting in irreparable harm to Plaintiff. Defendants'
`
`conduct ignores Plaintiff's right of publicity, violates the Lanham Act, and constitutes unfair
`
`competition and deceptive trade practices in accordance with New York General Business Law §
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 3 of 14
`
`349, et seq. Unless Defendants are enjoined, Plaintiff will continue to suffer irreparable and
`
`permanent harm.
`
`THE PARTIES
`
`12.
`
`Plaintiff is a Canadian citizen who resides in Welland, Ontario Canada.
`
`13. On information and belief, Defendant BYTEDANCE E-
`
`COMMERCE, INC d/b/a TIKTOK is a duly authorized domestic corporation registered to
`
`conduct business in the State of New York and maintains registered agents Xianxi Liu of 118
`
`New Main Street Yonkers, New York and Corporation Service Company of 80 State Street
`
`Albany, New York and transacts substantial business in this judicial district.
`
`JURISDICTION AND VENUE
`
`13.
`
`This Court has subject matter jurisdiction over these claims pursuant
`
`to 28 U.S.C. §§ 1331, 1338, and 1367.
`
`14.
`
`This Court has personal jurisdiction over Defendants pursuant to New York
`
`CPLR §§ 301 and 302(a)(1)-(3) because Defendants are registered in New York and conducts
`
`substantial business within the State of New York related to the unlawful activities at issue in
`
`this Complaint, and because the harm suffered by Plaintiff within this State flows directly
`
`from such business conducted by defendants.
`
`15. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)
`
`because a substantial part of the events or omissions giving rise to Plaintiff's claims occurred
`
`in this District, and Defendant’s main office is located in Westchester County, New York.
`
`Irreparable Harm to Plaintiff
`
` 16. As a direct consequence of Defendants' unauthorized conduct, Plaintiff
`
`has suffered significant injury and irreparable harm.
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 4 of 14
`
`17.
`
`Plaintiff has invested substantial effort in preserving, protecting, and
`
`honing her reputation, and has amassed substantial goodwill and a favorable reputation during
`
`her career. By misappropriating Plaintiff's voice and likeness, Defendants have not only traded on
`
`Plaintiff's earned goodwill, but are also depriving the Defendant of the ability to control her
`
`reputation.
`
`18.
`
`If Defendants are not enjoined from misappropriating and continuing to
`
`disseminate Plaintiff’s voice and likeness, Plaintiff will continue to suffer irreparable harm.
`
`19.
`
`Because Plaintiff’s reputation will be irreparably harmed if Defendants
`
`are not enjoined, money damages cannot sufficiently compensate Plaintiff for the damage
`
`caused by Defendants' unauthorized acts.
`
`20.
`
`In contrast, Defendants will not suffer any cognizable or irreparable
`
`injury if they are enjoined.
`
`The Voice Files are Proper Subject for Copyright
`Protection
`
`
`
`21.
`
`Federal copyright protection, as defined by 17 U.S.C. §102(a),
`
`is available for “original works of authorship fixed in any tangible medium of
`
`expression, now known or later developed, from which they can be perceived,
`
`reproduced, or otherwise communicated, either directly or with the aid of a machine
`
`or device.”
`
`22.
`
`This statutory requirement has been distilled into two required
`
`elements: (1) originality and (2) fixation.
`
`23.
`
`The Supreme Court has set a low bar for originality. In
`
`Feist Publications, Inc. v. Rural Tel. Serv. Co. the Court stated that “[o]riginal, as
`
`the term is used in copyright, means only that the work was independently created
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 5 of 14
`
`by the author (as opposed to copied from other works), and that it possesses at least
`
`some minimal degree of creativity.” 499 U.S. 340, 345 (1991). The Court went on to
`
`state that the “vast majority of works make the grade quite easily, as they possess
`
`some creative spark.” Id.
`
`24.
`
`The copyrighted voice files easily satisfy this standard for
`
`originality. The various designs were created by Plaintiff who has subsequently
`
`copyrighted this material. The stylization and artistic nature of the voice files is
`
`certainly sufficient to satisfy the “minimal degree of creativity” requirement. Feist
`
`Publications, Inc., 499 U.S. at 345.
`
`25.
`
`The copyrighted voice files also satisfy
`
`the fixation
`
`requirement. The definitions section of the Copyright Act provides that “A work is
`
`‘fixed’ in a tangible medium of expression when its embodiment in a copy or
`
`phonorecord, by or under the authority of the author, is sufficiently permanent or
`
`stable to permit it to be perceived, reproduced, or otherwise communicated for a
`
`period of more than transitory duration.” 17 U.S.C. §101. The copyrighted voice files
`
`are electronically stored and permanent unless deleted, clearly stable and able to be
`
`perceived for much more than a transitory duration.
`
`26. Additionally, to be copyrightable, a subject must qualify as a
`
`“work” under the Copyright Act. 17 U.S.C. §102(a) lists eight works-of-authorship
`
`categories. Of those eight categories, tattoos are protected as copyrightable under the
`
`seventh, which covers “sound recordings.” 17 U.S.C. §102(a)(7).
`
`27.
`
`The definitions section of the Copyright Act provides that
`
`“sound recordings” are “works that result from the fixation of a series of musical,
`
`spoken, or other sounds, but not including the sounds accompanying a motion picture
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 6 of 14
`
`or other audiovisual work, regardless of the nature of the material objects, such as
`
`disks, tapes, or other phonorecords, in which they are embodied.” 17 U.S.C. §101.
`
`COUNT I
`
`Right of Publicity
`
`28.
`
`Plaintiff incorporates by reference as though fully set forth herein the
`
`allegations contained in paragraphs 1 through 20 above.
`
`29. Defendants have engaged in the unlawful and unauthorized use of
`
`Plaintiff’s image and likeness in connection with the services of BYTEDANCE E-
`
`COMMERCE, INC d/b/a TIKTOK. Plaintiff’s right of publicity has been breached and violated
`
`because her likeness has been published, on the Internet, and in connection with Defendants’
`
`services, without her consent.
`
`30. As a result of Defendants' conduct, Plaintiff has suffered substantial harm,
`
`including but are not limited to: (1) the emotional distress of having her likeness exploited without
`
`Plaintiff's consent; (2) Plaintiff's loss of the ability to control the dissemination of her likeness;
`
`and (3) Plaintiff's loss of the ability to control the association of her likeness.
`
`31. A causal connection exists between the use of Plaintiff's likeness by
`
`Defendants, and the damages suffered by Plaintiff. The damages suffered by Plaintiff are the
`
`logical, direct, and immediate consequence of Defendants' actions.
`
`32. Unless Defendants are enjoined from continuing the aforementioned
`
`unlawful acts, Plaintiff will continue to suffer irreparable harm.
`
`COUNT II
`
`Unfair Competition/False Endorsement Under the Lanham Act
`
`(15 U.S.C. 4 1125(a)(1)(A))
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 7 of 14
`
`33.
`
`Plaintiff incorporates by reference as though fully set forth herein the
`
`allegations contained in paragraphs 1 through 25 above.
`
`34.
`
`Defendants have engaged in the unlawful and unauthorized use of
`
`Plaintiff’s likeness in interstate commerce in connection with the promotion, advertising, and
`
`sale of their services. Defendants have conveyed the false and misleading representation to the
`
`public that Plaintiff (a) endorses, sponsors, and approves of the goods, products, and services
`
`associated with the Defendant and otherwise acquiesces in or agrees to the use of her image
`
`and likeness in connection with the Defendant’s services; and (b) is affiliated with the
`
`Defendant and the Unauthorized Services.
`
`35.
`
`Defendants' conduct, as described above, was deliberate and willful, has
`
`created and will create a likelihood of confusion, mistake, and deception, as well as wrongly
`
`implied and misrepresented, that Plaintiff endorsed, sponsored, or otherwise was and is
`
`affiliated with the Defendant’s services, all to the commercial benefit of Defendants and the
`
`detriment of the Plaintiff.
`
`36.
`
`Consumer confusion will occur if Defendants continue to use Plaintiff’s
`
`image and likeness. Defendants intentionally or with reckless disregard adopted the use of
`
`Plaintiff’s likeness in order to exploit the goodwill and reputation of Plaintiff.
`
`37.
`
`Defendants' unauthorized use of Plaintiff’s name, image, and likeness
`
`on and in connection with their services in interstate commerce in the United States
`
`constitutes a false representation and endorsement as to affiliation, sponsorship, endorsement,
`
`license, or other authorization of Plaintiff with respect to her name and likeness, in violation
`
`of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A).
`
`38.
`
`As a result of Defendants' conduct, Plaintiff has suffered substantial
`
`harm.
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 8 of 14
`
`39.
`
`Unless Defendants are enjoined from continuing the aforementioned
`
`unlawful acts, Plaintiff will continue to suffer irreparable harm.
`
`COUNT III
`
`Common Law Unfair Competition
`
`40.
`
`Plaintiff incorporates by reference as though fully set forth herein the
`
`allegations contained in paragraphs 1 through 39 above.
`
`41. Defendants' unauthorized use of Plaintiff’s image and likeness has
`
`allowed Defendants to falsely suggest to the public that the Services of BYTEDANCE E-
`
`COMMERCE, INC d/b/a TIKTOK are sponsored by or otherwise affiliated with Plaintiff when,
`
`in fact, they are not.
`
`42. Defendants have engaged in such acts intentionally or with reckless
`
`disregard for whether the public is confused and deceived regarding the nature, approval,
`
`sponsorship, endorsement, and/or authorization by Plaintiff.
`
`43. Defendants' unauthorized use is likely to cause confusion, mistake, and
`
`deception among consumers.
`
`44. Defendants intentionally adopted the use of Plaintiff’s likeness to exploit
`
`the goodwill and reputation of Plaintiff.
`
`45. Defendants' conduct constitutes unfair competition and was deliberate,
`
`willful, and intended to exploit unlawfully the goodwill and reputation associated with
`
`Plaintiff and her likeness, for the economic and commercial benefit of Defendants, and to the
`
`economic harm of Plaintiff.
`
`46. As a result of Defendants' conduct, Plaintiff has suffered substantial
`
`harm.
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 9 of 14
`
`47. Unless Defendants are enjoined from continuing the aforementioned
`
`unlawful acts, Plaintiff will continue to suffer irreparable harm.
`
`COUNT IV
`
`Violation of N.Y. General Business Law Section 4 349
`
`48.
`
`Plaintiff incorporates by reference as though fully set forth herein the
`
`allegations contained in paragraphs 1 through 47 above.
`
`49. Defendants' unauthorized use of Plaintiff's image and likeness
`
`constitutes a deceptive trade practice in that it creates the false impression that Plaintiff has
`
`endorsed and/or is affiliated with the services of BYTEDANCE, E-COMMERCE, INC d/b/a
`
`TIKTOK misleading the public in violation of the New York General Business Law § 349 et
`
`seq.
`
`50. Defendants acts and practices of improperly and unlawfully using
`
`Plaintiff's image and likeness in connection with the promotion, advertisement, and sale of the
`
`services of BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK are consumer-oriented and
`
`are misleading in a material way to a reasonable consumer acting reasonably under the
`
`circumstances.
`
`harm.
`
`51. As a result of Defendants' conduct, Plaintiff has suffered substantial
`
`COUNT V
`
`Permanent Injunctive Relief
`
`52.
`
`Plaintiff incorporates by reference as though fully set forth herein the
`
`allegations contained in paragraphs 1 through 51 above.
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 10 of 14
`
`53. Defendants are and continue to engage in the unlawful conduct set forth
`
`in this Complaint. Unless restrained and enjoined, Defendants will continue to engage in such
`
`unlawful conduct.
`
`54. Defendants' unauthorized use of Plaintiff’s image and likeness has
`
`caused Plaintiff irreparable injury. Plaintiff has invested substantial effort in preserving,
`
`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
`
`have not only traded on Plaintiff's earned goodwill, but are also depriving the Defendant of the
`
`ability to control her reputation.
`
`55.
`
`Plaintiff has no adequate remedy at law, rendering equitable relief
`
`appropriate in that damages cannot compensate Plaintiff for the injuries she suffered.
`
`56.
`
`In balancing the hardships between Plaintiff and Defendants, a remedy in
`
`equity is warranted.
`
`57.
`
`Furthermore, because the public has an interest in not being deceived, the
`
`public interest would be served by a permanent injunction restraining Defendants'
`
`unauthorized use of Plaintiffs image and likeness in connection with all services of
`
`BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK.
`
`COUNT VI
`
`
`
`Copyright Infringement, 17 U.S.C. §§ 106(5) AND 501)
`
`58.
`
`Plaintiff hereby re-alleges the allegations contained in the
`
`above paragraphs 1 through 57 as if fully set forth herein and state as follows:
`
`59.
`
`This is a count of Copyright Infringement against Defendants
`
`BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK.
`
`60.
`
`Through their conduct averred in the previous paragraphs,
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 11 of 14
`
`Defendants have infringed Plaintiff's copyrights in their works by publicly displaying
`
`the Plaintiff’s copyrighted works without authorization and in violation of 17 U.S.C.
`
`§§106(5) and 501.
`
`61.
`
`Each infringement by Defendants of Plaintiff’s protected copyrighted works
`
`creates an independent act of infringement.
`
`62.
`
`Defendants’ acts of infringement were made after a good faith attempt to
`
`negotiate licensing by the Plaintiff, and as such Defendants acted with willful disregard for the
`
`Plaintiff’s rights. See Exhibits A-B. Since the copyright infringement by the Defendants caused
`
`direct and proximate harm to the Plaintiff, the Plaintiff is entitled to damages in an amount to be
`
`determined at trial.
`
`63.
`
`In the alternative, the Plaintiff is entitled to the maximum statutory damages
`
`pursuant to 17 U.S.C. § 504(c)(2) in the amount of $150,000 per infringement. Pursuant to 17
`
`U.S.C. § 505, the Plaintiff is entitled to recover its full costs and reasonable attorney’s fees.
`
`64.
`
`As a direct and proximate result of the Defendants’ actions, the Plaintiff has
`
`sustained and will continue to sustain immediate, substantial, and irreparable injury, for which
`
`there is no adequate remedy at law. Based upon their history of refusal to respect the rights of the
`
`Plaintiff, unless this Court enjoins their actions, the Defendants will continue to infringe upon the
`
`Plaintiff’s valid intellectual property rights in the copyrighted tattoo designs. As such, the Plaintiff
`
`is entitled to preliminary and permanent injunctive relief.
`
`
`
`JURY DEMAND
`
`Plaintiff requests a jury on all issues so triable.
`
`
`
`
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 12 of 14
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff Beverly Standing a/k/a Bev Standing demands
`
`judgment against the Defendants as follows:
`
`(1)
`
`(2)
`
`Adjudging that Defendants violated Plaintiff's right of publicity;
`
`Adjudging that Defendants made the false and misleading representation
`
`to the public that Plaintiff (a) endorses, sponsors, and approves of the goods, products, and
`
`services associated with the Defendant BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK and
`
`otherwise acquiesces in or agrees to the use of his image and likeness in connection with their
`
`services; and (b) is affiliated with the BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK
`
`platform, in violation of the Lanham Act, 15 U.S.C. § 1125(a);
`
`(3)
`
`Adjudging that Defendants engaged in unfair competition by
`
`misappropriating Plaintiff’s image and likeness in conjunction with the newsletter and the
`
`services of BYTEDANCE E-COMMERCE, INC d/b/a TIKTOK;
`
`(4)
`
`Adjudging that Defendants unauthorized use of Plaintiff’s image and
`
`likeness constitutes a deceptive trade practice in accordance with New York General Business
`
`Law § 349 et seq.;
`
`(5)
`
`Preliminarily and permanently enjoining Defendants, their affiliates,
`
`employees, agents, and representatives, and all persons acting in concert with or participating with
`
`Defendants, from using, disclosing, disseminating, posting, displaying, sharing, distributing,
`
`copying, advertising, or selling, in any manner whatsoever, (i) all services of BYTEDANCE E-
`
`COMMERCE, INC d/b/a TIKTOK and (ii) all copies of any materials (in paper, electronic, or any
`
`other form) that contain or reflect any information derived from Plaintiff's image and likeness;
`
`(6)
`
`Preliminarily and permanently ordering Defendants, their affiliates,
`
`employees, agents, and representatives, and all persons acting in concert with or participating with
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 13 of 14
`
`Defendants, to immediately and permanently dispose of: (i) all copies of the unauthorized usage;
`
`and (ii) all copies of any materials (in paper, electronic, or any other form) that contain or reflect
`
`any information derived from Plaintiff's image and likeness;
`
`(7)
`
`Preliminarily ordering Defendants, their affiliates, employees, agents, and
`
`representatives, and all persons acting in concert with or participating with Defendants, to
`
`turn over to the Court any proceeds that Defendants have received as a result of their
`
`misappropriation and use of Plaintiff's image and likeness, such proceeds to be held in
`
`constructive trust until the conclusion of this litigation;
`
`(8) Awarding Plaintiff damages in connection with Counts I, III, and IV in
`
`an amount to be determined at trial;
`
`(9) Awarding Plaintiff restitution for Defendant’s past and unauthorized
`
`use;
`
`(Lanham Act);
`
`(10) Awarding Plaintiff damages in accordance with 15 U.S.C. § 1117
`
` ( 11) Pre-judgment and post-judgment interest;
`
` (12) Awarding Plaintiff attorneys' fees, costs, and disbursements pursuant to 15
`
`U.S.C. §1117 (Lanham Act);
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 7:21-cv-04033 Document 4 Filed 05/06/21 Page 14 of 14
`
`White Plains, New York
`May 5, 2021
`
`Respectfully submitted.
`ROBERT J. SCIGLIMPAGLIA, JR.
`
`
`
`
`
`By_____________________________
` Robert J. Sciglimpaglia, Jr.
` RJS4156
` 101 Merritt 7, Suite 300
` Norwalk, CT 06851
` (203) 663-2803
` Attorney for Beverly Standing
`
`

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