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Jk 44C/SDNY

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CIVIL COVER SHEET

JUDGt WOODS

REV. 4/2014

The JS-44 civil cover sheet and theinformation contained herein neither replace nor supplement the filing and servicejjf

pleadings or other papers asrequired by law, except asprovided by localrulesoUMwrty This form, ap"~'u,**u" "
4-f re
Judicial Conference of the United States in September 1974rfl
requ/d for usfl oWig f lerk of Court

initiating the civil docket sheet.

VV

1
DEFENDANTS

PLAINTIFFS
Maria Niro

Caitlin Trainor

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER

ATTORNEYS (IF KNOWN)

Jay W. Cho, Esq.

Unknown

Seyfarth Shaw LLP

620 Eighth Ave, New York, New York 10018


(212)218-5500

"

CAUSE OFACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Copyright Infringement and Breach of Contract

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? NtEVesLludge Previously Assigned
If yes, was this case Vol. [~J Invol. fj Dismissed. No
IS THIS AN INTERNATIONAL ARBITRATION CASE7

No Kj

Yes [~J If yes, give date


Yes
NATURE OF SUIT

(PLACE AN[x] INONEBOXONL Y)

ACTIONS UNDER STATUTES

TORTS

[
[
[
[

]110
1120
]130
1140

[ J150

I 1151
[ 1152

PERSONAL INJURY

INSURANCE
MARINE
MILLER ACT
NEGOTIABLE
INSTRUMENT
RECOVERY OF
OVERPAYMENT &
ENFORCEMENT
OF JUDGMENT
MEDICARE ACT
RECOVERY OF

[ ]310 AIRPLANE

PHARMACEUTICAL PERSONAL [ 1625 DRUG RELATED


INJURY/PRODUCT LIABILITY
SEIZURE OF PROPERTY
[ ] 365 PERSONAL INJURY
21 USC 881
PRODUCT LIABILITY

DEFAULTED

[ ] 350 MOTOR VEHICLE


1 ] 355 MOTOR VEHICLE

STUDENT LOANS

( J315 AIRPLANE PRODUCT


LIABILITY

I ] 320 ASSAULT, LIBEL&


SLANDER

[ ] 330 FEDERAL
EMPLOYERS'

I 1160
[ 1190
I 1195

RECOVERY OF
OVERPAYMENT
OF VETERAN'S
BENEFITS

STOCKHOLDERS
SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT
LIABILITY

[ ]196 FRANCHISE

[ J 340 MARINE
[ ] 345 MARINEPRODUCT
LIABILITY

[ [220
[ )230

CONDEMNATION
FORECLOSURE
RENT LEASE &

[ 1240
[ ]245

INJURY

[ ] 362 PERSONAL INJURY MED MALPRACTICE

1 J 368 ASBESTOS PERSONAL

( (400STATE

28 USC 157

INJURY PRODUCT
PROPERTY RIGHTS

LIABILITY

REAPPORTIONMENT

28 USC 158

[ ] 423 WITHDRAWAL

[ ] 690 OTHER

[X] 820 COPYRIGHTS


[ ] 830 PATENT
I ] 840 TRADEMARK

PERSONAL PROPERTY

[ ] 370 OTHER FRAUD


[ 1371 TRUTH IN LENDING

SOCIAL SECURITY

I ] 380 OTHER PERSONAL


PROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGE

[ ]710 FAIR LABOR

PRODUCT LIABILITY

STANDARDS ACT

[ ] 720 LABOR/MGMT

[
I
[
I
[

]410 ANTITRUST
] 430 BANKS& BANKING
] 450 COMMERCE
] 460 DEPORTATION
1470 RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT

(RICO)

1 ]480 CONSUMER CREDIT


[ J490 CABLE/SATELLITE TV
[ ] 850 SECURITIES/

[ I 463 ALIEN DETAINEE


[ I 510 MOTIONS TO
ACTIONS UNDER STATUTES
CIVIL RIGHTS

[ ] 441 VOTING
I ] 442 EMPLOYMENT
[ 1443 HOUSING/
ACCOMMODATIONS

[ ] 445 AMERICANS WITH

EJECTMENT
TORTS TO LAND

EMPLOYMENT

ALL OTHER
REAL PROPERTY

[ ] 530 HABEAS CORPUS


( ] 535 DEATH PENALTY
[ 1 540 MANDAMUS & OTHER

]861
] 862
] 863
1864
J 865

HIA(1395ff)
BLACKLUNG (923)
DIWC/DIWW (405(g))
SSID TITLE XVI
RSI (405(g))

COMMODITIES/
EXCHANGE

1890 OTHER STATUTORY


ACTIONS

1891 AGRICULTURAL ACTS

[ 1740 RAILWAYLABOR ACT

[ ] 751 FAMILY MEDICAL


LEAVE ACT (FMLA)

[ ] 790 OTHER LABOR


LITIGATION

I I 791 EMPL RET INC


SECURITY ACT

(Non-Prisoner)

DISABILITIES -

TORT PRODUCT

VACATE SENTENCE
28 USC 2255

[
[
[
[
[

RELATIONS

PRISONER PETITIONS

LIABILITY

1 ]290

[ ] 422 APPEAL

I ] 375 FALSE CLAIMS

PRODUCT LIABILITY

REAL PROPERTY
LAND

OTHER STATUTES

[ ] 360 OTHER PERSONAL

[ ] 440 OTHER CIVILRIGHTS

[ 1210

BANKRUPTCY

[ ] 367 HEALTHCARE/

LIABILITY

(EXCL VETERANS)
[ 1153

FORFEITURE/PENALTY

PERSONAL INJURY

CONTRACT

&Case No.

FEDERAL TAX SUITS

[ 1 870 TAXES (U.S. Plaintiff or


Defendant)
[ 1871 IRS-THIRD PARTY

] 893 ENVIRONMENTAL
MATTERS

1895 FREEDOM OF
INFORMATION ACT

26 USC 7609

1 896 ARBITRATION
] 899 ADMINISTRATIVE

IMMIGRATION

PRISONER CIVIL RIGHTS

[ ] 462 NATURALIZATION
[ ] 550 CIVIL RIGHTS
[ ]555 PRISON CONDITION

APPLICATION

[ I 465 OTHER IMMIGRATION

1 560 CIVIL DETAINEE

PROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISIO

[ 1950 CONSTITUTIONALITY O
STATE STATUTES

ACTIONS

CONDITIONS OF CONFINEMENT

[ 1446 AMERICANS WITH


DISABILITIES -OTHER

[ 1448 EDUCATION

Check ifdemanded in complaint:

CHECK IF THIS IS ACLASS ACTION

DO YOU CLAJM THIS CASE IS RELATED TOACIVIL CASE NOW PENDING IN S.D.N.Y?

UNDERF.R.C.P. 23

DEMAND $_

OTHER

JUDGE

DOCKET NUMBER

Check YES onlyifdemandedin complaint

JURY DEMAND: 11 YES CKlO

NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32)

(PLACE AN x INONE BOX ONLY)

Ixj 1 Original

Proceeding

ORIGIN

LJ 2 Removed from
state Court

a. ,llp.,tir.pr.nted

II 3 Remanded LJ 4 Reinstated or
frorn

Reopened

|_J 5 Transferred from O 6 Multidistrict


(Specify District)

Litigation

|~J 7 Appeal to District


Judgefrom

AnDeiiatP

Magistrate Judge

court

Judgment

I | b. At least one
party is pro se.

(PLACEANxINONEBOXONLY)

1 U.S. PLAINTIFF

BASIS OF JURISDICTION

2 U.S. DEFENDANT [x] 3 FEDERAL QUESTION

IFDIVERSITY, INDICATE

4 DIVERSITY

CITIZENSHIP BELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)


(Place an [X] in one box for Plaintiff and one box for Defendant)
CITIZEN OF THIS STATE

PTF

DEF

[ ]1

[]1

PTFDEF

CITIZEN OR SUBJECT OF A

[]3[]3

FOREIGN COUNTRY

CITIZEN OF ANOTHER STATE

[ ]2

[ ]2

INCORPORATED and PRINCIPAL PLACE

PTF

DEF

[)5

[]5

[ ]6

[ ]6

OF BUSINESS IN ANOTHER STATE

INCORPORATED or PRINCIPAL PLACE

[ ]4 [ ]4

FOREIGN NATION

OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)


Maria Niro

305 East 21st Street, Apt. 14


New York, New York 10010

New York County

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)


Caitlin Trainor

62 West 87th Street, Apt. 2R


New York, New York 10024

New York County

DEFENDANT(S) ADDRESS UNKNOWN


REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RESILIENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Checkone:

THIS ACTION SHOULD BE ASSIGNED TO:

WHITE PLAINS

[xj MANHATTAN

(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)

DATE

. . /, /, SIGNATURE OF ATTORNEY OF RECORD

ADMITTED TO PRACTICE IN THIS DISTRICT

Y/f//Y <~^/60
' i t / ^^ ' cC*^?

RECEIPT*

[]N0
IN
YES <DATE ADMITTED Mo. /ii
^-

Attorney Bar Code # "TV' 0/0l_

Magistrate Judge is to be designated by the Clerk of the Court.

^j^ttnw*

Magistrate Judge

Ruby J. Krajick, Clerk of Court by

Deputy Clerk, DATED.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

is so Designated.

Yr^

JUDGE WOODS
Jay W. Cho, Esq. (JC 0102)
SEYFARTH SHAW LLP

620 Eighth Avenue


New York, New York 10018-1405
(212)218-5500

Attorneys for Plaintiff Maria Niro


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Civil Action No.

MARIA NIRO,
COMPLAINT

Plaintiff,
CO

- against -

(Jury Trial Demanded)


'j-n

CAITLIN TRAINOR,
Defendant.

PlaintiffMariaNiro ("Plaintiff), by her undersigned attorneys, as and for her


complaint against defendant Caitlin Trainor ("Defendant") (together with Plaintiff, the
"Parties"), alleges as follows:
NATURE OF THE ACTION

1.

This action involves the unauthorized, knowing, and continuing infringing

use and public display of Plaintiff s original copyrighted film entitled Air Turned White in

violation of the Copyright Act of the United States, 17 U.S.C. 101 etseq. Plaintiff seeks to

enjoin Defendant's unlawful activities and recover damages and profits resulting from
Defendant's willful misconduct.

2.

This action also arises out of Defendant's breach of a certain collaboration

agreement between Plaintiff and Defendant.

JURISDICTION AND VENUE

3.

This action is brought under the copyright laws of the United States, 17

U.S.C. 101, etseq.

4.

This Court has original subject matter jurisdiction of this action under 28

U.S.C. 1338 because this action arises out of the Copyright Act of 1976, 17 U.S.C. 101, et
seq.

5.

Venue is proper in this judicial district pursuant to 28 U.S.C. 1391

because Defendant resides or does business within this District and a substantial part of the
events giving rise to the claims occurred in this District.
THE PARTIES

6.

Plaintiff is a citizen of the State of New York, residing at 305 East 21st

Street, Apt. 14, New York, New York 10010.

7.

Upon information and belief, Defendant is a citizen of the State of New

York, residing at 62 West 87th Street, Apt. 2R, New York, New York 10024.
FACTS COMMON TO ALL COUNTS
I.

BACKGROUND

8.

Plaintiff is a professional film maker, artist and music composer, who

focuses primarily on creating art video films and documentaries. Plaintiffs work has appeared in
many festivals and galleries throughout the world and garnered critical acclaim for her films.
9.

Defendant is a professional dancer and choreographer.

10.

In or about April 2012, Defendant contacted Plaintiff through Facebook to

compliment Plaintiff on her art video work and to inquire about collaborating on a project.
11.
Defendant.

Plaintiff informed Defendant that she was not interested in working with

12.

In or about July 2012, Defendant again contacted Plaintiff through email

about the possibility of working together. Plaintiff agreed to meet with Defendant.
13.

On or about July 17, 2012, the Parties met in person for the first time at a

Starbucks in Manhattan to discuss the potential for collaborating on a project (the "July 2012
Meeting").

14.

During the July 2012 Meeting, the Parties discussed the possibility of

Plaintiff creating a film to be used as a backdrop to Defendant's solo dance performance.


15.

At the July 2012 Meeting, Plaintiff informed Defendant that she had no

interest in collaborating with Defendant if Plaintiff s work was merely to be used as a short video
backdrop to Plaintiffs live dance performance.

16.

However, Plaintiff expressed interest in working with Defendant if the

Parties could collaborate on a specific project that Plaintiff had previously conceived on her own
prior to meeting Defendant.

17.

Plaintiff explained to Defendant that the project would consist of Plaintiff

creating an "art film" of a dancer that would be projected onto a screen, in front of which the

dancer would perform live as a response to the dancer's movements captured by Plaintiff on
film.

18.

Defendant agreed and recognized that the art film created by Plaintiff

would not simply serve as a backdrop to her dance. Rather, the film ~ which would be projected
as a video art piece to Defendant's live solo dance performance would have a direct, cohesive

and interactive relationship to Defendant's live solo dance performance, yet stand on its own
piece at the same time as Defendant's dance.

19.

At the July 2012 Meeting, the Parties agreed to be bound by a written

collaboration agreement governing the rights and obligations of the Parties with respect to the
anticipated collaborative project, including the Parties' separate ownership of each artist's

contribution to the project. Plaintiff agreed to circulate a draft collaboration agreement.


II.

AIR TURNED WHITE

20.

Shortly after the July 2012 Meeting, Plaintiff met with Defendant twice at

a dance studio located at Barnard College to share some abstract footage previously created by
Plaintiff and to propose various visual ideas for the project that she discussed in her initial
meeting with Defendant.
21.

During Plaintiffs second visit to the Barnard dance studio, she conceived

and initiated the project that came to be known as "Air Turned White" (the "Project").
22.

The Project involved Plaintiff creating a stylized film of Defendant

performing her one minute improvisational work in progress entitled "Air", which film would

then be edited by Plaintiff and projected onto a screen while Defendant performed a reconfigured
version of her dance called "Air" live against a video backdrop. Thus, the Project was comprised
of two components: (1) the art video, including sound, created by Plaintiff (the "Video"); and
(2) Defendant's live performance with the Video projected behind her (the "Live Performance").
23.

The making of the Video by Plaintiff entailed several phases and

processes. First, Plaintiff staged a white background with a white sheet based on her editorial

concept. Second, Plaintiff filmed several versions of Defendant's one minute improvisation

against the white sheet on the floor and against a white wall, which footage was eventually used
by Plaintiff to create the Video portion of the Project. Third, Plaintiff directed Defendant to

move and perform in the outer edges of the white sheet, which utilized the space of the outer
edges as part of the Video that created the sense of Defendant floating in white space. Fourth,

once Plaintiff captured Defendant's movements that Plaintiff directed, Plaintiff devoted

substantial time editing and stylizing the Video that turned the short improvisations into a seven
minute artistic Video that reactualized Defendant's dance. Fifth, Plaintiff color corrected the

Video to create the impression that Defendant was in a white room rather than a dance studio
where Plaintiff filmed Defendant. Finally, Plaintiff inserted a sound in the Video that was
created prior to meeting Defendant and edited the sound to further enhance the mood of the
Video.

24.

The Video does not simply document Defendant's dance. Rather, the

Video captures snippets of Defendant's dance movements that were rearranged by Plaintiff
through video editing, including slicing and repositioning Defendant's movements in time,

repeating, slowing down and speeding up certain movements, and reversing parts of her
performance.

25.

The objective of the Video was to reorganize Defendant's movements to

create an entirely different improvisation by transforming it into a digital deconstructed

improvisation as if the camera rechoreographed the dance. This highly stylized and deftly edited
piece reinterpreted Defendant's movements to which she could respond in a live performance
setting while the Video was projected onto a wall behind her.
26.
III.

The Video was created by Plaintiff entirely on her own.

THE AGREEMENT

27.

While Plaintiff finalized the Video, on or about August 22, 2012, she

emailed Defendant a draft collaboration agreement for comments.

28.

On the same day, Defendant inquired about the Parties' respective

copyright in the Project.

29.

Plaintiff again explained to Defendant, as she did in their July 2012

Meeting, that: (1) the Project would not be a joint work; (2) Plaintiff would own the copyright in
the Video only; and (3) Defendant would own the copyright in the Live Performance only.
30.

Defendant acknowledged her understanding of the Parties' respective

rights by email and in person.

31.

After further negotiating the terms of the collaboration agreement, on or

about November 4, 2012, the Parties executed the Collaboration Agreement (the "Agreement"),
that governs their respective rights and obligations with respect to the Project. A copy of the
Agreement is annexed hereto as Exhibit A.

32.

As previously agreed to by the Parties, the Agreement contemplates that

the Project would consist of an "original dance video with sound created by [Plaintiff]" and "an
original dance performance created and choreographed by [Defendant]." See, Agreement, pg. 1.
33.

To distinguish each contribution to the Project, the Parties agreed that the

Live Performance portion of the Project "created and performed by [Defendant]" would be
referred to as "Air" and the Video portion of the Project "created and directed by [Plaintiff]" of
the Project would be referred to as "Turned White." Id.

34.

The Agreement expressly provides that the Project was not to be deemed a

"joint work" and that "upon completion of the [Project], [the Parties] shall be the sole owners of

[their own] creation only and copyright registration will be done separately." Id.
35.

That Plaintiff would be the exclusive owner of the Video of the Project is

confirmed in Paragraph 1 of the Agreement, which provides that:

[Plaintiff] is the sole owner of and holds the copyright only of the footage,
sound and the video of "Turned White." She is the owner of the final dvd

edit master and has the rights to publish the video.


id ui.

36.

The Agreement also bars the Parties from publishing the Project "on the

internet including documented performances with the exception of an excerpt of the video of 60

seconds or less which can be published on their websites for promotional purposes. Publishing
excerpts on other websites must be agreed upon jointly." Id.

37.

Critically, Paragraph 3 of the Agreement provides that "[decisions

relating and effecting any public presentation or performance of the [Project] shall be made
jointly by the Artists." Id. (Emphasis added.)

38.

Finally, Paragraph 4 of the Agreement unambiguously provides that "all

profits accruing from the exploitation or performances of the [Project] shall be divided equally
among the [Parties]." Id,
IV.

TERMINATION OF THE AGREEMENT

39.

From the inception, the relationship between the Parties was marked by

frequent creative differences and disagreements, which culminated in an argument stemming


from Defendant's refusal to allow Plaintiff to film the rehearsal of a fundraiser for Defendant's

dance company in November 2012.

40.

Shortly after the November show, by email dated November 9, 2012,

Plaintiff terminated the Agreement due to personal and creative differences.

41.

Defendant acknowledged and agreed that the Parties should no longer

42.

Plaintiff requested that Defendant return all copies of the DVDs

work together.

containing the Video.


43.

On or about November 26, 2012, Defendant returned all but one DVD

because, according to Defendant, she was unable to find it. Defendant assured Plaintiff that she

would mail the missing DVD when she found it.

V.

FURTHER CONTACT BY DEFENDANT

44.

On or about December 3, 2012, Defendant contacted Plaintiff to obtain

permission to use the Video in connection with a project at a dance space. Plaintiff did not give
consent and reiterated her position that the Parties should no longer work together.
45.

On or about December 19, 2012, Defendant contacted Plaintiff to obtain

permission to use the Video in connection with Defendant's application to a residency. Plaintiff
did not give consent and demanded that Defendant abstain from using the Video to gain
opportunities.
46.

On or about January 9, 2013, Defendant contacted Plaintiff to obtain

permission to use the Video in connection with Defendant's application to perform at a concert
in upstate New York. Plaintiff did not give consent and admonished her against using the Video

in any public performance.


VI.

PLAINTIFF'S COPYRIGHT REGISTRATION

47.

On or about February 27, 2014, the United States Copyright Office issued a

certificate of registration for the Video (the "Registration"), with Plaintiff as the sole author of the
Video, including "entire motion picture, production/producer, direction/director,

cinematography/cinematographer, editing/editor, sound." A copy of the registration certificate for


the Video is annexed hereto as Exhibit B.

48.

The Registration only covers the Video, not the Live Performance portion

of the Project.
VII.

DEFENDANT'S WILLFUL INFRINGEMENT OF PLAINTIFF'S COPYRIGHT

49.

Since the issuance of the Registration, Plaintiff has discovered several

instances of Defendant's unauthorized use and public presentation of the Video in connection
with her dance performances, including, but not limited to:

a.

use of the Video in Defendant's performance at Ailey Citigroup


Theater from February 27, 2014 to March 1, 2014;

b.

use of the Video in Defendant's performance at Skidmore Dance


Theater in or about late April 2014; and

c.

Defendant's posting of her dance performance, with the Video in


the background, on Vimeo.

50.

Upon information and belief, prior to the issuance of the Registration,

Defendant also displayed the Video, without Plaintiffs authorization, at Next Move Festival of
Modern Dance in Schenectady, New York.
COUNT ONE

(Copyright Infringement)

51.

Plaintiff repeats and realleges each and every allegation contained in

Paragraphs 1 through 50 of this Complaint as if fully set forth herein.

52.

The Video is a wholly original work that is fixed in a tangible medium of

expression and is copyrightable subject matter under the Copyright Act, 17 U.S.C. 102(a).
53.

On February 27, 2014, the United States Copyright Office issued the

Registration, with Plaintiffas the sole author of the Video, including the "entire motion picture,
production/producer, direction/director, cinematography/cinematographer, editing/editor, sound."
54.

From the date of creation of the Video, Plaintiff has been and still is the

sole proprietor of all rights, title, and interest in the copyright of the Video.

55.

Plaintiff did not assign, transfer or otherwise relinquish the exclusive right

to control or otherwise authorize: (a) alternate displays of the Video; (b) derivative works based

upon the Video; (c) copies of the Video in any media; or (d) compilations including the Video.

56.

In or about late February 2014, Plaintiff learned that Defendant had

infringed Plaintiffs rights, including her rights under the Copyright Act, with respect to the Video
by displaying the Video to the public without authorization.

57.

Immediately upon discovery of Defendant's infringement of Plaintiff s

copyright, Plaintiff demanded, and continues to demand, that Defendant cease all infringing acts

that have violatedand continueto violate Plaintiffs exclusive copyright in the Video. A copy of
Plaintiffs cease and desist letter to Defendant is annexed hereto as Exhibit C.

58.

Despite Plaintiffs demands, Defendant continues to knowingly, willfully,

and deliberately infringe upon Plaintiffs copyright in the Video with complete and total
disregard for Plaintiffs rights.

59.

The continued public display and distribution of the Video by Defendant

has violated and continues to violate Plaintiffs exclusive rights in the copyright of the Video.

The conduct interferes with Plaintiffs exclusive right to reproduce or license reproduction of the

copyrighted Video, to prepare derivative works based on the copyrighted Video, to publicly
display or distribute the copyrighted Video, and to license others to display or distribute the
copyrighted Video.

60.

As a consequence of Defendant's various infringements, Plaintiff has

suffered and will continue to suffer economic loss and injury to her copyright ownership in the
Video. Plaintiff has to her detriment sustained damages, including, but not limited to, the

dilution or destruction of the value of her copyrighted material, the loss of credit and all gains,
profits, and advantages derived by Defendant from her acts of infringement.

10

COUNT TWO

(Breach of Contract)

61.

Plaintiffrepeats and realleges each and every allegation contained in

Paragraphs 1 through 60 of this Complaint as if fully set forth herein.

62.

Plaintiff has performed all of her obligations under the Agreement.

63.

Defendant has materially breached the Agreement by, inter alia, displaying

the Video to the public without Plaintiffs authorization.

64.

Defendant has materially breached the Agreement by, inter alia, failing to

share all profits accrued from the unauthorized display of the Video to the public.
65.

Defendant has materially breached the Agreement by, inter alia, posting

the Video on the internet without Plaintiffs consent.

66.

As a result of Defendant's breach and continuing breach of the

Agreement, Plaintiff has been damaged in an amount to be determined at trial plus pre-judgment
interest.
COUNT THREE

(Unjust Enrichment)

67.

Plaintiffrepeats and realleges each and every allegation contained in

Paragraphs 1 through 66 of this Complaint as if fully set forth herein.

68.

Defendant continues to use, reproduce, distribute, provide access to, offer

for sale and/or retain the Video without Plaintiffs consent.

69.

As a result of Defendant's misconduct, as described above, she has

obtained use and enjoyment of property that in equity and good conscience she should not have
obtained.

11

70.

Byreason of the foregoing, Defendant has been unjustly enriched at the

expense of Plaintiff in an amount to be determined at trial plus pre-judgment interest.


COUNT FOUR

(Conversion)

71.

Plaintiff repeats and realleges each and every allegation contained in

Paragraphs 1 through 70 of this Complaint as if fully set forth herein.


72.

Plaintiff has a possessory right to the Video.

73.

Defendant continues to retain the Video, and copies of the Video, without

authorization and converted the Video for her own use.

74.

Plaintiffhas demanded that Defendant return all copies of the Video.

75.

Defendant has failed to return all copies of the Video.

76.

Plaintiff has been deprived of the ability to exercise dominion and control

of her own work and her personal possessions which Defendant has failed to return.

77.

By exploiting, misusing and refusing to return the Video, Defendant has

misappropriated and converted the Video for her own benefit and self-interest.

78.

As a result of Defendant's misconduct, as described above, Plaintiff has

been damaged in an amount to be determined at trial plus pre-judgment interest.

WHEREFORE, Plaintiffrespectfully requests that the Court enterJudgment:


a. Enjoining Defendant, her agents and servants from infringing Plaintiffs
copyright in the Video in any manner, and from publicly displaying or
presenting to the public the Video and all derivation thereof;

b. Requiring Defendant to pay Plaintiffsuch damages, in an amount to be


determined at trial, that Plaintiff has sustained as a result of Defendant's

infringement of Plaintiff s copyright, including, but not limited to, Plaintiffs

12

actual damages, damages for the injury to the value ofPlaintiffs property,
damages for loss ofPlaintiffs credits, and all other actual damages sustained
by Plaintiff, and to account for and pay to Plaintiff all gains, profits and
advantages derived by Defendant by reason of her infringement;
c. Requiring Defendant to pay Plaintiff such damages, in an amount to be
determined at trial, that Plaintiff has sustained as a result of Defendant's

infringement of Plaintiffs copyright, including, but not limited to, enhanced


statutory damages for Defendant's willful copyright infringement;

d. Adjudging Defendant liable for compensatory damages arising out ofher


breach ofthe Agreement in an exact amount to be determined at trial;

e. Finding in Plaintiffs favor as to all Counts against Defendant for damages in


an exact amount to be determined at trial;

f. Directing Defendant to remove the Video from Vimeo and any other websites
on which Defendant may have posted the Video;

g. Directing Defendant to remove the Video from her computer or any other
devise in Defendant's possession, custody or control;

h. Directing Defendant to deliver up and surrender to Plaintiff all copies ofthe


Video contained in any medium, including, but not limited to, DVDs, flash

drives, memory sticks, etc., in Defendant's possession, custody or control;


i. Adjudging Defendant liable for punitive damages in an exact amount to be
determined at trial;

j. Granting Plaintiff costs and expenses, including reasonable attorneys' fees;


and

13

k. Granting Plaintiff such other and further relief as the Court deems justand
proper.

!
i

DEMAND FOR JURY TRIAL

I
t

PlaintiffMariaNiro, as provided by Rule 38 of the Federal Rules of Civil

I
I

Procedure, requests a trial byjury in the above-captioned matter.


Dated:

New York, New York


November 18, 2014
SEYFARTH SHAW LLP

wvci
Jay WYCho(JC
0102)
620 Eighth Avenue
New York, New York 10018-1405
Tel: (212) 218-5255
Fax:(212)218-5526

jwcho@seyfarth.com
Attorneys for Plaintiff Maria Niro

14

COLLABORATION AGREEMENT

On this date of Hotir.ml*/" H

2012, the parties, Maria Niro and

Caitlin Trainor (hereinafter referred to by their names and as the "Artists"), agree
to work on a project tentatively titled "The Air Turned White** (hereafter referred
to as the "Work"). The work is not a joint work and it shall consist of an original
dance performance created and choreographed by Caitlin Trainor and an original
video with sound created by Maria Niro. The Dance element of the Work created
and performed by Caitlin Trainor (hereinafter referred to as "AIR"). The Video and
Sound element of the Work created and directed by Maria Niro (hereinafter

referred to as "Turned White"), The Artists acknowledge and agree that upon

completion of the Work, they shall be the sole owners of their creation only and
copyright registration will be done separately.

TERMS AND CONDITIONS

1. COPYRIGHT AND REPRODUCTION

Maria Niro is the sole owner of and holds the copyright only of the footage,
sound and the video of "Turned White". She is the owner of the final dvd edit

master and has the rights to publish the video. Caitlin Trainor can exhibit the
video for performances, self-promotions, entry in video contests and festivals,
but she can not replicate, or publish the video.

Caitlin Trainor is the sole owner of and holds the copyright only of the dance

work AIR which she performs and choreographed. Maria Niro can exhibit the
video for art exhibitions, self-promotions, entry in video contests and festivals
but she can not have another dancer perform the dance/choreography.

The Artists agree that the entire video will not be published on the Internet
Including documented performances with the exception of an excerpt of the video
of 60 seconds or less which can be published on their websites for promotional

purposes. Publishing excerpts on other websites must be agreed upon jointly,


2. LANGUAGE

In the event of public performances, press releases and any written

description pertaining to the completed creation of the Work, the video shall
include language as follows: Video Directed by Maria Niro and Sound Created by
Maria Niro. Dance and Choreography Created/Danced by Caitlin Trainor. In
situations such as exhibitions or performances where there may not be an

opportunity to display credits on screen, the aforementioned credits must appear

on program notes. Any other language pertaining to the Work shall be discussed
and determined jointly by the Artists.
3. PJCISIQN MAKING

Decisions relating and effecting any public presentation or performance or

the Work shall be made jointly by the Artists,


4. PAYMENTS

Unless otherwise mutually agreed upon in writing, all profits accruing from

the exploitation or performances of the Work shall be divided equally among the
Artists. A profit is defined as "monies earned after expenses" In the event the
Artists wish to apply for grants separately, they must include artist fees for each

other. If grant seeking for the Work is conducted jointly, any awards shall be
divided equally.
5. EXPENSES

It is understood that each collaborator is responsible for their own

expenses and will not be reimbursed for said expenses. Rented performance or
rehearsal space(s), purchased by Caitlin Trainor shall be purchased at the her

own expense. Camera and video editing equipment purchased or rented by Maria
Niro shall be purchased at her own expense. If any materials relating to the Work
will be purchased or rented jointly it shall be mutually agreed upon first,
6. QERJ^Tjy.E_yvP.aKS

M : M

~ The Artists agree that they will not use any matenal(s) based on or derived

from the Work in any future work. Each Collaborator agrees not to recreate the
Work separately or with other person or persons, or use each others' ideas by
creating derivative works from the Work during and after the collaboration

?* ^This Agreement incorporates the entire understands of the parties. Any

mod.fications, amendments, or addendum of this Agreement must be in writing

and signed b^ both parties. Any waiver of a breach or default hereunder shall not
be deemed a waiver of a subsequent breach or default of either the same

provision or any other provision of this Agreement. The laws of the State of New

York shall govern this contract.

The parties have read this Agreement, agreed to all of its terms and

conditions, and have acknowledged receipt of an executed copy of the


Agreement.
1ana N^ro

Caitlin Trainor

Ay
Date

Date

.,.

Certificate of Registration
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Registration Number

PAu 3-710-611
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Register at t "opvnttht

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Effective date of

registration:
February 27,2014

Title
Title of Work: The Air Turned White

Completion /Publication
Year of Completion: 2012

Author
Author:

Maria Niro

Author Created: entire motion picture, production/producer, direction/director,


cinematography/cinematographer, editing/editor, Sound
Citizen of:
Year Born:

United States

Domiciled in:

United States

1963

Copyright claimant
Copyright Claimant: Maria Niro
305 East 21 Street #14. New York, NY, 10010, United States

Rights and Permissions


Name:

Maria Niro

Email:

mnirol@grnail.com

Address:

Telephone:

646-251-5967

305 East 21 Street #14

New York, NY 10010 United States

Certification
Name:

Date:

Maria Niro

February 27, 2014

Page 1 of

From:
Subject:
Date:
To:

Maria Niro <mniro@nycrr.com>


Fwd: The Air Turned White- Cease and Desist Demand
February 27, 2014 10:21:19 AM EST
caitlinmarytrainor@gmail.com

Cc: Maria Niro <mniro1 @gmail.com>

CEASE AND DESIST DEMAND

Pursuant to Title 17 of the United States Code

February 27, 2014


Caitlon Trainor/ Trainor Dance

Dear Caitlin:

I am writing to notify you that your unlawful use (copying, public projection and
performing) of my motion picture and sound work The Air Turned White
infringes upon my exclusive copyrights. Accordingly, you are hereby directed to
CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT.

l
f

I am the sole creator and copyright owner of the video and sound of The Air
Turned White. Under United States copyright law, my copyrights have been in
effect since the year 2012 when the work was created. All copyrightable
aspects of The Air Turned White are copyrighted under United States copyright
law.

It has come to my attention that you have been copying and performing The Air
Turned White. Ihave evidence of your unlawful copy and use of my work to
preserve as evidence.

Your actions constitute copyright infringement in violation of United States

copyright laws. Under 17 U.S.C. 504, the consequences of copyright


infringement include statutory damages of between $750 and $30,000 per
work, at the discretion of the court, and damages of up to $150,000 per work
for willful infringement. If you continue to engage in copyright infringement after
receiving this letter, your actions will be evidence of "willful infringement."

Idemand that you immediately (A) cease and desist your unlawful copying of
The Air Turned White and (B) provide me with prompt written assurance within

twenty-four (24) hours that you will cease and desist from further infringement
of my copyrighted work.

If you do not comply with this cease and desist demand within this time period,
Iam entitled to use your failure to comply as evidence of "willful infringement"
and seek monetary damages and equitable relief for your copyright
infringement. In the event you fail to meet this demand, please be advised that
my law firm will be asked to communicate to you that it will contemplate
pursuing all available legal remedies, including seeking monetary damages,
injunctive relief, and an order that you pay court costs and attorney's fees. Your
liability and exposure under such legal action could be considerable.

Before taking these steps, however, Iwish to give you one opportunity to
discontinue your illegal conduct by complying with this demand within twentyfour (24) hours. Accordingly, please reply to this notice as soon as possible to
Mniro1@gmail.com.

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