Case 1:23-cv-00861 Document 1 Filed 02/03/23 Page 1 of 18 PageID #: 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

BRENT ELLIOTT WHITE, Docket No. 23-cv-00861

Plaintiff,
COMPLAINT
v.
JURY TRIAL DEMANDED

MEGADETH, INC., 5B ARTISTS +

MEDIA, DAVE MUSTAINE,
UNIVERSAL MUSIC GROUP, INC.,
JOHN DOE 1-5, DOE CORPORATIONS
1-5,

Defendants.

Plaintiff BRENT ELLIOTT WHITE, by and through his attorneys, KIBLER FOWLER &

CAVE LLP and KOVEL LAW PLLC, hereby alleges as follows:

INTRODUCTION

1. Plaintiff Brent Elliott White is a freelance illustrator and designer based out of New

York City whose work includes comics, concept design and illustration.

2. Since 2007, Plaintiff has worked almost exclusively in the music industry providing

cover art, merchandise designs, and other art products for clients, including the music recording

artists Trivium, Job for a Cowboy, Death Angel, Arch Enemy and Megadeth.

3. In this action, Plaintiff seeks damages and injunctive relief against Defendants

Megadeth, Inc., 5B Artists + Media, Dave Mustaine, Universal Music Group, Inc., JOHN DOE 1-

5, and DOE CORPORATIONS 1-5 (hereafter collectively “Defendants”) for willful copyright

infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq.

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4. Between approximately July 2022 and November 2022, Plaintiff negotiated with

Defendants over the use of Plaintiff’s artwork in connection with the promotion of Megadeth’s

most recent studio album, The Sick, The Dying… And the Dead!. Defendants decided to use

Plaintiff’s work as the cover art for The Sick, The Dying… And the Dead! in connection with the

album’s pre-release in July 2022 and its general release in September 2022—all without having

paid Plaintiff and without his permission.

5. Defendants have also used Plaintiff’s artwork in connection with other commercial

activities, including the sale of apparel and other merchandise, again all without Plaintiff’s

permission.

6. In addition to damages for copyright infringement, Plaintiff seeks damages against

Defendants arising from Defendants’ willful failure to offer a written agreement and compensate

Plaintiff for services rendered, in violation of the New York City Freelance Isn’t Free Act

(“FIFA”), which is codified as New York City Administrative Code § 20-927 et seq.

7. Additionally, Plaintiff seeks compensation for the unlawful attempts to reduce his

compensation after he provided his services, and the retaliation that he endured after his complaints

about Defendants’ violation of FIFA.

8. Plaintiff alleges, pursuant to FIFA, that he is entitled to recover (1) back pay and

other compensatory damages, (2) liquidated damages, (3) attorney’s fees and costs, (4) interest

and (5) any other relief deemed just and proper by this Court.

JURISDICTION AND VENUE

9. Plaintiff’s claims arise under the Copyright Laws of the United States, 17 U.S.C.

§ 1 et seq.

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10. This Court has subject matter jurisdiction under the Copyright Act, 17 U.S.C. § 101

et seq., 28 U.S.C. §§ 1331 (federal question), 1332 (diversity of citizenship) and 1338(a)

(copyright).

11. Plaintiff’s claims exceed the sum or value of $75,000, exclusive of interest and

costs, and diversity of citizenship exists between Plaintiff and each of the Defendants.

12. Venue is proper under 28 U.S.C. § 1391(b) and 28 U.S.C. § 1400(a) because the

events underlying this action occurred within the Eastern District of New York, injuries suffered

by Plaintiff took place in this District, and Plaintiff resides in this District.

13. Defendants are subject to the general and specific personal jurisdiction of this Court

because of their contacts with the State of New York.

14. This Court has personal jurisdiction over Defendants. Specifically, Defendants

have engaged in direct, contributory, vicarious, or otherwise induced acts of copyright

infringement in this District. Further, Defendants have engaged in continuous and systematic

business in New York and, upon information and belief, derive substantial revenues from

commercial activities in New York. Plaintiff is informed and believes and, upon such, alleges that

Defendants have also engaged in a multiplicity of acts directed toward New York, including

without limitation, soliciting and engaging in numerous commercial transactions with New York

persons. As a result, there is a direct and substantial nexus between Plaintiff’s claims in this case

and Defendants’ transaction of business in New York.

PARTIES

15. At all times hereinafter mentioned, Plaintiff Brent Elliott White (“Plaintiff” or

“White”) is an individual and citizen of the State of New York, residing in the County of Queens.

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16. Defendant Megadeth Inc. is a for-profit corporation organized under the laws of the

State of California and maintains its principal place of business at 700 12th Avenue South, Suite

201, Nashville, Tennessee.

17. Defendant 5B Artists + Media is a Limited Liability Company organized under the

laws of the State of California and maintains its principal place of business at 15821 Ventura

Boulevard, Suite 370, Encino, California.

18. Defendant Dave Mustaine is an individual who is a citizen and resident of the State

of Tennessee.

19. Defendant Universal Music Group, Inc., is a for-profit corporation organized under

the laws of the State of Delaware and maintains its principal place of business at 2220 Colorado

Avenue in Santa Monica, California. Universal Music Group, Inc. is the world’s largest record

label and music publishing company.

20. The John Doe and Doe Corporation Defendants are named herein as fictitious

entities, as they are currently unknown (if they exist at all) and are other people or entities that may

be liable to Plaintiff for the injuries set forth in this complaint and to which an amended complaint

may be necessary. Plaintiff will ask leave of Court to amend this Complaint and insert the true

names and capacities of said Defendants when the same have been ascertained. Plaintiff is

informed and believes and, upon such, alleges that each of the Defendants designated herein as a

“DOE” is legally responsible in some manner for the events and happenings herein alleged, and

that Plaintiff’s damages as alleged herein were proximately caused by such Defendants.

STATEMENT OF FACTS

21. Plaintiff White is a freelance illustrator and designer based out of New York City

whose work includes comics, concept design and illustration.

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22. Megadeth Inc. is the corporate entity through which the world-famous heavy metal

“thrash” band Megadeth and its lead singer, Dave Mustaine, conduct business.

23. 5B Artists + Media represents Megadeth as its business manager.

24. Upon information and belief, Megadeth has a music record recording agreement

with Universal Music Group, Inc., through which it releases its recorded music.

25. Plaintiff has created artwork and characters over time for Megadeth that have

become an integral part of the band’s identity, brand and appeal and helps sell Megadeth’s music.

26. For example, Plaintiff created artwork for a character called “Dystopia Vic” (and

variations thereof), which is a reference to “Vic Rattlehead”, a character mascot for the band.

Megadeth sells products with the “Dystopia Vic” artwork at its online store and elsewhere.1 More

recently, Plaintiff created artwork for a new character, “Sick Vic”.

27. In early 2020, Defendants approached Plaintiff about creating a design concept and

artwork for an upcoming Megadeth studio album, which would be the third Megadeth album

Plaintiff has been involved in designing and producing artwork for.

28. Soon after their initial conversations, Defendants hired Plaintiff within the meaning

of FIFA.

29. Defendants did not offer Plaintiff a written contract at the time.

30. The initial concept phase of the album artwork took numerous rounds of revisions

and edits over more than one year, resulting in hundreds of hours of work.

31. Defendants did not pay Plaintiff for any of these hours.

32. By mid-April 2021, Megadeth had settled on the concept and artwork that would

become the basis for the cover of their album now entitled The Sick, The Dying… And the Dead!.

 
1
https://usstore.megadeth.com/products/vic-dystopia-tee

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33. Around this time, Defendants asked Plaintiff to create cover art for an EP release,

which Plaintiff also worked on artwork for.

34. On June 22, 2022, 5B Artists + Media CEO (and Megadeth manager) Bob Johnsen

told Plaintiff that Megadeth had been working on costumes for an upcoming tour and required

additional renderings of the artwork chosen for the album cover because the stage decorations for

the tour would be based on the album cover art.

35. By text, Plaintiff reminded Johnsen that he still did not have a written contract with

Megadeth and had not been paid for his work, saying “I know album release time is hectic but I

have to mention that any send off, including album art, is contingent on compensation and contract.

So we’re going to have to sort that out soon.”

36. In response, Johnsen told Plaintiff “First song drops tmrw [sic]” but assured “No

one intended to not have this papered by now” and he “would bring it up the right way.”

37. On June 23, 2022, without a signed agreement with Plaintiff in place and without

paying Plaintiff anything for his work, Megadeth knowingly released Plaintiff’s artwork and—

shockingly to Plaintiff—credited its lead singer, Dave Mustaine, for the album’s “Art Concept.”

38. Additionally, Plaintiff’s artwork was released in conjunction with Megadeth’s

single as a pre-release and featured in Rolling Stone Magazine, but Plaintiff did not appear in any

of the credits for the artwork.

39. The next day Plaintiff reached out to Universal Music Group, complaining, “I still

don’t have a contract or payment from UMG for The Sick The Dying and the Dead…Bob

[Johnsen] reached out yesterday…and he said he left it with UMG… I assumed someone would

reach out to me to have this done before the album went out. Now the art was released in

conjunction with the single and album pre-sale on social, [Megadeth] website, Rollingstone sic.

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[Magazine]…None of it credits me, not a mention on social and no credit in the article. We don’t

have a contract or art release or usage agreement. Not trying to get legal here but since we don’t

have a rights transferred agreement copyright does reside with me.”

40. After the artwork was released, Defendants attempted to force Plaintiff to accept

the same terms as for the first Megadeth album he provided artwork for.

41. Plaintiff never agreed to these terms and had expressly told Defendants before the

album artwork was released that this arrangement would not be acceptable.

42. In late July 2021, Plaintiff gave Johnsen a breakdown of the time he spent working

on the album artwork to date, which totaled twenty-one thousand five hundred dollars ($21,500).

43. Johnsen agreed to the amount, but only if it would be for a “total buyout” of

Plaintiff’s intellectual property rights to his artwork.

44. Plaintiff refused, and when he gave Defendants a price for buying out his

intellectual property rights, with carve outs for ways in which Plaintiff had previously told

Megadeth he expected to be able to continue to exploit his own work and profit from it, Defendants

refused to agree to those terms, including Plaintiff’s buyout price.

45. Still with no contract or usage agreement in place with Plaintiff, Megadeth released

its album The Sick, The Dying… And the Dead! in September 2022 (following a pre-release in July

2022), which featured Plaintiff’s artwork without his permission, including on the album cover as

depicted here:

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46. On November 29, 2022, Johnsen threatened that if Plaintiff did not like the terms

that Megadeth was prepared to pay to buy Plaintiff’s artwork and associated rights, then “we can

start over” with the negotiations, which sought to chill Plaintiff into believing that the only way

Megadeth would pay Plaintiff is if he accepted the less favorable terms offered.

47. After discussions broke down between the parties, Defendants continued to use

Plaintiff’s artwork anyway (collectively, the “Works”) without having paid him and without his

permission.

48. The Sick, The Dying… And the Dead! is already a hit album, with tens of thousands

of albums sold and tens of millions of digital streams since its release. The lead single from the

album, We’ll be Back, was nominated for Best Metal Performance for the 65th Annual Grammy

Awards, which will be held on February 5, 2023.

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49. Megadeth also released YouTube videos with Plaintiff’s cover art without his

permission. YouTube videos featuring Plaintiff’s artwork have been viewed over five million

times, and videos featuring characters that Plaintiff has created (or derivatives thereof) have been

viewed nearly two million times.

50. In addition to the profits Defendants have made and will continue to make by

selling music and streaming music and videos, Plaintiff’s artwork is being used on merchandise—

sold not only at Megadeth concerts, but also by retailers around the world.

51. For example, a company called R13 Denim has sold t-shirts and sweatshirts

featuring Plaintiff’s artwork for prices ranging from $100 to $600 each. Megadeth-branded

clothing containing Plaintiff’s artwork has been worn by Halsey, K-pop star BamBam, and other

celebrities.

52. Upon information and belief, Defendants have licensed Plaintiff’s artwork out to

third parties, without Plaintiff’s permission to do so. Plaintiff’s artwork is being sold on the

Megadeth Official Store website, as well as by Walmart, Amazon, and Hot Topic, among others.

For example, a t-shirt currently offered for sale on Hot Topic’s website featuring Plaintiff’s

artwork is depicted here:

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53. To date, Megadeth has still failed to pay Plaintiff for the work he performed for

Megadeth. Moreover, Plaintiff has not been credited for his artwork.

54. Additional instances of Plaintiff’s works being infringed by Defendants to sell

albums and merchandise are unknown to Plaintiff at this time and will be the subject of discovery

in this case.

FIRST CAUSE OF ACTION

(Copyright Infringement, 17 U.S.C. § 501)

55. Plaintiff repeats and realleges the facts as set forth in the preceding paragraphs as

if set forth in full herein.

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56. Plaintiff is the owner of the copyrights to the Works, which substantially consist of

material wholly original with their author and which are copyright subject matter under the laws

of the United States. Plaintiff has complied in all respects with the Copyright Act and all of the

laws of the United States governing copyrights.

57. Plaintiff has not granted a license or otherwise permitted Defendants to use his

copyrighted material.

58. Defendants have directly infringed, and unless enjoined, will continue to infringe

Plaintiff’s copyrights by reproducing, displaying, distributing and utilizing the Works for purposes

of trade in violation of 17 U.S.C. §§ 106 and 501.

59. Defendants have willfully infringed, and unless enjoined, will continue to infringe

Plaintiff’s copyrights by knowingly reproducing, displaying, distributing, and utilizing the Works

for purposes of trade. Defendants have received substantial benefits in connection with the

unauthorized reproduction, display, distribution, and utilization of the Works for purposes of trade.

60. All of the Defendants’ acts are and were performed without the permission, license,

or consent of Plaintiff.

61. The said wrongful acts of Defendants have caused, and are causing, great injury to

Plaintiff, which damage cannot be accurately computed, and unless this Court restrains Defendants

from further commission of said acts, Plaintiff will suffer irreparable injury, for all of which it is

without an adequate remedy at law. Accordingly, Plaintiff seeks a declaration that Defendants are

infringing Plaintiff’s copyrights and an order under 17 U.S.C. § 502 enjoining Defendants from

any further infringement of Plaintiff’s copyrights.

62. As a result of the acts of Defendants alleged herein, Plaintiff has suffered and is

suffering substantial damage to its business in the form of diversion of trade, loss of profits, injury

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to goodwill and reputation, and the dilution of the value of its rights, all of which are not yet fully

ascertainable, in an amount to be proven at trial.

63. Defendants’ copyright infringement was committed maliciously, fraudulently, and

oppressively with willful and conscious disregard of Plaintiff’s rights and with the wrongful intent

to injure Plaintiff.

SECOND CAUSE OF ACTION

(Contributory Copyright Infringement)

64. Plaintiff repeats and realleges the facts as set forth in the preceding paragraphs as

if set forth in full herein.

65. To the extent that any Defendant did not directly infringe Plaintiff’s works, Plaintiff

is informed and believes that these parties induced, caused, and/or materially contributed to the

infringing activity described herein by permitting and encouraging the use of Plaintiff’s artwork

on album covers, merchandise, YouTube videos, and other commercial endeavors.

66. Defendants each knew or had reason to know that materially contributing to

Defendants’ use of the Works for purposes of trade would contribute to infringement of Plaintiff’s

copyrighted material.

67. As an actual and proximate result of Defendants’ contributory copyright

infringement, as described herein, Plaintiff has suffered and will continue to suffer damages in an

amount to be proven at trial.

68. Defendants’ contributory copyright infringement was committed maliciously,

fraudulently, and oppressively with willful and conscious disregard of Plaintiff’s rights and with

the wrongful intent to injure Plaintiff.

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THIRD CAUSE OF ACTION

(Freelance Isn’t Free Act – Failure to Offer Contract)

69. Plaintiff repeats and realleges the facts as set forth in the preceding paragraphs as

if set forth in full herein.

70. Defendants violated the Freelance Isn’t Free Act by failing to offer Plaintiff a

contract that conforms with the requirements of the Act.

71. Specifically, New York City Administrative Code § 20-928 states:

a. Whenever a hiring party retains the services of a freelance worker and the
contract between them has a value of $800 or more, either by itself or when
aggregated with all contracts for services between the same hiring party and
freelance worker during the immediately preceding 120 days, the contract shall be
reduced to writing. Each party to the written contract shall retain a copy thereof.

b. The written contract shall include, at a minimum, the following information:

1. The name and mailing address of both the hiring party and the freelance
worker;
2. An itemization of all services to be provided by the freelance worker, the
value of the services to be provided pursuant to the contract and the rate and method
of compensation; and
3. The date on which the hiring party must pay the contracted compensation
or the mechanism by which such date will be determined.

72. Defendants failed to offer Plaintiff a written contract as required by § 20-928 and

as a result, Defendants are liable to Plaintiff for statutory damages pursuant to § 20-933(b)(2)(a).

73. Additionally, as Defendants violated New York City Administrative Code § 20-

928, Defendants are liable to Plaintiff for statutory damages equal the value of the underlying

contract, pursuant to New York City Administrative Code § 20-933(b)(2)(b).

FOURTH CAUSE OF ACTION

(Freelance Isn’t Free Act – Unpaid Compensation)
74. Plaintiff repeats and realleges the facts as set forth in the preceding paragraphs as

if set forth in full herein.

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75. Defendants violated the Freelance Isn’t Free Act by failing to compensate Plaintiff

pursuant to the Agreement.

76. Specifically, New York City Administrative Code § 20-929(a) requires:

Except as otherwise provided by law, the contracted compensation shall be paid to

the freelance worker either: 1. On or before the date such compensation is due under
the terms of the contract; or 2. If the contract does not specify when the hiring party
must pay the contracted compensation or the mechanism by which such date will
be determined, no later than 30 days after the completion of the freelance worker's
services under the contract.

77. To date, Defendants have failed to compensate Plaintiff, a period well more than

thirty (30) days after the compensation became due.

78. As a result of the conduct of Defendants, Plaintiff has been harmed and damaged

and pursuant to New York City Administrative Code § 20-933(b)(3), Plaintiff is entitled to

statutory damages and liquidated damages in amount equal to double the value of the underlying

contract, as well as his costs and attorney’s fees and such other damages as appropriate.

FIFTH CAUSE OF ACTION

(Freelance Isn’t Free Act – Requiring White to Accept Less than the Amount of Contract
as a Condition of Payment)
79. Plaintiff repeats and realleges the facts as set forth in the preceding paragraphs as

if set forth in full herein.

80. In only offering White a written contract after he had completed his work,

Defendants violated the Freelance Isn’t Free Act by requiring as a condition of payment that White

accept less compensation than what was previously offered.

81. Specifically, Defendants violated New York City Administrative Code § 20-

929(b), which requires:

Once a freelance worker has commenced performance of the services under the
contract, the hiring party shall not require as a condition of timely payment that the

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freelance worker accept less compensation than the amount of the contracted
compensation.

82. Once White began working for Defendants, and after Defendants received the

benefit of White’s work, Defendants required that White accept less than the agreed upon

compensation to receive payment.

83. As a result of the conduct of Defendants, Plaintiff has been harmed and damaged

and pursuant to New York City Administrative Code § 20-933(b)(3), Plaintiff is entitled to

statutory damages and liquidated damages in an amount equal to double the value of the underlying

contract, his costs and attorney’s fees and such other damages as appropriate.

SIXTH CAUSE OF ACTION

(Freelance Isn’t Free Act – Retaliation)

84. Plaintiff repeats and realleges the facts as set forth in the preceding paragraphs as

if set forth in full herein.

85. By threatening White when he demanded timely compensation from Defendants,

including but not limited to Defendants’ threats that White would have to “start over” negotiations

with Megadeth in November 2022, more than one year after Megadeth began infringing on White’s

intellectual property and well after compensation was already due to White, Defendants violated

the Freelance Isn’t Free Act.

86. Specifically, Defendants violated New York City Administrative Code § 20-930,

which states:

No hiring party shall threaten, intimidate, discipline, harass, deny a work

opportunity to or discriminate against a freelance worker, or take any other action
that penalizes a freelance worker for, or is reasonably likely to deter a freelancer
worker from, exercising or attempting to exercise any right guaranteed under this
chapter, or from obtaining future work opportunity because the freelance worker
has done so.

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87. As a result of the conduct of Defendants, Plaintiff has been harmed and damaged

and pursuant to New York City Administrative Code § 20-933(b)(4), Plaintiff is entitled to

statutory damages equal to the value of the underlying contract for each violation arising under

New York City Administrative Code § 20-930 and such other appropriate relief.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court enter judgment in his favor and

against MEGADETH, INC., 5B ARTISTS + MEDIA, DAVE MUSTAINE, UNIVERSAL

MUSIC GROUP, INC., JOHN DOE 1-5, DOE CORPORATIONS 1-5, as follows:

A. For an order permanently enjoining Defendants, their officers, agents, servants,

employees, representatives, and attorneys, and all persons in active concert or participation with

them, from designing, copying, reproducing, displaying, promoting, advertising, distributing, or

selling, or engaging in any other form of dealing or transaction in, any and all products and services

(including advertising and promotional materials, print media, signs, internet web sites, or any

other media related thereto), either now known or hereafter devised, that infringe, contributorily

infringe, vicariously infringe, or induce infringement of Plaintiff’s copyrights in and to the Works.

B. For an accounting of all profits, income, receipts or other benefit derived by

Defendants from the reproduction, copying, display, promotion, distribution or sale of products

and services, or other media, either now known or hereafter devised, that improperly or unlawfully

infringe upon Plaintiff’s copyrights pursuant to 17 U.S.C. § 504 (a)(1) & (b).

C. For actual damages and disgorgement of all profits derived by Defendants from

their acts of copyright infringement and to reimburse Plaintiff for all damages suffered by reasons

of Defendants’ acts pursuant to 17 U.S.C. § 504 (a)(1) & (b).

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D. For statutory damages for copyright infringement, including willful infringement,

in accordance with 17 U.S.C. § 504(a)(2) & (c).

E. For costs and interest pursuant to 17 U.S.C. §§ 504 (a)(1) & (b), 505.

F. For an award of statutory damages in an amount no less than $250.00 pursuant to

New York City Administrative Code § 20-933(b)(2) for violation of New York City

Administrative Code § 20-928;

G. For an award of statutory damages equal to the value of the underlying contract

pursuant to New York City Administrative Code § 20-933(b)(2) for violation of New York City

Administrative Code § 20-928 and other sections of the Freelance Isn’t Free Act;

H. For an award of compensatory damages and liquidated damages equal to two times

the value of the underlying contract for violation of New York City Administrative Code pursuant

to New York City Administrative Code § 20-933(b) for violations of New York City

Administrative Code pursuant to New York City Administrative Code § 20-929(a);

I. For an award of compensatory damages and liquidated damages equal to two times

the value of the underlying contract for violation of New York City Administrative Code pursuant

to New York City Administrative Code § 20-933(b) for violations of New York City

Administrative Code pursuant to New York City Administrative Code § 20-929(b);

J. For an award of compensatory damages, pursuant to New York City Administrative

Code § 20-933(b)(4), equal to the value of the underlying contract for each violation arising under

New York City Administrative Code § 20-930;

K. For an award of attorneys’ fees and costs of suit pursuant to 17 U.S.C. § 505 and

New York City Administrative Code § 20-933;

L. For an award of pre- and post-judgment interest as provided by law; and

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M. Any such other relief as the Court deems just and reasonable.

JURY DEMAND
Plaintiff demands a trial by jury on all claims and all issues properly triable thereby.

Dated: New York, New York

February 3, 2023

KOVEL LAW PLLC

/s/ Daniel H. Kovel

DANIEL H. KOVEL
14 East 96th Street, #3
New York, New York 10128
P: (646) 397-1729
E: [email protected]

KIBLER FOWLER & CAVE LLP

/s/ Michael S. Carnevale

MICHAEL S. CARNEVALE
500 Fifth Avenue, 12th Floor
New York, New York 10110
P: (917) 909-6350
E: [email protected]

MATTHEW J. CAVE
11100 Santa Monica Blvd.
Suite 360
Los Angeles, California 90025
P: (310) 409-0400
E: [email protected]
(pro hac vice forthcoming)

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