Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 1 of 13 Page ID #:1

1 Connor Lynch (SBN 301538)

connor@lynchllp.com
2 Sean Lynch (SBN 292508)
sean@lynchllp.com
3 LYNCH LLP
1620 5th Avenue, Suite 650
4 San Diego, California 92101
(949) 229-3141
5
Attorneys for Plaintiff Sara Pope
6
7
UNITED STATES DISTRICT COURT
8 CENTRAL DISTRICT OF CALIFORNIA
9
Sara Pope, Civil Action No. 2:17-cv-05481
10
Plaintiff,
11 v.
Complaint for Copyright Infringement
12 The Mill Group Inc.; Kylie Jenner; and Unfair Competition
NBCUniversal Media, LLC; E!
13 Entertainment Television, LLC; Does
110 DEMAND FOR JURY TRIAL
14
Defendants.
15
16
17
18
19
20
21
22
23
24

COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 2 of 13 Page ID #:2

1 Plaintiff, by and through her attorneys of record, alleges as follows:

2 Factual Allegations
3 1. Plaintiff Sara Pope has been painting for more than a decade, and her

4 work has been featured in art galleries in Singapore, Japan, Brazil, and across the
5 United Kingdom, as well as in New York art fairs. Prints of her work are sold in Los
6 Angeles.
7 2. Ms. Pope depends on her art to earn a living. And the copyright

8 protection her work enjoys deters would-be thieves from copying and profiting from
9 her work without her permission.
10 3. In this case, copyright protection did nothing to deter Defendants from

11 copying Ms. Popes Temptation Neon and using it, without permission, for their
12 own profit.
13 Temptation Neon
14 4. Temptation Neon is one of Ms. Popes most popular original works. It

15 has been one of the top of Google searches for neon lips at least since 2016, and it
16 embodies Ms. Popes distinct artistic style:
17
18
19
20
21
22
23
24 Temptation Neon

2 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 3 of 13 Page ID #:3

1 5. Temptation Neon began like many of Ms. Popes other works: with a

2 model, makeup, and a photoshoot. As photographer, Ms. Pope elicited powerful

3 emotions from her model, drawing out emotions of love, happiness, and flirtation.
4 She captured emotion in photograph; then, she painted. Several thin layers of oil
5 overlaid to create a translucent, glass-like, hyper-realist quality; neon tube lights
6 created to exact specification and installed; more paint, layered and allowed to drip.
7 After a few more tweaks and adjustments, Temptation Neon came to be.
8 6. The finished artwork conveys glamour, intimacy, and sexual power

9 themes familiar to Defendant Kylie Jenner, who is building her brand around those
10 themes.
11 7. Ms. Pope finished work on Temptation Neon shortly before October

12 2015, when the work was published.

13 8. On October 4, 2015, Ms. Pope posted a digital image of Temptation

14 Neon to her Instagram account (@sarapopeartist).

15
16
17
18
19
20
21
22
23 9. Temptation Neon fast received online traction and quickly became one

24 of the top Google image search results for neon lips. Throughout 2016, Google

3 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 4 of 13 Page ID #:4

1 image searches for neon lips and similar terms would reveal Temptation Neon as
2 the highest, or one of the highest, image search results. As of July 21, 2017,
3 Temptation Neon remained one of the top Google image search results for neon
4 lips, visible at the top of page one:
5
6
7
8
9
10
11
12
13
14 10. As Temptation Neons popularity grew, so too did the incentive to copy.

15
16
17
18
19
20
21
22
23
24

4 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 5 of 13 Page ID #:5

1 Kylie Jenner
2 11. Defendant Kylie Jenner is an Instagram star. According to Forbes

3 magazine, Kylie Jenner earned approximately $3.6 million from sponsored posts on
4 the social media website in 2016, and on average, her Instagram posts generate 1.75
5 million engagements. Forbes has estimated that a sponsored post on Kylies social
6 media would be worth at least $200,000.
7 12. Despite her prominent status, Kylie Jenners record of copyright

8 infringement lawsuits is alarming. In November 2016, Kylie was accused of infringing

9 the copyrighted work of Vlada Haggerty. The image below depicts, on the left, images
10 posted to Kylie Jenners Instagram feed, and on the right, images that first appeared
11 on Vlada Haggertys Instagram feed:
12
13
14
15
16
17
18
19
20 13. In June 2017, Kylie Jenner and her sister Kendalls clothing line was

21 accused of infringing copyrights in photographs of prominent rock and rap icons

22 including Notorious B.I.G., Tupac Shakur, Biggie Smalls, Black Sabbath, Metallica,
23 Pink Floyd, the Doors, Kiss and Led Zeppelinfor shirts that overlaid the sisters
24 faces on the iconic images. As a result of the lawsuit, the shirts are no longer sold.

5 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 6 of 13 Page ID #:6

1 Copying Temptation Neon

2 14. Defendants sought to build a brand through artwork that captures

3 glamour, intimacy, and power. By their zeal, they found Temptation Neon, and they
4 copied it for their own profitwithout consent, credit, or compensation. Temptation
5 Neon and the unauthorized version are strikingly similar when viewed in side-by-side
6 comparison:
7
8
9
10
11
12
13
Temptation Neon Unauthorized Version
14
15 15. Ms. Popes Temptation Neon features bright, glossy lips in a lip bite
16 pose in the bottom right (stage right) portion of the lips. The lip is bitten primarily by
17 the front right tooth. The neon tube lighting traces an outline around the lips,
18 contouring and accentuating the dip of a pronounced philtrum. Several drips of paint
19 flow behind the neon tube lighting. Ends of the neon tube dip in at the bottom of the
20 lips. And the unauthorized version copies the entire arrangement.
21 16. All Defendants, including Kylie Jenner, have copied Temptation Neon
22 to promote Kylie Jenners new reality television show. In the opening of a thirty-
23 second promotional video available online at eonline.com/shows/life_of_kylie (Life
24

6 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 7 of 13 Page ID #:7

1 of Kylie on E! First Look), the unauthorized version of Temptation Neon

2 appears.
3 17. A second, fifteen-second promotional video, also available online at

4 eonline.com/shows/life_of_kylie (Life of Kylie Coming This August on E!) also

5 uses the same unauthorized version of Temptation Neon.
6 18. In addition to appearing on websites operated by Defendants, the trailer

7 featuring the unauthorized copies of Ms. Popes work has been posted to Kylie
8 Jenners Twitter feed.
9 19. Artists like Ms. Pope rely on recognitionnot only of their artwork, but

10 also of their identities and their originalityto give value to their work. Defendants
11 used Temptation Neon without permission in promotional social media posts and in a
12 promotional video featured online and in advertisements across the United States.
13 They are building their brand and goodwill at Ms. Popes expense.
14 20. In spite of the obvious similarity between Temptation Neon and the

15 unauthorized version that appears in promotional advertising for Life of Kylie,

16 Defendant The Mill Group Inc. insists that all similarities are coincidental only.
17 21. This lawsuit seeks all damages to which Ms. Pope is entitled for the

18 unlawful acts of Defendants.

19
20
21
22
23
24

7 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 8 of 13 Page ID #:8

1 Parties
2 23. Plaintiff Sara Pope is an artist based in London, UK, whose work has

3 been featured and sold in art galleries throughout the world.

4 24. Upon information and belief, Defendant Kylie Jenner principally resides

5 in the Central District of California.

6 25. Defendant E! Entertainment Television, LLC is a corporation organized

7 and existing under the laws of Delaware, with its principal place of business at 100
8 Universal City Plaza, Universal City, California. E! Entertainment Television, LLC is a
9 wholly-owned subsidiary of Defendant NBCUniversal Media, LLC.
10 26. Defendant NBCUniversal Media, LLC (NBCU) is a Delaware limited

11 liability company with its principal place of business at 30 Rockefeller Plaza, New
12 York, New York. NBCUniversal Media, LLC is engaged in, among other things, the
13 production and distribution of television programs.
14 27. The Mill Group Inc. is a New York corporation with its principal place

15 of business at 451 Broadway, 6th Floor, New York, NY 10013. The Mill Group Inc.
16 does business in California as The Mill, and its principal office in California is 3233 La
17 Cienega Blvd., Los Angeles CA 90016. The Mill was engaged by NBCU to produce
18 the promotional material featuring unauthorized versions of Temptation Neon.
19 28. The true names and capacities of Defendants Does 1 through 10 are

20 presently unknown to Ms. Pope, who therefore sues them by such fictitious names.
21 Ms. Pope is informed and believes that each of the fictitiously named defendants is
22 responsible in some capacity for matters herein alleged. Ms. Pope will amend this
23 complaint to state the true names and capacities of Does 1 through 10 when they are
24 ascertained.

8 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 9 of 13 Page ID #:9

Jurisdiction and Venue

1
29. This is a civil action seeking damages and injunctive relief for copyright
2
infringement under the Copyright Act of the United States, 17 U.S.C. 101, et seq.
3
30. The Court has original subject matter jurisdiction over copyright claims
4
pursuant to 28 U.S.C. 1331 and 1338(a). This Court also has supplemental
5
jurisdiction over Plaintiffs claims arising under state law under 28 U.S.C. 1367, as
6
those claims form part of the same case or controversy.
7
31. This Court has personal jurisdiction over Defendants because, among
8
other things, Defendants are doing business in the State of California and in this
9
judicial district, and acts of infringement complained of herein occurred in the State of
10
California and in this judicial district.
11
32. Venue is proper in this district pursuant to 28 U.S.C. 1391(b) and (c)
12
because the infringement occurred in this district, and each Defendant either resides
13
in this district or has substantial and continuous ties to this district.
14
15
First Claim for Relief
16 Copyright Infringement 17 U.S.C. 106, et seq.
(Direct, Contributory, Vicarious)
17 (Against All Defendants)
18
33. Ms. Pope re-alleges the allegations in Paragraphs 1 through 32.
19
34. Ms. Pope is the sole owner of the copyright in an original work that is
20
fixed in tangible media of expression. On May 24, 2017, the United States Copyright
21
Office accepted an application for copyright registration for the original work,
22
Temptation Neon. It has been assigned case number 1-5210542911 by the Copyright
23
Office.
24

9 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 10 of 13 Page ID #:10

1 35. Upon information and belief, Defendants have produced, reproduced,

2 prepared derivative works based upon, distributed, and publicly displayed Ms. Popes
3 protected work or derivatives of Ms. Popes protected work without her consent.
4 Defendants acts violate Ms. Popes exclusive rights under the Copyright Act, 17
5 U.S.C. 106 and 501, including Ms. Popes exclusive rights to produce, reproduce,
6 and distribute copies of her work, to create derivative works, and to publicly display
7 her work.
8 36. Defendants infringement has been undertaken knowingly, and with

9 intent to financially gain from Ms. Popes protected copyrighted work. Defendants
10 have failed to exercise their right and ability to supervise persons within their control
11 to prevent infringement, and they did so with intent to further their financial interest
12 in the infringement of Temptation Neon. Accordingly, Defendants have directly,
13 contributorily, and vicariously infringed Ms. Popes copyrighted work.
14 37. Because of Defendants infringing acts, Ms. Pope is entitled to her actual

15 damages and Defendants profits attributable in an amount to be proved at trial and

16 all other relief allowed under the Copyright Act.
17 38. Defendants infringement has caused and is causing irreparable harm to

18 Ms. Pope, for which she has no adequate remedy at law. Unless this Court restrains
19 Defendants from infringing Ms. Popes protected work, the harm will continue to
20 occur in the future. Accordingly, Ms. Pope is entitled to preliminary and permanent
21 injunction.
Second Claim for Relief
22 Unfair Competition
Cal. Bus. & Prof. Code 17200, et seq. and common law
23 (Against All Defendants)
24 39. Ms. Pope re-alleges the allegations in Paragraphs 1 through 38.

10 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 11 of 13 Page ID #:11

1 40. Section 17200 of the California Business and Professions Code prohibits unfair

2 competition, including any unlawful, unfair or fraudulent business act or

3 practice . . . .
4 41. By engaging in the alleged conduct, Defendants have engaged in

5 unlawful, unfair, or fraudulent business acts of unfair competition in violation of

6 Sections 17200, et seq., and California common law. This conduct includes
7 Defendants unauthorized use of Ms. Popes copyrighted work (1) in promotions for
8 Kylie Jenners reality television show and (2) in postings on social media to increase
9 their goodwill and brand power.
10 42. As an actual and proximate result of Defendants unfair competition,

11 Defendants have unjustly enriched themselves by, among other things, obtaining
12 profits, depriving Ms. Pope of the compensation to which she is rightly entitled, and
13 taking credit for Ms. Popes original work. Ms. Pope is thus entitled to restitution of
14 such sums in an amount to be proved at trial.
15 PRAYER FOR RELIEF
16 Plaintiff Sara Pope prays for judgment in her favor against Defendants, and each
17 Defendant, as follows:
18
A) That Defendants products and materials that infringe Ms. Popes copyright,
19
as well as any other articles that contain or embody copies of Ms. Popes
20
original work, be impounded pursuant to 17 U.S.C. . 503(a);
21
B) That Defendants products and materials that infringe Ms. Popes copyright,
22
as well as any other articles that contain or embody copies of Ms. Popes
23
original work, be destroyed pursuant to 17 U.S.C. . 503(b);
24

11 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 12 of 13 Page ID #:12

1 C) That Defendants be required to provide a full accounting to Ms. Pope for

2 all profits derived from their use of Temptation Neon and their production,

3 reproduction, and preparation of derivative works based on, distribution,

4 and display of unauthorized Temptation Neon works in all media, from all

5 sources, worldwide;

6 D) That Defendants be ordered to pay Ms. Pope all damages, including future

7 damages, that Ms. Pope has sustained or will sustain as a result of the acts

8 complained of herein, and that Ms. Pope be awarded any profits derived by

9 Defendants as a result of said acts, or as determined by said accounting;

10 E) That Defendants be ordered to pay to Ms. Pope punitive damages as a

11 result of Defendants deliberate and willful misconduct;

12 F) That Defendants be ordered to pay to Ms. Pope pre-judgment and post-

13 judgment interest on all applicable damages;

14 G) That Defendants be permanently enjoined from all further infringement of

15 Temptation Neon; and

16 H) Such other or further relief as the Court may deem proper.

17
18 DATED: July 25, 2017 LYNCH LLP
19 By /s/ Connor Lynch
Connor Lynch
20 Attorneys for Plaintiff
Sara Pope
21
22
23
24

12 COMPLAINT
 Case 2:17-cv-05481 Document 1 Filed 07/25/17 Page 13 of 13 Page ID #:13

1 DEMAND FOR JURY TRIAL

2 Plaintiff Sara Pope hereby demands a jury trial pursuant to Federal Rule of

3 Civil Procedure 38.

4 DATED: July 25, 2017 LYNCH LLP

5 By /s/ Connor Lynch

Connor Lynch
6 Attorneys for Plaintiff
Sara Pope
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

13 COMPLAINT