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Lawsuit Filed Againt Amy Sedaris on April 30; Text Follows |
| Written by Tom Davis | |
| Monday, 05 May 2008 | |
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UNITED STATES DISTRICT COURT FOR THE SECOND CIRCUIT Jeff Barge Civil Court Plaintiff JURY TRIAL DEMANDED -against- Amy Sedaris, a New York resident; Phil Leirness, a California resident; and John Does 1-30. The plaintiff in this action is a resident of New York who seeks the return of a video recording made of him having sex that was made by the defendants without the knowledge, consent of permission of the plaintiff during the month of January, 2008, such videotape being considered intellectual property of the most intimate sort and its creation and distribution therefore the theft of intellectual property under both state and federal laws. The two named defendants are residents of New York and California, respectively, making this a suit whose jurisdiction is founded in diversity. John Doe defendants 1-30 are apparently residents of several states. Plaintiff also alleges a violation of the Electronics Communications Privacy Act of 1986. Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003); violations of the New York Civil Rights Law, Sections 50 and 51; violation of State Common Law Copyright Protection; and seeks damages for Intentional Infliction of Emotional Distress. In addition, the plaintiff seeks an order from the Court enjoining the defendants from harassing him in any way in the future, and from publishing or distributing or disseminating any material about him that they have obtained in the course of their project, and also a full account of their activities in regards to the plaintiff during the months of April 2007 to the present so that he may better protect himself from them in the future. THE FACTSThe plaintiff, Jeff Barge, under penalty of perjury states the following statements to be true based on information and belief: 1. In the early months of 2007, the plaintiff created several pages on the popular MySpace social networking site as an imagination aid to help him create a story based around a fictional family called the Trump-Hiltons. His long-term goal was to write a comic screenplay about a non-functional trust fund family living in New York City’s West Village that was about to lose its fortune unless drastic steps were taken. 2. To help him create this screenplay, the plaintiff created a fictional profile for each of the main characters in the story, and as an imagination aid illustrated each of these pages with the photos of the actors and actresses that he thought would be good in the roles – a practice that is commonly found on the Internet when individuals create their “dream teams” for various sports and pick among the sports stars from many teams to create the best imaginary sports team possible. 3. Among the actors and actresses chosen as the ideal artists for whom the roles in the screenplay would be written were Sarah Jessica Parker, Martin Short, Paul Dinello, Morgan Fairchild, Leslie Kritzer, Matthew Broderick, and Kristin Chenoweth. 4. Also amongst the actors chosen for this dream team and to help him imagine the story line and how the actors would interact was defendant Amy Sedaris, a well-known actress and comedienne. Her photo was used to illustrate the character Melissa-Mindy Trump-Hilton, a character that had eight separate personalities and who in the end of the screenplay ends up saving the day. 5. Unbeknownst to the plaintiff prior to his creation of these profiles, Ms. Sedaris was also a member of MySpace, and an active one. Ms. Sedaris had one or more MySpace profiles that she frequently used, including that of Geraldine Antonia Blank (MySpace ID 255971202), a character from a highly popular sit-com called “Strangers With Candy” that she had starred in on Comedy Central. 6. Subsequent to his creation of the Melissa-Mindy Trump-Hilton profile, Ms. Sedaris began communicating to the plaintiff on MySpace using her Jerri Blank profile. She became aware of the use of her photo on MySpace for the Melissa-Mindy Trump-Hilton profile, and up until certain events took place in late August of that year, seemed to have no objection to it and frequently posted friendly comments on that page. As a consequence, more of the creative photos of Ms. Sedaris dressed as different characters were subsequently added to the Melissa-Mindy Trump-Hilton profile in the Slideshow section, again with her seeming approval. To the plaintiff’s knowledge, the plaintiff and defendant Sedaris, who lives just a few blocks away from the plaintiff, had a friendly relationship throughout. Ms. Sedaris was a frequent placer of comments on the plaintiff’s other MySpace pages as well. 7. Eventually, a problem arose when the editors at a Time-Warner-owned website called TMZ.com became aware of the existence of the Melissa-Mindy Trump-Hilton profile on MySpace and made the mistake of assuming it had been created by Ms. Sedaris herself. Through a comedy of errors and miscommunication, in August of 2007 TMZ.com ran a story on its website about the character Melissa-Mindy Trump-Hilton, implying but not stating that the character was the creation of Amy Sedaris, and running a photo of Ms. Sedaris on which they had placed large eyeglasses using Photoshop. 8. To the plaintiff’s knowledge, Ms. Sedaris never asked for a retraction of that article from TMZ. 9. Instead, and even though it was TMZ that published this article, Ms. Sedaris contacted co-defendant Phil Leirness, a California resident and an executive at Cinema Arts Entertainment who has a MySpace profile under the name of “The Sheriff,” (MySpace ID 194415371), to conspire with him to plot an act of revenge upon the plaintiff that eventually resulted in the commission of a felony. Defendant Leirness apparently also operates a MySpace page named “The Colonel” (MySpace ID 238547035). 10. Ms. Sedaris was aware through information given to her by friends that the plaintiff could often be found online through ads placed in the “gay friendship” section of the Craigslist.com website, and that individuals often use this website to connect and, if they find it agreeable after meeting, to have sex. 11. Ms. Sedaris, Mr. Leirness, and John Does 1-30 then entered into a conspiracy they labeled “Operation Ramrod” the goal of which was to lure the plaintiff to a meeting with another Craigslist user who was to be a “plant” of theirs – possibly a paid “plant” -- and to secretly videotape the plaintiff having sex with their paid agent. 12. The rationale for this was their apparent belief that the plaintiff had “stolen” the photos of Ms. Sedaris to use on his Melissa-Mindy Trump-Hilton page, and that a proper revenge would be for them to create and “steal” a videotaped image of the plaintiff having sex with another person taken without his knowledge or consent. 13. To the plaintiff’s knowledge and belief, Ms. Sedaris and the John Doe defendants have frequently in the past launched campaigns against people they target for their dislike, and in the past these have apparently been overzealous fans of Ms. Sedaris and perhaps others who they belive have become too prying or have offended in some other way. Ms. Sedaris, Mr. Leirness, and the John Doe defendants communicate with each other and conspire in total anonymity through MySpace pages labeled with assumed names including in this case, “Xcesiv4ce” (12847477) Mustafio (37183143); Abe Heller (178617040), BCD (i.e. Bryan Dinello), W. (365579772), Bryan the Good, Moe (281681574); FOAH (229257555), Old Chen (175946505), Rebel S. Nerd (144795124), Matt Lappin (5241716), Ian D. Marsden, Fake Dada (145501964); Jenspiracy (51899941), The Sheriff (194415371); Mr. Stevers, Ninja Pilot (281681574), Party Baby (240391196), Poopie Pants (15376317); Mavers (171033657587561); Pierre (43796779); Lucette (216392259); Ecole de Musique de Paris (102876964); Liz Fagan, Agent Brown (38782309); So Stormy (81632204), The Colonel (238547035); Pony Bob (187233591); Biff (88559103); The Tactile Pad (214540518); Marty (Louisville) (68505605); Marty (68505605) and numerous others. Some of these pages have recently been deleted. Many of them are apparently owned and operated by the same person. The defendants have communicated with the plaintiff on numerous occasions using these profiles. 14. Plaintiff believes that the driving philosophy of the “Xcesiv4ce” MySpace webpage – a word that is pronounced “Excessive Force” -- (MySpace user ID 12847477) listed above and the affiliated others listed in Point 13 is that, if someone slights you or annoys you, the most effective cure is not to merely ask them to stop what they are doing, an approach that is fairly typical in daily human intercourse, but to attack them anonymously so they don’t know who they are being attacked by or why. This accounts for the name of that particular MySpace page, “Xcsesiv4ce” (pronounced “Excessive Force”), the owner of which contacted the plaintiff frequently and in an entirely friendly fashion as these events unfolded. It is entirely possible that the defendants enjoy attacking people anonymously and do it frequently and that their behavior has exceeded the law and extended into cyberstalking and other types of illegal harassment. The Xcesiv4ce MySpace owner has a (404) telephone prefix, which means its principal, who is pictured as a black woman, is located in Atlanta. 15. In order to further their scheme, throughout the fall of 2007 the defendants monitored the postings of the plaintiff each night in the friendship section of Craigslist and sent him nightly requests to meet at their apartments with the intent of secretly videotaping him having sex to fulfill their act of vengeance. To the plaintiff’s knowledge and belief, this nightly monitoring occurred throughout the months of October, November, and December of 2007 and January of 2008 with a fervor that seemed almost obsessive. Throughout the fall and winter the plaintiff declined these offerings of sex from the defendants and their agents using Craigslist. 16. Eventually, in January of 2008, the plaintiff did agree to one of the many offers made by the defendants, and went to an address at 256 W. 21st. St., Apartment 3A, where he was secretly videorecorded without his knowledge or permission having sex with another person. 17. The defendants, through one of their anonymous MySpace entities, have admitted that this videotape does in fact exist, and have further told the plaintiff that “only one copy exists” and that it is “in a safe place.” 18. Additionally the defendants told the plaintiff through a MySpace comment: “Happy Coming Out Party.” 19. The defendants notified numerous friends and business colleagues in advance of the event taking place that it was to occur, including numerous people working in the field of comedy and the film industry. These individuals include people such as Jeff Garlin and Diane Germano. And so the fact that this illegal secret videorecording of the plaintiff actually did take place is an open secret within these specific communities. 20. The plaintiff believes discovery will show that the defendants tried to set the plaintiff up to be secretly taped having sex with at least two other specific individuals, one of who lives in the Chelsea area of Manhattan and who is named Jose and who lives on 20th Street between Seventh and Eight Avenues, and the other who lives on the Lower East Side who is named Chris Head and lives on Leonard Street; and additionally that he may have been secretly and illegally recorded by defendants Sedaris and Leirness on a second occasion. 21. The episode has caused the plaintiff to experience suicidal thoughts and have also created in him a depressed state of mind that has, at least temporarily, caused him to be unable to work and to look for work and continues to cause him problems in that area. 22. As part of this conspiracy, defendant Leirness was seen by the plaintiff during the month of January in a New York City subway station, apparently following the plaintiff as part of this conspiracy. It is clear from this action that defendant Leirness deliberately inserted himself into this venue, and so jurisdiction over him is proper given that his part of the conspiracy caused him in fact to travel to the city and state of New York. 23. In contrast to the policy of the anonymous “Excessive Force” organization that makes its home on MySpace, the plaintiff has politely and proactively asked the defendants to cease any and all harassing activities related to the plaintiff. They have not. He has also politely and as good naturedly as possible tried to exert pressure for them to discontinue their activities by good-naturedly making their friends and circle of acquaintances aware of their illegal activities, again meeting with no success. The plaintiff fears further damages from these individuals and finds their actions to be frightening. 24. Via letter, the plaintiff has politely asked Plaintiff Sedaris, for whose benefit and approval the tape was apparently made, to return it to him in exchange for a waiver of litigation and liability, but he has received no response to that entirely reasonable request. 25. The defendants have made statements to the plaintiff via e-mail that all or part of the videotape is to be “broadcast” as part of a commercial endeavor aimed at rewarding all or some of the defendants financially. Defendant Leirness himself is an executive in the business of distributing independent films in the U.S. and abroad. Another individual who has been contacted by the defendants is a woman named Michelle Biloon, who is involved with a separate film company called iFilms. Ms. Biloon has also been seen in New York City. There also appears to be interest in this tape and other tapes made by the defendants from a Viacom-MTV television show called “Human Giant” and a producer named Rob Huebel, who the plaintiff has seen twice recently in his neighborhood in conjunction with this affair. 26. Clearly, the illegal videorecording contains intellectual property of the most personal nature, including the plaintiff’s image and the plaintiff’s recorded words, taken without the permission of its owner, the plaintiff, through the conspiracy of the above named defendants, and the plaintiff through this litigation demands the return of this intellectual property. First Cause of Action: Violation of the Electronic Communications Privacy Act of 1986, Section 2511 26. The Electronic Communications Privacy Act defines a “wire communication” as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce.” 18 U.S.C. § 2510(1) The Act defines an “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communications.” 18 U.S.C. § 2510(2). The Act defines “electronic communication” as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.” 18 U.S.C. §2510(12).27. The plaintiff reasserts the claims made above, and adds additionally that the defendants videotaped the plaintiff engaging in an act of sexual intimacy using a computer-based camera that then transported the videotape without the permission or knowledge of the plaintiff through the Internet to the home computers of the codefendants and their friends in other states; that the videotape was made for the purpose of committing a criminal or tortuous act; that the recipients of the videorecording then retransmitted the videotape to their friends in other states and to each other using interstate telephone lines, cable lines, fiber-optic lines; and that the tape was made at least in part for future financial gain. Second Cause of Action: Violation of the New York Civil Rights Law, Sections 50 and 51. 28. New York does not recognize a common-law right of privacy ( see, Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442; see also, Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 860, 403 N.Y.S.2d 218, 374 N.E.2d 129). In response to Roberson, the Legislature enacted Civil Rights Law §§ 50 and 51, which provide a limited statutory right of privacy. Section 50 makes it a misdemeanor to use a living person's “name, portrait or picture” for advertising or trade purposes “without having first obtained the written consent of such person, or if a minor of his or her parent or guardian.” Section 51-relevant here-provides:“Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided [in section 50] may maintain an equitable action * * * to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by ***55 **552 reason of such use” (internal footnote omitted). The state courts have consistently restated several basic principles concerning the statutory right of privacy. Recognizing the Legislature's pointed objective in enacting sections 50 and 51, New York Courts have underscored that the statute is to be narrowly construed and “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person” ( Finger v. Omni Publs. Intl., supra, 77 N.Y.2d 138, 141, 564 N.Y.S.2d 1014, 566 N.E.2d 141; see also, Prosser, Privacy, 48 Cal. L. Rev. 383, 402-403). 29. Plaintiff reasserts the allegations made above, and states additionally that given the short one year statute of limitation on this type of action; given the video’s distribution online and possible placement on pornographic websites such as Xtube and others that would cause plaintiff further emotional distress; given defendants’ statements that they intend to make a “broadcast” of this video recording; given the involvement of film industry individuals such as defendant Leirness and Michele Biloon; and given judicial rulings by courts in New York State stating that the cause of action for this type of case begins to toll upon discovery of the injury and not upon actual damages caused by the violation; the plaintiff feels that this claim is filed at an appropriate date and time. Third Cause of Action: Violation of State Common Law Copyright Protection 30. In Capitol Records Inc. v. Naxos of America, T4 N.Y.3d 540, 830 N.E.2d 250, 797 N.Y.S.2d 352, the New York Court of Appeals held that: (1) recordings created both before and after the 1972 effective date of federal Copyright Act provision extending copyright protection to recorded music were entitled to copyright protection under New York common law;(2) public sale of a recording otherwise unprotected by statutory copyright does not constitute a publication sufficient to divest the owner of common-law copyright protection;(3) fraud or bad faith is not an element of a copyright infringement action in New York; and(4) even assuming that defendant created a “new product” due to editing of a recording, its product could be deemed to infringe on common law copyright. 31. Plaintiff reasserts the points stated above and states further that, as an unknowing participant in a secretly made videotape, plaintiff retains common law copyright protection for his speech and image, whether or not all of the recording or just part of this recording is used in any future production as the defendants have stated. And plaintiff asks the court further to rule, given this illegal recording is apparent part of a conspiracy by numerous parties that took place over a fairly long period of time and that may have included numerous other secretly and non-secretly recorded taken with the assistance of the defendants, that ALL such recordings be ruled to have been taken illegally given the clear illegality of the single incident complained of herein. Fourth Cause of Action: Violation of the Copyright Act of 1976 32. Plaintiff reasserts the claims above and further asserts that this illegal recording and theft of image and speech violates the federal Copyright Act of 1976. Fifth Cause of Action: Intentional Infliction of Emotional Distress 33. Under New York State law, a cause of action for intentional infliction of emotional distress must be supported by allegations of conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” ( Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983], quoting Restatement [Second] of Torts § 46, Comment d ). “Such extreme and outrageous conduct must be clearly alleged in order for the complaint to survive a motion to dismiss” ( Sheila C. v. Povich, 11 A.D.3d 120, 131, 781 N.Y.S.2d 342 [2004] ). 34. Plaintiff reasserts the claims above and further asserts that the above outlined conduct was “outrageous” and that he has suffered extreme emotional distress, embarrassment and humiliation as the result of the secret videotaping and subsequent distribution of the tape.WHEREFORE, the plaintiff requests and demands the following relief:
The plaintiff is hopeful that this matter can be taken care of outside of the Court and will therefore not take up any of the Court’s valuable time, and is willing to work out a solution where the defendants, if they are compliant, bear no costs in this matter as long as the tape is returned and the other conditions laid out above agreed to. Which is to say, it is the aim of the plaintiff and his goal that this issue be resolved without any expense to the defendants and without any rancor or escalation and long drawn out and expensive activities in court. However, the plaintiff is also fully willing and able to proceed with the litigation and to have his day in court. Whether this act was committed maliciously or with the highly misguided intent to be humorous, or for any other reason such as the intent to benefit commercially from illegally and feloniously videotaping a sexual event as part of the process of creating an Internet-based film project or comedy segment for a cable or broadcast network, it is still an illegal act and the plaintiff respectfully requests the remedies outlined above. Respectfully submitted, ____________ PlaintiffJeff Barge Pro Se 51 MacDougal St. #244 New York, New York 10012 Defendants Amy Sedaris Address Redacted New York, New York 10014 Phil Leirness Cinema Arts Entertainment 6310 San Vicente Blvd #540, Los Angeles CA 90048 See Above. |
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