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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
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)( JUDITH GLORY HILL,
Plaintiff,
v.
JOLENE CHERRY, an individual; THE CHERRY PARTY; JOLENE HOLDINGS,
LLC,
Defendants.
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)(
TO THE ABOVE NAMED DEFENDANTS:
Index No.
SUMMONS
You are hereby summoned to answer the annexed complaint in this
action and to
serve a copy of your answer on the undersigned attorneys for
Plaintiff within 20 days after the
service of this summons, exclusive of the day of service (or
within 30 days after the service is
complete if this summons is not personally delivered to you
within the State of New York); and
in case of your failure to appear or answer, judgment will be
taken against you by default for the
relief demanded in the complaint.
Plaintiff designates New York County as the place of trial. The
basis of venue is
contractual consent to venue in New York County.
Dated: New York, New York March 25, 2015
FILED: NEW YORK COUNTY CLERK 03/25/2015 11:48 AM INDEX NO.
650951/2015NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2015
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Defendants' addresses:
JOLENE CHERRY 11845 W. Olympic Blvd. Los Angeles, CA 90064
THE CHERRY PARTY 11845 W. Olympic Blvd. Los Angeles, CA
90064
JOLENE HOLDINGS, LLC 11845 W. Olympic Blvd. Los Angeles, CA
90064
Scott Himes
Peter L. Haviland (Pro hac vice motion to be submitted) Corey
Field Scott Humphreys (Pro hac vice motion to be submitted) BALLARD
SPAHR LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067
(424) 204-4321 (telephone) (424) 204-4350 (facsimile)
havilandp@ballardspahr. com [email protected]
[email protected]
-and-
Scott Himes BALLARD SPAHR LLP 919 Third A venue New York, NY
10022 (212) 223-0200 (telephone) (212) 223-1942 (facsimile)
himess@ballardspahr. com
Attorneys for Plaintiff Judith Glory Hill
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
-------------------------------------------------------------------
)( JUDITH GLORY HILL,
Plaintiff,
v.
JOLENE CHERRY, an individual; THE CHERRY PARTY; JOLENE HOLDINGS,
LLC,
Defendants.
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)(
Index No.
COMPLAINT
This is an action for declaratory and injunctive relief by
singer and songwriter
Plaintiff Judith Glory Hill seeking judicial orders that Ms.
Hill has no contractual obligation to a
person making false claims against her, one Jolene Cherry and
Cherry's so-called "Cherry Party"
label (collectively "Cherry"). Ms. Hill requests this Court to
declare that Cherry is enjoined
from associating herself with Ms. Hill and Ms. Hill's valuable
brand, and from interfering with
Ms. Hill's independent songwriting, recording and performing.
Ms. Hill also seeks damages for
defamation and fraud against Cherry.
PRELIMINARY STATEMENT
1. Plaintiff Judith Hill is an internationally acclaimed singer
and songwriter.
Ms. Hill started her career as a backup singer to artists
including Michael Jackson, Stevie
Wonder, Elton John, and Josh Groban, and was featured in the
Grammy and Academy Award-
winning documentary film "Twenty Feet From Stardom." She has
also received national
recognition through her performances on NBC's television show
"The Voice." Ms. Hill has
established her own personal brand in her name not only as an
artist, but also through appearances
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in churches, at community, charity, Christmas and sporting
events, and through her numerous
social media sites, as a persona supporting freedom of
expression.
2. In 2013, Ms. Hill was approached by one Jolene Cherry, who
claimed to
have a "close personal relationship" with Sony Music Enterprises
("Sony Music") Chairman and
CEO Doug Morris, about entering into a recording agreement with
Sony Music. Ms. Cherry,
under color of Doug Morris' authority, made a number of false
representations about what Mr.
Morris and Sony Music would do to promote Ms. Hill's career,
fraudulently inducing Ms. Hill to
sign a long-term recording agreement in September 2013 with Sony
Music (the "Sony
Agreement"). Ms. Cherry was temporarily given her own "label" at
Sony Music called
"The Cherry Party" -- a "label" with which Sony Music then
quickly severed ties -- and Ms. Hill
was told she should report to Ms. Cherry. The Sony Agreement,
however, made no mention
whatsoever of The Cherry Party. Ms. Cherry proved to be
incompetent, erratic, unstable, and
wholly unable to perform the obligations that Ms. Hill had been
promised both orally and in
writing that Sony Music would meet as a record company.
3. Less than a year after signing the supposedly long-term
agreement with
Sony Music, Ms. Hill's personal manager received an August 6,
2014 email from Ms. Cherry
saying that Ms. Cherry was leaving Sony, stating, "Yes, I'm
sorry but they [Sony] are
[expletive]. You can take all of your tracks and go pending
whatever outcome is the final one
here. I'm sick of the music business and all of its trash
[sic]." The reference to "take all of your
tracks and go" was not an abstraction: Ms. Cherry knew that Ms.
Hill had in fact been
approached by other recording artists with significant career
opportunities. Prior to sending the
August 6, 2014 email, Ms. Cherry, had authorized and encouraged
Ms. Hill's collaboration with
other artists, and knew of and approved Ms. Hill's pursuit of
those opportunities.
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4. Following the August 6, 2014 email, Ms. Cherry disappeared.
In late
October 2014, Ms. Cherry returned from her so-called "leave of
absence," and orally advised
Ms. Hill's representatives that Sony Music had terminated its
relationship with Ms. Cherry.
Rather than fulfill its obligations under the recording
agreement with Ms. Hill, however,
Sony Music advised Ms. Hill's representatives that the "asset"
of Ms. Hill's recording agreement
had been "transferred" to Ms. Cherry - a transfer never vetted
with nor approved by Ms. Hill -
and that all continuing inquiries about such routine matters as
payment for recording costs,
producer fees, and other matters necessary for the release of a
record, should be directed to
Ms. Cherry. None of them were paid. Notwithstanding repeated
requests by Ms. Hill's
representatives to both Sony Music and The Cherry Party for
written evidence of the purported
"transfer" of Ms. Hill's contract to Ms. Cherry - a person who
had declared she no longer
wanted anything to do with the music business - both Sony Music
and Ms. Cherry steadfastly
refused to produce any writing reflecting the "transfer."
Instead, both simply abandoned
Ms. Hill.
5. Accordingly, Ms. Hill wrote and recorded her own music
independently
on projects which Cherry had known of and without objection from
Cherry. But when
representatives of Ms. Hill sought to confirm that she was no
longer bound by the 2013 Sony
Agreement nor by any purported "transfer" of her contract, Ms.
Cherry, who had previously
encouraged Ms. Hill to "take all of your tracks and go," then
reversed course, instead asserting
that Ms. Hill owed recording obligations to Cherry. When Ms.
Hill's representatives challenged
Ms. Cherry's about-face, Ms. Cherry, using Sony's servers, then
engaged in a bizarre act of self-
promotion and character assassination against Ms. Hill.
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6. On January 2, 2015, soon after Sony's servers were infamously
hacked by
persons whom the U.S. government believed were linked to North
Korea and its dictator
Kim Jong-un, Ms. Cherry caused an associate of hers, Joseph
Charles, without Ms. Hill's
knowledge or consent, and without the knowledge or consent of
Ms. Hill's existing publicists or
management, to hire an imposter publicist, Gina Torres, to plant
a story with the New.York Post
which falsely stated that "Sony singer" Judith Hill had "created
'A Love Letter to Kim Jong-
un. "' Ms. Hill, whose publicly espoused beliefs and personal
brand are wholly contrary to the
threat to freedom of expression implicated by North Korea's
apparent hacking, was also accused
in the Cherry press release of being a "singer signed to Sony
Music" who wrote lyrics
"describing affection for the dictator." Moreover, in what was
widely regarded as a racial slur
against her, Ms. Hill was described as seeking "to mediate peace
between North Korea and the
US" because of her ethnicity as "Japanese- and
African-American."
7. Following the planting of this story by Ms. Cherry's agents,
Ms. Hill
began to receive threats and hate mail from members of the
public. Her reputation as an artist of
moral integrity supportive of freedom of expression was
wrongfully damaged by this Cherry-
executed press release. Cherry has refused to publicly apologize
for its role in this slander and
has refused to do anything to correct it. Nevertheless Cherry
has continued to demand that
Ms. Hill act as if she is still performing for The Cherry Party
under the terms of the Sony
Agreement, a demand to which neither Ms. Hill nor any other
artist could conceivably be
expected to capitulate given the fraud, violations of good faith
and defamation to which Cherry
has subjected her.
8. No artist can be expected to perform for a label which
intentionally smears
its own artist's reputation and violates, without remorse, the
artist's core beliefs. Ms. Hill,
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determined to defend her reputation and her freedom to pursue
her artistic gifts outside of the
toxic environment of The Cherry Party, asks this court to find
all Defendants liable for their
intentional wrongs against her, and to declare that any
fictitious agreement with The Cherry
Party is null and void.
9. Ms. Hill further seeks injunctive relief prohibiting The
Cherry Party or
Ms. Cherry from attempting to enforce any purported recording
agreement with her, and
enjoining Defendants from any attempt to promote, advertise, or
make any use of Ms. Hill's
recordings, name, image, likeness and trademark name, and from
falsely advertising that Ms.
Hill is in any way associated with The Cherry Party "label," and
further enjoining defendants
from any attempt to interfere with Ms. Hill's career
activities.
THE PARTIES
10. Plaintiff Judith Glory Hill ("Hill" or "Plaintiff') is an
acclaimed
performing and recording artist and songwriter who is a citizen
of the state of California.
11. Defendant Jolene Cherry is a citizen of the state of
California.
12. Defendant The Cherry Party is, on information and belief, a
former joint
venture partnership between Jolene Cherry, Jolene Holdings, LLC,
and Sony Music Enterprises.
The Cherry Party operates the website www.thecherryparty.com,
and lists Plaintiff Judith Hill as
one of The Cherry Party's "artists." On information and belief,
The Cherry Party has offices in
Santa Monica, California.
13. Defendant Jolene Holdings, LLC is a California limited
liability company
with Jolene Cherry as its sole Member, with an address c/o 11845
West Olympic Boulevard,
Los Angeles, California 90064.
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JURISDICTION AND VENUE
14. The Sony Agreement between Plaintiff Judith Hill and Sony
Music dated
September 10, 2013, at issue in this lawsuit provides that venue
and jurisdiction concerning any
disputes over the agreement shall be in New York.
15. This Court has jurisdiction over Defendants The Cherry
Party, Jolene
Holdings, LLC, and Jolene Cherry, because, on information and
belief, they claim to have
contractual rights pursuant to the Sony Agreement, and because
they and/or their agents
transacted business in New York in connection with the claims
asserted herein.
FACTUAL ALLEGATIONS
Judith Hill's Artistic Success and Cherry's False Promises
16. Judith Hill quickly rose to prominence for her beautiful
voice, compelling
stage presence, and her collaborations with leading artists,
including being selected as Michael
Jackson's duet partner for the late singer's "This Is It"
planned tour. She has composed over
fifty songs either alone or with songwriting partners.
17. Ms. Hill, through her professional appearances, including
film and
television, and her web site located at www.judithhill.com, and
her social media accounts
including her Facebook page and twitter account at @Judith_Hill,
has established her "brand"
and valuable persona with the public and consumers. As a result
of her growing audience
acclaim and following her national exposure on The Voice, in
2013, Ms. Hill was approached by
Defendant Jolene Cherry to enter into a recording agreement with
Sony Music. Ms. Hill was
promised all the benefits of a major record label supporting her
career, including legendary Sony
Music label brands such as Columbia and Epic Records, and
promised direct access to and
support from Doug Morris, Sony's Chairman and CEO, whom Ms.
Cherry assured Ms. Hill was
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a "close" personal friend and associate of Ms. Cherry's, and who
would take a personal interest
in and be supp011ive of Ms. Hill's career on behalf of Sony. In
addition, Ms. Hill was assured
that trusted and reliable Artist and Repertoire ("A&R") and
other support staffknown to Ms. Hill
would oversee her recordings and career.
18. In reliance on these representations and assurances, Ms.
Hill entered into
a letter agreement with Sony Music dated September 10,2013 (the
"Sony Agreement").
19. Among the material provisions of the Sony Agreement is
Paragraph 7,
"Creative Control," which grants to Ms. Hill joint approval with
Sony Music over artistic and
commercial matters including compositions, number of sides on an
album, producers, mixers,
studios, recording dates, as well as meaningful consultation
rights on matters such as marketing
plans, and third party synchronization licenses for film,
television, and other media. Ms. Hill
would not have entered into the Sony Agreement if she was not
granted rights to creative control
over her career.
Under Jolene Cherry The Relationship with Sony Music Fails
20. In fact, Ms. Hill was not given such creative control.
Instead, Jolene
Cherry was placed "in charge" of Judith Hill's career. With Ms.
Cherry "in charge," the
recording agreement never generated a released record. An
initial project to record four "EPs"
(extended play singles) of winter holiday songs chosen by Ms.
Cherry was quickly completed
and delivered by Ms. Hill, but then inexplicably shelved by Ms.
Cherry. Inaction,
unresponsiveness, and missed opportunities became the status
quo. The A&R staff promised
Ms. Hill were fired without explanation. During this chaotic
time, Ms. Cherry encouraged
Ms. Hill to write and record her own music and approved her work
with other artists.
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21. During this dispiriting period of chaos, on August 6, 2014,
Ms. Cherry
emailed Ms. Hill's manager that Ms. Cherry was leaving Sony,
stating "Yes, I'm sorry but they
are [explicative]. You can take all ofyour tracks and go pending
whatever outcome ifthefinal
one here. I'm sick of the music business and all of its trash.
"
22. Ms. Cherry, who was unavailable without any further
definitive word or
news for about two months, then returned to communications in
October of 2014, informing
Ms. Hill's manager that her purported "label" imprint, The
Cherry Party, which had never
released a record, was going to have a different future
relationship with Sony Music: it would be
distributed by Sony Music's "RED" distribution arm but otherwise
self-funded and stand alone
and apart from Sony Music entirely.
23. Ms. Hill and her management were alarmed at this news, which
implied
that the assurances that she would be on the Sony Music label,
which she had relied upon in
signing with Sony Music, were untrue. Being on "The Cherry
Party" faux "label," and having
her valuable name and brand on The Cherry Party website, had
never been the understanding of
Ms. Hill, whose only agreement was with Sony Music, not with the
unknown, untried, and
unfunded vanity label of Ms. Cherry.
24. Sony Music's budgetary commitment to producing recordings of
Ms. Hill
under her agreement collapsed. Ms. Hill began to underwrite her
own recording costs and to find
studio space on her own. In addition, Sony Music failed to pay
engineering fees or to make
payments to Ms. Hill's freelance producer, Isabella Summers of
the group "Florence and the
Machine" on several tracks, including the track that became the
focus of Sony Music's
defamation campaign against Ms. Hill, "James Franco."
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The "James Franco" Song Parody Version And "The Interview"
Film
25. In March 2014, Judith Hill composed a song with co-writer
Isabella
Summers titled "James Franco," - after the actor James Franco -
and produced a demonstration
("demo") recording. "James Franco" is a song about the "cute"
appearance of a man- not James
Franco - with a chorus that teasingly suggests that the man is
better looking than the actor. The
words of the chorus, the only reference to James Franco in the
song, are: "James Franco ain't
got nothing on you."
26. When Jolene Cherry returned from her extended absence, on
October 29,
2014, she met with Ms. Hill and her manager, and, announced the
alleged new business
relationship between Sony Music and herself. Ms. Cherry also
proposed a small project
connected with the pending and not yet completed Sony Pictures
comedy starring James Franco
and Seth Rogen, "The Interview."
27. Ms. Cherry's proposal was that perhaps the producers of The
Interview
film would be interested in "placing" the "James Franco" song
either in the film or in the
advertising for the film. But to facilitate such a proposal, and
because "The Interview" plot dealt
with a fictional assassination of North Korean leader Kim
Jong-un, Ms. Cherry suggested that
Kim Jong-un's name be added to the song's chorus, changing
"James Franco ain't got nothing on
you" to "Kim Jong-un, James Franco ain't got nothing on you."
"Placement" of a song in a film
or its advertising generates publicity for the record label. At
Ms. Cherry's suggestion, a
reference to "Kim Jong-un" was dubbed into the chorus refrain of
this parody version of the
James Franco song.
28. At that time, in October, 2014, the now-infamous "Sony Hack"
was not
yet known to anyone, or revealed to the world by its
perpetrators the "Guardians of Peace," and
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"The Interview" had not yet become the focus of international
attention as the possible
motivation for the Sony Hack on the part ofNorth Korea.
29. On November 24, 2014, the infamous "Sony Hack," an
extraordinary and
unprecedented act of cybercrime and invasion of privacy and
business secrets, became generally
known, but the perpetrators, the "Guardians of Peace," made no
statements regarding any
motivation connected to the portrayal of Kim Jong-un in "The
Interview."
Cherry Leaks the Parody James Franco Song Completely
Out-of-Context With a Libelous Press Release that Ms. Hill Had
Written a "Love Song" to Dictator Kim Jong-un
30. At the time the parody version of the James Franco song was
created,
Ms. Hill's manager and publicity team had misgivings regarding
the suitability of the "parody"
version of the "James Franco" song vis-a-vis Ms. Hill's career
objectives, and expressed
concerns to Jolene Cherry and Joseph Charles that any
intentional "leak" of the parody song
aimed at generating publicity would be wholly inappropriate and
unacceptable unless the track
was officially connected with the movie, "The Interview," or
endorsed by its stars as something
fun and exciting.
31. On December 11, 2014, in a phone call between Ms. Gale, Ms.
Cherry,
and Mr. Charles, Ms. Gale, on behalf of her client Ms. Hill,
expressly declined to approve any
further use of the parody song or any publicity regarding it.
Ms. Cherry, apparently adamant that
the parody song should be somehow "leaked" to generate
publicity, including for Ms. Cherry's
own label The Cherry Party, disregarded the objection, stating
that Ms. Cherry would
nevertheless "find someone who will" leak and publicize the
parody song.
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32. On December 16, 2014, the so-called "Guardians of Peace,"
claiming
responsibility for the Sony Hack, for the first time mentioned
"The Interview" and threatened to
take terrorist action if the film was released.
33. On December 17, 2014, Sony Pictures cancelled the release
of
The Interview and Ms. Hill's manager and publicist exchanged
emails with Joseph Charles,
expressing their relief that Ms. Hill was not caught up in the
controversy and that the decision
had previously been made to not use the parody song in any
way.
34. Despite the clear instructions of Ms. Hill's publicist and
manager, Jolene
Cherry and Joseph Charles conspired to arrange to have the
parody song "leaked" to the press
within New York, along with a false press release regarding Ms.
Hill. Sometime prior to
December 28, 2014, Ms. Cherry and Mr. Charles engaged publicist
Gina Torres to act for them
on behalf of The Cherry Party, and on information and belief
provided Ms. Torres with a
"leaked" copy of the parody song, and a false press release to
give the press, with the
understanding that the leaked parody and publication of the
press release was in fact covert
advertising for The Cherry Party label, and not in any way a
genuine news story.
35. On information and belief, beginning on or about December
28, 2014 and
unknown to Ms. Hill, her manager, or her publicist, Gina Torres,
acting at the direction of and
for the benefit of Defendants, contacted and began to send a
string of approximately twenty
emails to the New York Post in New York City, including the
leaked parody song and the false
press release camouflaged as a "story" that was published by the
New York Post in its "Page Six"
feature on January 2, 2015.
36. On information and belief, the New York Post was falsely
told by Gina
Torres that Ms. Hill approved the false "story" and wanted the
parody song leaked, and the
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New York Post printed the press release, essentially as conveyed
to it in the emails from
Ms. Tones, based on Ms. Tones' false assertions that she spoke
for Ms. Hill. At the same time
that the New York Post published the defamatory content of the
press release, it also published
the "leaked" song on its official "SoundCloud" webpage and
linked the song to the newspaper
article. That music file was co-opted by celebrity entertainment
website TMZ.com, and other
media outlets.
37. Following publication of the New York Post story, Ms.
Hill's
representatives contacted the New York Post, who advised them
that Ms. Tones was the source
of the press release and Ms. Tones' assertions that the story
was approved by Ms. Hill, and also
disclosed the existence of approximately twenty emails to and
from Ms. Tones.
38. In a phone conversation between Ms. Tones and Ms. Hill's
actual
publicist, Bobbie Gale, that took place shortly thereafter, Ms.
Torres confirmed that in all
respects she was hired by Joseph Charles and conveyed the false
advertising information he had
provided to her.
39. The New York Post "story," which is actually a piece of
false advertising
concocted by Jolene Cheny and Joseph Charles and delivered to
the New York Post with false
assurances of its veracity, was widely quoted and used as a
source on the world wide web,
including on celebrity news website TMZ.com, and Ms. Hill's
representatives scrambled to have
the false and defamatory story, and the leaked parody song,
removed.
40. The New York Post story contains multiple damaging
falsehoods, stating
as if true that Ms. Hill composed a "love song" to Kim Jong-un,
a notorious dictator who
opposes every freedom, equality and artistic principle that Ms.
Hill stands for, and that in the
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face of international outrage over the Sony Hack, Ms. Hill, due
to her Asian heritage, somehow
imagined herself to be an appropriate ambassador to North
Korea.
41. The complete text of the New York Post "story" as fed to the
paper by
Gina Torres on behalf of Sony Music, is as follows:
Sony singer writes 'love letter' to Kim Jong-un
In a bizarre twist in the Sony hacking scandal, a stunning
singer signed to Sony Music has recorded a love song that applauds
Kim Jong-un and disses "The Interview" star James Franco.
Former Michael Jackson backup singer Judith Hill originally
wrote the song to submit to Sony for its "Interview" soundtrack, a
source claiming to rep Hill's label Cherry Party told Page Six But
when it didn't make the cut - and the North Korean hacking scandal
blew up- she changed the lyrics in attempt to mediate peace between
North Korea and the US. Hill, who's Japanese- and African-American,
created "A Love Letter to Kim Jong-un," with lyrics playfully
describing affection for the dictator while belittling Franco.
"You got me light as a feather," goes the tune, "you got me
transcending heaven/So don't be confused/James Franco ain't got
nothing on you."
The catchy chorus continues: "Kim Jong-un/James Franco got
nothing on you/Yeah yeah/Kim Jong-un/James Franco got nothing on
you."
Hill also praises Kim by referencing Franco's Oscar-nominated
role in "127 Hours," with the lyrics, "I could wait here 127
hours/It's true/There's only one Oscar and baby it goes to
you."
We hear the song was originally called "A Love Letter to James
Franco." But Hill changed the lyrics after the hack- and heated
responses from North Korea to the controversial comedy.
The song's not included on the soundtrack, but it's been leaked
online, Page Six has learned. No word yet on any reaction from
North Korea or from Franco.
Hill was signed by Sony last year and is working on a
forthcoming album for the label. The soul singer's best known for
performing with Jackson and appearing on NBC's crooning competition
show, "The Voice."
The FBI has said North Korea was behind the Sony hack, while
independent security experts have suggested it was the work of a
disgruntled employee and other individuals. After being pulled from
cinemas, "The Interview" made $15 million in an online release in
four days.
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42. These three paragraphs were added to the end of the story
only after it
had been published and Ms. Hill's team contacted the New York
Post:
A rep for Hill subsequently claimed that it was Sony that asked
her to create a "parody version" of a song she'd written about a
guy who looks like Franco.
'"Franco' was written and recorded by Judith Hill and Isa
Machine in March 2014," the rep said. "The song is/was meant to be
released on Judith's debut record, which will come out this year
(20 15). In October, Sony Music asked for a parody version of the
song to include in or with the film. This association never
happened and the parody version of the song was shelved." He added,
"The song title was never changed from 'Franco' to 'A Love Letter
to Kim Jong Un' as Page Six said."
Hill's people said "Kim Jong Un's name was dropped into the
already written song" before "the hacking scandal blew up" and "did
not applaud Kim Jong Un nor dis James Franco."
43. The numerous false and damaging statements presented for the
purpose of
advertising The Cherry Party, include that Ms. Hill changed the
lyrics after the Sony Hack
"blew up," implying she is opportunistic and insensitive; that
she wrote a "love song" to a
despotic dictator; that she wrote the song after it became known
that the Sony Hack was in part
motivated by objections to "The Interview" and the attempt by
North Korea to censure free
speech. These statements were damaging to Ms. Hill's reputation
and disseminated false,
misleading, deceptive, and confusing information to her
extensive consumer fan base,
information which was especially harmful given that it was
disseminated by persons claiming to
be Ms. Hill's representatives associated with Cherry.
44. Following this astonishing conduct by Cherry, Plaintiffs
representatives
sent letters to Jolene Cherry on January 9 and 19, 2015
outlining the unlawful conduct and
defamatory statements.
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45. On January 20, 2015, in response to these letters, Jolene
Cherry responded
"Please do not bother me with this utter nonsense ... I don
[sic] not tolerate this behavior well, so
I really hope your client has sufficient funds to play."
46. Incredibly, The Cherry Party continues to act as though it
has rights under
the Sony Agreement and is authorized to release Ms. Hill's
recordings. On February 19, 2015,
The Cherry Party emailed Ms. Hill's manager, using The Cherry
Party email addresses and logos,
with alleged plans still to release recordings by Ms. Hill and
to shoot a music video with her.
47. For its part, Sony Music has completely abandoned Judith
Hill and
repudiated the Sony Agreement, claiming that it has
"transferred" or otherwise assigned the Sony
Agreement to Ms. Cherry and/or The Cherry Party and terminated
its joint venture relationship
with The Cherry Party.
48. Accordingly, Ms. Hill has pursued other opportunities and
now seeks a
determination from this Court that any claim by Cherry to an
assignment of the Sony Agreement
is invalid and that she has no further obligations to Cherry
whatsoever. Ms. Hill seeks injunctive
relief prohibiting Cherry from any attempt to promote,
advertise, or make any use of Plaintiffs
recordings, name, image, and likeness and from continuing to
falsely advertise that Plaintiff is on
The Cherry Party label or is in any way associated with The
Cherry Party or any person
associated with The Cherry Party, and to cease falsely
advertising, misleading, and deceiving
Ms. Hill's extensive consumer fan base via use of the trademark
name Judith Hill, and further
enjoining Defendants from any attempt to interfere with or
enjoin Plaintiffs touring, recording
and/or releasing records with other artists.
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FIRST CAUSE OF ACTION (Defamation)
49. Plaintiff repeats, realleges, and incorporates by reference
the allegations of
paragraphs 1 through 48 of this Complaint as if fully set forth
herein.
50. Plaintiff carefully monitors and controls her reputation for
artistic
excellence, freedom of expression, and moral, human rights.
51. Defendants intentionally distributed and arranged for
publication in
New York of defamatory statements of fact regarding Plaintiff,
including that she wrote a love
song to a despotic dictator, and capitalized on the Sony Hack
and wrote a song directly arising
from it, all exposing Plaintiff to public hatred as shown in
social media comments and messages
such as "Why don't you move to North Korea," and to shame,
contempt, ridicule, aversion,
ostracism, degradation and disgrace, and generally impugning the
basic integrity of Plaintiff.
52. The defamatory statements were false and were published by
Defendants
to the New York Post as a press release calculated to generate
free commercial advertising for
The Cherry Pmiy, and were then published to hundreds of
thousands of third parties around the
world first through the New York Post article and then through
other media outlets which linked
to the New York Post article and repeated the defamatory
statements.
53. Defendants intentionally arranged for publication of the
false, defamatory
statements by the New York Post via a concerted effort to
mislead the public and by falsely
claiming to the New York Post that the "story" was approved by
Plaintiff. These purposeful
activities were a deliberate and malicious attempt to injure
Plaintiff out of hatred, ill-will, or
spite, for reasons to be further determined via discovery in
this case, but likely arising from
Jolene Cherry's anger over Plaintiffs questioning numerous
capricious and vicious acts
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including firing of staff, failure to perform contractual
obligations, and resentment over
Plaintiffs career choices including Plaintiffs desire to take
advantage of other career
opportunities. By their actions, including the purposeful
delivery of this false commercial press
release to the New York Post, Defendants, individually and in
concert among themselves and
others including with their agent Gina Torres, transacted
business within New York.
54. The false, defamatory statements are per se actionable
because they state
facts, including that Plaintiff, who was a "[f]ormer Michael
Jackson backup singer" and "was
signed by Sony Music last year and is working on a forthcoming
album for the label" had written
a "love song that applauds Kim Jong-un" and describes "affection
for the dictator while belittling
[James] Franco" which impugn the basic integrity of Plaintiffs
ability to write songs and clearly
tend to injure Plaintiff in her business and trade as a singer
and songwriter, as evidenced by
threats and public hatred expressed by former fans and others
who had listened to her music.
55. As a direct and proximate result of Defendants' acts,
Plaintiff has been,
and continues to be, damaged, and is entitled to recover from
Defendants damages in such
amounts to be determined at trial. Defendant's acts were
willful, wanton, malicious and in
conscious disregard of Plaintiffs rights, entitling Plaintiff to
recover punitive damages.
56. Furthermore, Plaintiff has no adequate remedy at law to
compensate her
fully for the injury caused by Defendants' unlawful acts and
which would be caused by any
further infringement of Plaintiffs rights. Accordingly, the
Court should enjoin Defendants from
committing future unlawful acts and infringements as requested
herein.
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SECOND CAUSE OF ACTION (Declaratory Judgment)
57. Plaintiff repeats, realleges, and incorporates by reference
the allegations of
paragraphs 1 through 56 of this Complaint as if fully set forth
herein.
58. An actual and justiciable controversy exists regarding
Plaintiffs rights and
obligations under the Sony Agreement.
59. Plaintiff and Sony Music entered into the Sony Agreement on
or about
September 10, 2013. Sony Music has since repudiated all of its
rights and obligations under the
Sony Agreement, and claims that it "transferred" the Sony
Agreement to The Cherry Party.
The Cherry Party, through its attorneys, have claimed that the
Sony Agreement "remains in full
force and effect," yet both Sony Music and The Cherry Party have
refused to disclose any
evidence of the purported "transfer" to Plaintiff.
60. Plaintiff wishes to proceed with her career as a recording
artist and to
pursue additional career opportunities, which requires certainty
as to whether Defendants have
any rights under the Sony Agreement.
61. Plaintiff is entitled to a declaration from this Court that
Defendants have
no rights vis-a-vis Plaintiff and that Plaintiff is free to
proceed with her career as she sees fit and
to record and release albums and to tour with other artists
because (i) the purported assignment
of the Sony Agreement from Sony Music to Jolene Cherry and/or
The Cherry Party does not
exist and/or is not legally valid; and (ii) to the extent that
Jolene Cherry and/or The Cherry Party
are deemed to have been the recipient of the Sony Agreement,
their material breaches of the
Sony Agreement and malicious defamation of Plaintiff in the New
York Post as alleged herein
have wholly defeated the core purpose of the Sony Agreement and
the object of the parties in
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making the Sony Agreement such that it IS null and void and
Plaintiff no longer has any
obligations under the Sony Agreement.
62. The declaration sought is necessary to clarify this legal
issue and to
finalize any controversy between the parties and to offer relief
from uncertainty. Plaintiff has no
adequate remedy at law to compensate her fully for the wrongs
complained of herein.
THIRD CAUSE OF ACTION (Violation of New York Civil Rights Law
Sections 50 and 51)
63. Plaintiff repeats, realleges, and incorporates by reference
the allegations of
paragraphs 1 through 62 ofthis Complaint as if fully set forth
herein.
64. Through her national and international fame and success as a
musical
artist, Plaintiff has established her valuable right of
publicity in her name, picture, image, and
likeness for commercial advertising purposes.
65. Defendants have used Plaintiffs name, picture, image and
likeness within
the State of New York for advertising purposes or for the
purpose of trade without Plaintiffs
consent, specifically as alleged herein Defendants used a
professional publicist to intentionally
feed a false and defamatory press release for advertising of
Defendants, after Defendants were
expressly instructed not to do so.
66. None of Defendants' actions were in connection with mere
promotion of
genuine and authorized musical performances or recordings by
Plaintiff. Instead, Defendants'
actions were entirely unauthorized, untruthful, and arising from
what was a confidential "demo"
parody recording that was expressly unauthorized for any use
whatsoever.
67. None of Defendants' actions were in any way a bona fide
"news story" as
they arose entirely from a false commercial "press release" fed
to the New York Post,
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accompanied by Defendants' false assurances that the "press
release" was authorized by
Plaintiff, and that it was a "story." All Defendants' assurances
were false, and there was no
"story" -- only Defendants' attempts to create free publicity
for themselves at the expense of
Ms. Hill.
68. Defendants' use of Plaintiffs name, picture, image and
likeness for
unauthorized commercial advertising was willful, malicious and
in conscious disregard of
Plaintiffs rights.
69. Defendants have purposefully used Plaintiffs name, picture,
image, and
likeness in a manner that they knew to be unlawful pursuant to
Sections 50 and 51 of the New
York Civil Rights Law. Defendants' conduct violates Plaintiffs
rights under Sections 50 and 51
of the Civil Rights Law of the State ofNew York.
70. As a result of Defendants' unauthorized use of Plaintiffs
name, picture,
image, and likeness, Plaintiff has been, and continues to be,
damaged. Plaintiff is entitled to
recover from Defendants all damages for her injuries sustained
by reason of Defendants'
unlawful actions, as well as exemplary and punitive damages,
under Section 51 of the New York
Civil Rights Law in such amounts to be determined at trial.
71. Furthermore, Plaintiff has no adequate remedy at law to
compensate her
fully for the injury caused by Defendants' unlawful acts and
which would be caused by any
further infringement of Plaintiffs rights. Accordingly, the
Court should enjoin Defendants from
committing future unlawful acts and infringements as alleged
here.
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FOURTH CAUSE OF ACTION (Fraud in the Inducement)
72. Plaintiff repeats, realleges, and incorporates the
allegations of paragraphs
1 through 71 as if fully set forth herein.
73. In the alternative, to the extent that Defendants are deemed
to have been
the recipient of the Sony Agreement, Plaintiff seeks damages for
fraud in the inducement as
follows:
74. Defendants, acting by and through Jolene Cherry, made
misrepresentations and/or omissions of material fact to Ms. Hill
in order to induce her to enter
into the Sony Agreement, including that she would have her
recordings on a major Sony Music
label, that she would be a priority for Doug Morris, the
Chairman and CEO of Sony Music,
because of his close personal connection to Jolene Cherry, that
trusted and reliable A&R and
other support staff known to Ms. Hill would oversee her
recordings and career, and that Sony
Music would always maintain its obligations to Ms. Hill under
the Sony Agreement regardless of
any assignment of that agreement.
75. At all times, Defendants knew these misrepresentations
and/or omissions
to be false and made them with the intent to defraud Ms. Hill
and to induce Ms. Hill's reliance
thereon, as a hidden agenda to promote Ms. Cherry's untested
"The Cherry Party" label and to
deprive Ms. Hill of her legitimate expectations regarding Sony
Music.
76. At all times Ms. Hill justifiably relied on the materially
false
representations and omissions made by Defendants and did, in
fact, as a consequence enter into
the Sony Agreement as a result of such reliance.
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77. Ms. Hill has been and continues to be enormously harmed and
damaged as
a direct consequence of Defendants' deceit, has foregone
important career opportunities and has
been the victim of intentionally defamatory acts by Defendants,
causing her damages in an
amount to be proven at trial. Defendant's acts were willful,
wanton, malicious and in conscious
disregard of Plaintiff's rights, entitling Plaintiff to recover
punitive damages.
FIFTH CAUSE OF ACTION (Breach of Contract)
78. Plaintiffrepeats, realleges, and incorporates by reference
the allegations of
paragraphs 1 through 77 of this Complaint as if fully set forth
herein.
79. In the alternative, to the extent that Defendants are deemed
to have been
the recipient of the Sony Agreement, Plaintiff seeks damages for
breach of contract as follows:
80. On or about September 10, 2013, Sony Music and Plaintiff
entered into
the Sony Agreement. Under the "Creative Control" provision in
paragraph 7 of the Sony
Agreement, Sony Music represented and promised to Plaintiff that
she would have joint approval
with Sony Music over artistic and commercial matters including
compositions, number of sides
on an album, producers, mixers, studios, recording dates, as
well as meaningful consultation
rights on matters such as marketing plans, and third party
synchronization licenses for film,
television, and other media. The creative control provision is a
material term of the Sony
Agreement the breach of which fundamentally destroys the purpose
and intent of the contract.
Plaintiff never would have entered into the Sony Agreement if
she would not have been given
the right to maintain creative control over the process by which
Sony Music promoted and
marketed her music career.
81. Plaintiff has performed her obligations under the Sony
Agreement.
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82. To the extent the Sony Agreement was transferred to
Defendants, they
willfully breached the Sony Agreement, and in particular the
"Creative Control" provision, by
leaking the egregious and false defamatory story to the New York
Post that Plaintiff had written a
love song to Kim Jung-un -- one of the most vicious and loathed
dictators in the world -- in
direct violation of the express instructions of Plaintiffs
management and publicity team that
Plaintiff would not authorize the release of the song.
83. Defendants further materially breached the Sony Agreement by
failing to
release any of the music tracks provided by Plaintiff, including
the four EPs of winter holiday
music, forcing Plaintiff to underwrite her own recording costs
and to find studio space on her
own, and refusing to pay engineering fees or to make payments to
Plaintiffs freelance producer,
Isabella Summers.
84. As a direct and proximate result of these material breaches,
Plaintiff has
suffered damages in an amount to be proven at trial.
SIXTH CAUSE OF ACTION (Breach of the Implied Covenant of Good
Faith and Fair Dealing)
85. Plaintiff repeats, realleges, and incorporates by reference
the allegations of
paragraphs 1 through 84 of this Complaint as if fully set forth
herein.
86. In the alternative, to the extent that Defendants are deemed
to have been
the recipient of the Sony Agreement, Plaintiff seeks damages for
breach of the implied covenant
of good faith and fair dealing as follows:
87. On or about September 10, 2013, Sony Music and Plaintiff
entered into
the Sony Agreement. To the extent the Sony Agreement was
transferred to Defendants, they
owed Plaintiff a duty to act in good faith and fair dealing with
Plaintiff in the exercise of its
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rights under the Sony Agreement, including the general
management of Plaintiff's recording
career and the marketing and public disclosure of all recordings
made by Plaintiff pursuant to the
Sony Agreement, which included the "James Franco" parody
song.
88. Defendants breached that duty by, inter alia, allowing the
course of
dealing with Plaintiff to be chaotic, ill-managed, and
capricious under Jolene Cherry, including
through intentionally harmful acts such as leaking the parody
song and placement of the
defamatory story in the New York Post contrary to the express
instructions of Plaintiff's
management and publicity team. Defendants further breached their
duty to act in good faith and
deal fairly with Plaintiff by failing to release any of the
music tracks provided by Plaintiff,
including the four EPs of winter holiday music, forcing
Plaintiff to underwrite her own recording
costs and to find studio space on her own, and refusing to pay
engineering fees or to make
payments to Plaintiff's freelance producer, Isabella
Summers.
89. As a direct and proximate result of this breach of the duty
of good faith
and fair dealing Plaintiff has been deprived of her right to
receive benefits under the Sony
Agreement and has further suffered damages in an amount to be
proven at trial.
SEVENTH CAUSE OF ACTION (Injunctive Relief- Preliminary and
Permanent)
90. Plaintiff repeats, realleges, and incorporates by reference
the allegations of
paragraphs 1 through 89 ofthis Complaint as if fully set forth
herein.
91. Plaintiff has a likelihood of ultimate success on the merits
of her claims
alleged herein including on her claims for defamation,
declaratory judgment, violation of the
New York Civil Rights Law, fraudulent inducement, breach of
contract, and breach of the duty
of good faith and fair dealing.
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92. In addition to Defendants' utterly malicious and defamatory
acts as
alleged herein, all of which have already injured Plaintiffs
good name and reputation, and
infringed on her valuable trademark name, Plaintiff will
continue to suffer additional irreparable
harm if Defendants attempt to promote, advertise, or make any
use of Plaintiffs recordings,
name, image, or likeness and continue to falsely advertise on
The Cherry Party website or
elsewhere that Ms. Hill is associated with Jolene Cherry or The
Cherry Party "label" or is in any
way professionally associated with any person related to Jolene
Cherry or The Cherry Party.
Plaintiff will suffer further irreparable harm if Defendants
seek to sue Plaintiff or otherwise to
enjoin her from pursuing other options to advance her career,
including recording additional
records with other artists and going on tour with other
musicians.
93. Because Defendants' own bad and malicious acts already have
caused
extensive irreparable harm to Plaintiff and would continue to
cause Plaintiff further irreparable
harm if she is associated in any way with Defendants, or if
Defendants seek to prevent Plaintiff
from advancing her career separate and apart from Defendants,
the balance of equities
overwhelmingly favors granting injunctive relief, both
preliminary and permanent, against
Defendants as requested herein. Plaintiff has no adequate remedy
at law to compensate her fully
for the wrongs complained of herein.
RELIEF REQUESTED
WHEREFORE, Plaintiff respectfully demands judgment or an order
against
Defendants as follows:
(a) on the First Cause of Action for Defamation, awarding
Plaintiff (i) damages in an
amount to be determined at trial; and (ii) exemplary and
punitive damages; and (iii) reasonable
attorney fees and costs;
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(b) on the Second Cause of Action for Declaratory Judgment,
declaring from this
Court: (i) that Plaintiff has no recording or other legal
obligations to Defendants, and is free to
proceed with her career as she sees fit and to record and
release albums and to tour with other
artists; and (ii) that Defendants do not have any right to
promote, advertise, or make any use of
Plaintiffs recordings, name, image, or likeness or to falsely
advertise that Plaintiff is in any way
associated with any Defendants;
(c) on the Third- Cause of Action for Violation of New York
Civil Rights Law
Sections 50 and 51, awarding Plaintiff (i) damages for her
injuries sustained by reason of
Plaintiffs unlawful actions; (ii) exemplary and punitive
damages; and (iii) reasonable attorney
fees and costs;
(d) on the Fourth Cause of Action for Fraud in the Inducement,
awarding Plaintiff
(i) damages according in an amount to be determined at trial;
and (ii) exemplary and punitive
damages;
(e) on the Fifth Cause of Action for Breach of Contract,
awarding Plaintiff damages
in an amount to be determined at trial;
(f) on the Sixth Cause of Action for Breach of the Implied
Covenant of Good Faith
and Fair Dealing, awarding Plaintiff damages in an amount to be
determined at trial;
(g) on the Seventh Cause of Action for Injunctive Relief,
entering a preliminary and
permanent injunction (i) prohibiting Defendants from any attempt
to enforce the Sony
Agreement in any court of law or otherwise; (ii) prohibiting
Defendants from any attempt to
promote, advertise, or make any use of Plaintiffs recordings,
name, image, or likeness and from
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continuing to falsely advertise that Plaintiff is associated
with or is on The Cherry Party "label"
or is in any way associated with Jolene Cherry or any person at
The Cherry Party, and
(iii) prohibiting Defendants from any attempt to interfere with
or enjoin Plaintiff's ongoing
career including touring with, recording and/or releasing
records with other artists;
(h) and for such other and further relief as this Court deems
just and proper.
New York, New York
Dated: March 25,2015
By: ____ ~--~--~~--------------Scott Himes
Peter L. Haviland (Pro hac vice motion to be submitted) Corey
Field Scott Humphreys (Pro hac vice motion to be submitted) BALLARD
SPAHR LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067
(424) 204-4321 (telephone) (424) 204-4350 (facsimile)
[email protected] [email protected]
humphreyss(a),ballardspahr. com
-and-
Scott Himes BALLARD SPAHR LLP 919 Third A venue New York, NY 1
0022 (212) 223-0200 (telephone) (212) 223-1942 (facsimile)
[email protected]
Attorneys for Plaintiff Judith Glory Hill
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