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E.L.V.H. Inc. v. Bennett

United States District Court, C.D. California

May 25, 2018

E.L.V.H., Inc., California corporation and Edward Van Halen, an individual, Plaintiffs,
v.
Andrew Bennett, an individual, Defendant.

          PRELIMINARY INJUNCTION AND IMPOUNDMENT ORDER

          OTIS D. WRIGHT UNITED STATES DISTRICT JUDGE

         Plaintiffs E.L.V.H., Ine. ("ELVH") and Edward Van Halen ("Mr. Van Halen") (collectively, "Plaintiffs"), applied to this Court ex parte against Defendant Andrew Bennett ("Defendant") for a temporary restraining order and an order to show cause for a preliminary injunction and impoundment order pursuant to Federal Rule of Civil Procedure 65 and the Copyright Act (17 U.S.C. § 101, et seq.) for the reasons that Defendant is: (i) copying, displaying, distributing and creating derivative works from ELVH's copyrights; (ii) breaching his contracts with Plaintiffs; and (iii) violating Mr. Van Halen's rights of publicity under California statutory and common law (the "TRO Application"). (ECF No. 19.)

         On May 14, 2018, this Court granted the TRO Application and ordered Defendant to show eause in writing as to why an order pursuant to Rule 65 of the Federal Rules of Civil Procedure and 17 U.S.C. §503(a) should not be entered along the lines set forth in this Preliminary Injunction Order and set a hearing date of May 21, 2018. (ECF No. 22.) Plaintiff appeared at the May 21, 2018 hearing, however, Defendant failed to show cause in writing or appear.

         In a Minute Order dated May 21, 2018, the Court ordered that the preliminary injunction will issue (ECF No. 27);

         NOW, THEREFORE, good cause appearing, the Court hereby finds and orders as follows:

         FACTUAL FINDINGS:

a. ELVH has shown it is likely to establish that the Defendant is copying, displaying, distributing and creating derivative works from ELVH's copyrights;
b. Plaintiffs have shown they are likely to establish that Defendant is breaching his contracts with Plaintiffs;
c. Mr. Van Halen has shown that he is likely to establish that Defendant is violating Mr. Van Halen's rights of publicity under California statutory and common law;
d. Plaintiffs have established that they are entitled to injunctive relief by demonstrating that (1) they are likely to succeed on the merits of their claims; (2) they are suffering irreparable injury and, in the absence of an injunction, they will continue to suffer irreparable injury based on the Defendant's infringement, breach and misappropriation; (3) remedies at law, such as money damages, are inadequate to compensate for Plaintiffs' injuries; (4) the balance of hardships favors Plaintiffs; and (5) granting Plaintiffs' request for injunctive relief would serve the public interest; and
e. Plaintiffs have demonstrated that the harm to them from the denial of the requested Preliminary Injunction Order outweighs the harm to Defendant's legitimate interests in granting such an order;

          PRELIMINARY INJUNCTIVE AND IMPOUNDMENT ORDER

         THEREFORE, pursuant to Rule 65 of the Federal Rules of Civil Procedure and 17 U.S.C. § 503(a), the Court enters the following Preliminary Injunction and Impoundment Order that shall remain in place until the Court orders otherwise:

A. Defendant, his agents, employees, servants, and attorneys, and all persons acting in concert or in participation with any of them, who receive actual notice of it by personal service or otherwise, are hereby restrained and enjoined from:
i. engaging in unauthorized copying, display, use, and public distribution of ELVH's copyrighted content, or creating unauthorized derivative works from ELVH's copyrighted content, as more fully described in the Settlement Agreement and Release attached hereto as Exhibit 2 as "all video footage and audio files [filmed by Andrew Bennett] that in any way deals with, pertains to, or covers ELVH, Van Halen or [] Edward Van Halen, " including but not limited to all video footage recorded by Defendant at 5150 beginning on or around 2003 and ending on or around 2007 (collectively, the "Copyrighted Content");
ii. disclosing, either directly or indirectly, any information obtained or learned by Defendant relating to ELVH and/or Mr. Van Halen, his business, his personal or professional activities, finances, or EVH's family friends or acquaintances or otherwise breaching his contracts with Plaintiffs, including without limitation, the Confidentiality Agreement attached hereto as Exhibit 1 and the Settlement Agreement and Release attached hereto as Exhibit 2;
iii. using Mr. Van Halen's name, voice, photograph and likeness for Defendant's commercial advantage on and in eonnection with THE 5150 VAULT and in promoting himself, and/or his other goods and services, without Mr. Van Halen's permission or consent;
iv. communicating directly with Plaintiffs or Matthew Brack;
v. assisting, aiding, or abetting any other person or business entity in engaging or performing any of the aetivities referred to in the above subparagraphs (i) through (iv), or effecting any assignments or transfers, forming new entities or associations, or utilizing any other device for the purpose of circumventing or otherwise avoiding the prohibitions set forth in subparagraphs (i) through (iv).

         B. Defendant, his agents, employees, servants, and attorneys, and all persons acting in concert or in participation with any of them, who receive actual notice of it by personal service or otherwise, shall, no later than seven (7) days from the date of this Order, surrender to Plaintiffs: (i) all infringing copies of the Copyrighted Contentmcluding, without limitation, all copies of The 5150 Vault and previews or trailers therefor; and (ii) all plates, computer fde storage devices, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies may be reproduced.

         C. Defendant, his agents, employees, servants, and attorneys, and all persons acting in concert or in participation with any of them, who receive actual notice of it by personal service or otherwise, shall, no later than seven (7) days from the date of this Order, remove all infringing copies of ELVH's copyrighted content including, without limitation, all copies of The 5150 Vault and previews or trailers therefor, from the Internet, including, without limitation, from YouTube.

         D. The Court acknowledges that Plaintiffs have already posted with the Clerk of this Court an attorney's check in the amount of $10, 000 as security, which the Court determines to be adequate for the payment of damages as any person may be entitled to recover as a result of a wrongful restraint hereunder.

         IT IS SO ORDERED

         CONFIDENTIALITY AGREEMENT

         Dated: 02/20/2007

         I Andrew Bennett acknowledge that in the course of my association with Edward Van Halen; ELVH, Inc.; the band Van Halen; SLLAB LLC; and DA-Fishaid, LLC (individually and collectively referred to herein as "EVH") I will be, or have been, exposed to information of a personal and private nature regarding EVH and his affiliated business entities, family, friends and acquaintances. I also understand that because EVH is a public figure, and because many of those with whom he associates are public figures, such information may be of great interest to the general public.

         I know that EVH desires to keep all of such information confidential. Commencing on the date on which my employment or association with EVH began, for good and valuable consideration, receipt of which is acknowledged, I hereby agree that a confidential relationship exists between EVH and me. I agree that all information that I receive during the course of my employment, or by virtue of my association with EVH, whether or not such information is ' received directly from EVH, Tvili be considered information received m confidence.

         I agree that I will not, at any time, disclose either directly or indirectly, any information obtained or learned by me relating to EVH, his business, his personal or professional activities, finances, or EVH's family, friends or acquaintances, without the prior written consent of EVH, except as I may be required to do so by law. If a dispute arises between EVH and me, this Agreement shall not be construed so as to prevent me from disclosing such information to my attorney or other advisor in such matter, or in any court proceedings or arbitration. I further agree that I will not use or disclose or authorize anyone else to use or disclose any such information for any reason not authorized by EVH, nor will I aid in any way, either directly or indirectly, any person in discovering or making use of such information without the prior written consent of EVH.

         I further agree that I will not lend my name as source nor as author, nor co-author of any book, journalistic article (either magazine, newspaper, or any and all other medium), photoplay, stage play, radio program, Internet or any other such medium for the conveyance of information that concerns EVH without the prior written consent of EVH.

         I understand that EVH is the sole and exclusive owner of all such information and all of the results and proceeds thereof. I hereby authorize EVH to send a copy of this Agreement to any person to whom I may have disclosed such information.

         In any suit or proceeding arising from or connected to this Agreement, the prevailing party shall pay the cost of such litigation including, but not limited to, reasonable attorney fees. I further agree that it would be difficult to determine the damages, with precision, that would be suffered by EVH in the event that I breach or violate this Agreement. Therefore, in the event of my breach or violation in any manner of any provision of this Agreement, I agree to pay to EVH liquidated damages in an amount equal to the sum of Two Hundred Fifty Thousand Dollars ($250, 000) and One Hundred Percent (100%) of all gains, whether money or property, that I or any firm or corporation that I own or control receives from any source as a result of my breach of this Agreement. I agree that this sum is a reasonable forecast of the damages that would be sustained by EVH in the event of such a breach. In the event that I do not receive any money or property as a result of my breach of this Agreement, the provisions of this paragraph shall not be deemed to waive or limit money damages to which EVH might otherwise be entitled.

         I further understand that the breach of this agreement will cause EVH irreparable injury and damage and that money damages may not be sufficient remedy for a breach of this agreement and therefore, in addition to any other rights and remedies EVH may have, I agree that EVH shall be entitled to injunctive and other equitable relief without further notice to me.

         The exercise of any right or remedy specified in this Agreement shall not preclude the exercise or enforcement ...


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