The Complaint
Byrne v. British Broadcasting Corporation
DISCLAIMER:
BBC logo used only to identify adversary
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN
DISTRICT OF NEW YORK
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CHRISTOPHER BYRNE, :
:
Plaintiff, : 2000 Civ.
:
-against- : COMPLAINT
:
BRITISH BROADCASTING CORPORATION
d/b/a : Plaintiff Demands
BBC NORTHERN IRELAND, :
A Trial By Jury
:
Defendant. :
:
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Plaintiff Christopher Byrne ("Byrne"),
by his attorneys, for his Complaint against the above-listed defendant (the
"Defendant"), alleges as follows:
SUMMARY OF THE ACTION
1. This is an action for copyright
infringement and related claims. The action concerns the right of the creator
and owner of original, artistic and copyrighted musical compositions to control
the use and exploitation of his work. The action arises out of, among other
things, the defendant's deliberate and unauthorized copying and broadcast of
the copyrighted musical recording, "Fenians" (the "Work"), owned, written and
recorded by Byrne (referred to hereinafter as "the Plaintiff"). The Work was
exploited without the Plaintiff's authorization in a British Broadcasting Corporation
("BBC") program for its BBC Northern Ireland "Spotlight" series (the "Infringing
Program") aired on or about October 5, 1999.
2. In the course of the Infringing
Program, defendant BBC misappropriated a substantial amount of the Plaintiff's
Work, synchronizing it with a series of pictorial images without even an attempt
to negotiate a license, assignment or consent from the Plaintiff. Most significantly,
the Plaintiff would not have agreed to any such license, assignment or consent
for a documentary of this nature, which promotes a viewpoint diametrically opposed
to Byrne's own publicly stated views.
3. Defendant's misappropriation
of the Work is a clear and apparently willful infringement of the Plaintiff's
rights in violation of the Copyright Act of 1976, as amended (the "Copyright
Act"), as well as a willfully false association and false implication of endorsement
in violation of the laws of the United Kingdom. In addition, BBC has violated
several foreign and international copyright statutes and treaties, namely, Section
96 of the United Kingdom's Copyright, Design and Patents Act 1988 (the "UK Copyright
Act"), the Universal Copyright Convention ("the UCC"), and the Berne Convention
for the Protection of Literary and Artistic Works (the "Berne Convention").
4. Byrne was publicly outspoken in
opposition to BBC's history of
news coverage in relation to the
conflict in the North of Ireland even before the production of the Infringing
Program. Byrne's work is renowned for its overtly political content, particularly
its espousal of Irish republicanism, including a fervent opposition to British
occupation of the six counties in the North of Ireland. Byrne shares his audience's
opinion that the British media in general, and BBC in particular, has diligently
supported successive British governments with regard to military and political
affairs in that region. From the point of view of Byrne and his fans, BBC has
contributed to the marginalization and demonization of Byrne's compatriots in
the Irish nationalist and republican communities. Byrne's opinion of BBC also
is shared by many Irish and Irish-American political leaders, newspaper editors,
journalists and academics.
5. The Infringing Program reportedly
tracked a gun-running operation involving four Irish nationals arrested in Florida
and Philadelphia on charges of smuggling guns to Ireland. The central theme
of the Infringing Program was that the Irish Republican Army ("IRA") was covertly
behind the gun-smuggling operation. The key impression left with viewers was
that the republican political party, Sinn Fein, and the republican movement,
were dishonest in claiming that the IRA remained on cease-fire. Moreover, the
Infringing Program was broadcast at a very delicate and destabilizing time in
the ongoing peace process in the North of Ireland, when
pro-British unionist politicians
were demanding that Sinn Fein be expelled from ongoing talks about the formation
of devolved power-sharing government, precisely on the alleged basis of accusations
such as those leveled by BBC in the Infringing Program. In the Plaintiff's opinion,
the timing and content of the Infringing Program was malevolent and harmful
to the cause of peace.
6. The Infringing Program was broadcast
by BBC in the North of Ireland, a region were Byrne enjoys a substantial and
popular following, particularly among Irish republican communities who share
his opinions and viewpoints. Upon information and belief, through misappropriation
of the Plaintiff's work in their production and broadcast, BBC has associated
Byrne with the message and viewpoints of BBC in general and the Infringing Program
in particular.
7. By causing the production and
broadcast of the Infringing Program, in which
plaintiff's work is featured, BBC
has misled thousands of Byrne's fans, compatriots and associates into believing
that he has now abandoned his principles for financial gain and/or lends his
support to BBC and its productions. For the reasons stated in this Complaint,
BBC has caused and continues to cause substantial injury to Byrne, including
but not limited to enormous damage to Byrne's personal and professional reputation,
in violation of federal, state, and international law.
JURISDICTION
AND VENUE
8. This action arises under the Copyright
Act, 17 U.S.C. §§ 101 et seq and §§ 501 et seq; and related
claims under 28 U.S.C. § 1567 (a). This action also arises under foreign copyright
statutes, including Section 96 of the United Kingdom's Copyright, Designs and
Patents Act 1988; the Universal Copyright Convention ("UCC"); and the Berne
convention for the Protection of Literary and Artistic Works (the "Berne Convention").
9. Because the United States, the
United Kingdom, and Ireland, among
other countries where Byrne's work
is being infringed, are all signatories to the UCC and the Berne Convention,
and because this Court has personal jurisdiction over BBC, the Plaintiff is
entitled to seek and obtain both domestic and extraterritorial injunctive relief
and damages in this Court as a result of BBC's infringement of the Plaintiff's
copyrights in those countries.
10. Jurisdiction is conferred on
this Court, based upon federal questions, pursuant to 28 U.S.C. §§1331 (federal
question) and 1338 (a) and (b) (acts of Congress relating to trademarks and
copyrights).
11. Venue in this District is proper
pursuant to 28 U.S.C. § 1391(b), (c) and (d);
28 U.S.C. § 1400(a). The claims in
suit arose in this District.
THE PARTIES
12. At all times relevant to his
Complaint, Byrne was and still is a citizen
of the United States and a resident
in the State of New York.
13. Based on the acts set forth in
the following paragraphs, Byrne has established incalculable national and international
goodwill, fame, reputation and recognition concerning his work, activities and
beliefs.
14. Upon information and belief,
at all times relevant to this complaint,
defendant BBC was and still is a
foreign corporation authorized to do business under the laws of the State of
New York.
15. Upon information and belief,
at all times relevant to this complaint,
BBC was and still is a corporation
organized and existing under the laws of the United Kingdom, with its principal
place of business in London, England, and with at least two offices in New York
County.
16. Upon information and belief,
at all times relevant to this complaint,
BBC has been conducting business
as a producer of news and current affairs television programming in the State
of New York, for broadcast around the world. Upon information and belief, BBC
commissioned and produced the Infringing Program and owns the premises and studios
where the Infringing Program was edited and broadcast.
BYRNE'S REPUTATION
17. Byrne has over 20 years' experience
in the music industry, as a
founder member, rapper, lyricist
and uilleann pipes and low whistle player with such acclaimed, Irish-oriented
musical groups as "Black 47," "Paddy-A-Go-Go" and "Seanchai" (pronounced shan-a-kee)
He has performed on over ten albums and has given well over 2000 live performances.
18. Byrne and his groups "Black 47",
"Paddy-A-Go-Go" and "Seanchai" are highly acclaimed and influential artists
in Ireland, the United Kingdom and the United States. Byrne's last album with
Seanchai was nominated as "Best Irish Album" of 1999 by one of Ireland's most
respected journalists in that country's leading music publication. Black 47
and Seanchai continue to perform and undertake national and international tours.
Byrne and Seanchai are regular, and often headline features, at the West Belfast
Festival, the Ardoyne Fleadh and the Gasworks Fleadh in Belfast and Derry in
the North of Ireland. The Work at issue in this claim was the most requested
song on Belfast' s Triple FM radio station during the 1998 festival.
19. Byrne's work with the aforementioned
groups is well known for its overtly political content, particularly the espousal
of Irish republicanism, including outspoken opposition to British occupation
of the six counties in the North of Ireland.
20. Byrne's work seeks to educate
Irish and Irish-American youth about the causes of the ongoing conflict in the
North of Ireland through the employment of history, metaphor and commentary
in his lyrics. His groups also express and encourage solidarity with African-American
issues, particularly civil rights issues, through the use and mixture of symbolism,
musical styles and language. His work has been widely recognized as a unique
blend of cultural styles and references, with a strong, pervasive anti-authoritarian
sensibility.
21. Byrne has performed at well
over 200 benefit concerts for Irish republican causes, both in the United States
and in Ireland. His group, Seanchai, performed for Sinn Fein President Gerry
Adams at a 50th birthday party held in his honor in Webster Hall in New York
City. In 1984, Byrne organized the New York Police Department's Emerald Society
Pipes and Drums band to march in Bundoran, Ireland for a Hunger Strike Martyrs
Commemoration Ceremony, which earned him the broad respect of the Irish republican
movement. By way of example, the former Irish hunger striker Laurence McKeown
has entitled his Ph.D. thesis "Unrepentant Fenian Bastards" after the refrain
in the Work.
22. In the United States, Byrne has
performed benefit concerts for Irish
republicans facing extradition to
the United Kingdom or deportation as a result of their political beliefs.
23. Most importantly, with regard
to the claims cited in this action against BBC, Byrne has performed benefits
for the Irish American Defense Fund, which have raised monies for the legal
defense of Irish nationals on gunrunning charges. In particular, Byrne has performed
at benefits for Seamus Moley, a personal friend of Byrne who was featured unfavorably
in the Infringing Program.
24. In his record lyrics and public
statements, Byrne has been highly critical
of successive British Governments,
the British media, and in particular, BBC.
25. Byrne shares his audience's opinion
that BBC has represented the epitome of British Government propaganda and has
been the leading mouthpiece for the Irish policies of successive British governments
for decades. In the popular Black 47 song, "Time To Go" (EMI records, "Home
of the Brave") written by Byrne, he specifically denounces "the BBC" for its
derogatory, anti-Irish content.
26. The Work appropriated for the
offending documentary specifically alludes to the derogatory portrayal of Irish
nationals by the British media.
27. Moreover, the album "There Will
Be Another Day," on which the Work was recorded, makes several references to
resistance to British rule, crimes committed by the British military and the
dangers of British propaganda on the minds of Irish youth.
28. Upon information and belief,
BBC was aware of the opinions expressed in the Work and on the album "There
Will be Another Day."
29. Byrne has steadfastly refused
to allow material associated with him to be used in ways which are not consistent
with his public reputation. He previously vetoed a lucrative Black 47 tour sponsorship
offer from Reebok, the shoe manufacturing giant, solely on the basis that Reebok's
corporate logo includes the Union Jack, a symbol considered offensive by Irish
republicans and nationalists. To cite another example, he refused to allow his
music to be used in the popular television drama, "Texas Walker," despite an
offer of substantial licensing fees and priceless attendant publicity for "Black
47."
30. Apart from political benefits
and fundraisers, Byrne also has performed
benefits for Project Children, a
charity which brings young children from trouble spots in the North of Ireland
to temporarily reside with host American families. Byrne, a former New York
Police Department police officer, has contributed to many fundraisers for fellow
officers and fire-officers fallen or injured in the line of duty.
31. Byrne's reputation, as alleged
above, has received considerable press coverage, and his antipathy to BBC's
viewpoint on the conflict in the North of Ireland has been explicit, and upon
information and belief was known by BBC prior to its copying and misappropriation
of the Plaintiff's Work.
THE REPUTATION
AND
ACTIVITIES
OF BBC
32. Upon information and belief,
BBC has been one of the primary
sources of current affairs information
in the United Kingdom. More particularly, BBC is one of the primary sources
of information (and misinformation) on the conflict in Ireland ("The Troubles")
in the United Kingdom, Ireland and around the world.
33. Upon information and belief,
the founder of BBC, Lord Reith,
established the "three truths" of
"impartiality", " objectivity" and "balance" which BBC should adhere to in its
broadcasting mission at all times. Upon information and belief, BBC has failed
to adhere to its founding principles in its coverage of the last three decades
of The Troubles.
34. Upon information and belief,
BBC has concurred with the policies
and interests of the British military
and political establishment through several governments during the conduct of
The Troubles.
35. Upon information and belief,
BBC's foreign news radio, BBC
World Service, is funded by the U.K.
government's Foreign Office. Upon information and belief, the stated role of
BBC World Service is to "preserve and strengthen the Commonwealth and Empire."
(1)
36. Upon information and
belief, for many years, names of applicants for editorial jobs in BBC were passed
to the British Intelligence Agency, MI5, for vetting.
37. Upon information and
belief, British Government Cabinet documents circa
1972 reveal that it was
"fighting not only a military war but a propaganda war" in the North of Ireland,
against Irish Nationalists and Republicans.
38. Upon information and
belief, BBC deliberately, knowingly and
willingly assisted the
British military and legislature in fighting a "propaganda war" in the North
of Ireland. In attempting to justify this, a former BBC Northern Ireland Controller
stated as follows: "[w]e were in an environment in which propaganda plays a
large part, but propaganda doesn't stem only from paramilitaries and illegal
organizations, neither are they always wrong. It stems too from government,
political policies and the security forces, and it is up to all journalists
to weigh propaganda as an inescapable ingredient of the situation which they
have to describe." (2)
39. Upon information and
belief, the British Army's counter-insurgency
handbook, Land Operations,
states that "the press, properly handled, is potentially one of the governments'
strongest weapons." (3)
40. Upon information and
belief, British Defence Secretary Lord Carrington claimed that "no national
army can in the 1970's sustain its morale without the support of home television
and radio." (4) Upon information
and belief, BBC largely set aside any pretense of "impartiality, objectivity
and balance" to support the British Army in its reporting.
41. Upon information and
belief, British Government ministers at the highest
level have regularly intervened
with BBC executive and governors to censor and/or withdraw programming deemed
to be harmful to British Government interests in the North of Ireland.
42. Upon information and
belief, BBC has a long history of ignoring
the sentiments and opinions
of Nationalists and republicans in the north of Ireland. Upon information and
belief, a BBC document states in reference to BBC Northern Ireland that the
BBC regional service "reflects the sentiments of the people who have always
maintained unswerving loyalty to British ideals and to British culture. Northern
Ireland relies on broadcasting to strengthen its continuing loyalties with Britain."
(5)
43. According to a well-respected
international journalist, "Britain's 'public service broadcasting' has become
a finely crafted and infinitely adaptable instrument of state propaganda and
censorship." (6)
44. Upon information and
belief, BBC's marginalization of nationalist and republican opinion helped fuel
the crisis which led to the escalation of The Troubles in the 1970's. Upon information
and belief, it has been alleged correctly that "[i]n the North, the alienation
of the Nationalist community from the state was paralleled by their alienation
from television and radio, which they regarded with deep suspicion." (7)
45. Upon information and
belief, and in ways pertinent to this action, the British
Army's first paratroop
regiment murdered thirteen unarmed civilians in Derry on January 30, 1972, an
event known worldwide as "Bloody Sunday."
46. Upon information and
belief, BBC broadcast deliberately false information to the world that the civilians
were armed and that the British Army had been fired upon first, contrary to
the reports of thousands of demonstrators and eye-witnesses. Upon information
and belief, it has been alleged correctly that "[t]he media continued to write
British responsibility for Bloody Sunday out of history." (8)
47. Upon information and
belief, in ways pertinent to this action, BBC continues to expound British Government
policy by concentrating on "decommissioning" of IRA arms, and ignoring the subject
of demilitarization of British military installations and continuing British
Army activity.
48. Upon information and
belief, the Infringing Program which has
become associated with
Byrne because of BBC's misappropriation of his Work, left viewers with the impression
that Sinn Fein and the republican movement, including friends and associates
of Byrne's, were dishonest in claiming that the IRA remained on cease-fire.
49. Upon information and
belief, after the Infringing Program was broadcast, a
senior Unionist politician
said he "now believed republicans were never sincere about the peace accord"
and stressed that "the unionist community would not accept Sinn Féin
in an executive without IRA decommissioning." Upon information and belief, the
speaker cited the
gun-smuggling incident
reported by the BBC in the Infringing Program as evidence to support his conclusions.
50. Upon information and
belief, the Infringing Program was broadcast while a
judicial review of the
Secretary of State's decision regarding the IRA cease-fire was pending. The
alleged gun-smuggling incident was cited as evidence in the review.
51. Upon information and
belief the Infringing Program was broadcast at a time
when U.S. Senator George
Mitchell was conducting a review into the stalled peace process. In particular,
the review sought to establish a method by which the political parties could
resolve the issue of IRA decommissioning of arms.
52. Upon information and
belief the Irish Government's Department of Justice
denied allegations made
in the Infringing Program that an individual associated with the people accused
of gun smuggling attempted to legally import a shotgun into the Republic of
Ireland using false information.
53. Upon information and
belief, BBC's coverage of events in the North of
Ireland has been criticized
not only by Byrne, but also by a wide variety of journalists, political leaders,
clerics and academics. The Infringing Program and the timing of the broadcast
compounded Byrne's antipathy to BBC's viewpoint.
54. For the reasons stated
above, BBC has a widespread and highly negative reputation among Irish nationalists,
republicans, and others among Byrne's actual or potential fans.
THE
COPYING AND
BROADCAST
OF THE WORK
55. The Plaintiff and a
co-author created the Work and first published it with notice of copyright on
June 1, 1997, and thereby secured the exclusive right to reproduce and distribute
to the public by sale or other transfer of ownership, or by rental, lease or
lending, reproductions of the copyrighted work.
56. Since the date of first
publication, the Plaintiff and his co-author have been the sole proprietors
of all rights, title and interest in and to the copyrights in the Work. The
Plaintiff and his co-author have complied with all the pertinent provisions
of the Copyright Act and all other laws governing copyright with respect to
the Work.
57. Byrne has been credited
publicly as an author of the Work on the CD bearing
the Work, in print and
electronic reviews and by royalties collection agency BMI.
58. Neither Byrne nor his
co-author has ever assigned or otherwise transferred any of the copyrights in
the Work to anyone. BBC never sought a license, assignment, work-for-hire agreement
or other transfer of rights from Byrne or his co-author with respect to the
Work.
59. Upon information and
belief, after the respective dates of first publication and continuing to the
present, BBC has infringed and continues to infringe the Plaintiff's copyrights
in the Work by reproducing or causing, contributing to and participating in,
the unauthorized reproduction of said copyrighted Work and by causing, contributing
to and participating in, the distribution of said unauthorized reproductions
of said copyrighted Work to the public.
60. The Work garnered significant
publicity in the North of Ireland, where the
Infringing Program was
broadcast, due to the fact that its lyrics are overtly political and that the
Work had been played repeatedly on Belfast radio station Triple FM for over
twelve hours.
61. The Infringing Program
was produced by BBC for its "Spotlight" series. Upon information and belief,
BBC knew or should have known that Byrne's rights were being infringed. Upon
information and belief, BBC supervised the infringing activity and is fully
liable for any infringement.
62. Upon information and
belief, BBC at all times herein mentioned, had
access to knowledgeable
media lawyers who were capable of reviewing the Infringing Program for compliance
with domestic and international copyright laws.
63. The Infringing Program
features over 180 seconds of the Work. The Work
was synchronized over a
series of images, including a gunrunning route leading to New York and images
of New York landmarks. Upon information and belief, the lyrics, music and images
were deliberately edited together to enhance the images. The duration of the
infringement of the Work was far longer than would be necessary to make any
reference to the Work which might otherwise have been allowed under the "fair
use" doctrine.
64. Upon information and
belief, Byrne's Work is immediately recognizable and
identifiable by a substantial
segment of his associates and fanbase. As noted by critics, his blend of musical
styles is unique and highly distinctive.
65. Upon information and
belief, the Infringing Program was broadcast at
prime time on or around
October 5, 1999.
66. The conduct of BBC
as alleged in this complaint was never authorized, licensed, permitted or ratified
by Byrne, his co-author, or by any of their agents.
67. Upon information and
belief, BBC, its publicists and its Management have
misled viewers into believing
that Byrne consented to the use of his Work in the Infringing Program.
68. Upon information and
belief, as a result of BBC's conduct, a
substantial segment of
the public, including but not limited to a substantial number of Byrne's fans,
now mistakenly believe that he has abandoned his principles for financial gain
and has endorsed an organization and viewpoints which he has previously denounced.
69. By reason of BBC's
conduct, Byrne has sustained, and will continue
to sustain, substantial
injury, including but not limited to (a) loss and damage to his rights of ownership
in the copyrights of the Work, (b) damage to his personal and professional reputation,
(c) loss and damage to his company label, Unity Records, including corporate
image and reputation, lost sales of record albums, performance revenues and
related merchandise, (d) a decrease in the value of any further licensing of
his work, and (e) emotional distress.
PLAINTIFF'S
ATTEMPTS
TO
RESOLVE THE MATTER
70. On March 10, 2000,
the Plaintiff, by his attorneys, sent a claim letter (the "Claim Letter") to
BBC at offices apparently shared by BBC and BBC Worldwide Americas, Inc. ("BBC
Worldwide") at 747 Third Avenue, New York, NY 10017.
71. On March 10, 2000,
the Plaintiff's attorneys received a facsimile copy of a
letter from Mr. Vernon
G. Chu ("Mr. Chu"), Vice President, Business and Legal Affairs for BBC Worldwide
directing the Plaintiff to BBC offices in London. Mr. Chu refused to address
any of the Plaintiff's claims.
72. On March 10, 2000 the
Plaintiff, by his attorneys, and as requested by Mr. Chu, forwarded the Claim
Letter to the legal office of BBC in London. Over a month later, BBC has continued
to ignore the Plaintiff's claims. Accordingly, BBC has left the Plaintiff with
no choice but to bring this action seeking appropriate recognition and recompense.
FIRST
CAUSE OF ACTION
(Copyright Infringement)
73. Plaintiff repeats and
realleges each of the allegations in Paragraphs 1 through
72 above. This claim arises
under Sections 502, 504 and 505 of the Copyright Act; under Part I, Chapter
VI, Section 96 of the United Kingdom's Copyright, Designs and Patents Act 1988;
under the UCC; and under the Berne Convention.
74. Plaintiff's Work constitutes
an original work and copyrightable subject matter
pursuant to the Copyright
Act, and copyrightable subject matter pursuant to the copyright laws of countless
other countries. An application for registration of the Work remains pending
with the United States Copyright Office and is expected to be granted nunc
pro tunc. The Work has been published by the Plaintiff in strict conformity
with the Copyright Act and all laws governing copyrights.
75. At all times relevant
to this complaint, under all the applicable statutes and
conventions cited above,
Byrne has been and still is an owner of the rights, title and interest in and
to the copyright to the Work, which has never been assigned, licensed or otherwise
transferred to any of BBC or dedicated to the public.
76. Neither Byrne nor his
co-author has ever assigned, licensed or otherwise transferred any of their
copyright interests to BBC or to anyone else.
77. Upon information and
belief, beginning on or about the month of September
and continuing until on
or about October 5, 1999, BBC, its producers, managers, distributors, marketers,
licensors and licensees, and individual corporate executives and officers, with
full knowledge of the Plaintiff's ownership of the Copyrights, have engaged
in multiple acts of willful infringement of the copyrighted Work by producing,
reproducing, displaying, performing, manufacturing, distributing, promoting
and advertising the Infringing Program without the permission, license, acquiescence
or consent of the Plaintiff or of any other person or entity holding title to
or interest in the Copyrights. Upon information and belief, these infringing
acts have occurred in the City, County and State of New York, and worldwide.
78. As a result of BBC's
copyright infringements as alleged above, the Plaintiff has been and continues
to be substantially injured and is entitled to (a) a permanent injunction restraining
BBC from further unauthorized copying and misappropriation of the Plaintiff's
copyrighted recordings, (b) damages in an amount to be determined at trial,
but estimated to be in excess of $5 million, (c) the costs of this action, and
(d) attorneys' fees.
SECOND
CAUSE OF ACTION
(Passing
Off and False Association)
79. Plaintiff repeats and
realleges each of the allegations contained in paragraphs
1 through 72 above. This
claim arises under the common law of the United Kingdom. This is a related claim
which also arises under 28 U.S.C. § 1367(a).
80. By deliberately copying,
using and exploiting the Plaintiff's Work, BBC has confused, deceived, and continues
to confuse and deceive, thousands of viewers by creating the false impression
that BBC's exploitation of the Work in their productions and representations
is associated, affiliated or connected with, approved, sponsored or authorized
by Byrne.
81. BBC's activities as
alleged above constitute false or misleading representations of fact and "passing
off" in violation of the common law of the United Kingdom.
82. BBC's false or misleading
representations and passing off as alleged above were deliberate, willful and
in conscious disregard of the Plaintiff's rights.
83. As a result of BBC's
unlawful conduct alleged above, the Plaintiff have been and continue to be substantially
injured and are entitled to (a) actual damages in an amount to be determined
at trial, but estimated to be in excess of $2 million, (b) punitive damages,
(c) the costs of this action, and (d) attorneys' fees.
THIRD
CAUSE OF ACTION
(Defamation)
84. Plaintiff repeats and
realleges each allegation contained in paragraphs 1
through 83 above. This
is a related claim which arises under 28 U.S.C. § 1367(a).
85. The Infringing Program
constitutes false and defamatory materials of and
concerning Byrne, in which
BBC imply that Byrne has affiliated himself with BBC and has consented to BBC's
use of his Work. In particular, but without limitation, BBC has falsely associated
Byrne with BBC, and with the findings and conclusions of the Infringing Program.
Accordingly, the Infringing Program is libelous in relation to Byrne, under
the common law of the State of New York and the United Kingdom. The libelous
words in the Infringing Program include the following lyrics from the Work,
published by BBC with the false implication that Byrne approved of their use
by BBC:
Pump ya fist if ya love
freedom
Pump ya fist if ya love
culture
For 150 years you been
creation' us
be hatin' like Satan
by beratin' us in punch
cartoons,
you depicted us as swill
and whack TV shows like
that dead fool Benny Hill
Amazin' ya never came to
your senses
Figured out you'd have
to face the consequences
Sent us across the water
but you didn't scope the tide
and now the tide is risin'
worldwide
From Devoy to O'Neill
and John O'Mahoney
to Joe McGarrity and Michael
Flannery
Seditions are tradition
and it won't just go away
Say it loud say it proud
I will stay an
Unrepentant Fenian Bastard
Unrepentant Fenian Bastard
Unrepentant Fenian Bastard
Respect to all who refuse
to be mastered.
86. By reason of the publication
of the Infringing Program, Byrne has been
injured in his reputation,
business and standing in the community. By reason of said publication, he has
suffered damage to his good name and integrity, both as an individual and as
a performing and recording artist, and he has suffered mental anguish, and has
been held up to public scorn, ridicule and contempt.
87. By reason of the Infringing
Program, the Plaintiff has been deprived of album sales which would have occurred
had the libelous statements not been made.
88. In publishing the Infringing
Program, BBC acted in a grossly
irresponsible manner, without
due consideration for the standards ordinarily followed by responsible persons
in BBC's position.
89. As a result of BBC's
unlawful conduct alleged above, the Plaintiff has been and continues to be substantially
injured and is entitled to (a) special damages in an amount to be determined
at trial, (b) general damages in an amount to be determined at trial, but believed
to be in excess of $2 million, (c) punitive damages in an amount to be determined
at trial, but estimated to be in excess of $3 million, and (d) costs and attorneys'
fees.
WHEREFORE, Byrne hereby
demands with respect to his stated claims, an order and judgment in his favor
against BBC for the following relief:
(a) a permanent injunction
restraining BBC from any further unauthorized copying, misappropriation or exploitation
of the Work;
(b) that BBC be required
to deliver up for destruction any and all such infringing unauthorized reproductions
of the Plaintiff's copyrighted Work;
(c) compensatory damages
in an amount to be determined at trial, estimated to be in excess of $2 million;
(d) punitive or exemplary
damages in an amount to be determined at trial, but estimated to be in excess
of $3 million;
(f) costs and attorneys'
fees in connection with this action; and
(g) such other and further
relief as this Court may deem just and proper.
Dated: New York, New York
April 25, 2000
THE LAW OFFICES OF
RUSSELL ALEXANDER SMITH, P.C.
By: ______________________
Russell Alexander Smith (RS 8873)
Eamonn Dornan
488 Madison Avenue
New York, New York 10022
(212) 460-5518
Attorneys for Plaintiff
Christopher Byrne
1. 1 See John Pilger, Hidden Agendas, 488 Vintage 1998.
2. 2 Richard Francis, Address to the Royal Institute of International Affairs, Feb. 22, 1977.
3. 3 Ministry of Defence, Land Operations: Vol III - Counter Revolutionary Operations, Aug. 26, 1969
4. 4 Liz Curtis, Ireland the Propaganda War, 6, Pluto Press, 1984.
5. 5 Richard Francis, "Broadcasting to a community in conflict, the experience of Northern Ireland". Address to the
Royal Institute of International Affairs, London, Feb. 22, 1977.
6. 6 John Pilger, Hidden Agendas, Vintage, 1998
7. 7 Id at p. 23
8. 8 How the British media reported Bloody Sunday, IRIS, No. 5, March 1983, at 18-19.
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