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July 07, 2017

Penthouse Sues Over Rights to 'Caligula,' OMNI Magazine

LOS ANGELES—Yesterday, attorneys for Penthouse Global Media and General Media Communications filed suit in U.S. District Court in Southern California, charging that a variety of defendants (including Does 1-100) have infringed on Penthouse's copyrights and trademarks, specifically regarding the XXX movie Caligula and OMNI magazine, "The magazine of science and science fiction," which the late Penthouse owner Bob Guccione and his then-partner, the late Kathy Keeton, published between 1978 and 1995, and which continued for another year as a purely online presence. The defendants in the lawsuit include Jeremy Frommer and various companies which he allegedly either owns or is a partner in, and actor Jared Leto, famous for such films as Dallas Buyers Club and Suicide Squad, as well as Leto's production company, Paradox LLC. According to the complaint, Frommer "purchased at auction the contents of a storage facility in Englewood, New Jersey," which contained "numerous examples of the erotic photography for which Mr. Guccione was famous, as well as films, magazines, artwork, and documents of historical, business and legal significance associated with the PENTHOUSE brand, including archival material, physical editions, photographs and illustrations from Guccione's OMNI magazine, and possibly including items relating to the Caligula motion picture." The complaint charges that Frommer, through his various companies, began "offering the Caligula motion picture for viewing by the public for a fee" and which offer was withdrawn after General Media Communications, the subsidiary of FriendFinder Networks that owned the Penthouse properties before their purchase in 2016 by Kelly Holland, sent a cease-and-desist letter to the webmaster of the site hosting the infringed film. Shortly thereafter, Frommer filed a complaint with the Bankruptcy Court, claiming that based on his purchase of Guccione's belongings in the storage facility, he (Frommer) therefore had the rights to Caligula as well as other Penthouse properties. General Media filed a counterclaim a month later, and both complaints were "later mutually dismissed without prejudice and with no rulings on the merits of any of the claims or counterclaims." "At no time has Penthouse or any affiliated entity ever transferred or licensed any of its copyrights, trademarks, or other intellectual property to any of the Defendants for any purpose," the complaint makes clear. Nonetheless, according to the complaint, Frommer and other defendants "have willfully and blatantly continued their unauthorized copying, distribution, sale and other use of Penthouse's intellectual property." In fact, as recently as May 8, 2017, Frommer and other defendants were offering Caligula for sale or rent on the website Vimeo.com, and used various trade- and service marks related to Caligula to advertise the movie's availability "in a manner that is likely to cause confusion as to the source of the motion picture." "Every day that this confusion is in the marketplace, there is increasing, incremental damage to the brand," Holland stated on the day the lawsuit was filed, "so for us, it was imperative that we get this filed as quickly as possible." In her statement, Holland was referring not only to Caligula, but also to OMNI magazine, the rights to whose trademarks Holland recently purchased from their owner, OMNI's final editor, and whose contents were part of her purchase of Penthouse Global Media. However, once again, Frommer and a partner, defendant Rick Schwartz, are charged with violating Penthouse's trademarks and copyrights regarding OMNI, first by attempting to trademark the mark "OMNI Reboot," which application was rejected by the U.S. Patent and Trademark Office (USPTO). Nevertheless, according to the complaint, "Despite knowing of the existence of the registered OMNI Marks, and despite being denied registration of Omni Reboot, Defendants nonetheless proceeded to willfully and blatantly infringe on the OMNI Marks by operating an online magazine at https://omni.media, which it refers to as OMNI Reboot, that not only uses the OMNI Marks in connection with the publication of an online magazine featuring science and science fiction topics, but also contains archival material from the original OMNI magazine, including magazine articles and reproductions of OMNI magazine covers, all without the permission or consent of Penthouse." Beyond the online magazine, however, Defendant Jerrick Media Holdings, Inc., a company for which Frommer is allegedly the CEO, began selling back issues of OMNI magazine online through Amazon.com, and on June 26, 2017, Variety magazine reported that "Defendants Jared Leto and Paradox LLC had partnered with Defendant Jerrick Media to produce original content using the OMNI Marks," and that the website PageSix.com "reported that Jared Leto had partnered with Defendant Rick Schwartz to develop a futuristic television anthology under the OMNI Marks." The lawsuit seeks to have the court recognize the legitimacy of Penthouse's copyrights and trademarks in, among other things, Gore Vidal's Caligula novel; three different versions of the Caligula movie itself and accompanying featurettes; the various OMNI marks; and the articles published in OMNI throughout its publication history. Moreover, "The CALIGULA and OMNI Marks are distinctive of goods and services originating with Penthouse," the complaint states. "The Defendants' unauthorized use of the CALIGULA and OMNI Marks, particularly when combined with references to Mr. Guccione and Penthouse, is likely to cause and, on information and belief, has actually caused confusion in the marketplace by creating the false and mistaken impression that Defendants' advertising, rental and sales of the Caligula motion picture, and distribution of the online Omni Reboot magazine, are affiliated, connected or associated with Penthouse, or that they originate with, or are sponsored or approved by Penthouse. Defendants' use of the CALIGULA and OMNI Marks has caused and, if not enjoined, will continue to cause, irreparable and continuing harm to Penthouse in the diminution of their value and goodwill as trademarks, and in their impairment to serve as a trademarks, for which Penthouse has no adequate legal remedy." Holland herself is very enthusiastic about the filing of the lawsuit. "I am so excited about this!" she exclaimed. "I haven't been as excited about anything since I closed on Penthouse. I still believe in OMNI, I still believe that it was such a great magazine for its time, and I believe there was a long period where it wasn't in the cultural pocket, but I believe that this is the perfect time to bring it back because of everything we know: that we live in this insane, medieval world of alternate facts, that there is a whole part of the culture that is contemptuous of science, and at the same time, there is no more exciting time in science than right now. Scientists are rock stars right now. There are as many devoted followers of TED.com as there are E! channel—I mean, it's the perfect time for science. It's a time when Elon Musk is a rock star, Richard Branson is a rock star and I think now, to bring OMNI back—because Scientific American is out there, but that is not bringing science to popular culture, and I think now, to have OMNI fulfill its tagline as 'the magazine of science and science-fiction' is terrific. "I think that part of the fascination of science is how it can seem weird as it crosses the event horizon of science fiction, and with the exponentially increasing hurl forward of scientific development, that's happening more and more," she added. "Every day, science fiction becomes science, and I think that's so exciting and I think OMNI can be the voice of that. It was that 20 years ago, 30 years ago; I think it will be the voice of that again, and I can't tell you how excited I am about it."

 
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