UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Transcription

1 JOHN ARSENAULT (CO41327) Wessels & Arsenault, L.L.C. 390 Interlocken Crescent Suite 350 Broomfield, Colorado Telephone: (303) Attorney for Plaintiff DAVID OPPENHEIMER UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO DAVID OPPENHEIMER, ) an individual ) ) Plaintiff, ) v. ) CIVIL ACTION NO. ) AFFINITY CLASSICS, L.L.C. ) ) COMPLAINT FOR COPYRIGHT Defendant. ) INFRINGEMENT, UNJUST ENRICHMENT, ) AND DEMAND FOR JURY TRIAL ) COMPLAINT DAVID OPPENHEIMER ( Plaintiff ) by and through his attorney, John A. Arsenault, of Wessels & Arsenault, L.L.C. alleges the following: PARTIES, JURISDICTION, AND VENUE 1. Plaintiff is an individual residing in Buncombe County, North Carolina, with a principal place of business located at P.O. Box 8105 Asheville, NC Defendant, AFFINITY CLASSICS, L.L.C. ( Defendant ), is a Foreign Limited Liability Company with its principal place of business at 2360 Robin s Way, Suite B, Montrose, Colorado, This is an action for copyright infringement pursuant to 17 U.S.C. 101 et seq., and unjust enrichment. Subject matter jurisdiction is conferred by 17 1

2 U.S.C. 501, 15 U.S.C. 1121, 28 U.S.C. 1331, 1338, and 1367, and the doctrine of pendent jurisdiction. 4. A substantial portion of the events related to Plaintiff s claims occurred in this District, including acts of copyright infringement, removal of copyright management information, and unjust enrichment; venue is proper in this District under 28 U.S.C and Personal jurisdiction is proper because Defendant is a Foreign Limited Liability Company and has a principal place of business in the State of Colorado. 6. The jurisdiction of this Court also exists based on the diversity of citizenship of the parties under 28 U.S.C. 1332, as this case involves a dispute between citizens of different states and the amount in controversy exceeds Seventy-Five Thousand Dollars ($75,000.00), exclusive of interest and costs. FACTS 7. Plaintiff is in the business of creating travel, aerial, and event photographs. Plaintiff s photographs are unique and highly desirable by many persons and companies. 8. Plaintiff created an aerial photograph of the Blue Ridge Mountains after a snowstorm that features Appalachian State University in the foreground ( Work ), which contain wholly original and copyrightable materials under the laws of the United States. The Work was only published with Plaintiff s copyright management information affixed. A copy of the Work is attached herein as Exhibit A. At all relevant times hereto, Plaintiff has and continues to be the sole owner of all rights, titles, and interests in and to the Work. 2

3 9. Plaintiff complied in all respects with Title 17, U.S.C. 102, et seq., and all other laws governing federal copyright applicable to the Work and registered the copyright with the Register of Copyrights at the U.S. Copyright Office. 10. The Work was registered as VAu , dated March 11, A copy is attached hereto as Exhibit B. 11. Defendant is in the business of selling chairs with university and college emblems and colors. Defendant describes itself as a builder of comfortable, college chairs for college alumni and members of other affinity groups, with colorful logos. See Upon information and belief, in or around November, 2015, Defendant began utilizing Plaintiff s Work as graphical content on the affinityclassics.com website, including but possibly not limited to the photograph illustrating the webpage titled Made in the Blue Ridge Mountains (see and at ( content/uploads/2015/11/boone-nc-view-frm-surrounding-hills b-600x x400.jpg). 13. Plaintiff has sent numerous notices requesting removal of the Work to Defendant and Defendant has failed to respond to any correspondences to date. Exhibit C. 14. Upon information and belief, Defendant has a financial interest in generating website traffic at affinityclassics.com and is able to control the content hosted on its website. 3

4 15. Upon information and belief, Defendant may have located Plaintiff s Work on his website, Upon information and belief, Defendant has benefitted from its use of the Work while Plaintiff has suffered monetary damages, and irreparable injury to Plaintiff s business, reputation, and goodwill, and therefore Plaintiff is entitled to injunctive relief, damages, and all other relief set forth in the Copyright Act. COUNT I STATUTORY COPYRIGHT INFRINGEMENT 17. Plaintiff repeats and incorporates Paragraphs 1-17, inclusive, of this Complaint as though set forth in full herein. 18. Defendant willfully infringed Plaintiff s copyright in the Work by using, copying, and displaying the Work on the affinityclassics.com domain. An example of Plaintiff s Work found on the website affinityclassics.com is attached as Exhibit C. COUNT II UNJUST ENRICHMENT, QUANTUM MERUIT, MISAPPROPRIATION OF BUSINESS VALUE 19. Plaintiff repeats and incorporates paragraphs 1-19, inclusive, of this Complaint as though set forth in full herein. 20. Plaintiff is a photographic artist recognized for his aerial photographs as well as portrayal of musicians in action, and has attained a highly regarded and well-respected reputation for the photographs that he creates. Plaintiff sells prints of his works, which are also licensed to multiple individuals and organizations. 21. Plaintiff spent substantial time, labor and skill to develop his highly regarded and well-respected reputation, including the goodwill attributable to 4

5 create the Work and the risk involved with flying in an aircraft at a low altitude in mountainous terrain during marginal weather to capture the Work. 22. The Work is unique in the sense that it consists of careful selection, arrangement, lighting, and other attributes associated with the subject matter thereof. 23. To produce material similar to the Work it would have been necessary for Defendant to independently create the same conditions and elements constituting the subject matter thereof through the services of a photographic artist considering Plaintiff s knowledge of photography, timing, partial open canopy of piloted low altitude aircraft, and rare snow storm, the photo would be nearly impossible to replicate otherwise. 24. By using the Work rather than independently creating content like it, the Defendant saved substantial time, labor, skill, and money that one necessarily would have had to spend to create the Work, or, more likely, saved the expense one would have had to incur in purchasing the services of a photographic artist with time, skill, and experience like that which Plaintiff possesses, as well as the licensed right to use the results of such individual s creative activity. 25. By using the Work as a graphical element on Affinityclassics.com, Defendant received and benefitted from the aesthetic value of the Work, avoided payment of a license to Plaintiff, as well as used without permission Plaintiff s reputation and goodwill in connection with concert photography without regard for the time, labor, skill, and money Plaintiff expended in creating the Work. 26. Defendant unjustly enriched itself by acquiring and retaining the economic 5

6 value arising from and attributable to Plaintiff s reputation and goodwill and to the substantial time, effort, skill, and money that Plaintiff spent to create the Work that belong to the Plaintiff. 27. It is unjust for Defendant to retain the economic value and benefit it received through use of the Work and Plaintiff s reputation and goodwill without properly and fairly compensating the Plaintiff. WHEREFORE, Plaintiff prays that this Honorable Court grant the following relief against Defendant: 1. That Defendant, its agents, servants, employees, assigns, attorneys, representatives, and successors, and all persons in active concert or participation with it, be permanently enjoined from appropriating, using, copying, or distributing the Work and any other copyrighted work owned by Plaintiff in any manner; 2. That Defendant be required to deliver-up, under oath, for impounding during the pendency of this action, and for destruction thereafter, all images which infringe Plaintiff's copyrights, and all prints, film negatives, magnetic tapes, digitally scanned and/or stored images, and all other articles by means of which such infringing copies may be reproduced, which are in the possession or under the direct or indirect control of Defendants; 3. That Defendant provide an accounting of all gains, profits and advantages derived by them as a result of the willful and unlawful acts of copyright infringement described above; 4. That Defendant be required to pay to Plaintiff such actual damages as 6

7 Plaintiff has sustained as a consequence of its willful infringement of Plaintiff s copyright and to account for all gains, profits, and advantages derived by them, and / or pay to Plaintiff maximum statutory damages in the amount $150, USD for the Work infringed pursuant to 17 U.S.C. 504(c); or such other amount as the jury may deem proper pursuant to 17 U.S.C. 504(c). 5. That Defendant pay to Plaintiff damages for their unjust enrichment at Plaintiff s expense; 6. That Defendant pay to Plaintiff the costs of this action including expert witness fees, and that reasonable attorney s fees be allowed by this Court pursuant to 17 U.S.C. 505 and C.R.S , and pre-judgment and postjudgment interest; and 7. For all other such and further relief as the Court deems just and proper. DATED: February 13, 2018 By: Respectfully Submitted, DAVID OPPENHEIMER By his attorney(s), John A. Arsenault (CO Bar # 41327) Wessels & Arsenault, L.L.C. 390 Interlocken Crescent, Suite 350 Broomfield, CO Telephone: Facsimile: john.arsenault@frontrangelegalservices.com Attorney for the Plaintiff 7

8 DEMAND FOR JURY TRIAL Plaintiff, DAVID OPPENHEIMER hereby demands a trial by jury. Respectfully Submitted, DAVID OPPENHEIMER By his attorney(s), DATED: February 13, 2018 By: John A. Arsenault (CO Bar # 41327) Wessels & Arsenault, L.L.C. 390 Interlocken Crescent. Suite 350 Broomfield, CO Telephone: Facsimile: john.arsenault@frontrangelegalservices.com Attorney for the Plaintiff 8