Case 1:13-cv KMM Document 1-2 Entered on FLSD Docket 10/31/2013 Page 1 of 2

Transcription

1 Case 1:13-cv KMM Document 1-2 Entered on FLSD Docket 10/31/2013 Page 1 of 2 JS 44 (Rev. 12/12) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I (a) PLAINTIFFS BWP Media USA Inc. d/b/a Pacific Coast News Mulholland Highway, #229, CALABASAS, California (b) County of Residence of First Listed Plaintiff Los Angeles, CA (EXCEPT IN U.S. PLAINTIFF CASES) DEFENDANTS PRESTIGE MOTOR CAR IMPORTS, INC. d/b/a Pagani Miami Biscayne Blvd., Miami, Florida County of Residence of First Listed Defendant Miami-Dade, FL (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED. (c) Attorneys (Firm Name, Address and Telephone Number) Sanders Law PLLC 100 Garden City Plaza Garden City, NY II.BASIS OF JURISDCITION (Place an X in One Box Only) [ ] 1 U.S. Government Plaintiff [ ] 2 U.S. Government Defendant [X] 3 Federal Question (U.S. Government Not a Party) [ ] 4 Diversity (Indicate Citizenship of Parties in Item III Attorneys (If Known) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for plaintiff (For Diversity Cases Only) and one for defendant) PTF DEF PTF DEF Citizen of This State [ ] 1 [ ] 1 Incorporated or Principal Place of Business in this State [ ] 4 [ ] 4 Citizen of Another State [ ] 2 [ ] 2 Incorporated and Principal Place of Business in Another State [ ] 5 [ ] 5 Citizen or Subject of a [ ] 3 [ ] 3 Foreign Nation [ ] 6 [ ] 6 Foreign County IV. NATURE OF SUIT (Place an X in One Box Only.) CONTRACT TORTS FORFEITURE PENALTY BANKRUPTCY OTHER STATUTES [ ] 110 Insurance PERSONAL INJURY PERSONAL INJURY [ ] 625 Drug Related Seizure of [ ] 422 Appeal 28 USC 158 [ ] 120 Marine [ ] 310 Airplane [ ] 365 Personal Injury- Property 21 USC 881 [ ] 423 Withdrawal 28 [ ] 130 Miller Act [ ] 315 Airplane Product Product Liability [ ] 690 Other USC 157 [ ] 140 Negotiable Instrument Liability [ ] 367 Health Care/ [ ] 150 Recovery of Overpayment & [ ] 320 Assault, Libel & Pharmaceutical Personal PROPERTY RIGHTS Enforcement of Judgment [ ] 151 Medicare Act [ ] 152 Recovery of Defaulted Student Loan (Excludes Veterans) [ ] 153 Recovery of Overpayment of Veteran's Benefits [ ] 160 Stockholders Suits [ ] 190 Other Contract [ ] 195 Contract Product Liability [ ] 196 Franchise Slander [ ] 330 Federal. Employees Liability [ ] 340 Marine [ ] 345 Marine Product Liability [ ] 350 Motor Vehicle [ ] 355 Motor Vehicle Product Liability [ ] 360 Other Personal Injury [ ] 362 Personal Injury- Injury Product Liability [ ] 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY [ ] 370 Other Fund [ ] 371 Truth in Lending [ ] 380 Other Personal Property Damage [ ] 385 Property Damage Product Liability LABOR [ ] 710 Fair Labor Standards Act [ ] 720 Labor/Management Relations [ ] 740 Railway Labor Act [X] 820 Copyrights [ ] 830 Patent [ ] 840 Trademark SOCIAL SECURITY [ ] 861 HIA (1395ff) [ ] 862 Black Lung (923) [ ] 863 DIWC/DIWW(405(g)) [ ] 864 SSID Title XVI Med Malpractice REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS [ ] 210 Land Condemnation [ ] 440 Other Civil Rights Habeas Corpus [ ] 220 Foreclosure [ ] 441 Voting [ ] 463 Alien Detainee [ ] 230 Rent Lease & Ejectment [ ] 442 Employment [ ] 510 Motions to vacate [ ] 240 Torts to Land [ ] 443 Housing/ Sentence [ ] 245 Tort Product Liability Accommodations [ ] 530 General [ ] 290 All Other Real Property [ ] 445 American with [ ] 535 Death Penalty Disabilities Other: Employment [ ] 540 Mandamus/ Other [ ] 446 American with [ ] 550 Civil Rights Disabilities other [ ] 555 Prison Condition [ ] 448 Education [ ] 560 Civil Detainee Conditions of Confinement V. ORIGIN (Place an X in One Box Only.) [X] 1 Original Proceeding VI. CAUSE OF ACTION [ ] 2 Removed from State Court VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY DATE October 30, 2013 FOR OFFICE USE ONLY [ ] 3 Remanded from Appellate Court [ ] 4 Reinstated or Reopened [ ] 751 Family and Medical Leave Act [ ] 790 Other Labor Litigation [ ] 791 Employee. Retirement. Income.Security Act IMMIGRATION [ ] 462 Naturalization Application [ ] 465 Other Immigration Actions [ ] 5 Transferred from another district (specify): [ ] 865 RSI (405(g)) FEDERAL TAX SUITS [ ] 870 Taxes (U.S. Plaintiff or Defendant) [ ] 871 IRS-Third Party 26 USC 7609 [ ] 6 Multi-District Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 17 USC 501, et seq Brief description of cause: Copyright Infringement [ ] CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 (See instructions): JUDGE DEMAND $ SIGNATURE OF ATTORNEY OF RECORD /s/craig B. Sanders [ ] 375 False Claims Act [ ] 400 State Reapportionment [ ] 410 Antitrust [ ] 430 Banks and Banking [ ] 450 Commerce [ ] 460 Deportation [ ] 470 Racketeer Influenced and Corrupt Organizations [ ] 480 Consumer Credit [ ] 490 Cable/Sat TV [ ] 810 Selective Service [ ] 850 Securities/Commodities/ Exchange [ ] 890 Other Statutory Actions [ ] 891 Agricultural Act [ ] 893 Environmental Matters [ ] 895 Freedom of Information Act [ ] 896 Arbitration [ ] 899 Administrative Procedure Act Review or Appeal of Agency Decision [ ] 950 Constitutionally of State Statutes CHECK YES only if demanded in complaint: JURY DEMAND: [X] Yes [ ] No DOCKET NUMBER RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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3 Case 1:13-cv KMM Document 1 Entered on FLSD Docket 10/31/2013 Page 1 of 9 SANDERS LAW, PLLC Craig B. Sanders, Esq. (985686) 100 Garden City Plaza, Suite 500 Garden City, New York Telephone: (516) Facsimile: (516) csanders@sanderslawpllc.com Attorneys for Plaintiff File No.: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA BWP Media USA Inc. d/b/a Pacific Coast News, Docket No: Plaintiff(s), vs. PRESTIGE MOTOR CAR IMPORTS, INC. d/b/a Pagani Miami and Eber Importing Group, LLC. d/b/a Prestige Imports, COMPLAINT JURY TRIAL DEMANDED Defendant(s). BWP Media USA Inc. d/b/a Pacific Coast News ("BWP") (hereinafter collectively Plaintiff(s) ), by and through its undersigned counsel, for their Complaint against Defendants PRESTIGE MOTOR CAR IMPORTS, INC. d/b/a Pagani Miami and Eber Importing Group, LLC. d/b/a Prestige Imports (hereinafter collectively referred to as Defendant(s) ) states and alleges as follows: INTRODUCTION 1. Plaintiff(s) provide entertainment-related photojournalism goods and services and own the rights to a multitude of photographs featuring celebrities, which it licenses to online and print publications. Plaintiff(s) have obtained U.S. copyright registrations covering many of its photographs, and others are the subject of pending copyright applications.

4 Case 1:13-cv KMM Document 1 Entered on FLSD Docket 10/31/2013 Page 2 of 9 2. Defendant(s) own and operate a website known as (the website(s) are collectively referred to herein as the Websites ) and without permission or authorization from Plaintiff(s) copied, modified, and displayed Plaintiff(s)' photograph(s) on the Websites and engaged in this misconduct knowingly and in violation of the United States copyright laws. JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction over the federal copyright infringement claims pursuant to 28 U.S.C. 1338(a) and 28 U.S.C The Court has supplemental jurisdiction over the claims arising under state law pursuant to 28 U.S.C. 1367(a) in that the state claims are so related to the claims over which the court has original jurisdiction that they form part of the same case or controversy. Additionally, this Court has subject matter jurisdiction over all of the photographs, inclusive of the unregistered images. (See e.g. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1154 [9th Cir. 2007]; Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1349 [8th Cir. 1994]; Pac. & S. Co., Inc., v. Duncan, 744 F.2d 1490, 1499 n. 17 [11th Cic. 1984]). 4. This Court has personal jurisdiction over PRESTIGE MOTOR CAR IMPORTS, INC. d/b/a Pagani Miami because PRESTIGE MOTOR CAR IMPORTS, INC. d/b/a Pagani Miami maintains its principal place of business in Florida and purposely directs substantial activities at the residents of Florida by means of the website described herein. This Court also has personal jurisdiction over the Defendant(s) under the applicable long-arm jurisdictional statutes of Florida. 5. This Court has personal jurisdiction over Eber Importing Group, LLC. d/b/a Prestige Imports because Eber Importing Group, LLC. d/b/a Prestige Imports maintains its principal place of business in Florida and purposely directs substantial activities at the residents of Florida by means of the website described herein. This Court also has personal jurisdiction over the Defendant(s) under the applicable long-arm jurisdictional statutes of Florida. 6. Venue is proper under 28 U.S.C. 1391(a)(2) because PRESTIGE MOTOR CAR

5 Case 1:13-cv KMM Document 1 Entered on FLSD Docket 10/31/2013 Page 3 of 9 IMPORTS, INC. d/b/a Pagani Miami does business in this Judicial District and/or because a substantial part of the events or omissions giving rise to the claim occurred in this Judicial District. PARTIES 7. BWP is a California Corporation and maintains its principal place of business in Los Angeles County, California. 8. On information and belief, Defendant PRESTIGE MOTOR CAR IMPORTS, INC. d/b/a Pagani Miami, is a Florida Corporation with a principal place of business in Miami- Dade County, Florida and is liable and responsible to Plaintiff based on the facts herein alleged. 9. On information and belief, Defendant Eber Importing Group, LLC. d/b/a Prestige Imports, is a Florida Limited Liability Company with a principal place of business in PALM BEACH County, Florida and is liable and responsible to Plaintiff based on the facts herein alleged. FACTUAL ALLEGATIONS 10. Plaintiff(s) are the legal and beneficial owners of a multitude of photographs which they license to online and print publications and have invested significant time and money in building their photograph portfolios. 11. Plaintiff(s) have obtained several active and valid copyright registrations with the United States Copyright Office (the USCO ), which registrations cover many of their photographs and many others are the subject of pending copyright applications. 12. Plaintiff(s)' photographs are original, creative works in which Plaintiffs own protectable copyright interests. 13. Defendant(s) are the registered owner of the Websites and are responsible for their content. 14. The Websites are monetized in that they contain paid advertisements and/or sell merchandise to the public and, on information and belief, Defendant(s) profit from these activities.

6 Case 1:13-cv KMM Document 1 Entered on FLSD Docket 10/31/2013 Page 4 of Without permission or authorization from Plaintiff(s), Defendant(s) copied, modified, and/or displayed Plaintiff(s) rights protected photographs (hereinafter collectively referred to as Photograph(s) ), as set forth in Exhibit 1 which is annexed hereto and incorporated in its entirety herein, on the Websites. 16. On information and belief, the Photograph(s) were copied without license or permission, thereby infringing on the Copyrights (hereinafter collectively referred to as the Infringement(s) ). 17. As is set forth more fully in Exhibit 1, each listed infringement contains the URL ( Uniform Resource Locator ) for a fixed tangible medium of expression that was sufficiently permanent or stable to permit it to be communicated for a period of more than transitory duration and constitutes a specific item of infringement. (See 17 U.S.C. 106(5); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160 [9th Cir. 2007]). 18. On information and belief, Defendant(s) were aware of facts or circumstances from which the determination regarding the Infringement(s) was apparent. Based on the totality of the circumstances, Defendant(s) cannot claim that they were not aware of the infringing activities, including the specific Infringement(s) which form the basis of this complaint, on the Website(s) since such a claim would amount to only willful blindness to the Infringement(s) on the part of Defendant(s). 19. On information and belief, Defendant(s) engaged in the Infringement(s) knowingly and in violation of applicable United States Copyright Laws. 20. Additionally, on information and belief, Defendant(s), with red flag knowledge of the infringements, failed to promptly remove same. (See 17 U.S.C. 512(c)(1)(A)(i)). 21. On information and belief, Defendant(s) have received a financial benefit directly attributable to the Infringement(s). Specifically, by way of the Infringement(s), the Websites had increased traffic to the and, in turn, realized an increase their advertising revenues and/or merchandise sales. (See 17 U.S.C. 512(c)(1)(B)). 22. As a result of Defendant(s)' misconduct, Plaintiff(s) have been substantially harmed.

7 Case 1:13-cv KMM Document 1 Entered on FLSD Docket 10/31/2013 Page 5 of 9 FIRST COUNT (Direct Copyright Infringement, 17 U.S.C. 501 et seq.) 23. Plaintiff(s) repeat and incorporate by reference the allegations contained in the preceding paragraphs, as though set forth in full herein. 24. The Photograph(s) are original, creative works in which Plaintiff(s) own protectable copyright interests. 25. Plaintiff(s) have not licensed Defendant(s) the right to use the Photograph(s) in any manner, nor have Plaintiff(s) assigned any of its exclusive rights in the Copyrights to Defendant(s). 26. Without permission or authorization from Plaintiff(s) and in willful violation of their rights under 17 U.S.C. 106, Defendant(s) improperly and illegally copied, reproduced, distributed, adapted, and/or publicly displayed works copyrighted by Plaintiff. 27. Defendant(s)' reproduction of the Photograph(s) and display of the Photograph(s) on the Website(s) constitutes willful copyright infringement. 28. On information and belief, thousands of people have viewed the unlawful copies of the Photograph(s) on the Website(s). 29. On information and belief, Defendant(s) had knowledge of the copyright infringement alleged herein and had the ability to stop the reproduction and display of Plaintiff(s)' copyrighted material. 30. As a direct and proximate result of Defendant(s)' misconduct, Plaintiff(s) have been substantially harmed in an amount to be proven at trial. SECOND COUNT (Contributory Copyright Infringement) 31. Plaintiff(s) incorporate, as though fully set forth herein, each and every allegation contained in the preceding paragraphs, as though set forth in full herein. 32. In the event that the Photograph(s) were hyperlinked into the Website(s), and thereby not stored directly on the Defendant(s) servers, Defendant(s) are liable as contributory infringers since they had actual and/or constructive knowledge of another's infringing conduct and induced, caused and/or materially contributed to that conduct. (See e.g., Perfect 10, Inc. v.

8 Case 1:13-cv KMM Document 1 Entered on FLSD Docket 10/31/2013 Page 6 of 9 Amazon.com, Inc., 508 F.3d. 1146, 1171 [9th Cir. 2007]; Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, [2005]; A&M Records, Inc. v. Napster, Inc. 239 F.3d 1004, 1019 [9th Cir. 2001]; Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 [1984]). 33. For example, Defendant(s) have caused enabled, facilitated and materially contributed to the infringement complained of herein by, providing the tools and instruction for infringement via their Website(s) and have directly and indirectly promoted the infringement and refused to exercise their ability to stop the infringement made possible by their distribution. 34. Defendants' infringement is and has been willful, intentional, purposeful, and in disregard of the rights of Plaintiffs, and has caused substantial damage to Plaintiffs 35. As a direct and proximate result of Defendant(s)' misconduct, Plaintiff(s) have been substantially harmed in an amount to be proven at trial. THIRD COUNT (Vicarious Copyright Infringement) 36. Plaintiff(s) incorporate, as though fully set forth herein, each and every allegation contained in the preceding paragraphs, as though set forth in full herein. 37. Defendant(s) enjoyed a directed financial benefit from the infringing activity of its users and declined to exercise the right and ability to supervise or control that infringing activity, despite their legal right to stop or limit the directly infringing conduct as well as the practical ability to do so. 38. Accordingly, Defendant(s) are liable as vicarious infringers since they profited from direct infringement while declining to exercise a right to stop or limit it. (See e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d. 1146, 1171 [9th Cir. 2007]; Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, [2005]). 39. As a result of Defendant(s)' misconduct, Plaintiff(s) have been substantially harmed in an amount to be proven at trial. FOURTH COUNT (Inducement of Copyright Infringement) 40. Individuals using the Websites that Defendant(s)' created, distributed and promoted, have been provided with the means and mechanisms through such Websites to directly infringe and are directly infringing Plaintiff(s)' copyrights, by, for example, creating

9 Case 1:13-cv KMM Document 1 Entered on FLSD Docket 10/31/2013 Page 7 of 9 unauthorized reproductions of Plaintiff(s)' copyrighted works and distributing copies of such works in violation of Plaintiff(s)' exclusive rights (17 U.S.C. I06 and 501). 41. Defendant(s) have induced and continue to induce infringement by, for example, providing technology on the Websites to download and/or forward an image to such social media providers such as Facebook, Instagram, and Twitter and/or failing to block or diminish access to infringing material even though there are technological means to do so that are known to Defendant(s). 42. Defendant(s)' infringement is and has been willful, intentional, purposeful and in disregard of the rights of Plaintiff(s), arid has caused substantial damage to Plaintiff(s). 43. As a direct and proximate result of Defendant(s)' infringement, Plaintiff(s) have been substantially harmed in an amount to be proven at trial. FIFTH COUNT (Injunction Pursuant to 17 U.S.C. 502) 44. Plaintiff(s) incorporate, as though fully set forth herein, each and every allegation contained in the preceding paragraphs, as though set forth in full herein. 45. Plaintiff(s) request a permanent injunction pursuant to 17 U.S.C. 502(a) prohibiting Defendants from displaying the Infringements. SIXTH COUNT (Attorney Fees and Costs Pursuant to 17 U.S.C. 505) 46. Plaintiff(s) incorporate, as though fully set forth herein, each and every allegation contained in the preceding paragraphs, as though set forth in full herein. 47. Plaintiff(s) request, pursuant to 17 U.S.C. 505, their attorney fees and costs for the prosecution of this action.

10 Case 1:13-cv KMM Document 1 Entered on FLSD Docket 10/31/2013 Page 8 of 9 PRAYER FOR RELIEF WHEREFORE, Plaintiff(s) respectfully requests judgment as follows: 1. That the Court enter a judgment finding that Defendants have infringed directly, contributorily and/or vicariously as well have induced other to violation Plaintiff(s)' rights to the Photograph(s) in violation of 17 U.S.C. 501 et seq. and award damages and monetary relief as follows: a. Statutory damages against Defendant(s) pursuant to 17 U.S.C. 504(c) of $150,000 per infringement or in the alternative Plaintiff(s)' actual damages and the disgorgement of Defendant(s)' wrongful profits in an amount to be proven at trial; and b. A permanent injunction against Defendant(s) pursuant to 17 U.S.C. 502; and c. Plaintiff(s)' attorneys' fees pursuant to 17 U.S.C. 505; and d. Plaintiff(s)' costs; and 2. Such other relief that the Court determines is just and proper. DATED: October 30, 2013 SANDERS LAW, PLLC _/s/ Craig B. Sanders Craig B. Sanders, Esq. (985686) 100 Garden City Plaza, Suite 500 Garden City, New York Telephone: (516) Facsimile: (516) csanders@sanderslawpllc.com Attorneys for Plaintiff File No.:104068

11 Case 1:13-cv KMM Document 1 Entered on FLSD Docket 10/31/2013 Page 9 of 9 REQUEST FOR JURY TRIAL Plaintiff hereby demands a trial of this action by jury. DATED: October 30, 2013 SANDERS LAW, PLLC _/s/ Craig B. Sanders Craig B. Sanders, Esq. (985686) 100 Garden City Plaza, Suite 500 Garden City, New York Telephone: (516) Facsimile: (516) csanders@sanderslawpllc.com Attorneys for Plaintiff File No.:104068

12 Case 1:13-cv KMM Document 1-3 Entered on FLSD Docket 10/31/2013 Page 1 of 4 EXHIBIT# 1 BWP Media USA Inc. d/b/a Pacific Coast News v. PRESTIGE MOTOR CAR IMPORTS, INC. d/b/a Pagani Miami INFRINGEMENT# 1 OF 4 COPYRIGHTED IMAGE WEBPAGE CAPTURE OF INFRINGEMENT Photo Owner: BWP Media USA Inc. d/b/a Pacific Coast News Photo ID Number: Date Taken: 10/30/2012 Photo Description: Kim Kardashian and best friend Jonathann Cheban check out a brand new, very rare Pagani Huayra at Prestigee Imports car showroom in Miami. Domain: URL: kardashian checks out pagani huayra Observed Date: 08/19/2013 Cpoyright Application Date: 11/19/2012 Application Number: Copyright Registration Date: 11/19/2012 Registration Number: VA /31/ :03:49

14 Case 1:13-cv KMM Document 1-3 Entered on FLSD Docket 10/31/2013 Page 3 of 4 EXHIBIT# 3 BWP Media USA Inc. d/b/a Pacific Coast News v. PRESTIGE MOTOR CAR IMPORTS, INC. d/b/a Pagani Miami INFRINGEMENT# 3 OF 4 COPYRIGHTED IMAGE WEBPAGE CAPTURE OF INFRINGEMENT Photo Owner: BWP Media USA Inc. d/b/a Pacific Coast News Photo ID Number: Date Taken: 10/30/2012 Photo Description: Kim Kardashian checks out a brand new, very rare Pagani Huayra at Prestige Imports car showroom in Miami. Domain: URL: kardashian checks out pagani huayra Observed Date: 08/19/2013 Cpoyright Application Date: 11/19/2012 Application Number: Copyright Registration Date: 11/19/2012 Registration Number: VA /31/ :03:49