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2:11-cv-00177-MCE -EFB Masterfile Corporation v. McKay

Morrison C. England, Jr, presiding Edmund F. Brennan, referral Date filed: 01/20/2011 Date terminated: 07/11/2011 Date of last filing: 07/11/2011

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Dates Filed & Entered: 01/20/2011 Filed & Entered: 01/20/2011 Filed & Entered: 01/20/2011 Filed & Entered: 01/20/2011 Filed & Entered: 05/16/2011 Filed & Entered: 05/16/2011 Filed & Entered: 05/19/2011 Filed & Entered: 06/09/2011 Filed & Entered: 06/24/2011

Description CAED Receipt Complaint Summons Civil New Case Documents for MCE Stipulation and Proposed Order Minute Order Stipulation and Order Notice - Other Notice of Voluntary Dismissal Notice of Voluntary Dismissal

10 Filed & Entered: 07/11/2011

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Case 2:11-cv-00177-MCE -EFB Document 1

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1 COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP 2 30765 Pacific Coast Highway, Suite 411
Malibu, California 90265 Fax: (310) 457-9555

STEVEN M. WEINBERG (SBN 235581)

3 Tel: (310) 457-6100 4 Email: [email protected] 5 Attorneys for Plaintiff 6 Masterfile Corporation 7 8
COWAN DEBAETS ABRAHAMS & SHEPPARD LLP

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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30765 Pacific Coast Highway, Suite 411 Malibu, California 90265

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MASTERFILE CORPORATION,

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v. Plaintiff,

Case No. COMPLAINT FOR DAMAGES, PROFITS, INJUNCTIVE AND OTHER EQUITABLE RELIEF FOR FEDERAL COPYRIGHT INFRINGEMENT AND REMOVAL OF COPYRIGHT MANAGEMENT INFORMATION

15 DEAN MCKAY, d.b.a. drdeanmckay.com, 16 17 18 19 20

Defendant.

21 Plaintiff Masterfile Corporation (Masterfile), by its attorneys Cowan, DeBaets, Abrahams, & 22 Sheppard LLP, as and for its Complaint against Defendant DEAN MCKAY, d.b.a. 23 drdeanmckay.com (collectively, Defendant), alleges as follows: 24 25 26
1. INTRODUCTION This is an action for copyright infringement arising out of Defendants

27 unauthorized reproduction and use of original copyright protected photographs owned and 28
1 COMPLAINT FOR COPYRIGHT INFRINGEMENT

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1 registered by Plaintiff Masterfile. Masterfile seeks injunctive and monetary relief for copyright 2 infringement under the provisions of the Copyright Act of the United States, as amended, 17 3 U.S.C. 101 et seq. and for violations of the Digital Millennium Copyright Act, 17 U.S.C. 4 1201 et seq. 5 6 7
2. PARTIES Plaintiff is a well known stock photography agency with offices at 3 Concorde

8 Gate, Fourth Floor, Toronto, Canada. Plaintiff is in the business of licensing reproduction rights
COWAN DEBAETS ABRAHAMS & SHEPPARD LLP

9 in photographs to users for a fee. 10

30765 Pacific Coast Highway, Suite 411 Malibu, California 90265

3.

Upon information and belief, Defendant Dean McKay is a California resident

11 engaged in the business of management consulting, doing business under the name 12 drdeanmckay.com. 13 14 15
4. JURISDICTION AND VENUE This Court has subject matter jurisdiction over this action pursuant to 17 U.S.C.

16 501(b) and 28 U.S.C. 1331 and 1338(a). 17

5. This Court has personal jurisdiction over Defendant because Defendant, upon

18 information and belief, resides in this judicial district, and engaged in the acts complained of in 19 this judicial district. 20 21 22
7. 6. Venue is proper within this District pursuant to 28 U.S.C. 1391 and 1400. FACTS On or about March 23, 2010, Plaintiff discovered that Defendant was using five

23 (5) copyrighted photographs owned by Plaintiff (the Infringed Images) on Defendants website 24 www.drdeanmckay.com (the Website). 25
8. Plaintiff has complied in all respects with Copyright Act of the United States and

26 secured the exclusive rights and privileges in and to the copyright in the Infringed Images by 27 28
2 COMPLAINT FOR COPYRIGHT INFRINGEMENT

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1 registering its claims of copyright in the Infringed Images and receiving certificates of 2 registration from the Copyright Office under the following registration numbers: 3 4 Plaintiff Image 5 Identification Number 6 7 8
COWAN DEBAETS ABRAHAMS & SHEPPARD LLP

Copyright Registration Number

Registration Effective Date

700-00018365 700-00020260 700-00021846 700-00023645 700-00024044

VA 1-023-866 VA 1-023-866 VA 1-023-866 VA 1-023-866 VA 1-023-866

July 17, 2000 July 17, 2000 July 17, 2000 July 17, 2000 July 17, 2000

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30765 Pacific Coast Highway, Suite 411 Malibu, California 90265

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Copies of the certificates of registration for these Infringed Images (without the

13 Continuation Sheets), which were registered as individual images within compilations, are 14 attached hereto as Exhibit A. 15
9. Without Plaintiffs knowledge or consent, Defendant reproduced these Infringed

16 Images and displayed the unauthorized copies on the Website. Defendant is not, and has never 17 been, licensed or otherwise authorized to use the Infringed Images. 18
10. Plaintiff notified Defendant that Defendants unauthorized use of the Infringing

19 Images constitutes copyright infringement, and provided Defendant with an opportunity to 20 rectify its infringing conduct, but Defendant refused to so rectify its conduct. 21 22 23 24
12. 11. Defendants conduct as aforesaid was willful. COUNT ONE (Copyright Infringement Under 17 U.S.C. 101 et seq.) Plaintiff incorporates by reference each and every allegation contained in

25 paragraphs 1 through 11 above. 26

13. Defendants actions as described above constitute infringement of Plaintiffs

27 exclusive rights under its registered copyright in violation of 17 U.S.C. 106 and 501. 28
3 COMPLAINT FOR COPYRIGHT INFRINGEMENT

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14.

Plaintiff is entitled to recover damages, which include its actual losses and any

2 and all profits Defendant have made as a result of its infringing conduct. 17 U.S.C. 504. 3
15. Plaintiff is entitled to recover actual damages in no less than the amount of

4 $13,170.00 or in lieu thereof, at Plaintiffs election, statutory damages in no less than the amount 5 of $750,000.00, plus attorneys fees and costs. 6 7 8
COWAN DEBAETS ABRAHAMS & SHEPPARD LLP

COUNT TWO (Intentional Removal of Copyright Management Information Under 17 U.S.C. 1202(b)) 16. Plaintiff incorporates by reference each and every allegation contained in

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30765 Pacific Coast Highway, Suite 411 Malibu, California 90265

11 paragraphs 1 through 15 above. 12

17. The Infringed Images copied contained embedded copyright management

13 information protected under 17 U.S.C. 1202(b). 14

18. Upon information and belief, Defendant intentionally removed the copyright

15 management information with the intent to induce, enable, facilitate, or conceal an infringement 16 of Plaintiffs rights under the Copyright Act. 17 18
19. 20. Defendants conduct as aforesaid is a violation of 17 U.S.C. 1202(b). By reason of said violation, Plaintiff is entitled to recover statutory damages

19 under 17 U.S.C. 1203(c) in the maximum amount of $2,500.00 for each of the five (5) 20 circumventions, for a total of $12,500.00, plus costs and attorneys fees. 21 22 23
WHEREFORE, Plaintiff prays for the following relief against Defendant: A. A judgment from this Court that Defendant (1) infringed Plaintiffs exclusive

24 rights in the Infringed Images, and that this infringement was willful, and (2) wrongfully 25 removed Plaintiffs copyright management information embedded in the Infringed Images, and 26 that such removal was willful. 27 28
4 COMPLAINT FOR COPYRIGHT INFRINGEMENT

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B.

Permanent injunctive relief in the form of an order or orders requiring that

2 Defendant, and its respective officers, directors, principals, representatives, agents, servants, 3 employees, successors and assigns, and all persons acting in concert or participation with each or 4 any of them, or for them, be preliminarily and permanently enjoined and restrained from: 5
1. copying, reproducing or making any unauthorized use of the Infringed

6 Images or any derivative thereof, in any form; and from 7

2. importing, manufacturing, producing, distributing, circulating, selling,

8 offering for sale, advertising, promoting, or displaying any simulation, reproduction, counterfeit,
COWAN DEBAETS ABRAHAMS & SHEPPARD LLP

9 or copy of the Infringed Images or any derivative thereof, or causing and/or participating in such 10 importation, manufacturing, producing, distributing, circulating, selling, offering for sale,
30765 Pacific Coast Highway, Suite 411 Malibu, California 90265

11 advertising, promoting, or displaying any such items; and from 12

3. removing any copyright management information from any other of

13 Plaintiffs images. 14
C. Preliminary and permanent injunctive relief in the form of an order or orders

15 requiring that Defendant turn over for destruction all unauthorized copies of the Infringed 16 Images and all derivatives thereof (including without limitation the Infringed Images) and any 17 item or thing displaying such copies, electronic and physical, in its possession, custody or 18 control; 19
D. An award for copyright infringement of actual damages in no less than the

20 amount of $13,170.00 or in lieu thereof, at Plaintiffs election, statutory damages in no less than 21 the amount of $750,000.00, plus attorneys fees and costs plus attorneys fees and costs; 22
E. An award of statutory damages for removal of copyright management information

23 in the maximum amount of $2,500.00 for each intentional removal, for a maximum sum of 24 $12,500.00, plus costs and attorneys fees; and 25 26 27 Dated: January 19, 2011 28
Malibu, California 5 COMPLAINT FOR COPYRIGHT INFRINGEMENT F. Such other and further relief as the Court may deem just and proper.

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COWAN DEBAETS ABRAHAMS & SHEPPARD LLP

COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP

By: ______________________________ Steven M. Weinberg Attorneys for Plaintiff MASTERFILE CORPORATION

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30765 Pacific Coast Highway, Suite 411 Malibu, California 90265

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6 COMPLAINT FOR COPYRIGHT INFRINGEMENT

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COWAN DEBAETS ABRAHAMS & SHEPPARD LLP

EXHIBIT A TO COMPLAINT

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30765 Pacific Coast Highway, Suite 411 Malibu, California 90265

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7 COMPLAINT FOR COPYRIGHT INFRINGEMENT

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