Modern Dog Design Company v. Target Corporation et al

Filing 3

AMENDED COMPLAINT and Exhibits against defendant(s) with JURY DEMAND,(Receipt # 0981-2606463) filed by MODERN DOG DESIGN COMPANY. (Attachments: # 1 Exhibit, # 2 Exhibit)(Murphy, Joseph) Modified on 10/31/2011: Per phone call from counsel, this Amended Complaint shall stand as the original Complaint for this case. (PM).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MODERN DOG DESIGN COMPANY, JURY TRIAL DEMANDED Plaintiff(s) v. CASE NO. 2:11-cv-01816 TARGET CORPORATION, a Minnesota Corporation, TARGET BRANDS, INC, a Minnesota Corporation, DISNEY ENTERPRISES, INC., a Delaware Corporation; WALT DISNEY COMPANY, DISNEY CONSUMER PRODUCTS, INC., A California Corporation, JOHN DOES 1-5 (DESIGNER-COPIER(S), JOHN DOES 6-10 (MANUFACTURER(S), JOHN DOES (DISTRIBUTOR(S), JOHN DOES 11-15 AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 1 CASE NO. 2:11-cv-01816 AMENDED COMPLAINT FOR: VIOLATION OF FEDERAL COPYRIGHT LAWS, INCL: COPYRIGHT INFRINGEMENT, CONTRIBUTORY COPYRIGHT INFRINGEMENT, INDUCEMENT TO COPYRIGHT INFRINGEMENT, ETC. JURY TRIAL DEMANDED LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com (MISCELLANEOUS MALEFACTORS, PRESENTLY 2 UNKNOWN, ALSO LIABLE) 1 3 Defendant(s). 4 5 COMES NOW, PLAINTIFF MODERN DOG DESIGN COMPANY (“Plaintiff” 6 or “MODERN DOG”), by and through its undersigned attorney, and complains of and alleges the following and hereby prays for relief to this 7 honorable Court for relief based on the following allegations: 8 9 INTRODUCTION AND OVERVIEW This action relates to Defendant’s actions in infringing the Federally Registered Copyright on Defendant’s copyrighted work (a book) in 11 producing and selling a Tee-Shirt (the “Accused Shirt”) having thereon 12 dozens of drawings copied (or derived) from drawings in that book. 10 13 14 15 16 17 18 19 20 21 22 23 24 25 JURISDICTION AND VENUE 1. This is an action for copyright infringement arising under the copyright laws of the United States, namely, under Public Act of October 19, 1976, as amended and codified in 17 U.S.C. § 101 et seq., and 17 U.S.C. § 1202 et seq. Plaintiff seeks injunctive relief, actual damages including Defendant’s profits and monetary damages (may elect statutory damages), interest, costs and attorney’s fees under the copyright laws of the United States. 2. This Court has subject matter jurisdiction over this action. It has original and exclusive jurisdiction of Plaintiff’s Copyright Infringement claims herein pursuant to 17 U.S.C. § 501 et seq. and 28 U.S.C. §§ 1338, 1391(a), (b) and (c); of the subject matter and the parties under the copyright laws of the United States, 17 U.S.C. § 101 et seq., as well as jurisdictional provisions of 28 U.S.C. § 1338. It has AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 2 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 4 5 6 7 8 9 supplemental jurisdiction over Plaintiff’s State and common law claims (as may be propounded herein or in an amended complaint filed after further investigation and / or Discovery) under 28 U.S.C. § 1367(a) and the principles of supplemental jurisdiction. 3. Venue is proper in this District pursuant to 28 U.S.C. § 1391(a), (b) and (c); the products accused of copyright infringement, etc. (hereinafter sometimes referred to as the “accused products”)(See copy of actual accused shirt, Exhibit 1)1 were offered for sale by Defendants, and actually purchased, in this District, i.e., the United States Federal District Court for the Western District of Washington; moreover, the Defendants have transacted business in, and had continuous and systematic contact with, this District. 10 PARTIES 11 PLAINTIFFS 12 13 14 15 16 17 18 19 20 21 4. Plaintiff MODERN DOG DESIGN CO. (“MODERN DOG”) is a corporation organized and existing under the laws of Washington, having its principal place of business at 7903 Greenwood Ave. N. Seattle, WA 98103. 5. MODERN DOG has received recognition from every major design organization in the U.S including Type Director’s Club of New York, One Club, Communication Arts, HOW Magazine, Graphic Design USA and American Institute of Graphic Arts (AIGA). In 2008 and 2010, MODERN DOG was nominated for a National Design Award through the Smithsonian's Cooper Hewitt in New York. 1    This  Exhibit  was  submitted  via  traditional  methods,  by  hand  to  the  Clerk’s  Office,  in   accordance  with  Rules  regarding  Exhibits  that  could  not  be  scanned;  copies  will  be   provided  to  Defendants  very  shortly  after  filing;  meanwhile,  the  Defendants  can  see  the   23 same  visual  information  in  the  side-­‐by-­‐side  comparison  charts  provided  elsewhere  in  this   Complaint  and  the  photograph  of  the  Exhibit,  which  has  been  filed  electronically  in  the   24 online  submission.   22 25 AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 3 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6. MODERN DOG has its work represented in the permanent archives of the Louvre (Paris - Rohan Marsan wing), the Library of Congress (Washington DC), Hong Kong Heritage Museum (Hong Kong), Bibliotheque Nationale de France (Paris), Denver Art Museum (Denver), Museum Fur Kunst und Gewerbe (Hamburg), the Warsaw National Museum (Warsaw), among others. 7. MODERN DOG has a well-earned reputation for quality craftsmanship, and enjoys great respect in the commercial and artistic worlds, and those who populate them. 8. MODERN DOG principals, Ms. Raye and Mr. Strassburger, are adjunct instructors at Cornish College of the Arts in Seattle where they have taught for more than a decade. They also lecture and teach workshops both nationally and internationally. DEFENDANTS 9. Upon information and belief, Defendant Target Corporation (NYSE:TGT) (hereinafter referred to as TGT) is a Minnesota Corporation, with principal place of business and executive offices at 1000 Nicollett Mall, Minnesota, MN 44403. Target Corporation is the second largest retailer in the United States; it owns and operates over 1,400 Target retail stores throughout the United States, including in Washington State, and owns and operates Target’s web store located at the URL of , which distributes, offers and sells products (including the accused product) throughout the United States, including Washington State and this District. 10. Upon information and belief, Defendant Target Brands, Inc. (hereinafter referred to as TBI) is a Minnesota Corporation, with principal place of business and executive offices at 1000 Nicollett Mall, Minnesota, MN 44403. Defendant Target Brands, Inc. is a subsidiary of Target Corporation and manufactures, imports, markets and distributes products (including the accused product) to Target AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 4 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stores throughout the United States, including in Washington State, and this District, and on the Internet at Target’s web store located at the URL of . 11. Upon information and belief, The Walt Disney Company (“DISNEY”) is a corporation with a place of business at 500 S Buena Vista St, Burbank, CA, 91521; DISNEY is doing business, inter alia, in the State of Washington, specifically in this District, by acts including making (or having made or authorizing to be made), offering and selling, and or/offering and allowing to be sold, its product(s) (including the accused product) via Internet sites including www.target.com, which Internet site is accessible in the State of Washington, specifically in this District.; moreover the accused product is identified on its clothing tag with at least one, and possibly two, Registered Trademarks owned by Disney or its affiliates, e.g. Disney Enterprises, Inc. 12. Upon information and belief, Defendant Disney Enterprises, Inc. (“DISNEY-DEI”) is a corporation fka The Walt Disney Company fka Walt Disney Productions with a place of business at 500 S Buena Vista St, Burbank, CA, 91521; DISNEY-DEI is doing business, inter alia, in the State of Washington, specifically in this District, by acts including making (or having made or authorizing to be made), offering and selling, and or/offering and allowing to be sold, its product(s) (including the accused product) via Internet sites including www.target.com, which Internet site is accessible in the State of Washington, specifically in this District; moreover the accused product is identified on its clothing tag with at least one, and possibly two, Registered Trademarks owned by DISNEY-DEI or its affiliates. 13. Upon information and belief, Defendant DISNEY CONSUMER PRODUCTS (DCP) is the business segment of The Walt Disney Company and its affiliates that extends the Disney brand to merchandise ranging from apparel, toys and home décor to books and magazines, foods and beverages, stationery, electronics and animation artistry. DCP’s ultimate parent is The Walt Disney AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 5 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 4 5 6 7 8 9 10 Company (“DISNEY”); DCP is doing business, inter alia, in the State of Washington, specifically in this District, by acts including making (or having made or authorizing to be made), offering and selling, and or/offering and allowing to be sold, its product(s) (including the accused product) via Internet sites including www.target.com, which Internet site is accessible in the State of Washington, specifically in this District. 14. Plaintiff does not yet know the true names, identities, or capacities of JOHN DOES 1-5 (DESIGNER-COPIER(S), JOHN DOES 6-10 (MANUFACTURER(S), JOHN DOES (DISTRIBUTOR(S), JOHN DOES 11-15 (MISCELLANEOUS MALEFACTORS, PRESENTLY UNKNOWN, ALSO LIABLE), and therefore sues these Defendants under fictitious names. Plaintiff will amend the complaint to add these names when such names are ascertained. 11 12 CAUSE OF ACTION: FEDERAL COPYRIGHT INFRINGEMENT COUNT I 13 14 15. Plaintiff incorporates by reference all preceding paragraphs. 15 16 17 18 19 20 21 22 23 16. Upon information and belief, including a news item (Exhibit 2), Defendants reproduced, adapted, distributed and exhibited and sold dog drawings found in Plaintiff’s book, for which Plaintiff owns a Registered Copyright; Defendants have also facilitated and contributed to infringement by others. Defendants did so in many ways arising out of designing, making, advertising, and offering for sale the accused infringing shirt; that news item announced their “DSigned” clothing line endeavor by stating: “Retailer Target has joined forces with Disney Consumer Products (DCP) to unveil a new line of apparel and accessories called D-Signed.”, DISNEY, DISNEY-DEI, DCP, TGT, TBI, and possibly others, including as-yet-unidentified Defendants, acted to infringe (directly, contributorily, and/or 24 25 AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 6 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 vicariously) the Registered Copyright of, and/or to induce infringement of that Copyright, and otherwise harm, Plaintiff. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17. The Plaintiff’s book entitled “MODERN DOG: 20 Years of Poster Art” is the copyrighted work (sometimes hereinafter simply referred to as the “book”) at the heart of this action; it was published in 2008, in the USA. A copy of this book is attached as Exhibit 3 hereto, note especially the drawings on the inside of the front cover and on the inside of the back cover.2 18. A Copyright Registration (TX-7-163-462)(copy attached as Exhibit 4) was issued on February 22, 2010 for the book entitled “MODERN DOG: 20 Years of Poster Art” (hereinafter often simply referred to as the “MODERN DOG book” or simply “the book”); the Copyright Registration is owned by MODERN DOG. Since the date of the book’s publication, the Plaintiff has either published or licensed for publication all copies of the book and/or artwork contained therein. 19. In compliance with the copyright laws, Plaintiff, since publication, has remained the sole owner of the copyright rights upon which the present action for copyright infringement is based. 20 20. The inside front cover of the book has drawings of sixty-nine (69) dogs under the heading “Dogs We Know”, and the inside back cover depicts sixty-seven (67) dogs under the heading “Dogs We Don’t Know”. Thus, together the inside front and back covers of the book depict one-hundred and thirty-six (136) individual drawings of dogs. Attached as Exhibit are true and correct copies of: (a) the inside front cover drawings from the copyrighted book {Ex. 5a}; (b) the inside front cover drawings from the copyrighted book, with the 21 2  Again,  this  Exhibit  was  submitted  via  traditional  methods,  by  hand  to  the  Clerk’s  Office,  in   16 17 18 19 accordance  with  Rules  regarding  Exhibits  that  could  not  be  scanned;  copies  will  be   provided  to  Defendants  very  shortly  after  filing;  meanwhile,  the  Defendants  can  see  the   23 same  visual  information  in  the  side-­‐by-­‐side  comparison  charts  provided  elsewhere  in  this   Complaint  and  the  photograph  of  the  Exhibit,  which  has  been  filed  electronically  in  the   24 online  submission.   22 25 AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 7 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 4 5 6 7 alleged infringed drawings circled and denoted by number {Ex. 5b}; (c) the inside back cover drawings from the copyrighted book {Ex. 5c} and (d) the inside back cover drawings from the copyrighted book, with the alleged infringed drawings circled and denoted by number {Ex. 5d}. Note each drawing for which copyright infringement is alleged is circled and numbered with a numeral identifying BOTH the drawing, AND the dog depicted thereby. (e.g. DOG 1, DOG 2, etc.); See Exhibits 5 (a-d). Because the same dogs are depicted on the accused shirt, it will be seen that the same numbering is used on the picture of the accused shirt (Exhibit 8). ACCESS 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21. On Information and Belief, Defendants had access to both the inside cover artwork in the book, and to the book itself. Firstly, access to the book cover artwork is available to Defendants, as to anyone and everyone in the world with Internet access; anyone may go to the website www.amazon.com, choose the category of “books”, enter the obvious search words “dog art books” (see Exhibit 6 at Exhibit 6a; words circled at top), and be presented with a results list of books, many with dog drawings; the MODERN DOG book is number 14 on this list (see again Exhibit 6a, MODERN DOG book circled at bottom). One seeking artwork to take will come to the MODERN DOG book, and click on it (see Exhibit 6b, showing “Look Inside!” link circled), and then may use the “Look Inside” feature to begin to see first the MODERN DOG book front cover and some of the inside front cover drawings (“Dogs We Know) (as seen in Exhibit 6c); by continuing to scroll they will see the entirety of the inside front cover “Dogs We Know” drawings (shown in Exhibit 6d, which is the inside front cover previously seen in Exhibits 3, 5a and 5b); by continuing to scroll further they will see the entirety of the inside back cover “Dogs We Don’t Know” drawings (as seen in Exhibits 3, 5c and 5d); also seen is a portion of the book’s outside back cover. Thus, anyone with Internet access (e.g. Defendants) and a desire to take some “dog art”, could easily have used Amazon.com, entered “dog art books”, and, as explained above and shown in the referenced AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 8 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibits, to access the copyrighted work and the drawings therein. In light of the foregoing, and on information and belief, Plaintiffs allege that the Defendants therefore had access to the Copyrighted drawings it alleges were used in the accused shirts. 22. Secondly (alternatively and/or additionally). Defendants had access to the book and its inside front and back cover artwork because of the book’s widespread distribution and availability, because, since its publication in 2008, the book has reached and continues to reach its intended audience of the Public, Clients, Potential Clients, Design Professionals, and others working in commercial and non-commercial art. The book is part of the collection of many libraries and Design Studios. DISNEY, DEI, DCP, TARGET, TBI, and/or the John Doe(s) they are connected with, have Design Departments which are likely have the book, and which certainly has staff who are familiar with, and have access to the book (at work, at home and/or at libraries), which has sold more than seven thousand (7,000) copies to date – a significant number for a book of its type. 23. Thus, Plaintiff alleges that Defendants’ access to the copyrighted work has been established, and respectfully requests that this Court make a finding that Defendants had access to the Plaintiff’s Copyrighted Book, including the drawings on its inside front cover and inside back cover. COPYING; STRIKING SIMILARITY; SUBSTANTIAL SIMILARITY 24. Moreover, Plaintiffs allege that Defendants engaged in actual copying of Plaintiff’s work, or, alternatively that Defendants created derivative work(s) from Plaintiff’s work, thus infringing Plaintiff’s rights, including but not limited to Plaintiff’s Registered Copyright. Plaintiffs allege that actual copying (or, in the alternative, striking similarity, or, in the alternative, substantial similarity) between the Plaintiff’s (earlier published) work having a Registered Copyright and the later published work(s) of Defendants, is discernible from the comparison AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 9 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 of the copyrighted work and the accused work, as well as from the Exhibits hereto. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 25. The Defendant’s accused product, is a Tee-Shirt, identified as “DSigned Sharpay Girls’ Short-Sleeve Dogs Graphic Tee – White” as it is depicted and advertised on target.com website. (See copy of target.com website page advertising the accused shirt at Exhibit 7) Note that the copyright information is a cotton Tee-shirt upon which is sewn a heart-shaped applique of a mesh fabric; silkscreen printed upon the mesh fabric are twenty-seven (27) drawings of dogs (see Exhibit 8 is a copy of the actual accused shirt)3 each and every one of which is copied from one corresponding dog depicted in the original dog drawings contained in Plaintiff’s Original Copyrighted Work. In simple terms, every drawing on Defendant’s Tee-shirt was copied from a drawing on Plaintiff’s Original Copyrighted Work, or if not exactly copied, was copied with slight, non-material alterations and/or additions (with most if not all of these due to limitations inherent in the silk-screening/screenprinting process, which results in, e.g. some loss of detail); furthermore, it was derived, in the sense of an unauthorized derivative work, from a drawing on Plaintiff’s Original Copyrighted Work. Moreover, the overall appearance was copied. The attached Exhibit 9 is a true and correct copy of a close-up picture of the accused shirt, showing all the individual drawings thereon (and, with each drawing for which copyright infringement is alleged being circled and numbered with a numeral identifying the drawing, and the dog depicted thereby. (e.g. DOG 1, DOG 2, etc.)(attached). 26. On information and belief, sometime prior to September, 2011, Target.com began offering for sale a line of clothes arranged around the popular Disney character named “Sharpay”, played by actress 3  Yet  again,  this  Exhibit  was  submitted  via  traditional  methods,  by  hand  to  the  Clerk’s   Office,  in  accordance  with  Rules  regarding  Exhibits  that  could  not  be  scanned;  copies  will   be  provided  to  Defendants  very  shortly  after  filing;  meanwhile,  the  Defendants  can  see  the   23 same  visual  information  in  the  side-­‐by-­‐side  comparison  charts  provided  elsewhere  in  this   Complaint  and  the  photograph  of  the  Exhibit,  which  has  been  filed  electronically  in  the   24 online  submission.     22 25 AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 10 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 Ashley Tisdale; as part of a promotion of the Disney movie “Sharpay’s Fabulous Adventure” Notably, the offering included the accused product, i.e. a “D-Signed" Sharpay Girls Short-Sleeve Dogs Graphic Tee” (Shown at Exhibit 7). Comparison of Copyrighted Work with Accused Shirt 4 5 6 7 8 9 10 11 12 27. The copying and/or preparation of a derivative work, substantial similarity and/or striking similarity between the dogs depicted in the copyrighted work and the dogs depicted in the accused shirt is further illustrated in an attached chart with transparency overlays in Exhibit 10 which (adjusted for scale) shows on the underlying paper each dog from the accused shirt, and which further shows (on transparent plastic overlay, to be lifted up by the reader) the corresponding original copyrighted dog drawing from which Plaintiff alleges the underlying accused shirt drawing came from.4.. 28. Copyright Infringement analysis: 13 14 15 16 17 18 19 a. Regarding the copyright infringement by Defendants by images on the accused shirts: Reference is now made to Exhibit 11 showing the correspondence, each in a row, between the (Left Column) drawings depicted on the accused work, i.e. the DSigned Sharpay girls Short-Sleeve Dogs Graphic Tee Shirt and the (Right Column) Copyrighted drawings from the MODERN DOG inside book covers. Plaintiff alleges copying and/or preparation of a derivative work and/or striking similarity and/or substantial similarity is shown. 20 21 4  This  Exhibit  was  submitted  via  traditional  methods,  by  hand  to  the  Clerk’s  Office,  in   accordance  with  Rules  regarding  Exhibits  that  could  not  be  scanned;  copies  will  be   provided  to  Defendants  very  shortly  after  filing;  meanwhile,  the  Defendants  can  see  the   23 same  visual  information  in  the  side-­‐by-­‐side  comparison  charts  provided  elsewhere  in  this   Complaint  and  the  photograph  of  the  Exhibit,  which  has  been  filed  electronically  in  the   24 online  submission.   22 25 AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 11 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 4 5 6 b. Regarding the Defendant’s infringement by images on the Internet (e.g. on target.com), please refer to Exhibit 12, a chart showing a side-by side comparison of internet pictures of the accused shirt image adjacent to the corresponding original copyrighted artwork shown in the book. Plaintiff alleges copying and/or preparation of a derivative work and/or an striking similarity and/or substantial similarity is shown. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 c. Regarding the copyright infringement by Defendants by screenprinting on the accused shirts: Such a process necessarily entails making a screen with which to print the shirts; this requires making a copy of the copyrighted work onto the screen, and is itself an act of copyright infringement. d. Regarding the fact of each image having been “flipped horizontally”, i.e., shown as a mirror image on the shirt versus the book: This “flipping” is a common technique of copyright infringers, a fact of which the Court may take Judicial Notice. For the sake of completeness, Exhibit 13 shows the Copyrighted Image as it appears in the book adjacent to a “flipped” (mirror image) of it, as Plaintiff alleges was used to produce accused image. 29. The Plaintiff will have notified the Defendants in writing of the infringement by providing them with courtesy copies of this Complaint, including the actual comparison charts and actual objects, soon after its filing, and by effectuating service as provided by the Rules. 30. On Information and Belief, Plaintiffs allege Defendants accessed copyrighted artwork and committed copyright infringement by unauthorized copying of it (with copies of the artwork both on the accused articles themselves and on the target.com website depicting AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 12 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the accused article) and/or by preparing derivative work(s) based on it. Furthermore, given the size and sophistication of the Defendants, their ability to control the production of the accused works and ability to realize financial benefits therefrom, Defendants infringing conduct should be found to be Willful, or, in the alternative, Non-Innocent. This is additionally so given the presence of the copyright notice in the actual book and in the amazon.com image of the book, and the words “COPYRIGHTED MATERIAL” watermarked on each amazon.com webpage showing the inside cover artwork. Defendants knew or should have known that the artwork was copyrighted, and, partly because of this, their actions, Plaintiff respectfully suggests, should be deemed willful, and a finding of willful infringement made. Defendants, who benefitted financially from the copyright infringement, and who exercised or could have exercised control over the production of the infringing shirts, are directly and/or vicariously liable for the copyright infringement; moreover, Defendants knew or should have known of the origin and/or copyrighted nature of the artwork on the accused shirts, e.g. artwork that was copied directly or indirectly from copyrighted work and/or was an unauthorized derivative work derived from copyrighted work. As elaborated on in the Exhibits and elsewhere herein, Plaintiff alleges that (i) Defendants access to the Plaintiff’s copyrighted work has been shown; (ii) striking and/or substantial similarity between the dog drawings on the Accused Tee Shirt and the MODERN DOG drawings merits a finding of willful copyright infringement, or, in the alternative, non-innocent copyright infringement. Moreover, Plaintiff alleges that it suffered damages as a result of such infringement. In view of the multi-billion-dollar size of the Defendants, their paramount expertise in licensing and copyrights, their past litigation histories, and to deter copyright infringement, Plaintiff requests actual damages and profits, and reserves the right to elect the statutory maximum damages as follows: Under 17 U.S.C. § 504(c), $150,000 for willful infringement or, in the alternative, $30,000 for non-willful infringement, for EACH of the at least three separate infringements (e.g. by shirt, website, silkscreen) alleged above and elsewhere AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 13 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 herein See 17 U.S.C. § 504(c). Plaintiff also seeks attorneys' fees and costs, and permanent injunctive relief against the infringement. 2 3 COUNT II CAUSE OF ACTION: VIOLATION OF 17 U.S.C. § 1201 4 5 6 7 8 9 10 11 12 13 31. Upon information and belief, Defendants gained access to the Plaintiff’s Registered Copyrighted Book, including the artwork contained therein, which contained copyright information, including an express copyright notice. The express copyright notice is considered “copyright management information” under US Copyright Law (see17 U.S.C. § 1201 et seq.), and Defendant’s intentional removal of it constitutes a violation of 17 U.S.C. § 1201 et seq. With respect to the Defendants’ aforesaid further violation of Copyright Law, Plaintiffs seek the maximum statutory damages of $25,000.00, and attorneys' fees and costs, for each violation of 17 U.S.C. § 1202, et seq. See 17 U.S.C. § 1203(c)(3)(b). 18 32. Moreover, Defendants, without authorization, copied and/or prepared derivative works from Plaintiffs Registered Copyrighted Work. These copies and/or derivative works were distributed and exhibited on the internet at www.target.com. See Exhibit 12, showing images taken from internet under www.target.com. As elaborated upon above, Plaintiff’s hold Defendants liable for these and all Internet website image infringement and violations as well as for the infringement and violations with respect to the accused shirt. 19 33. 14 15 16 17 20 21 22 23 24 25 Therefore, the Plaintiff respectfully demands that: (a) Until this case is decided the Defendant and the Defendant's agents are enjoined from disposing of any copies of the accused shirt by sale or otherwise; (b) The Defendant account for and pay as damages to the plaintiff all profits and advantages gained from unfair trade practices AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 14 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com 1 2 3 4 5 6 7 8 9 10 11 12 and unfair competition in selling the Defendant's book, and all profits and advantages gained, directly or indirectly, from infringing the plaintiff's copyright, and from doing so as part of a larger marketing campaign of which the infringement was a part; Plaintiff expressly reserves the right to elect statutory damages, and, if possible and appropriate, as in some prior cases, to receive both actual and statutory damages. (c) The Defendant deliver for impoundment all copies of the shirt in the Defendant's possession or control and deliver for destruction all infringing copies and all plates, molds, screens, and other materials for making infringing copies; (d) The Defendant pay the plaintiff interest, costs, and reasonable attorney's fees, pursuant to 17 USC § 505, et seq.,and 17 USC § 1203(b) et seq.; and That the Court award such additional relief as it believes just. 13 14 15 16 17 18 19 20 DATED this 31st day of October, 2011. LAW OFFICES OF JOSEPH F. MURPHY, PLLC By: /s Joseph F. Murphy, Jr. Joseph F. Murphy, Jr. WSBA # 37554 Attorney for Plaintiff, MODERN DOG DESIGN CO. 21 22 23 24 25 AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, ETC. PAGE - 15 CASE NO. 2:11-cv-01816 LAW OFFICES OF JOSEPH F. MURPHY, PLLC 700 EAST DENNY WAY, SUITE 205 SEATTLE WA 98122 206-734-7471 lawyer@joemurphy.com