Aronson v. Dog Eat Dog Films, Inc.

Filing 52

ANSWER to 48 Amended Complaint AND AFFIRMATIVE AND OTHER DEFENSES by Dog Eat Dog Films, Inc., Goldflat Productions LLC.(Kvasnosky, Noelle)

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Aronson v. Dog Eat Dog Films, Inc. Doc. 52 1 2 3 4 5 6 7 8 9 10 11 12 13 Defendants. 14 v. DOG EAT DOG FILMS, INC., and GOLDFLAT PRODUCTIONS, LLC., KEN ARONSON, Plaintiff, The Honorable Karen Strombom UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ) ) ) ) ) ) ) ) ) ) No. 3:10-CV-05293-KLS ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT Defendants Dog Eat Dog Films, Inc. ( Dog Eat Dog )* and Goldflat Productions, 15 LLC answer Plaintiff Ken Aronson s Amended Complaint as follows: 16 I. 17 18 19 20 21 22 * ANSWER 1.1 In answer to Paragraph 1.1, Defendant lacks sufficient information to form a belief as to the truth of the allegations in the first, second and third sentences of Paragraph 1.1 and therefore denies them. Defendant denies the remaining allegations generally, and specifically denies that Defendant committed any act of copyright infringement. 23 Dog Eat Dog, a loan-out company owned by Michael Moore and his wife Kathleen Glynn, is incorrectly designated as a defendant in this case. The company that produced Sicko is Goldflat Productions, LLC. (hereinafter Defendant ). ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 1 DWT 15850344v1 0092022-000001 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 4.1 3.1 2.1 II. THE PARTIES In answer to Paragraph 2.1, Defendant lacks sufficient information to form a belief as to the truth of the allegations in Paragraph 2.1 and therefore denies them. 2.2 In answer to Paragraph 2.2, Defendant admits that Dog Eat Dog Films, Inc. s ( Dog Eat Dog ) principal place of business is in New York, New York. Defendant denies Dog Eat Dog is in the business of producing, advertising, marketing and distributing documentary films by Michael Moore. Paragraph 2.2 states legal conclusions to which no response is required. Insofar as the allegations in Paragraph 2.2 require a response, Defendant denies them. 2.3 In answer to Paragraph 2.3, Defendant admits its principle place of business is in New York, New York. Defendant also admits it produces documentary films by Michael Moore. Paragraph 2.3 states legal conclusions to which no response is required. Insofar as the allegations in Paragraph 2.3 require a response, Defendant lacks sufficient information to form a belief as to the truth of the allegations and therefore denies them. III. JURISDICTION AND VENUE In answer to Paragraph 3.1, Paragraph 3.1 states legal conclusions to which no response is required. Insofar as the allegations in Paragraph 3.1 require a response, Defendant lacks sufficient information to form a belief as to the truth of the allegations and therefore denies them. 3.2 In answer to Paragraph 3.2, Defendant admits that venue is proper. IV. FACTS In answer to Paragraph 4.1, Defendant lacks sufficient information to form a belief as to the truth of the allegations in Paragraph 4.1 and therefore denies them. ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 2 DWT 15850344v1 0092022-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 4.2 In answer to Paragraph 4.2, Defendant admits that a CD entitled I m Alive is copyrighted under the name of Eric Turnbow. A copy of Mr. Turnbow s copyright registration to I m Alive as available from the website of the Library of Congress is attached as Exhibit A to Defendant s Answer and Affirmative and Other Defenses. Defendant lacks sufficient information to form a belief as to the truth of the remaining allegations in Paragraph 4.2 and therefore denies them. 4.3 In answer to Paragraph 4.3, Defendant lacks sufficient information to form a belief as to the truth of the allegations in Paragraph 4.3 and therefore denies them. 4.4 In answer to Paragraph 4.4, Defendant admits that Mr. Turnbow possessed a VHS copy of their video footage. A copy of Mr. Turnbow s three VHS cassette tapes, as provided by his attorney in Aronson v. Turnbow, Thurston County Superior Court Cause No. 08-2-02542-7, and transferred to DVD, is attached as Exhibit B to Defendant s Answer and Affirmative and Other Defenses. Defendant lacks sufficient information to form a belief as to the truth of the remaining allegations in Paragraph 4.4 and therefore denies them. 4.5 In answer to Paragraph 4.5, Defendant lacks sufficient information to form a belief as to the truth of the allegations in Paragraph 4.5 and therefore denies them. 4.6 In answer to Paragraph 4.6, Defendant admits that Michael Moore sought information about health care stories that could be included in the documentary film, Sicko, and that an email request for such information was sent to an electronic listserv in 2006. Defendant lacks sufficient information to form a belief as to the truth of the remainder of the allegations in Paragraph 4.6 and therefore denies them. ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 3 DWT 15850344v1 0092022-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 4.7 In answer to Paragraph 4.7, Defendant admits that Mr. Turnbow submitted materials to Defendant and that Mr. Turnbow signed a release and license expressly permitting their use by Defendant. The signed release and license are attached as Exhibit C to Defendant s Answer and Affirmative and Other Defenses. Defendant lacks sufficient information to form a belief as to the truth of the remainder of the allegations in Paragraph 4.7 and therefore denies them. 4.8 In answer to Paragraph 4.8, Defendant admits that no agent of Michael Moore contacted Plaintiff. Defendant lacks sufficient information to form a belief as to the truth of the remaining allegations in Paragraph 4.8 and therefore denies them. 4.9 In answer to Paragraph 4.9, Defendant admits that Sicko was nominated for an Academy Award in the Best Documentary category. A copy of Sicko is attached as Exhibit D to Defendant s Answer and Affirmative and Other Defenses. Defendant lacks sufficient information to form a belief as to the truth of the remaining allegations in Paragraph 4.9 and therefore denies them. V. 5.1 CAUSES OF ACTION In answer to Paragraph 5.1, Paragraph 5.1 states a legal conclusion to which no response is required. Insofar as the allegations in Paragraph 5.1 require a response, Defendant lacks sufficient information to form a belief as to the truth of the allegations and therefore denies them. 5.2 In answer to Paragraph 5.2, Paragraph 5.2 states a legal conclusion to which no response is required. Insofar as the allegations in Paragraph 5.2 require a response, Defendant denies them. ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 4 DWT 15850344v1 0092022-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 5.3 In answer to Paragraph 5.3, Paragraph 5.3 states a legal conclusion to which no response is required. Insofar as the allegations in Paragraph 5.3 require a response, Defendant denies them. 5.4 In answer to Paragraph 5.4, Paragraph 5.4 states a legal conclusion to which no response is required. Insofar as the allegations in Paragraph 5.4 require a response, Defendant lacks sufficient information to form a belief as to the truth of the allegations and therefore denies them. 5.5 In answer to Paragraph 5.5, Paragraph 5.5 states a legal conclusion to which no response is required. Insofar as the allegations in Paragraph 5.5 require a response, Defendant denies them. 5.6 Paragraph 5.6 states a legal conclusion to which no response is required. Insofar as the allegations in Paragraph 5.6 require a response, Defendant denies them. 5.7 In answer to Paragraph 5.7, Paragraph 5.7 states a legal conclusion to which no response is required. Insofar as the allegations in Paragraph 5.7 require a response, Defendant denies them. 5.8 In answer to Paragraph 5.8, this Court has already dismissed with prejudice, under its Order of August 31, 2010, Plaintiff s claim of invasion of privacy. Insofar as the allegations in Paragraph 5.8 require a response, Defendant denies them. 5.9 In answer to Paragraph 5.9, this Court has already dismissed with prejudice, under its Order of August 31, 2010, Plaintiff s claim of invasion of privacy. Insofar as the allegations in Paragraph 5.9 require a response, Defendant lacks sufficient information to form a belief as to the truth of the allegations and therefore denies them. ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 5 DWT 15850344v1 0092022-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 5.10 In answer to Paragraph 5.10, this Court has already dismissed with prejudice, under its Order of August 31, 2010, Plaintiff s claim of invasion of privacy. Insofar as the allegations in Paragraph 5.10 require a response, Defendant denies them. 5.11 In answer to Paragraph 5.11, this Court has already dismissed with prejudice, under its Order of August 31, 2010, Plaintiff s claim of misappropriation of likeness. Insofar as the allegations in Paragraph 5.11 require a response, Defendant denies them. 5.12 In answer to Paragraph 5.12, this Court has already dismissed with prejudice, under its Order of August 31, 2010, Plaintiff s claim of misappropriation of likeness. Insofar as the allegations in Paragraph 5.12 require a response, Defendant denies them. Defendant denies any factual allegations contained in any paragraph of the Complaint except as expressly admitted above. Defendant further denies that Plaintiff is entitled to any of the relief requested in the Prayer for Relief on pages 6-7 of the Complaint or to any other relief. VI. 6.1 AFFIRMATIVE AND OTHER DEFENSES Failure to State a Claim. The Complaint fails to state a claim against Defendant upon which relief can be granted. 6.2 License. Defendant s use of the material to which Plaintiff allegedly owns the copyright was non-infringing as it occurred under license from a co-owner of the underlying work, Mr. Turnbow. 6.3 First Amendment. The Complaint, and each cause of action therein, is barred by the First Amendment to the United States Constitution. ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 6 DWT 15850344v1 0092022-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 6.4 Fair Use. Defendant s use of material to which Plaintiff allegedly owns the copyright was a nonactionable use protected by the fair use doctrine, codified at 17 U.S.C. 107. 6.5 Preemption. Plaintiff s state law claims for misappropriation of likeness and invasion of privacy, which have been dismissed with prejudice under the Court s Order of August 31, 2010, are preempted by 17 U.S.C. 301. 6.6 Failure to Comply with Prerequisites to Maintain a Copyright Infringement Claim. Plaintiff failed to register or preregister the work at issue before instituting an action for infringement, as 17 U.S.C. 411 requires. 6.7 Failure to Comply with Prerequisites for Statutory Damages and Attorneys Fees. Plaintiff s claim for statutory damages and/or attorneys fees is barred by his failure to comply with 17 U.S.C. 411 and/or 412. 6.8 No Damages. Plaintiff did not incur any damage or loss as a result of any act or conduct by Defendant. 6.9 Speculative Damages. Plaintiff s damages, if any, are vague, uncertain, imaginary, and speculative. 6.10 Anti-SLAPP. Plaintiff s state law claims are governed by the Washington Act Limiting Strategic Lawsuits Against Public Participation ( Anti-SLAPP Act ), as recognized by this Court s order of August 31, 2010. The Anti-SLAPP ACT requires the prompt dismissal of Plaintiff s state law claims, with reimbursement of Defendant s reasonable attorneys fees and costs, possible additional sanctions, and a statutory award of $10,000, as this Court ordered on August 31, 2010. ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 7 DWT 15850344v1 0092022-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 6.11 Statute of Limitations. Plaintiff s state law claims, which were dismissed with prejudice by this Court s Order of August 31, 2010, are barred by their statutes of limitations. 6.12 Laches and/or Estoppel. Plaintiff s state law claims, which were dismissed with prejudice by this Court s Order of August 31, 2010, are barred, in whole or in part, by the doctrines of laches and/or estoppel. VII. PRAYER FOR RELIEF WHEREFORE, Defendant prays for relief as follows: 7.1 That Plaintiff take nothing by reason of the Complaint in this matter, that judgment be rendered in favor of defendants, and that the Complaint be dismissed, with prejudice; 7.2 That each defendant be awarded its costs of suit incurred in defense of this matter, including reasonable attorneys fees and costs recoverable pursuant to 17 U.S.C. 505 or any other statute, rule, or other authority; 7.3 That, per this Court s order of August 31, 2010, Defendant be awarded its reasonable attorneys fees, costs, additional sanctions, and a statutory award of $10,000, in accordance with the Anti-SLAPP Act; and 7.4 For such other relief as this Court deems just and proper. ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 8 DWT 15850344v1 0092022-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DATED this 16th day of November, 2010. DAVIS WRIGHT TREMAINE LLP Attorneys for Defendants Dog Eat Dog Films, Inc. and Goldflat Productions, LLC By /s/ Noelle H. Kvasnosky__________ Bruce E. H. Johnson, WSBA # 7667 Noelle Kvasnosky, WSBA # 40023 Suite 2200 1201 Third Avenue Seattle, Washington 98101-3045 Telephone: (206) 757-8069 Fax: (206) 757-7069 E-mail: brucejohnson@dwt.com noellekvasnosky@dwt.com ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 9 DWT 15850344v1 0092022-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 Philip Talmadge Talmadge Fitzpatrick 18010 Southcenter Parkway Tukwila, WA 98188-4630 CERTIFICATE OF SERVICE I hereby certify that on the 16th day of November, 2010, I caused to be filed electronically the above and foregoing document with the court, using the CM/ECF system, which will send email notification of such filing to the below addressees. Attorneys for Plaintiff: Thomas Brian Vertetis Pfau Cochran Vertetis Kosnoff PLLC 911 Pacific Avenue Suite 200 Tacoma, WA 98402 ______ U.S. Mail ______ Hand Delivery ______ Overnight Mail ______ Facsimile __ X__ CM/ECF Notification via email service to: tom@pcvklaw.com ______ U.S. Mail ______ Hand Delivery ______ Overnight Mail ______ Facsimile __ X__ CM/ECF Notification via email service to: phil@tal-fitzlaw.com Declared under penalty of perjury dated at Seattle, Washington this 16th day of 14 November, 2010. 15 16 17 18 19 20 21 22 23 ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO AMENDED COMPLAINT (3:10-CV-05293-KLS) - 10 DWT 15850344v1 0092022-000001 /s/ Noelle H. Kvasnosky__ Noelle H. Kvasnosky