Schultz v. Elsevier STM Incorporated et al

Filing 1

COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970-5665322, filed by Marilou Schultz (submitted by Patricia Ferguson). (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(REK)

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INDIAN LEGAL CLINIC
Arizona State University
Sandra Day O’Connor College of Law
P.O. Box 877906
Tempe, Arizona 85287-7906
Tel. [phone]
Fax [phone]
Patty Ferguson-Bohnee, Faculty Supervisor, Bar No. 020996
[e-mail]

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VENABLE, CAMPILLO, LOGAN & MEANEY, P.C.
1938 E. Osborn Rd.
Phoenix, Arizona 85016
Tel. [phone]
Fax [phone]
Joseph R. Meaney, Bar No. 017371
[e-mail]
Attorneys for Plaintiff Marilou Schultz
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
) No.:
Marilou Schultz,
)
)
Plaintiff,
)
COMPLAINT
)
vs.
(Jury Demand Endorsed Hereon)
)
)
ELSEVIER STM INC., a Florida
corporation (doing business as “Harcourt, )
Inc.” or “Harcourt School Publishers”);
)
HOUGHTON MIFFLIN HARCOURT
)
PUBLISHERS INC., a Delaware
)
corporation; HARCOURT, INC.;
)
HARCOURT SCHOOL PUBLISHERS; )
LUISA BIRCHWOOD; JOHN and JANE )
DOES I-XX; ABC CORPORATIONS I- )
)
XX; XYZ PARTNERSHIPS I-XX,
)
)
Defendants
Marilou Schultz (“Plaintiff Schultz”), by and through the undersigned attorneys,
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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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alleges the following against Defendants Elsevier STM Inc., Houghton Mifflin Harcourt

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Publishers Inc., Harcourt, Inc., Harcourt School Publishers, Luisa Birchwood, John and

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Jane Does I-XX, ABC Corporations I-XX (together, “Defendants”):
PARTIES

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1.

Plaintiff Marilou Schultz is a resident of Arizona, residing at 844 East 8th

Place, Mesa, Arizona 85203.
2.

Upon information and belief, Defendant Luisa Birchwood is not a resident

of Arizona and is the author of An Expert Navajo Weaver (the “Publication”).
3.

Upon information and belief, Defendant Elsevier STM Inc. is a Florida

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corporation, with a principal place of business at 6277 Sea Harbor Drive, Orlando,

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Florida 32887.

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4.

Upon information and belief, Defendant Harcourt, Inc. is the public name

used by Elsevier STM Inc., also with a principal place of business at 6277 Sea Harbor
Drive, Orlando, Florida 32887, and is the company purported to hold the copyright to the
Publication as stated on the Publication’s copyright page.
5.

Upon information and belief, Defendant Houghton Mifflin Harcourt

Publishers Inc. is a Delaware corporation, with a principal place of business located at
9205 South Park Center Loop, Orlando, Florida 32819.
6.

Upon information and belief, Defendant Harcourt School Publishers is the

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public name used by Harcourt Mifflin Harcourt Publishers Inc. with a principal place of

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business located at 6277 Sea Harbor Drive, Orlando, Florida 32887 and oversees the

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operations of Harcourt, Inc.

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7. Upon information and belief, Defendants John and Jane Does I-XX, ABC

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Corporations I-XX, and XYZ Partnerships I-XX, are business entities or individuals who

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reside or do business in the State of Arizona, or elsewhere, and who participated in,

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carried out, facilitated or assisted in committing the acts complained of herein. The true

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identity of these fictitiously named defendants is not currently known to Plaintiff Schultz,
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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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but will be substituted by amendment upon their discovery.
JURISDICTION AND VENUE

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8.

This Court has jurisdiction over this case as it involves a federal question

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(copyright infringement under the Copyright Act, 17 U.S.C. §§ 101-1332) under

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28 U.S.C. §§ 1331. Supplemental state law claims are properly joined to this proceeding

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under 28 U.S.C. § 1367.

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9.

This Court is the proper venue for this case pursuant to 28 U.S.C. § 1391.

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A substantial part of the alleged events giving rise to this action occurred in the District

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of Arizona. Plaintiff Schultz is an Arizona resident, and she maintains her website from

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her Arizona home.

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Schultz’s website without her consent and without giving her proper attribution in the

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Publication. Defendants market, sell, and distribute the Publication in Arizona.

Defendants accessed, copied, and published content from Ms.

FACTUAL BACKGROUND

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10.

Plaintiff Schultz realleges paragraphs 1-9 above.

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11.

Plaintiff Schultz is a Navajo woman who earns a living as an award-

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winning weaver of traditional and contemporary Navajo rugs and blankets.
12.

Plaintiff Schultz maintains a website, http://www.navajorugsart.com/,

where she writes about herself, her craft, and Navajo culture and tradition.
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Since at least 2002, Plaintiff Schultz asserted copyright ownership over the

text and images she created and displayed on her website.
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Plaintiff Schultz provides a telephone number and email address at her

website inviting members of the public to contact her.
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Plaintiff Schultz is also an educator committed to providing the public with

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accurate information about Navajo culture and tradition to counteract inaccurate

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stereotypes about Native Americans.

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16.

The Publication features Plaintiff Schultz prominently and Plaintiff

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Schultz’s content and biographical information from her website forms the basis of most

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of the Publication.
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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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17.

Defendants published the Publication as early as 2008.

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18.

Plaintiff Schultz first became aware of the Publication in 2009.

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19.

Defendants sell or have sold the Publication in print, electronic, and in

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foreign language formats under multiple ISBNs, including ISBN-10: 0-15-351524-4 and

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ISBN-13: 978-0-15-351524-8; “Grade 4 Advanced Collection,” ISBN-10: 0-15-351214-8

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and ISBN-13: 978-0-15-351214-8; “Package of 5,” ISBN-10: 0-15-358114-X and ISBN-

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13: 978-0-15-358114-4.

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20.

On page 2, Harcourt, Inc. asserts copyright ownership over the entire

Publication.
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No copyright registration could be found for the Publication, in any of the

Defendants’ names or otherwise.
22.

The

Publication

credits

Pete

Saloutos/CORBIS,

Carl

&

Ann

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Purcell/CORBIS; Paul Conklin/PhotoEdit, Catherine Karnow/CORBIS, Deborah

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Davis/PhotoEdit; ARPL/Topham/The Image Works; Christie’s Images/CORBIS; Lowe

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Art Museum/SuperStock; and Mark Gibson/Index Stock for various images used in the

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Publication but does not credit Plaintiff Schultz for her content used in the Publication.

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23.

Had Defendants asked, Plaintiff Schultz could have granted Defendants

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permission to use her name, biographical information, or other material in the

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Publication, and she could have assisted Defendants by correcting the inaccurate

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information about Navajo culture in the Publication if given the opportunity, but

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Defendants failed to contact Plaintiff Schultz at any point before or after Defendants

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published the Publication.

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Ms. Schultz normally receives an honorarium for providing her expertise in

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the area of Navajo weaving and was denied the benefit of being paid for her services by

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Harcourt’s appropriation of Ms. Schultz’s copyrighted biography.

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25.

Ms. Schultz’s reputation as a Navajo master weaver depends on the high

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quality and authentic Navajo style exhibited in her rugs.

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distinguish her work and its authenticity from cheap imitations and poorly crafted work is
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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Ms. Schultz’s ability to

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paramount to her reputation as a master weaver.
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Ms. Schultz relies primarily on the internet and word of mouth to find

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clients who will spend thousands of dollars on her high quality Navajo rugs, therefore,

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her reputation is a large part of her ability to profit from her work.

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COUNT ONE (COPYRIGHT INFRINGEMENT UNDER 17 U.S.C. §§ 501-513)

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27.

Plaintiff Schultz realleges paragraphs 1-26 above.

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28.

Plaintiff Schultz is the copyright owner of the “About the Artist” page of

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her website (Registration No. TXu001688158); the effective date of this copyright

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registration is April 8, 2010. Plaintiff Schultz is the copryright owner of the website

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itself (Registration No. TXu001686429); the effective date of this copyright registration

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is April 15, 2010.

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29.

Plaintiff Schultz’s website is accessible to anyone with a connection to the

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Internet and can be found by using search engines such as Google and searching for key

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words such as “Marilou Schultz” or “Navajo weaver.”

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30.

Defendants could have contacted Plaintiff Schultz to seek her permission to

use the content from Plaintiff Schultz’s website but failed to do so.
31.

The Publication contains verbatim text from Plaintiff Schultz’s “About the

Artist” webpage taken without Plaintiff Schultz’s knowledge or consent.
32.

On page 3 of the Publication, Plaintiff Schultz is “quoted” as saying,

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“[w]eaving has always been part of my life,”; this text is copied verbatim from Plaintiff

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Schultz’s “About the Artist” webpage, used without Plaintiff Schultz’s permission and

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without giving Plaintiff Schultz proper attribution.

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On page 5 of the Publication, Plaintiff Schultz is “quoted” as saying,

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“Navajo weaving has always been and continues to be passed on in my family,”; this text

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is copied verbatim from Plaintiff Schultz’s “About the Artist” webpage, used without

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Plaintiff Schultz’s permission and without giving Plaintiff Schultz proper attribution.

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34.

On page 14 of the Publication, Plaintiff Schultz is “quoted” as saying, “I

weave because of my love of weaving and the challenge of creating unique weavings,”;
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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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this text is copied verbatim from Plaintiff Schultz’s “About the Artist” webpage, used

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without Plaintiff Schultz’s permission and without giving Plaintiff Schultz proper

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attribution.

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35.

Taking the Publication as a whole, the Publication substantially relies on

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content taken from Plaintiff Schultz’s website, including text Plaintiff Schultz wrote

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regarding her personal life history and her weaving techniques.

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36.

The additions Defendants made to the Publication contain multiple errors

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and fabrications, including placing an image of a Mexican rug on page 14 of the

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Publication above the statement, “Marilou is proud to help preserve the Navajo way of

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weaving,” followed by a “quote” invented by the Defendants claiming Plaintiff Schultz

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stated, “[t]he techniques I use are the traditional ways of weaving Navajo rugs, and this

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sets them apart from other weaving traditions.”

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37.

The Publication’s content is substantially similar, and in several places

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identical, to the content on Plaintiff Schultz’s website, proving Defendants accessed and

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copied content from Plaintiff Schultz’s website without her knowledge or permission.

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COUNT TWO (FALSE LIGHT RIGHT OF PRIVACY)

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38.

Plaintiff Schultz realleges paragraphs 1-37.

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39.

The Publication is replete with factual errors and misstatements based

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presumably on stereotypical viewpoints of Native Americans.
40.

On the cover page and on pages 3, 4, 8, and 10, the Publication presents

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images of women who are not Plaintiff Schultz next to text in a manner suggesting the

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woman depicted is Plaintiff Schultz.

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41.

Throughout the Publication, factual statements are made that contain

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accurate and inaccurate information, presented in a manner suggesting that Plaintiff

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Schultz helped prepare the Publication or endorses the Publication which she does not.

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On pages 3, 5, and 14, the Publication copies content from Plaintiff

Schultz’s website verbatim and places the content in quotation marks suggesting that
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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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Plaintiff Schultz was interviewed for the Publication or participated in the Publication’s

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preparation, implying that Plaintiff Schultz endorses the Publication which she does not.

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43.

On page 3 of the Publication, it incorrectly states that Plaintiff Schultz’s

mother “was a Navajo weaver,” when in fact her mother still is a weaver.
44.

On page 4 of the Publication, there is a picture of a girl weaving a Navajo

rug, but she is in the incorrect traditional position for weaving.
45.

On page 5 of the Publication, there are statements that are highly debatable

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which are, “[a]t first, the Navajo people lived in Canada[]” and “[t]he Pueblo taught the

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Navajo how to weave.” These statements are debatable and likely incorrect; however,

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the Publication treats them as facts.
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On page 6, the Publication describes the process of shearing sheep adjacent

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to an image that shows a mohair goat instead of the correct animal used by traditional

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weavers: a churro sheep.

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misrepresentation of Plaintiff Schultz’s craft, techniques, and history, creates the false

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impression that Plaintiff Schultz believes this inaccurate information. There are also two

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additional incorrect statements: first, “[t]he Navajo waited until the wool was long and

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thick.” And second, “[t]hey had to pay close attention to the wool because sometimes it

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would become infested with insects.” These statements are untrue and offensive to a

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master Navajo weaver.

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47.

This inaccurate information, combined with the

On page 7, the Publication states, “Marilou usually buys yarn for her own

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weaving.” This statement has no basis in fact; Plaintiff Schultz shears and dyes her own

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wool using traditional Navajo techniques and sells the wool she prepares; Plaintiff

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Schultz bolsters her reputation by using these traditional weaving techniques and sets

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herself apart from non-traditional weavers in the market who buy yarn.

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48.

The fact that Ms. Schultz does not buy her yarn makes her work more

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valuable. Her reputation and the value of her work is diminished by the allegation that

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she buys yarn rather than shearing and dying it herself.

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49.

On pages 7-8, the Publication inaccurately describes how yarn is attached
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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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to the loom and inaccurately describes the techniques used to weave the yarn, presented

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in a manner suggesting that Plaintiff Schultz believes these inaccuracies to be true.

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50.

All the text on page 9 and 10 of the Publication incorrectly describes the

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traditional weaving process, and it is presented in a manner suggesting that Plaintiff

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Schultz believes these inaccuracies to be true.

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51.

On page 12, the Publication states that “[s]ometimes the Navajo weavers

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would cut a slit in the center of a Chief Blanket . . . [to] wear the weaving like a poncho.”

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This statement has no basis in fact and trivializes the work of Plaintiff Schultz, who is

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featured in the Publication as if she endorses such statements.

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The Publication wrongly describes the blanket that is depicted in the picture

on page 12 as a “Chief Blanket,” which is the incorrect term.
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On page 14, the Publication presents an image of a Mexican rug adjacent to

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text that includes a fabricated quote from Plaintiff Schultz: “Marilou is proud to help

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preserve the Navajo way of weaving. ‘The techniques I use are the traditional ways of

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weaving Navajo rugs, and this sets them apart from other weaving traditions.’” The

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Publication does not identify the image as a Mexican rug; instead it conveys the false

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impression that Marilou’s work is represented by a Mexican rug instead of a traditional

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Navajo rug.

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54.

Page 13 of the Publication make the following untrue statement: “[i]t was at

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that time that the Navajo began to buy wool from a mill in Pennsylvania. This wool was

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bright and colorful, so the Navajo weavers began to make blankets that had brilliant reds,

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blues, and yellow in them.” Again, such information creates a false impression created by

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the Publication that harms Plaintiff Schultz’s reputation as an educator committed to

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providing accurate information about Navajo culture.

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55.

Because Ms. Schultz is the only weaver named in the publication, all the

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inaccurate information and inauthentic depictions are attributable to her alone. The

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publication makes no distinction between Plaintiff’s biography, her alleged interview,

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and the false information preceding and following it that generally and wrongly refers to
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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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Navajo weaving.

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56.

The Publication’s presentation of Plaintiff Schultz’s content and

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biographical information, combined with the substantial inaccuracies regarding Navajo

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history, culture, and weaving techniques, conveys the false impression that Plaintiff

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Schultz participated in the preparation of the Publication or endorsed it.

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57.

This false impression created by the Publication harms Plaintiff Schultz’s

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reputation in the community as a weaver who sets herself apart from other weavers by

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using traditional Navajo weaving techniques. Plaintiff’s customers and other Navajo

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weavers have to be confident in Plaintiffs skills and knowledge of her craft for Ms.

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Schultz to maintain her reputation as a master weaver and for Ms. Schultz to charge a

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high premium for the rugs she weaves.

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58.

This false impression created by the Publication harms Plaintiff Schultz’s

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reputation as an educator committed to providing accurate information about Navajo

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culture to counteract inaccurate stereotypes that permeate mainstream society.

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59.

The false impression created by the Publication has caused emotional and

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mental harm to Plaintiff Schultz as it threatens her artistic integrity, her reputation as a

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traditional Navajo weaver, and her ability to make a living as a weaver.

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60.

By placing her name and biography with the inaccurate and offensive

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information in the publication, Defendants place Plaintiff in a false light in the

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publication at issue. Defendants therefore damage her reputation as a master weaver and

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damages her ability to profit from her reputation as a master weaver.

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COUNT THREE (UNAUTHORIZED USE OF PUBLICITY)

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61.

Plaintiff Schultz realleges paragraphs 1-61.

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62.

Defendants used Plaintiff’s identity when the Publication clearly stated Ms.

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Schultz’s name and made her identifiable by inserting facts specific to her personal

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biography in the Publication.

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63.

The appropriation of Ms. Schultz' name was to Defendants’ advantage
s
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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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because they made money by selling the book to schools and they manufactured

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credibility by creating the impression that their inaccurate and offensive depiction of a

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Navajo Weaver was endorsed by an actual Navajo Weaver.

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64.

There was no consent given by Plaintiff. Further, neither Defendants nor

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any agent of Defendants made contact with Plaintiff or anyone she is connected to from

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which Defendants could have obtained consent.

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65.

Plaintiff was injured because the publication depicts her inaccurately and

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uses offensive descriptions of her work by associating it with pictures of non-Navajo rugs

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and poorly made rugs as well as associating her work with insect infestations and

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inauthentic weaving methods.
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Additionally, Plaintiff’s reputation was damaged because her association

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with misrepresentations of Navajo culture damages her reputation as an advanced weaver

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who is well respected and well known in her trade.

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67.

Therefore, when Plaintiff’s biography was used without her permission to

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promote and sell the Publication, Plaintiff’s right to privacy was infringed and she should

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be compensated for the violation of her right.

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PRAYER FOR RELIEF
WHEREFORE, Plaintiff Schultz requests judgment against defendants as follows:
(1) Injunctive relief prohibiting Defendants from publishing, selling, or otherwise

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distributing the Publication, any portion of the Publication that contains

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Plaintiff Schultz’s content, or any other material obtained from Plaintiff

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Schultz without her permission;

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(2) Compensatory damages in an amount to be proven and determined by trial;

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(3) Reasonable attorney’s fees as permitted by law;

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(4) Costs of this action; and

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(5) Such additional relief the Court deems just and equitable.

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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

JURY DEMAND

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Plaintiff Schultz, by and through the undersigned attorneys, hereby demands a trial
by jury of all issues triable of right by jury.

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RESPECTFULLY SUBMITTED this ____ day of ____________, 2011.

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INDIAN LEGAL CLINIC

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By:
Patty Ferguson-Bohnee
Attorneys for Marilou Schultz

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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES