DRK Photo v. McGraw-Hill Companies Incorporated et al

Filing 1

COMPLAINT. Filing fee received: $ 350.00, receipt number 0970-6771145, filed by DRK Photo. (Submitted by Christopher Seidman). (Attachments: # 1 Exhibits Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Civil Cover Sheet)(HLA)

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1 2 3 4 5 6 Christopher Seidman (CS-7816) Harmon & Seidman LLC 101 S. Third Street, Suite 265 Grand Junction, CO 81501 Tel: 970.245.9075 Fax: 970.245.8086 chris@harmonseidman.com 10 Amanda Bruss Harmon & Seidman LLC 8010 E. 29th Avenue Denver, CO 80238 Telephone: 415.271.5754 Fax: 970.245.8086 amanda@harmonseidman.com 11 Attorneys for Plaintiff DRK Photo 7 8 9 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF ARIZONA 14 15 DRK Photo, a sole proprietorship, 16 17 Plaintiff, v. COMPLAINT 18 The McGraw-Hill Companies, Inc. 19 and John Doe Printers 1-10, 20 No. (jury trial demanded) Defendants. 21 22 23 24 25 26 Plaintiff DRK Photo (“DRK”) for its Complaint against Defendant The McGrawHill Companies, Inc. (“McGraw-Hill”) and John Doe Printers 1-10 alleges: 1 STATEMENT OF ACTION 2 1. 3 of all copyrights to certain photographs originally licensed for limited use by Defendant 4 McGraw-Hill, against Defendants for uses of Plaintiff’s photographs without its authority 5 or permission. This is an action for copyright infringement brought by Plaintiff DRK, the holder 6 PARTIES 7 2. 8 licensing photographic images to publishers, including McGraw-Hill. DRK Photo is a 9 sole proprietorship owned and operated since 1981 by Daniel R. Krasemann, a United Plaintiff DRK Photo is a Sedona, Arizona stock photography agency engaged in 10 States citizen and a resident of Sedona, Arizona. 11 3. 12 and existing under the laws of the State of New York, with its principal place of business 13 in New York, New York. McGraw-Hill sells and distributes textbooks via its employees 14 and agents in Arizona and throughout the United States, including the publications and 15 ancillary materials containing Plaintiff’s photographs. 16 4. 17 and ancillary materials, whose identities are known to Pearson but unknown to Plaintiff. McGraw-Hill is a publisher of educational textbooks and a corporation organized John Doe Printers 1-10 are the printers of some or all of the publications in suit 18 JURISDICTION AND VENUE 19 5. 20 interest under the copyright laws of the United States. 21 6. 22 U.S.C. §§ 1331 (federal question) and 1338 (copyright). 23 7. 24 28 U.S.C. §§ 1400(a). This is an action for injunctive relief, statutory damages, monetary damages, and This Court has jurisdiction over the subject matter of this action pursuant to 28 Venue is appropriate in this District pursuant to 28 U.S.C. §§ 1391(a) and (b) and 25 26 -2- 1 FACTS COMMON TO ALL COUNTS 2 8. 3 photographic images (“Photographs”) depicted in Exhibit A. The Photographs have been 4 registered with the United States Copyright Office or complete applications, fees, and 5 deposits for copyright registration have been received by the Copyright Office in 6 compliance with the Copyright Act, 17 U.S.C. §§ 101 et seq. 7 9. 8 the Photographs in numerous educational publications. The permissions DRK granted 9 McGraw-Hill were expressly limited by number of copies, geographic distribution area, 10 language, duration, and media as set forth in Exhibit A. Typical licenses are attached as 11 Exhibit B. 12 10. 13 representations to DRK that the use of the Photographs would not exceed the limitations 14 contained in its license requests. 15 11. 16 requests in establishing its license fees. 17 12. 18 terms of the limited licenses listed in Exhibit A. 19 13. 20 permission in publications not yet identified. 21 14. 22 McGraw-Hill had a duty in equity and good conscience to disclose those uses to DRK. 23 This is especially so because McGraw-Hill knew precisely when its uses of the 24 Photographs exceeded the applicable license limitations, but DRK had no such 25 knowledge nor any reason to assume McGraw-Hill was being deceitful in the uses it was 26 making of the Photographs. Plaintiff DRK is the owner and exclusive copyright holder of the attached Between 1997 and 2009, DRK sold McGraw-Hill limited licenses to use copies of DRK granted the limited use licenses in response to McGraw-Hill’s DRK relied on the truthfulness of the express limitations contained in the license Upon information and belief, McGraw-Hill exceeded the permitted uses under the Upon information and belief, McGraw-Hill used the Photographs without any When McGraw-Hill copied and distributed the Photographs without authorization, -3- 1 15. 2 McGraw-Hill’s infringements were concealed. 3 16. 4 limitations in at least 52 DRK’s licenses (see Exhibit C and Exhibit D1 hereto) and that it 5 should have requested and paid for permission to print more copies than it actually 6 obtained. These specific print-run issues were resolved in early 2011, with payment to 7 DRK of $818,689.71 (see Exhibit E). DRK brings no claims against McGraw-Hill for 8 exceeding the print run limits in those licenses, assuming McGraw-Hill accurately 9 disclosed its print quantities. This suit is limited to overprinting of DRK invoices for 10 which no print runs, or inaccurate print runs, were disclosed by McGraw-Hill, uses by 11 McGraw-Hill beyond other license parameters (size, number of uses within a publication, 12 geographic distribution area, electronic use, duration, and language uses), and wholly 13 unlicensed uses unrelated to an invoice. 14 17. McGraw-Hill’s concealment was effective and worked as intended. For years, In 2010, McGraw-Hill admitted to DRK that it had exceeded the print run The exhibits attached hereto are incorporated into this complaint by this reference. 15 COUNT I 16 COPYRIGHT INFRINGEMENT AGAINST MCGRAW-HILL 17 18. 18 in each paragraph above. 19 19. 20 infringements of Plaintiff’s copyrights in the Photographs in violation of 17 U.S.C. § 501 21 et seq. 22 20. 23 Photographs. Plaintiff incorporates herein by this reference each and every allegation contained The foregoing acts of McGraw-Hill constitute direct, contributory and/or vicarious Plaintiff suffered damages as a result of McGraw-Hill’s unauthorized use of the 24 25 26 1 DRK does not concede the print runs McGraw-Hill disclosed are accurate, and reserves the right to verify through discovery. -4- 1 COUNT II 2 COPYRIGHT INFRINGEMENT AGAINST JOHN DOE PRINTERS 1-10 3 21. 4 each paragraph above. 5 22. 6 constitute direct, contributory and/or vicarious infringements of DRK’s copyrights in the 7 Photographs, in violation of 17 U.S.C. §§ 501 et. seq. 8 23. 9 by John Doe Printers 1-10. DRK incorporates herein by this reference each and every allegation contained in The foregoing acts of John Doe Printers 1-10 in printing the publications in suit DRK suffered damages as a result of the unauthorized printing of its Photographs 10 11 WHEREFORE, Plaintiff requests the following: 12 1. 13 from copying, displaying, distributing, selling or offering to sell Plaintiff’s Photographs 14 described in this Complaint and Plaintiff’s photographs not included in suit. 15 2. 16 Photographs used in violation of Plaintiff’s exclusive copyrights as well as all related 17 records and documents and, at final judgment, destruction or other reasonable disposition 18 of the unlawfully used Photographs, including digital files and any other means by which 19 they could be used again by Defendant without Plaintiff’s authorization. 20 3. 21 Photographs or, where applicable and at Plaintiff’s election, statutory damages. 22 4. Reasonable attorney’s fees. 23 5. Court costs, expert witness fees, interest and all other amounts authorized under 24 law. 25 6. A permanent injunction against Defendant and anyone working in concert with it As permitted under 17 U.S.C. § 503, impoundment of all copies of Plaintiff’s Actual damages and all profits derived from the unauthorized use of Plaintiff’s For such other and further relief as the Court deems just and proper. 26 -5- 1 2 JURY TRIAL DEMAND Plaintiff demands a trial by jury of all issues permitted by law. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 DATED: May 15, 2012 Plaintiff DRK Photo, by its attorneys, s/ Christopher Seidman Christopher Seidman (CS-7816) Harmon & Seidman LLC 101 S. Third St., Suite 265 Grand Junction, CO 81501 Telephone 970.245.9075 Fax 970.245.8086 E-mail: chris@harmonseidman.com s/ Amanda L. Bruss Amanda L. Bruss Harmon & Seidman LLC 8010 E. 29th Avenue Denver, CO 80238 Telephone: 415.271.5754 Fax: 970.245.8086 amanda@harmonseidman.com 18 19 20 21 22 23 24 25 26 -6-

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