David Strick v. Los Angeles Times Communications LLC et al

Filing 1

COMPLAINT against Defendants Los Angeles Times Communications LLC, Tribune Company. Case assigned to Judge Consuelo B. Marshall for all further proceedings. Discovery referred to Magistrate Judge Frederick F. Mumm. (Filing fee $ 350 PAID.) Jury Demanded., filed by Plaintiff David Strick.(et) (Additional attachment(s) added on 5/13/2011: # 1 PART 2, # 2 Ntc of Asgmt, Summons, Civil Cover Sheet, # 3 Exhibit A, # 4 Exhibit B-E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit K, # 11 Exhibit L, # 12 Exhibit M) (mg).

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EDWARD C.GREENBERG rr842r7

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ecslaw@,email.com
Edward-C Greenberg. LLC.
570 Lexington Aven[e,I7th Floor

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Telephone : Qlz\ 697 -8777
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THOMAS M. REGELE, Esq. (sBN 0g9g65) '' 'rir:iii
KARENMOSKOWITZ,Esq.(SBN 109681)ir'/:* _ .__*
karen@rnoskowitzlawerouo. Lom
9401 Wilshire Blvd.. Sl-uite^l250
Beverly Hills. Califcimia 90212
Telephbne: (3 1 0) 203-0808
Facslmile: [phone]

Attornevs for Plaintiff
David Strick

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UMTED STATES DISTRICT COTJRT

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CENTRAL DISTRICT OF CALIFORIYIA

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DAVID STRICK. an individual

0&0 e3 ,sBfi{ (FF

Case No:

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vs.

COMPLAINT

LOS ANGELES TIMES
COMMLINICATIONS LLC dlbl a
LATIMES.COM: and TRIBUNE
COMPANY, a Di:laware
Corporation

JURY TRIAL DEMANDED

Defendants.
ECF CASE

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COMPLAINT

Plaintiff, DAVID STRICK, by his attorneys, alleges as follows:

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JURISDICTION AND VENUE

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1.
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u.s.c.

This is a civil action for copyright infringement.
Jurisdiction is conferred upon this Court by 28 U.S.C. Section 1338.
Venue in the Central District of California is proper pursuant to 28

1400.

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PARTIES

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4.

At all times hereinafter mentioned, David Strick was, and still is, a

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highly regarded professional photographer, who with respect to matters relevant

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herein, has done business in the form of a sole proprietorship.

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5.

Plaintiff DAVID STRICK (hereinafter "Plaintiff'

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"STRICK") is an

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individual, residing in the Central District of California, County of Los Angeles,

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State of California, actively engaged in the photography business in the State

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California and elsewhere, and does business under the name "David Strick

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Photography", with offices located within the Central District of the County of Los

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Angeles, State of California.

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6.

of

Defendant LOS ANGELES TIMES COMMLTNICATIONS LLC

"LA TIMES"), is a foreign

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(hereinafter

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existing under the laws of the State of Delaware, and is authori zed to do business in

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California, with an office to conduct business located at202 W. First Street, Los

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Angeles, California, 90012. Defendant LA TIMES is a subsi

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COMPANY, a co{poration duly organized and existing under the laws of the State

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of Delaware, and is authorizedto do business in California, with upon information

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and belief, an office to conduct business located at202 W. First Street, Los

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Angeles, California, 90012.

business corporation duly organized and

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COMPLAINT

di*y of TRIBTINE

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Defendant TRIBLTNE COMPANY (hereinafter "TRIBIINE"), is a

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foreign business corporation duly organized and existing under the laws of the State

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of Delaware, and is authorizedto do business in California, with, upon information

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and belief, an office to conduct business located at 202 W. First Street. Los

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Angeles, California, 900 12.

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8.

Plaintiff is informed and believes, and based thereon alleges, that

TRIBLTNE wholly owns and/or has a controlling interest in each and every one
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the below listed publications and websites, and, that each of the infringements

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referenced herein bv TRIBTINE subsidiaries were committed under the control

of

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of

TRIBTINE.

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Plaintiff is further informed and believes that each of the named

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Defendants were, in whole or in part, the agents, employees, or representatives

of

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each of the other said Defendants and were acting within the course and scope

of

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said agency or employment, within their express and implied authority and that

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each of the acts complained of herein were done, in whole or in part, on behalf of,

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or for the benefit of, said Defendants, and each act has been consented to and/or

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ratified by said Defendantby, inter alia,failure to repudiate any or all of said acts.

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FACTS COMMON TO ALL CLAIMS

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10.

STRICK is a professional photographer with many years of

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experience whose photos include primarily a combination of business and celebrity

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portraits and Hollywood documentary photography for clients including Time

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Magazinq Fortune, Sempra Energy, The Gap, Paramount Pictures, Premiere

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Magazine, and the LA Times, as well as countless other companies and

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publications.

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DAVID STRICK

does business in the form and style of David Strick

Photography, an unincorporated professional name for his sole proprietorship.

12.

STRICK is the sole creator of and holds the copyright in the subject
COMPLAINT

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image(s) (copies of a portion of such image(s) are annexed hereto as

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and Exhibit

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or "Subject Image(s)" or "Plaintiff

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United States Copyright Office on October 21,2010, registration numbers VA 1-

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750-184,

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registrations are annexed hereto as Exhibit "B".

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are the subject of this litigation (hereinafter the "Image(s)"
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Image(s)"), and duly registered same with the

VA l-750-176,VA l-750-183.

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"L"), which

Exhibit"A',

Copies of Plaintiff s copyright

The copyright(s) in the Subject Image(s) were registered prior to the

publication of any such Image(s).

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The Defendants, or one or more of them, are fully apprised and aware

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of the registration of said copyrights and have not contested nor objected to same.

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No copyright or portion thereof has been sold, transferred, or assigned by Plaintiff

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to either of the Defendants, or to any other person or entity.

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15.

Defendant TzuBLNE owns, inter alia, approximately twelve

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newspapers, including the "Los Angeles Times"; twenty-four television stations,

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including KTLA (CW) Los Angeles; ChicagoMagazine; the entertainment website

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www.Metromix.com; six advertising websites, including careerbuilder.com and

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cars.com; and the national cable television station WGN America.

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16.

Defendant LA TIMES is a major print and electronic newspaper,

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which has, according to the Audit Bureau of Circulation, a daily print circulation of

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600,449 making it the fourth largest print newspaper in the United States based on

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circulation. Upon information and belief, the print edition of the newspaper is

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available in every state of the United States and most countries throughout the

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world.

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information website in the Los Angeles Metropolitan Area and the fourth largest

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newspaper website in the t-lnited States, with an audience of more than 9 million

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monthly unique visitors generating over 160 million monthly page views.

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According to its website, latimes.com is the number one local news and

17.

Plaintiff has been shooting behind-the-scenes photographs of movie,

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COMPLAINT

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television and music video production sets for over thirty-years and is widely

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known, respected and trusted for same in the entertainment industry. Plaintiff has

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been referred to as "the closest thing Hollywood has to an industry photographer".

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Plaintiff shot a monthly photo column for Premiere Magazine, then shot for the LA

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TIMES, and as of the date of this Complaint shoots for The Hollywood Reporter.

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Plaintiff is frequently given special and unique behind the scenes access to
television and movie sets.

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It has been said that "in the entire history of Hollywood photography,

no photographer has ever documented the craft of filmmaking the way

DAVID

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STRICK has". Plaintiff

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interplay between the reality of the filmmaking process and the fantasy of the

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movies themselves in what STRICK calls Hollywood's "industrial magic".

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Plaintiff s images give fans and potential moviegoers their first look

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crew actually filming pending television shows and movies, and his work appeals to

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both fans and industry insiders alike.

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.

s

photographs often capture the sometimes poignant

at the stars and

On or about February of 2007 , Plaintiff pitched the idea of

a

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photography feature for the Los Angeles Times that would feature his behind-the-

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scenes images of television and movie sets.

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entered into contract negotiations, whereby both parties negotiated the terms of said

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agreement(s) and

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agreement with the

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Plaintiff and LA TIMES thereafter

LA TIMES drafted same. Plaintiff first entered into a written
LA TIMES on or around December of 2007.

Pursuant to his written agreements, Plaintiff had a web and print

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photography feature in the "Los Angeles Times" entitled "David Strick's

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Hollywood Backlot", whereby Plaintiff employed photographs taken by him which

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capture "behind the scenes" views of the production of movies and television

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shows. Copies of screen captures for "David Strick' Hollywood Backlot" feature

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for the LA TIMES' website are annexed hereto as Exhibit"C". Plaintiff

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COMPLAINT

s

website

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feature, ooDavid Strick's Hollywood Backlot", had at times upwards of 200,000

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unique page views per month and was a fixture of the Los Angeles Times website

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as

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well as in print in its newspaper's Calendar Section and Sunday Magazine.

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Plaintiff entered two (2) written agreements with the LA TIMES, each

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agreement governing defendant(s)' use of Plaintiff s images in the feature, "David

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Strick's Hollywood Backlot". Each of the two written agreements, though covering

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a separate term of duration, were substantially similar to each other and evidence a

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course of dealing between the parties over the course of two (2) years.

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Plaintiff and the LA TIMES entered into a third agreement beginning

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January 1,2010, to cover an additional period of six (6) months, but that agreement,

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entitled the "Archive License and Services Agreement", was, on information and

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belief, executed by Plaintiff on or about January 1,2010 but never signed by any

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authorized representative of the LA TIMES (hereinafter the "Subject Unexecuted

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Agreement" or "IJnexecuted Agreement") A copy of the lJnexecuted Agreement is

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annexed hereto as Exhibit

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by LA TIMES and thus any ambiguity therein must be construed against

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TIMES.

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23.

"D".

The Subject Unexecuted Agreement was drafted

LA

Under the Subject lJnexecuted Agreement as well as each of the prior

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two written agreements, Plaintiff retained his copyright in whole in each of his

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images, regardless of whether such images were published by any of the

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Defendants, or their newspaper(s), website(s), or other media outlet(s). That

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Plaintiff would retain his copyright was a specifically negotiated term of the initial

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written agreements by and between STRICK and LA TIMES, and was a term that

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was present in the Subject Unexecuted Agreement.

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24.

Paragraph 1(a) of the Unexecuted Agreement sets forth as follows:

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"For the avoidance of doubt, LATIMES.COM acknowledges

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that the copyrights to the Photographs are owned by Strick."

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25.

Plaintiff s photographs provide a "first look" to fans and those in the
COMPLAINT

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entertainment industry. The photo stories are generally timed for publication on or

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about the release dates of the movies and shows captured by such images. Many

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the movies and television shows photographed by Plaintiff were scheduled to

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premiere far beyond the end of the six (6) month term of the Unexecuted

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Agreement.

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of

Plaintiff actively collaborated and participated in the layout and

writing of captions for his photographs and approved such layout and captions prior

LA TIMES' websites

and print

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to the publication of such photographs in the

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publications. The collaboration and approval process whereby Plaintiff held an

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active and requisite role therein was part of the course of conduct of the parties in

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their execution of the Unexecuted Agreement.

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The Unexecuted Agreement was for a six-month period which

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concluded in June of 2010. The Unexecuted Agreement contained a provision

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whereby the term of the Agreement would roll-over beyond the June 2010

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expiration if LA TIMES so elected, but the LA TIMES did not make such election

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and in fact cancelled such roll-over and terminated the agreement as of June, 2010.

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28.

On or about May 28,2010, Sallie Hofmeister, Assistant Managing

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Editor of LA TIMES, notified Plaintiff by email that the LA TIMES was

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terminating its contract with Plaintiff (hereinafter the "Termination Email"). A

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copy of the Termination Email is annexed hereto as Exhibit"E".

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29.

In response to the Termination Email, Plaintiff reasserted, by email

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dated May 31,2010, his exclusive rights to the Image(s) which he had uploaded to

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the storage front end of the Times' internal content management system (the

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TIMES "ftp" site), but which Image(s) had not been published by any of

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Defendants, either online or in

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an email dated June 1 1,2010, and argued, inter

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satisfied his contractual minimum obligations, the

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print. The LA TIMES disagreed with Plaintiff, via

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COMPLAINT

alia,that even though Plaintiff had

LA TIMES was entitled by

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"implication" to the additional Image(s) uploaded by Plaintiff to the LA TIMES' ftp

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site, though admittedly not previously published by any of the Defendant(s)' media

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properties or website(s).

30.

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Plaintiff, by counsel, then issued on June 15,2010, a cease and desist

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email to in-house counsel for LA TIMES, Julie K. Xanders, Esq., providing LA

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TIMES with additional actual notice of, inter alia,Plaintiff s sole copyright in his
Image(s), and that any use of Plaintiff

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s

Image(s) by the LA TIMES would be

violative of Plaintiff s copyrigh(s) therein.

31.

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Despite such clear and repetitive notice to LA TIMES of Plaintiff

s

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rights, Defendants, or one or more of them, published a gallery of Plaintiff

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Image(s) from the movie "Easy A", starring Emma Stone, on Octob er 7 , 2010, to

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the Defendant(s)' website(s), including but not limited to www.latimes.com,

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without Plaintiff s license, authorization, or consent. Such violative posting of

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Plaintiff s Image(s) was published in connection with

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about the lead actress, Emma Stone, who had just been cast in "Spiderman 4" . The

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unauthorized posting of Plaintiff s Image(s) was removed from Defendant(s)'

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website(s) on or about October 8,2010. Copies of such offending uses

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Plaintiff s Images are annexed hereto

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as

a three-feature story

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block

of

Exhibit "F".

Plaintiff duly registered the Subject Images with the United States

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Copyright Office on October 21,2010. Subsequently, Plaintiff, by his counsel,

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issued an email to Jean Paul Jassy, Esq., outside counsel for Defendant LA TIMES,

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on November 2,2010,

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rights to his Images, that STRICK holds the copyright in his images, and that in the

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case

of any dispute, Plaintiff would seek the maximum statutory penalties under

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Title

17 of the United States Code.

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33.

notiffing the LA TIMES that inter alia, STRICK reserves all

Notwithstanding the aforementioned series of notices to LA TIMES,

Defendants, or one or more of them, proceeded to publish a series of at least sixteen

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COMPLAINT

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(16) of Plaintiff s Image(s) from the movie "Burlesque,,, starring
cher and
Christina Aguilera on or about Decembe r 5, 2010 (copies of such offending

of

uses

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Plaintiff s Image(s) are annexed hereto

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once again notified Defendants, and each of them, in writing by
email dated

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December 20,2010 to Mr. Jassy and to TRIBTINE'S General Counsel, James
Osick, that such unauthorized use of Plaintiff s Image(s) was violative of his

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as

Exhibit "G"). plaintiff, by his counsel,

registered copyrights.
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Defendants, or one or more of them, simply ignored such repeated
notice andbrazenly published more of Plaintiff s Images to Defendant(s)' websites
in relation to the first-run movies: "The Green Homet", starring Seth Rogan
and
cameron Diaz; "The Roommate"; "cedar Rapids"; starring Ed Helms, John
c.

Reilly and Anne Heche; and, "Battle: Los Angeles',, starring Aaron Eckhart.

35.

Defendants, or one or more of them, published at least fifty-two (52)

of Plaintiff s Image(s) to the Defendant(s)' websites, including but not limited
to
www.latimes.com, on or about January 1,2011 in connection with the movie ..The
Green Homet", which was scheduled to open on January 14, 2011. (Copies of
such
offending uses of Plaintiff s Image(s) are annexed hereto as Exhibit.,H,,.) Such
use

of Plaintiff s Images by Defendants, or one or more of them, was without his
license, authorization or consent.

36.

Defendants, or one or more of them, published at least thirteen (13)
Plaintiff s Image(s) to the Defendant(s)' websites, including but not limited to

of

www.latimes'com and at least fourteen (14) other TRIBLTNE websites, on or about
January 28,2011 in connection with the movie "The Roommate". (Copies of
such
offending uses of Plaintiff s Image(s) are annexed hereto as Exhibit ,,I,,.) Such
use
of Plaintiff s Images by Defendants, or one or more of them, was without his
license, authorization or consent.

37.

Defendants, or one or more of them, published at least twelve (12)

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COMPLAINT

of

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Plaintiff s Image(s) to the Defendant(s)' websites, including but not limited to

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www.latimes.com and at least thirty-five (35) other TRIBLINIE websites, on or

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about February

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such offending uses of

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Such use of

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his license, authorization or consent.

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38.

5,20II in connection with the movie "Cedar Rapids".

Plaintiff

Plaintiff s Image(s) are annexed hereto

as

(Copies of

Exhibit "J".)

s Images by Defendants, or one or more of them, was

without

Defendants, or one or more of them, published at least seventeen (17)

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of Plaintiff s Image(s) to the Defendant(s)' websites, including but not limited to

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www.latimes.com and at least thirty-four other TRIBLINE websites, on or about

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February 15,2011 in connection with the movie "Battle: Los Angeles". (Copies of

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such offending uses of

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Such use of

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without his license, authorization or consent.

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39.

Plaintiff

Plaintiff s Image(s) are annexed hereto

as

s Image(s) by Defendants, or one or more

Exhibit "K".)

of them, was

The full nature and extent of Defendant(s)' use(s) of Plaintiff

s

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Image(s) is unknown to date, but may additionally include Plaintiff s photographs

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of the sets of the movies: "Everything Must Go", starring Will Fanell; "Priest"

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starring Paul Bettany; and

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two movies of which have not yet been released in theatres as of the date of this

19

Complaint (copies of Plaintiff s Images in connection with "Everything Must Go",

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"Priest", and "A Thousand Words" are annexed hereto collectively as Exhibit "L").

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40.

"A Thousand Words", starring Eddie Murphy, the latter

On or about the date of this Complaint, May 5,201 1, the Defendants,

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or one or more of them, published at least forty-five (a5) of Plaintiff

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the Defendant(s)' websites, including but not limited to www.latimes.com, and

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other TRIBLINE websites, or one or more of them, in connection with the movie

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"Priest". (Copies of such offending uses of Plaintiff s Image(s) are included as part

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of Exhibit('L)' annexed hereto) Such use of Plaintiff s Image(s) by Defendants, or

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one or more of them, was without his license. authorization or consent.

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COMPLAINT

s

Image(s) to

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41.

The candid behind-the-scenes imagery created by STRICK has

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substantial value and is in high demand. Defendants, or one or more of them,

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employed Plaintiff s Image(s) without any compensation to Plaintiff, and in

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violation of his copyrights.

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42.

Defendants, or one or more of them, published atotal of at least one

hundred seventy four (174) of Plaintiffls registered Image(s), subsequent to actual
notice by both Plaintiff and Plaintiff s counsel that such uses were violative

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of

Plaintiff s copyrights, and did so without Plaintiff s license, authorization or
consent. The full nature and extent of Defendant(s)' uses of Plaintiff s Image(s) is

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as yet unknown, pre-discovery, such

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possession and control of Defendants, or one or more of them.

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43.

information being within the custody,

Defendants, or one or more of them, cropped, altered, andlor

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"Photoshopped" Plaintiff s Image(s) without Plaintiff s license, authorization or

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consent, and employed same without authorization on at least the Los Angeles

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Times website, www.latimes.com, as well as at least twenty-four (24) other

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Tribune-affiliated or Tribune-owned websites (copies of a portion of such offending

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use(s) of

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one or more of them, employed at least a portion of

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and feature stories, without Plaintiff s license, authorizati.on, or consent (see,

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Exhibit "M").

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Plaintiff

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s Image(s) are annexed hereto as

Exhibit "M"). Defendants, or

Plaintiff

s Image(s)

in articles

The full nature and extent of the uses of Plaintiff s Image(s) by

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Defendants, or one or more of them, inclusive of each of the newspapers and/or

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television stations or other media owned by TRIBUNE as referenced hereinabove,

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is unknown pre-discovery, as such information is within the full custody and

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control of Defendants, or one or more of them.

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27

45.

The use of each image by each Defendant constitutes a separate and

distinct infringement. That, upon information and belief, Defendants, or one or

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COMPLAINT

1

more of them, inclusive of the separate Tribune properties andlor sub-entities, have

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collectively committed at least five hundred ten (510) violations of Plaintiff

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a

copyrights.

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46.

s

Despite actual notice that Plaintiff was and is the creator of the

5

Subject Images, that he holds the copyrights in said Image(s) and that he did/does

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not consent to Defendant(s)' use of such Image(s), Defendants, or one or more
them,

willfully employed Plaintiff

s

of

Image(s), without regard for Plaintiff s rights.

8

That had Defendants, or one or more of them, sought Plaintiff

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publish the Image(s), said permission would have been denied. Further, upon

s

permission to

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information and belief, Defendants, or one or more of them, knew or should have

11

known that such permission(s),

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47.

if

sought, would have been denied.

Upon information and belief, the Defendants, or one or more of them,

13

were fully aware at all times relevant herein that itlthey lacked a written license or

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permission necessary to employ the use of Plaintiff s Image(s). Notwithstanding

15

such knowledge, Defendants, or one or more of them, employed

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Image(s) without the requisite license(s) or permission(s) from Plaintiff. Such

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failure to obtain a license, consent, or permission from the Plaintiff constitutes

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negligence, if not

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48.

Plaintiff

s

willful infringement.

Defendants, and each of them, are exceptionally sophisticated

20

licensee(s) and licensor(s) of intellectual property and employ persons expert in all

2l

aspects of licensing, rights management and related matters. Defendants, and each

22

of them, have extensive resources including but not limited to in houselegal

23

counsel and outside legal counsel available to its employees to assure compliance

24

with all appropriate business protocols and federal andlor state statutes including

25

but not limited to USC Title

26

have known of the procedures and protocols for the licensing and publishing

27

intellectual property created by third parties.

17. Defendants,

and each of them, knew or should

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COMPLAINT

of

49.

1

That, here, Defendants, or one or more of them, inexplicably,

2

negligently and/or willfully did not follow such standard procedures by not seeking

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a license or consent

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50.

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5

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of any kind from Plaintiff for the uses complained of herein.

Defendants, or one or more of them, knew or should have known that

Plaintiff is the sole copyright holder of the Subject Images. That present with the
publication of each of the Subject Image(s) to Defendant(s), website(s), on
information and belief, is a photo credit to plaintiff ..David strick,'.

51.

8

9
10

Plaintiff

s

written agreements as well as the Unexecuted Agreement

with the LA TIMES, a subsi diary of TRIBIINE, expressly states that plaintiff is the
copyright owner in the Subject Image(s), and thus put Defendants, or one or more

11

of them, on actual written notice that Plaintiff is the copyright holder in the Subject

I2

Images. Defendants, and each of them, have never asserted that it is a co-creator of

13

the Subject Images, nor have they ever contested, at any time, that Plaintiff is the

14

sole copyright holder in said Images.

52.

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That despite such clear actual notice, via the written agreements and

16

Unexecuted Agreement, and by Plaintiff and Plaintiff s counsel prior to any

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publication of the Subject Image(s), Defendants, or one or more of them, employed

18

Plaintiff s Image(s) without his license, authorizationor consent for the use of

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same.

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53.

The Defendants could have readily located Plaintiff. Defendants, or

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one or more of them, were actively engaged in correspondence with

22

counsel regarding the prohibited use of the Subject Images. Moreover, even a

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simple Google search leads to Plaintiffs personal website with contact information.

24

Defendants' failure to contact Plaintiff and seek his permission, license, or consent

25

is either negligent or

26
27

54.

Plaintiff

s

willful.

Upon information and belief, Defendants, or one or more of them,

have employed additional uses of Plaintiff s Image(s), unknown to Plaintiff pre-

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COMPLAINT

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2
a

discovery.

55.

Pursuant to Federal Rule 11, Plaintiff, by counsel, engaged in lengthy

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correspondence with Defendant

A
+

good faith effort to obviate litigation. However, Plaintiff s good faith attempts at a

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non judicial resolution of the issues herein have proved futile.

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56.

LA TIMES throughout

a good portion

of 2010 in

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As of the date of this Complaint, the parties have been unable resolve

their disputes without the need for litigation, despite Plaintiff s good faith attempts
8

9

at same.
57

.

Defendants, or one or more of them, acted at all times as if Title 1 7

10

of the United States Code does not apply to them. The actions of the Defendants,

11

or one or more of them, as aforesaid, have forced Plaintiff, a sole proprietor, to

t2

expend substantial sums of money to enforce his registered copyrights.

13

58.

As of the date of this Complaint, Defendants, or one or more of them,

I4

have continued to employ Plaintiff s registered Image(s), without his authorization,

15

consent, or license, despite having been put on actual prior notice by Plaintiff and

t6

Plaintiff s counsel that any such use was unauthorized and would be violative of
Plaintiff s copyrights.

I7
18

59.

To this day, neither Plaintiff, nor Plaintiffs counsel have received a

19

representation from Defendant, or any of them, indicating that it has ceased use

20

Plaintiff s Image(s).

2T

22
ZJ
1A

L-

60.

That the Defendants, or one or more of them. have no defenses at law

to the claims set forth herein.

61.

of

Paragraphs "1" through

"60"

are incorporated by reference

respect to each of the below counts or claims for relief.

25

26
27
28

COMPLAINT

with