Myeress v. Buzzfeed, Inc.
Filing
10
FIRST AMENDED COMPLAINT amending 1 Complaint against Buzzfeed, Inc. with JURY DEMAND.Document filed by Joe Myeress. Related document: 1 Complaint. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Dunne, Joseph)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Joe Myeress
Plaintiff,
- against -
Docket No. 18-cv-2365
JURY TRIAL DEMANDED
Buzzfeed, Inc.
Defendant.
AMENDED COMPLAINT
Plaintiff Joe Myeress (“Myeress” or “Plaintiff”) by and through his undersigned counsel,
as and for his First Amended Complaint against Defendant Buzzfeed, Inc. (“Buzzfeed” or
“Defendant”) hereby alleges as follows:
NATURE OF THE ACTION
1.
This is an action for copyright infringement under Section 501 of the Copyright
Act. This action arises out of Defendant’s unauthorized reproduction and public display of a
copyrighted photograph of American Airlines Arena in Miami. The photograph is owned and
registered by Myeress, a Florida-based professional photographer. Accordingly, Plaintiff seeks
monetary relief under the Copyright Act of the United States, as amended, 17 U.S.C. § 101
et seq.
JURISDICTION AND VENUE
2.
This claim arises under the Copyright Act, 17 U.S.C. § 101 et seq., and this Court
has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a).
3.
This Court has personal jurisdiction over Defendant because Defendant resides in
and/or transacts business in New York.
4.
Venue is proper in this District pursuant to 28 U.S.C. § 1391(b).
PARTIES
5.
Myeress is a professional photographer having a usual place of business at 574
Knightsbridge Circle, Sarasota, Florida 34238.
6.
Upon information and belief, Buzzfeed is a foreign corporation duly organized
and existing under the laws of Delaware with a place of business at 111 E. 18th Street, 13th
Floor, New York, NY 10003.
7.
Upon information and belief, Buzzfeed is registered with the New York
Department of State, Division of Corporations to do business in the State of New York.
8.
Upon information and belief, at all times material hereto, Defendant has
controlled and operated the Website at the website at the URL: www.buzzfeed.com. (the
“Website”)
9.
Buzzfeed is a for-profit entity.
10.
Buzzfeed publishes web-based news and entertainment articles, with substantial
advertising, on the Website.
STATEMENT OF FACTS
A.
Background and Plaintiff’s Ownership of the Photograph
11.
Myeress photographed an aerial time-lapse photograph of American Airline
Arena in Miami at night (the “Photograph”). A true and correct copy of the Photograph is
attached hereto as Exhibit A.
12.
Myeress is the author of the Photograph and has at all times been the sole owner
of all right, title and interest in and to the Photograph, including the copyright thereto.
13.
The Photograph was registered with the U.S. Copyright Office and was given
Copyright Registration Number VA 1-955-450, effective as of April 8, 2015 (the “Certificate”).
A true and correct copy of the Certificate is attached hereto as Exhibit B.
B.
Defendant’s Infringing Activities
14.
Buzzfeed posted the Photograph on its Website on October 31. 2017 in an article
entitled Top 10 Things To Do in Miami. See https://www.buzzfeed.com/payal0411/top-10things-to-do-in-miami-2x2az?utm_term=.hlM5lYGeR1#.opgPvOGAJm. (the “Article”). A true
and correct of a screenshot of the Article as it appears on the Website is attached hereto as
Exhibit C.
15.
Upon information and belief, The Article was posted to the Buzzfeed community
and promoted by the editors of Buzzfeed.
16.
Upon information and belief editors of Buzzfeed reviewed the Article and its
content and actively chose to promote the Article on the Website.
17.
Buzzfeed’s policy on the Website, with respect to community content, states that
“Our team of Community editors will review your post…[a]s long as the team of editors likes
your post, it will still get promoted.” A true and correct print-out of Buzzfeed’s Policy with
respect to publishing community content, as posted on the Website, is attached hereto as Exhibit
D.
18.
Buzzfeed is a sophisticated news entertainment and media publishing
organization with full knowledge of the relevant copyright laws.
19.
Upon information and belief, the editors of Buzzfeed are well-versed in copyright
law, particularly with respect to the laws regarding the publishing of images on the Website.
20.
The Photograph, as featured in the Article, contained clear sourcing information
stating that the Photograph was sourced “via seatingchartview.com.”
21.
Seatingchartviewchart.com is not an open source, stock photo, or any other form
of file sharing or public domain source for images.
22.
Upon information and belief, as a sophisticated media publisher in the business of
publishing articles containing images, the editors of Buzzfeed fully understand that
seatingchartviewchart.com is not an open source, stock photo, or any other form of file sharing
or public domain source for images.
23.
Upon information and belief, as a sophisticated media publisher in the business of
publishing articles containing images, the Editors of Buzzfeed had full knowledge that
publishing an image sourced from Seatingchartviewchart.com is an infringement of the rights of
the owner of the image.
24.
Defendant did not license the Photograph from Plaintiff for the Website or any
other use.
25.
Defendant did not have Plaintiff’s permission or consent to publish the
Photograph on the Website.
FIRST CLAIM FOR RELIEF
(COPYRIGHT INFRINGEMENT AGAINST BUZZFEED)
(17 U.S.C. §§ 106, 501)
26.
Plaintiff incorporates by reference each and every allegation contained in
Paragraphs 1-25 above.
27.
Defendant infringed Plaintiff’s copyright in the Photograph by reproducing and
publicly displaying the Photograph on the Website. Defendant is not, and has never been,
licensed or otherwise authorized to reproduce, publically display, distribute and/or use the
Photograph.
28.
The acts of Defendant complained of herein constitute infringement of Plaintiff’s
copyright and exclusive rights under copyright in violation of Sections 106 and 501 of the
Copyright Act, 17 U.S.C. §§ 106 and 501.
29.
Upon information and belief, the foregoing acts of infringement by Defendant
have been willful, intentional, and purposeful, in disregard of and indifference to Plaintiff’s
rights.
30.
As a direct and proximate cause of the infringement by the Defendant of
Plaintiff’s copyright and exclusive rights under copyright, Plaintiff is entitled to damages and
defendant’s profits pursuant to 17 U.S.C. § 504(b) for the infringement.
31.
Alternatively, Plaintiff is entitled to statutory damages up to $150,000 per work
infringed for Defendant’s willful infringement of the Photographs, pursuant to 17 U.S.C.
§ 504(c).
32.
Plaintiff is further entitled to his attorney’s fees and full costs pursuant to
17 U.S.C. § 505.
33.
Defendant’s conduct, described above, is causing, and unless enjoined and
restrained by this Court, will continue to cause Plaintiff irreparable injury that cannot be fully
compensated by or measured in money damages. Plaintiff has no adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests judgment as follows:
1.
That Defendant Buzzfeed be adjudged to have infringed upon Plaintiff’s
copyrights in the Photograph in violation of 17 U.S.C §§ 106 and 501;
2.
That Defendant Buzzfeed be ordered to remove the Photograph from its Website;
3.
That, with regard to the First Claim for Relief, Plaintiff be awarded either: (a)
Plaintiff’s actual damages and Defendant’s profits, gains or advantages of any
kind attributable to Defendant’s infringement of Plaintiff’s Photograph; or
(b) alternatively, statutory damages of up to $150,000 per copyrighted work
infringed pursuant to 17 U.S.C. § 504;
4.
That Defendant be required to account for all profits, income, receipts, or other
benefits derived by Defendant as a result of its unlawful conduct;
5.
That Plaintiff be awarded his costs, expenses and attorneys’ fees pursuant to
17 U.S.C. § 505;
6.
That Plaintiff be awarded pre-judgment interest; and
7.
Such other and further relief as the Court may deem just and proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury on all issues so triable in accordance with Federal
Rule of Civil Procedure 38(b).
Dated: Valley Stream, New York
April 11, 2018
LIEBOWITZ LAW FIRM, PLLC
By: /s/Joseph A. Dunne
Joseph A. Dunne
11 Sunrise Plaza, Suite 305
Valley Stream, NY 11580
Tel: (516) 233-1660
JD@LiebowitzLawFirm.com
Attorneys for Plaintiff
Joe Myeress
CERTIFICATE OF SERVICE
I, Joseph A. Dunne, declare under penalty of perjury that, on April 11, 2018, a copy of the
attached AMENDED COMPLAINT was served, via the ECF System pursuant to the Local
Rules and ECF Rules of this court, on the attorneys for Defendant:
Eleanor M. Lackman
41 Madison Avenue, 38th Floor
New York, New York 10010
Tel: (212) 974-7474
Fax: (212) 974-8474
elackman@cdas.com
Dated: Valley Stream, New York
April 11, 2018
LIEBOWITZ LAW FIRM, PLLC
By: /s/Joseph A. Dunne
Joseph A. Dunne
11 Sunrise Plaza, Suite 305
Valley Stream, NY 11580
Tel: (516) 233-1660
JD@LiebowitzLawFirm.com
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