O'Neil v. Ratajkowski et al

Filing 1

COMPLAINT against Emrata Holdings, LLC, Emily Ratajkowski. (Filing Fee $ 400.00, Receipt Number ANYSDC-17817353)Document filed by Robert O'Neil. (Attachments: #1 Exhibit A, #2 Exhibit B)(Liebowitz, Richard)

Case 1:19-cv-09769-AT Document 1 Filed 10/23/19 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT O’NEIL,
Plaintiff,
- against -

Docket No. 1:19-cv-9769
JURY TRIAL DEMANDED

EMILY RATAJKOWSKI and EMRATA HOLDINGS,
LLC
Defendant.
COMPLAINT
Plaintiff Robert O’Neil (“O’Neil” or “Plaintiff”) by and through his undersigned counsel,
as and for his Complaint against Defendants Emily Ratajkowski (“Ratajkowski”) and Emrata
Holdings, LLC (“Emrata” and together with Ratajkowski “Defendants”) 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 Defendants unauthorized reproduction and public display of a
copyrighted photograph of model Emily Ratajkowski, owned and registered by O’Neil, a New
York based professional photographer. Accordingly, O’Neil 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).

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3.

This Court has personal jurisdiction over Defendants because Defendants 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.

O’Neil is a professional photographer in the business of licensing his photographs

to online and print media for a fee having a usual place of business of 10-01 162 Street, Apt 7B,
Whitestone, New York 11357.
6.

Upon information and belief, Ratajkowski has a place of business at 49 Bleecker

Street, New York, New York 10012. At all times material hereto, Ratajkowski has operated her
Instagram Story Page at the URL: www.Instagram.com/emrata/ (the “Website”).
7.

Upon information and belief, Emrata is foreign limited liability company duly

organized and existing under the laws of the State of Delaware with a place of business at 49
Bleecker Street, New York, New York 10012. At all times material, hereto, Emrata has operated
its Instagram Story Page at the URL: www.Instagram.com/Emrata (the “Website”).
STATEMENT OF FACTS
A.

Background and Plaintiff’s Ownership of the Photograph

8.

O’Neil photographed model Emily Ratajkowski (the “Photograph”). A true and

correct copy of the Photograph is attached hereto as Exhibit A.
9.

O’Neil 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.
10.

The Photograph was registered with the United States Copyright Office and was

given registration number VA 2-173-330.
B.

Defendant’s Infringing Activities

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11.

Defendants ran the Photograph on the Website. A screenshot of the Photograph

on the Website is attached hereto as Exhibit B.
12.

Defendants did not license the Photograph from Plaintiff for its Website, nor did

Defendants have Plaintiff’s permission or consent to publish the Photograph on its Website.
CLAIM FOR RELIEF
(COPYRIGHT INFRINGEMENT AGAINST DEFENDANTS)
(17 U.S.C. §§ 106, 501)
13.

Plaintiff incorporates by reference each and every allegation contained in

Paragraphs 1-12 above.
14.

Defendants infringed Plaintiff’s copyright in the Photograph by reproducing and

publicly displaying the Photograph on the Website. Defendants are not, and has never been,
licensed or otherwise authorized to reproduce, publically display, distribute and/or use the
Photograph.
15.

The acts of Defendants 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.
16.

Upon information and belief, the foregoing acts of infringement by Defendants

have been willful, intentional, and purposeful, in disregard of and indifference to Plaintiff’s
rights.
17.

As a direct and proximate cause of the infringement by the Defendants 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.
18.

Alternatively, Plaintiff is entitled to statutory damages up to $150,000 per work

infringed for Defendants willful infringement of the Photograph, pursuant to 17 U.S.C. § 504(c).

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19.

Plaintiff further is entitled to his attorney’s fees and full costs pursuant to

17 U.S.C. § 505.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests judgment as follows:
1.

That Defendant Defendants be adjudged to have infringed upon Plaintiff’s
copyrights in the Photograph in violation of 17 U.S.C §§ 106 and 501;

2.

That Plaintiff be awarded either: a) Plaintiff’s actual damages and Defendants
profits, gains or advantages of any kind attributable to Defendants 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;

3.

That Defendants be required to account for all profits, income, receipts, or other
benefits derived by Defendants as a result of its unlawful conduct;

4.

That Plaintiff be awarded his costs, expenses and attorneys’ fees pursuant to 17
U.S.C. § 505;

5.

That Plaintiff be awarded pre-judgment interest; and

6.

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
October 22, 2019
LIEBOWITZ LAW FIRM, PLLC
By: /s/Richard Liebowitz
Richard P. Liebowitz, Esq.
11 Sunrise Plaza, Suite 305
Valley Stream, New York 11580
Tel: [phone]

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[e-mail]
Attorneys for Plaintiff Robert O’Neil