WARREN PUBLISHING COMPANY et al v. J. DAVID SPURLOCK D/B/A VANGUARD PRODUCTIONS, INC.

Filing 1

WARREN PUBLISHING COMPANY et al v. J. DAVID SPURLOCK D/B/A VANGUARD PRODUCTIONS, INC.

Doc. 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WARN PUBLISHING COMPANY and

JAMES WARN,
Plaitiffs,
vs.

CIVIL ACTION NO.:

VANGUARD PRODUCTIONS, INC.
Defendant.

COMPLAINT

Plaintiffs Waren Publishing Company and James Waren, by and though their attorneys,
and as and for their Complaint against Defendant Vanguard Productions, Inc., allege as follows:
1. Ths is an action for copyright infrngement arsing under the Copyright Act of 1909,

17 U.S.c. §§ 1, et seq. (1909) (the "1909 Act"). The amount in controversy exclusive of

interests

and costs exceeds the sum or value of $75,000.
2. This Cour has jurisdiction over the claims Plaintiffs are asserting under 28 U.S.c.
§§ 1331, 1332 and 1338(a).
3. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1400(a).
4. Plaitiff Waren Publishing Company ("Waren Publishing") is a corporation

organzed and existing under the laws of the Commonwealth of Pennsylvania, having its principal
place of

business at Wyncote House #226, 25 Washington Lane, Wyncote, PA 19095-1403. Prior

to 1963, Waren Publishig Company was known as Central Publications, Inc.
5. Plaintiff James Waren ("Waren") is a citizen of the Commonwealth of

Pennsylvana having an address at Wyncote House #226, 25 Washington Lane, Wyncote, PA

19095-1403. Waren is the successor in interest to all assets of Spaceman, Inc., including but not

Dockets.Justia.com

limited to any and all copyrights owned by Spaceman, Inc.
6. On information and belief, Defendant Vanguard Productions, Inc. ("Vanguard") is a

corporation organized and existing under the laws of the State of New Jersey, having a business
address at 390 Campus Drive, Somerset, New Jersey 08873 and/or at 186 Center Street, Suite 200,

Clinton, New Jersey 08809. On fuher information and belief, Vanguard is doing business and the
complained of acts in this judicial district.

COUNT I - COPYRIGHT INFRIGEMENT
7. As a cause of action and ground for relief, Plaintiffs allege 36 claims of copyright
infringement by Vanguard, based upon Vanguard's unauthorized reproduction of36 works. All of

the claims for copyright infingement joined in this Complaint are governed by the same legal rules

and involve similar facts. Joinder of these claims will promote the convenient administration of
justice and wil avoid a multiplicity of separate, similar actions against Vanguard. Plaintiffs

incorporate Paragraphs 1 through 6 of the Complaint as a par of this count.

8. Anexed hereto and incorporated herein as Schedule A is a list identifying the
works whose copyrights have been infringed by Vanguard (collectively "the Works"). Schedule

A contains information on the thirty-six (36) claims of copyright infringement at issue in this
action. Each numbered claim has the following 5 lines of information: Line 1 providing the

claim number; Line 2 listing the title of the publication related to the claim; Line 3 providing the
date on which the copyright in the work was registered; Line 4 providing the registration number
of the copyright related to the work; and Line 5 identifying the named claimant of the

copyrighted work.
9. Each of the Works was conceived and created at the instance and expense of

the

claimants listed in Schedule A, and was a work made for hire, for the benefit of said claimants,

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and as such, said claimants were the authors and owners of the respective Works listed in

Schedule A for copyright puroses under the Copyright Act of 1909. Since the creation of each

of the Works, said claimants and their respective successors in interest have been the sole
proprietors of all rights, title and interest in and to the copyrights and the renewed copyrights of
all printed, pictorial and graphic material in said Works.

10. Each of the Works in Schedule A contains wholly original material written and

drawn at the instance and expense of the claimants listed in Schedule A and each is
copyrightable subject matter under the laws of

the United States.

11. The claimants listed in Schedule A and their respective successors in interest have

complied in all respects with the 1909 Act, the Copyright Act of 1976 and all other laws
governing copyright and secured the exclusive rights and privileges in and to the copyrights and

the renewed copyrights in each of the Works. The applications for registration of the copyrights
in and to the Works were recorded by the Register of Copyrights as shown by the Certificates of
Registration listed in Schedule A.
12. Each of the Works identified on the schedule as having been claimed by Central

Publications, Inc. is owned by Warren Publishing, which is the same entity, its name having been
changed to Waren Publishing Company in or about early 1963, which change is reflected in the

records of the United States Copyright Office.
13. Each of the works identified on the schedule as having been claimed by

Spacemen, Inc. is owned by Warren.

14. With full knowledge of the rights of Plaintiffs in and to the Works and the pictorial
and graphic material therein, Vanguard has infringed said copyrghts by printing, publishing,
distributing, offering to sell and sellng the book Famous Monster Movie Art of Basil Gogos, which

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contains substantial and unawfl reproductions of pictorial and graphic material from each of the

Works. Vanguard's conduct constitutes direct infingement of Plaintiffs' exclusive rights under
copyright to print, publish, reproduce and sell their copyrighted works.
15. Vanguard's book, Famous Monster Movie Art of Basil Gogos, has been offered
for sale and sold in this judicial district, including in major book retailers in Philadelphia,

Pennsylvania.
16. All of Vanguard's acts have been performed without the permission, license, or

consent of Plaintiffs.

17. On information and belief, Vanguard's aforementioned acts have been conducted

wilfully, intentionally, and purposefully, in disregard of and indifferent to the rights of
Plaintiffs.

18. By reason of Vanguard's aforementioned acts, Plaintiffs have suffered and wil
continue to suffer substantial damage to their business in the form of diversion of trade, loss of

profits, and a dilution of the value of their rights, all in amounts which are not yet fully
ascertainable but which are estimated to be not less than $200,000.

19. As a direct and proximate result of Vanguard's infringement of Plaintiffs'
copyrights and exclusive rights under copyright, Plaintiffs are entitled to maximum statutory
damages. Alternatively, at Plaintiffs' election, Plaintiffs shall be entited to their actual damages
plus Vanguard's profits from infringement as wil be proven at triaL.
20. Vanguard's conduct is causing and, unless enjoined by this Court, wil continue to

cause Plaintiffs great and irreparable injury that cannot fully be compensated or measured by
money. Plaintiffs have no adequate remedy at law.

4

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs Publishing Company and James Waren pray for judgment as

follows:
(I) For a declaration that Vanguard has wilfuly infinged Plaintiffs' copyrights in the

Works.
(II) For a permanent injunction requiring that Vanguard and its agents, servants,

employees, officers, attorneys, successors, licensees, partners, and assigns, and all persons acting

in concert or paricipation with each or any of them, cease directly or indirectly infringing, or

causing, enabling, facilitating, encouraging, promoting and inducing or paricipating in the
infringement of, any of Plaintiffs' copyrights in the Works or exclusive rights protected by the
Copyright Act, whether now in existence or hereafter created.
(II) For an order requiring Vanguard and its agents, servants, employees, officers,

attorneys, successors, licensees, partners, and assigns, and all persons acting in concert or
paricipation with each or any of them, recall from all distributors, wholesalers, jobbers, dealers,
retailers, and distributors, and all others known to Vanguard, any originals, copies, facsimiles, or
duplicates of any works shown by the evidence to infringe any copyright in the Works.
(IV) For an order requiring Vanguard to deliver upon oath, to be impounded during the

pendency of this action and destroyed pursuant to judgment herein, all originals, copies,

facsimiles, or duplicates of any work shown by the evidence to infringe any copyright in the
Works.

(V) For an order requiring Vanguard to fie with the Court and to serve on Plaintiffs,
within 30 days after service of the Cour's order as herein prayed, a report in writing under oath

setting forth in detail the manner and form in which Vanguard has complied with the Court's

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order.

(VI) For statutory damages. Alternatively, at Plaintiffs' election, for actual damages
plus Vanguard's profits from infringement, as wil be proven at triaL.

(VII) For Plaintiffs' costs, including reasonable attorneys' fees.
(VIII) For pre- and post-judgment interest according to law.
(IX) For punitive damages in view of

Vanguard's wilful misconduct, malice and such

entire want of care as would raise the presumption of conscious indifference to consequences.

(X) For such other and fuher relief as this Cour may deem just and proper.
Respectfully submitted,

CAESAR, RIVISE, BERNSTEIN, COHEN & POKOTILOW, LTD.
Dated: July 21, 2008
By

/SGuerriero/ SRG3999
Manny D. Pokotilow (ID# 13310) Salvatore Guerriero (ID# 83860) Douglas Panzer (ID# 203354) 1635 Market Street Seven Penn Center - 11th Floor Philadelphia, PA 19103-2212 Tel: [phone] Fax: [phone]
Attorneys for Plaintiffs

6

SCHEDULE A
Line 1

Line 2
Line 3

Claim No. Title Date of Registration
Registration No.

1
Famous Monsters of

Filmland NO.9 (VoL. 2, Iss. 9)

Line 4
Line 5

8/30/1960 B854,651
Central Publications, Inc.

Claimant
Claim No.

Line 1

2
Famous Monsters of

Line 2
Line 3
Line 4

Title Date of Registration
Registration No.

Filmland No. 10 (VoL. 3, Iss. 1)

11/9/1960 B868,728
Central Publications, Inc.
3
Famous Monsters of

Line 5

Claimant
Claim No. Title
Date of Registration

Line 1
Line 2

Filmland NO.1 1 (VoL. 3, Iss. 2)

Line 3

Line 4
Line 5

Registration No.

2/9/1961 B892,994
Central Publications, Inc.

Claimant
Claim No. Title Date of Registration
Registration No.

Line 1

4
Famous Monsters of

Line 2
Line 3
Line 4

Filmland No. 12 (VoL. 3, Iss. 3)

4/9/1961 B892,995
Central Publications, Inc.
5
Famous Monsters of

Line 5

Claimant
Claim No. Title
Date of Registration

Line 1

Line 2
Line 3

Filmland No. 14

(VoL. 3, Iss. 5)

Line 4
Line 5

Registration No.

Claimant
Claim No. Title Date of Registration
Registration No.

8/9/1961 B939,231 Central Publications, Inc.
6
Famous Monsters of

Line 1

Line 2
Line 3
Line 4

Filmland No. 15 (VoL. 3, Iss. 6)

10/9/1961

B939,232
Central Publications, Inc.
7
Famous Monsters of

Line 5

Claimant
Claim No. Title
Date of Registration Registration No.

Line 1
Line 2

Filmland No. 16 (VoL. 4, Iss. 1)

Line 3
Line 4

1/15/1962 B962,067
Central Publications, Inc.
8

Line 5

Claimant
Claim No. Title
Date of Registration

Line 1
Line 2

Famous Monsters of Filmland NO.1 7 (VoL. 4, Iss. 2)

Line 3

Line 4
Line 5

Registration No.

3/15/1962 B962,064
Central Publications, Inc.

Claimant

Line 1
Line 2

Line 3
Line 4

Claim No. Title Date of Registration
Registration No.

9
Famous Monsters of

Filmland No. 19 (VoL. 4, Iss. 4)

7/31/1962
Bl 1 1

Line 5

Claimant
Claim No. Title
Date of Registration

Central Publications, Inc.
10
Famous Monsters of

Line 1

Line 2
Line 3
Line 4

Filmland No. 20 (VoL. 4, Iss. 5)

Registration No.

10/9/1962 B996,807
Central Publications, Inc.
11
Famous Monsters of

Line 5

Claimant
Claim No. Title
Date of Registration

Line 1
Line 2

Filmland No. 23 (VoL. 5, Iss. 2)

Line 3
Line 4

Registration No.

Line 5

Claimant
Claim No. Title
Date of Registration Registration No.

4/25/1963 B35178 Warren Publishing Company
12

Line 1

Line 2
Line 3
Line 4

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

Filmland No. 24 (VoL. 5, Iss. 3) 7/19/1963 B55818 Warren Publishing Company
Famous Monsters of

Line 1
Line 2

13
Famous Monsters of

Filmland No. 58

Line 3
Line 4

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

7/24/1969 B534,700 Warren Publishing Company
14

Line 1

Line 2
Line 3
Line 4

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

Filmland No. 59 8/21/1969 B524,225 Warren Publishing Company
Famous Monsters of

Line 1
Line 2

15
Famous Monsters of

Filmland No. 60

Line 3
Line 4

9/18/1969 B548,515
Waren Publishing Company
16
Famous Monsters of

Line 5

Claimant
Claim No. Title
Date of Registration Registration No.

Line 1
Line 2

Line 3
Line 4

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

Filmland No. 62 11/20/1969 B548,514 Warren Publishing Company
17
Famous Monsters of

Line 1
Line 2

Filmland No. 63

Line 3

Line 4
Line 5

Claimant

12/26/1969 B575,630 Warren Publishing Company

Line 1

Line 2
Line 3
Line 4

Claim No. Title Date of Registration
Registration No.

18

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

Filmland No. 64 1/27/1970 B575,631 Warren Publishing Company
Famous Monsters of

Line 1

19
Famous Monsters of

Line 2
Line 3
Line 4

Filmland No. 83

2/1 1/1971

B649,199
Waren Publishing Company

Line 5

Claimant
Claim No. Title
Date of Registration

Line 1
Line 2

20

Line 3
Line 4

Registration No.

Line 5

Claimant
Claim No. Title
Date of Registration

Filmland No. 99 5/1/1973 B835,623 Warren Publishing Company
Famous Monsters of

Line 1
Line 2

21
Famous Monsters of

Filmland No. 103

Line 3

Line 4
Line 5

Registration No.

Claimant
Claim No. Title Date of Registration
Registration No.

10/4/1973 B879,763 Waren Publishing Company

Line 1

22
Famous Monsters of

Line 2
Line 3
Line 4

Filmland No. 106

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

1/29/1974 B909,479 Warren Publishing Company
23
Famous Monsters of

Line 1
Line 2

Filmland No. 108

Line 3
Line 4

Line 5

Claimant
Claim No. Title
Date of Registration

4/25/1974 B938,777 Warren Publishing Company
24
Famous Monsters of

Line 1

Line 2
Line 3
Line 4

Filmland No. 109

Registration No.

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

6/6/1974 B941,965 Warren Publishing Company
25
Famous Monsters of

Line 1

Line 2
Line 3

Filmland NO.1 12

Line 4
Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

9/26/1974 B968,200 Warren Publishing Company
26
Famous Monsters of

Line 1
Line 2

Filmland NO.1 15

Line 3
Line 4

Line 5

Claimant

1/28/1975 B999,806 Warren Publishing Company

Line 1
Line 2

Claim

No.

27
Famous Monsters of

Line 3
Line 4

Title Date of Registration
Registration No.

Filmland No. 134

2/23/1977 B197,360
Waren Publishing Company

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

Line 1
Line 2

28
Famous Monsters of

Filmland No. 135

Line 3
Line 4

Line 5

Claimant
Claim No. Title
Date of Registration

4/6/1977 B211,550 Warren Publishing Company
29
Famous Monsters of Film

Line 1

Line 2
Line 3

land 1971 Yearbook (VoL. 1, Iss. 27)

Line 4
Line 5

Registration No.

Claimant
Claim No. Title
Date of Registration

6/11/1970 B598,372 Warren Publishing Company
30
Creepy No. 39

Line 1
Line 2

Line 3
Line 4

Registration No.

Line 5

Claimant
Claim No. Title
Date of Registration

3/2/1971 B685013 Warren Publishing Company
31

Line 1

Line 2
Line 3
Line 4

Screen Thrils Ilustrated NO.1
3/13/1962 B976161
Central Publications, Inc.

Registration No.

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

Line 1
Line 2

32
Spacemen NO.3 (VoL. 1, Iss. 3)

Line 3
Line 4

12/28/1961 B962065
Spacemen, Inc.

Line 5

Claimant
Claim No. Title Date of Registration
Registration No.

Line 1

Line 2
Line 3
Line 4

33 Spacemen NO.5 (VoL. 2, Iss. 1)

6/14/1962 B981435
Spacemen, Inc.

Line 5

Claimant

Line 1

Line 2
Line 3

Claim No. Title
Date of Registration

34
Spacemen NO.6 (VoL. 2, Iss. 2)

Line 4
Line 5

Registration No.

10/16/1962 B31880
Spacemen, Inc.

Claimant
Claim No. Title
Date of Registration Registration No.

Line i
Line 2

35

Line 3
Line 4

Wildest Westerns NO.5 2/6/1961 B892997
Central Publications, Inc.

Line 5

Claimant

Line 1
Line

2 4

Line 3
Line

Claim No. Title Date of Registration
Registration No.

36

Wildest Westerns (Vo1., Iss. 2)
5/8/1961 B91112
Central Publications, Inc.

Line 5

Claimant