Pearse-Hocker v. Firelight Media, Inc.

Filing 1

COMPLAINT filed by Anne Pearse-Hocker against Firelight Media, Inc. (Filing fee $ 350.00 receipt number 14683013336). (Attachments: # 1 Receipt, # 2 Civil Cover Sheet)(stas) (Additional attachment(s) added on 5/11/2010: # 3 Exhibit A to Complaint, # 4 Exhibit B to Complaint, # 5 Exhibit C to Complaint, # 6 Exhibit D to Complaint, # 7 Cover Letter) (stas, ).

Pearse-Hocker v. Firelight Media, Inc.

Doc. 1

FILED
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division ^^

2010 KAY -5 P 3: 3M
CLERK US DISTRICT COlmT

-

ANNE PEARSE-HOCKER, ) 16156 Short Hill Road, ) Purcellville, Virginia 20132-2513, )
Plaintiff,

)

ALEXANDRIA. VIRGINIA

)
)

v.
FIRELIGHT MEDIA, INC. 324 Convent Avenue New York, New York 10031, Defendant.

)
)
) ) )

CaseNo.

I-10 (W 450

)

)

COMPLAINT AND JURY DEMAND

Anne Pearse-Hocker ("Pearse"), for her Complaint against Firelight Media, Inc.
("Firelight"), states as follows: NATURE OF THE ACTION

1.

This is an action for injunctive relief and damages against Firelight for copyright

infringement and contributory copyright infringement as a result of Firelight's unauthorized use,

reproduction, display, distribution, publication, and preparation of a derivative work based upon
several photographs for which Pearse is the lawful copyright holder in violation of the Federal
Copyright Act of 1976, 17 U.S.C. � 101, et seq.
THE PARTIES

2.

Pearse is an individual citizen of Virginia and a professional photographer.

She

was present and worked as a free-lance photographer during the standoff in Wounded Knee, South Dakota in 1973 between members of the American Indian Movement and the United

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JQ ORIGINAL
Dockets.Justia.com

States Marshal's Service and other law enforcement agencies.

As described in greater detail

below, Pearse is the copyright holder for a series of photographs taken at Wounded Knee during
the standoff that have been used and distributed by Firelight to third parties without her
authorization.

3.

Firelight Media, Inc. is a corporation organized and existing under the laws of the

State of New York with its principal place of business at 324 Convent Avenue, New York, New York 10031. Firelight is an independent film production company that specializes in producing documentary films, including films that are offered for sale and sold to the general public for
financial gain and profit through the internet websites of commercial retailers such as, inter alia,
Amazon, Barnes and Noble, and Borders.
JURISDICTION AND VENUE

4.

This Court has subject matter jurisdiction over the copyright infringement and

contributory copyright infringement claims in this matter pursuant to 17 U.S.C. � 1331 because
they arise under 17 U.S.C. � 101, etseq.

5.

This Court has personal jurisdiction over Firelight pursuant to Virginia Code �

8.01-328.1, as the claims in this case arise from Firelight's transacting business in the Commonwealth of Virginia, contracting to supply things in the Commonwealth, causing tortious

injury by an act or omission in this Commonwealth, and by causing tortious injury in this
Commonwealth by an act or omission outside the Commonwealth while regularly doing and
soliciting business, engaging in other persistent courses of conduct, and deriving substantial
revenue from goods used and consumed or services rendered in this Commonwealth.

6.

Venue is proper in this district pursuant to 28 U.S.C. � 1391(c) as a district in

which Firelight is subject to personal jurisdiction.

FACTUAL ALLEGATIONS

7.

Anne Pearse-Hocker is a professional photographer. In 1973, she was working as

a freelance professional photographer for a San Diego, California newspaper called "The Voice
and Viewpoint."

8.

On or about February 27, 1973, a group of Native Americans, including members

of a group called the American Indian Movement ("AIM") took armed control of the town of
Wounded Knee, South Dakota.

9.

Over the following days, an armed standoff in which rifle and automatic weapons

fire was exchanged on a frequent basis developed between the Native Americans occupying the
village of Wounded Knee and agents of the United States Marshal's service, as well as other
federal government law enforcement agencies.

10.

In April 1973, Pearse entered the village and began taking pictures of scenes

inside the surrounded village of Wounded Knee. Pearse's activities at the time were as a free
lance photojournalist.

11.

During the 71-day long siege, one U.S. Marshal was shot and partially paralyzed Pearse was present in the village for

and two Native Americans were shot and killed.

approximately two weeks of the siege, including on the day that Frank Clearwater, one of the Native Americans occupying the village, was killed. Only one other photojournalist remained in the village during the time that Pearse was present; all other members of the press were ordered
to leave the village and/or prohibited from entering the village by the United States Department of Justice approximately one month into the siege. During her time in the village, Pearse took several hundred still pictures.

12.

Several months after the end of the standoff, on or about December 10, 1973,

Pearse registered her copyright in the collection of photographs she had taken during her time in
Wounded Knee.
Exhibit A.)

(A true and correct copy of the Copyright Registration is attached hereto as

13.

In late 1996, Pearse was approached by representatives of the Smithsonian

Institution ("Smithsonian") regarding the possibility of donating her collection of photographs from the Wounded Knee siege to the Smithsonian's Native American collection (which was then housed in the Gustav Heye museum in New York and later incorporated into the National
Museum of the American Indian ("NMAI")). During the course of the negotiations, Pearse made

clear that, in order for her to agree to donate the photographs, copyright would have to remain in
her name, and would not be transferred to the Smithsonian. Pam Dewey, NMAI's head of

photography, explicitly recognized this condition of the gift in an email to Pearse dated April 1,
1997, in which she provided Pearse with draft language regarding the copyright. Later, in a

letter to Pearse dated June 3, 1997, Dewey again stated that she was providing Pearse with a
"run-down of the steps we will take on our end to ensure ... that the images are used for specific Museum-related or research purposes, and not for commercial projects." 14. On or about December 31, 1997, after extensive discussions with representatives

from the Smithsonian, Pearse executed a Deed of Gift donating her collection of photographs from the Wounded Knee siege to the Smithsonian. (A true and correct copy of the Deed of Gift
is attached hereto as Exhibit B.)

15.

With respect to the copyright in the photograph collection, the Deed of Gift

provides as follows: Conditions: I do not, by this gift, transfer copyright in the photographs

to the Smithsonian Institution. I retain full copyright in the photographs. I grant

to the Smithsonian Institution and the National Museum of the American Indian an irrevocable, non-exclusive, royalty-free, license to use, reproduce, display, and publish, in all media, including electronic media and on-line, the photographs for all standard educational, museum, and archival purposes. Requests by people or entities outside the Smithsonian to reproduce or publish the photographs shall be
directed to the donor.

The "conditions" language in the Deed of Gift with respect to the copyright was drafted by the Smithsonian's Office of General Counsel and is identical to the draft language provided in the
April 1,1997 email from Pam Dewey to Pearse.

16.

The Deed of Gift specifically provides, immediately above the signature line for

the Smithsonian's representative, that the "National Museum of the American Indian,
Smithsonian Institution, hereby accepts the above property under the conditions specified."
17. The hundreds of photographs of the Wounded Knee occupation that Pearse

donated to the Smithsonian included images numbered by NMAI's photo archives department as
images N4462, N44926, and N45215 (hereinafter the "Distributed Photographs"). Image

N44926 shows the scene immediately after Frank Clearwater, one of the two Native Americans
who was shot and killed during the stand-off, was struck in the head by a bullet. Image N45215

shows other Native Americans transporting Mr. Clearwater from the church where he was struck to seek medical aid before he died from his injuries. Both images N44926 and N45215 were

captured by Pearse under direct automatic weapons and rifle fire at considerable risk to her own
life and safety. 18. Upon information and belief, since Pearse donated the photographs to NMAI and

the Smithsonian in 1997, NMAI has maintained the entire collection within its photo archives
department.

19.

In or about February 2008, as part of the research Firelight was conducting for a

documentary film regarding the occupation at Wounded Knee, Julianna Brannum, an associate

producer employed by Firelight, sent a request to NMAI's photo archives department to use the Distributed Photographs in the production of the film. (A copy of the original Use Request is
attached hereto as Exhibit C.)

20.

As part of the Use Request, Firelight redacted the proposed credit line to

accompany the photographs in the film from "Courtesy, National Museum of the American
Indian, Smithsonian Institution (negative, slide, or catalog number). Photo by Anne Pearse

Hocker." to "Courtesy, National Museum of the American Indian, Smithsonian Institution (negative, olido, or catalog number). Photo bv Anno Pearoe Hockor."
21. The NMAI agreed to Firelight's proposed redaction of the credit line to

accompany the photographs.

22.

On or about February 28, 2008, NMAI's photo archives department approved (A copy of the approved Use

Firelight's application for use of the Distributed Photographs.
Request is attached hereto as Exhibit D.)
23. Following its receipt of approval from the

Smithsonian, Firelight Media

proceeded to incorporate the Distributed Photographs in its final documentary film, "We Shall Remain: Wounded Knee." At no time did anyone from NMAI, the Smithsonian Institution, or
Firelight Media contact Pearse regarding Firelight's request to use her copyrighted photographs in the film, the Smithsonian's approval of the request, or the inclusion of the photographs in the
documentary film.

24.

Firelight's film eventually became part of a five-part miniseries that, starting on

May 11, 2009, aired on public broadcasting stations around the country as part of the series
"American Experience."

25.

The Distributed Photographs themselves are highlighted in the fifth part of the

miniseries. Specifically, the copyrighted photograph labeled by the Smithsonian as N44622 is
shown from minutes 63:22 to 63:29 of the film, the photograph labeled by the Smithsonian as
N44926 is shown from minutes 64:08 to 64:24, and the photograph labeled by the Smithsonian
as N45215 is shown from minutes 64:57 to 65:04.

26.

Pearse first became aware that her photographs were used in the documentary

when she saw the documentary on television in May 2009. Prior to that time, no one had advised
her that Firelight had requested, much less obtained, permission from the Smithsonian to use her

photographs in the documentary, or that Firelight had utilized the photographs in the film. Further, to add insult to injury, Pearse's name was not included in the credits roll at the end of the
film.

27.
the film

Since the film first began airing on public television stations, a DVD version of
has been made available for purchase and for from viewing PBS online at at

http://www.shoppbs.org/product/index.isp?productld=3511812
http://www.pbs.org/wgbh/amex/weshallremain/.
Film Festival in Utah in January 2009.

The film was also screened at the Sundance

28.

In addition to purchase through PBS's website, the film is also available for

purchase to the general public through the websites of multiple third party commercial vendors,
including, but not limited to, Amazon.com, the website of Barnes & Noble, and the website of Borders. Upon information and belief, as a result of Firelight's multiple infringements of

Pearse's copyrights in the photos, thousands of copies of her photographs have been sold for
commercial gain and profit through sales of the film.

29.

Upon seeing the film, Pearse contacted the Smithsonian and asked for an

explanation for why she had not been contacted regarding the release of the Distributed Photographs.

30.

In a letter dated May 27, 2009, Kevin Gover, the Director of the National

Museum of the American Indian, admitted that NMAI "did not properly adhere to the terms and conditions stated in your gift agreement," and that Pearse's photos were "used and not properly credited in the episode 'We Shall Remain: Wounded Knee."1 In the same letter, Gover also

admitted that "[Pearse's] permission was not obtained for this third party use
photographs]."

[of the

31.

Upon information and belief, PBS has licensed the film to local PBS affiliates

throughout the United States for rebroadcast up to four times during a period of three years. In

each of these rebroadcasts, Pearse's copyrighted photographs continue to be republished without
her consent and in violation of her copyright.

32.

Upon information and belief, in the absence of injunctive relief, Firelight will

continue to publish the Distributed Photographs in violation of Pearse's copyright.
33. Firelight's actions have caused and, in the absence of an injunction, will continue

to cause Pearse to suffer irreparable harm.

34.

Pursuant to 28 U.S.C. � 1498(b), Pearse is unable to join the Smithsonian as a

defendant in this case, as the Court of Federal Claims has exclusive subject matter jurisdiction over the Smithsonian for claims of copyright infringement. Thus, Pearse has separately

commenced a similar action against the Smithsonian in the United States Court of Federal Claims as case number l:10-cv-00269.

COUNTI (Copyright Infringement)

35.
herein. 36.

Pearse incorporates by reference Paragraphs 1-34, above, as if fully set forth

Pearse's copyright in the Wounded Knee photograph collection, including the

Distributed Photographs, is valid and enforceable.

37.

Firelight infringed Pearse's copyright in the Distributed Photographs in violation

of 17 U.S.C. � 501 by using the Distributed Photographs in the film "We Shall Remain: Wounded Knee."

38.

Firelight infringed Pearse's copyright in the Distributed Photographs in violation

of 17 U.S.C. � 501 by displaying the Distributed Photographs in the film "We Shall Remain:
Wounded Knee."

39.

Firelight infringed Pearse's copyright in the Distributed Photographs in violation

of 17 U.S.C. � 501 by reproducing the Distributed Photographs in the film "We Shall Remain:
Wounded Knee."

40.

Firelight infringed Pearse's copyright by creating a derivative work based on the

Distributed Photographs in violation of 17 U.S.C. � 501 by using the photographs in the film
"We Shall Remain: Wounded Knee."

41.

Firelight infringed Pearse's copyright in all of the above methods by providing the

photographs to PBS and other downstream users as part of the film.

42.

Firelight willfully infringed Pearse's copyright in the Distributed Photographs, as

illustrated, in part, by its intentional deletion of the credit in its Use Request submitted to the
Smithsonian.

43.

Pearse is entitled to recover all damages sustained as a result of Firelight's

infringing conduct, including, but not limited to: (i) Pearse's actual damages, or, alternatively, (ii)
statutory damages, in an amount to be more fully determined at trial.

44.

Pearse is entitled to an award of her costs and reasonable attorneys' fees pursuant

to 17 U.S.C. � 505. COUNT II (Contributory Copyright Infringement)

45.
herein.

Pearse incorporates by reference Paragraphs 1-44, above, as if fully set forth

46.

Pearse's copyright in the Wounded Knee photograph collection, including the

Distributed Photographs, is valid and enforceable.

47.

The Smithsonian has infringed Pearse's copyrights in the Distributed Photographs

in violation of 17 U.S.C. � 501 by reproducing, distributing, displaying, and publishing the
Distributed Photographs to Firelight.

48.

Firelight assisted the Smithsonian knowing that the Smithsonian would infringe

Pearse's copyright in the Distributed Photographs.

49.

The

Smithsonian willfully infringed Pearse's copyright in the Distributed

Photographs, as it ignored the express conditions in her Deed of Gift and failed to even attempt to contact Pearse regarding Firelight's request to use the photographs in its film.
50. Pearse is entitled to recover all damages sustained as a result of Firelight's

infringing conduct, including, but not limited to: (i) profits from the sale of the film "We Shall
Remain: Wounded Knee" and Pearse's damages; or (ii) statutory damages, in an amount to be
more fully determined at trial.

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51.

Pearse is entitled to an award of her costs and reasonable attorneys' fees pursuant

to 17 U.S.C. � 505.

WHEREFORE, Plaintiff, Anne Pearse-Hocker, demands that a judgment be entered in
her favor and against Firelight Media, Inc.:

A.

Permanently enjoining Firelight Media, Inc. from continuing in effect its

unauthorized license of the Distributed Photographs to PBS and any other downstream, thirdparty users pursuant to 17 U.S.C. � 502;

B.

Compelling Firelight Media to permanently delete all electronic copies and to

return all hard copies of Pearse's photographs in Firelight's possession, custody, or control;
C. Awarding compensatory damages or, alternatively, awarding statutory damages

between $750 and $150,000 for infringement of each of Pearse's copyrights; D.
E. F.

Awarding costs and attorneys' fees pursuant to 17 U.S.C. � 505;
Awarding post-judgment interest; and Granting such other and further relief as is necessary and appropriate.
JURY DEMAND

Plaintiff demands a trial by jury for all claims so triable.
THOMPSON HINE LLP

Dated: May 5,2010

By:.
Eric N. Heyer Virginia Bar No. 73037 1920 N Street, N.W., Suite 800 Washington, D.C. 20036 Phone:[phone] Fax:[phone] eric.hever(S),thompsonhine.com Counsel for PlaintiffAnne Pearse-Hocker

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