Modern Dog Design Company v. Target Corporation et al

Filing 3

AMENDED COMPLAINT and Exhibits against defendant(s) with JURY DEMAND,(Receipt # 0981-2606463) filed by MODERN DOG DESIGN COMPANY. (Attachments: # 1 Exhibit, # 2 Exhibit)(Murphy, Joseph) Modified on 10/31/2011: Per phone call from counsel, this Amended Complaint shall stand as the original Complaint for this case. (PM).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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MODERN DOG DESIGN
COMPANY,

JURY TRIAL DEMANDED

Plaintiff(s)
v.

CASE NO. 2:11-cv-01816

TARGET CORPORATION, a
Minnesota Corporation, TARGET
BRANDS, INC, a Minnesota
Corporation, DISNEY
ENTERPRISES, INC., a Delaware
Corporation; WALT DISNEY
COMPANY, DISNEY CONSUMER
PRODUCTS, INC., A California
Corporation, JOHN DOES 1-5
(DESIGNER-COPIER(S), JOHN
DOES 6-10 (MANUFACTURER(S),
JOHN DOES (DISTRIBUTOR(S),
JOHN DOES 11-15
AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 1
CASE NO. 2:11-cv-01816

AMENDED COMPLAINT FOR:
VIOLATION OF FEDERAL
COPYRIGHT LAWS, INCL:
COPYRIGHT INFRINGEMENT,
CONTRIBUTORY COPYRIGHT
INFRINGEMENT, INDUCEMENT
TO COPYRIGHT INFRINGEMENT,
ETC.
JURY TRIAL DEMANDED

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

(MISCELLANEOUS
MALEFACTORS, PRESENTLY
2 UNKNOWN, ALSO LIABLE)
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Defendant(s).

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COMES NOW, PLAINTIFF MODERN DOG DESIGN COMPANY (“Plaintiff”
6 or “MODERN DOG”), by and through its undersigned attorney, and
complains of and alleges the following and hereby prays for relief to this
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honorable Court for relief based on the following allegations:
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INTRODUCTION AND OVERVIEW

This action relates to Defendant’s actions in infringing the Federally
Registered Copyright on Defendant’s copyrighted work (a book) in
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producing and selling a Tee-Shirt (the “Accused Shirt”) having thereon
12 dozens of drawings copied (or derived) from drawings in that book.
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JURISDICTION AND VENUE
1. This is an action for copyright infringement arising under the copyright
laws of the United States, namely, under Public Act of October 19,
1976, as amended and codified in 17 U.S.C. § 101 et seq., and 17
U.S.C. § 1202 et seq. Plaintiff seeks injunctive relief, actual damages
including Defendant’s profits and monetary damages (may elect
statutory damages), interest, costs and attorney’s fees under the
copyright laws of the United States.
2. This Court has subject matter jurisdiction over this action. It has
original and exclusive jurisdiction of Plaintiff’s Copyright Infringement
claims herein pursuant to 17 U.S.C. § 501 et seq. and 28 U.S.C. §§
1338, 1391(a), (b) and (c); of the subject matter and the parties under
the copyright laws of the United States, 17 U.S.C. § 101 et seq., as
well as jurisdictional provisions of 28 U.S.C. § 1338. It has
AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 2
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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supplemental jurisdiction over Plaintiff’s State and common law
claims (as may be propounded herein or in an amended complaint
filed after further investigation and / or Discovery) under 28 U.S.C. §
1367(a) and the principles of supplemental jurisdiction.
3. Venue is proper in this District pursuant to 28 U.S.C. § 1391(a), (b)
and (c); the products accused of copyright infringement, etc.
(hereinafter sometimes referred to as the “accused products”)(See
copy of actual accused shirt, Exhibit 1)1 were offered for sale by
Defendants, and actually purchased, in this District, i.e., the United
States Federal District Court for the Western District of Washington;
moreover, the Defendants have transacted business in, and had
continuous and systematic contact with, this District.

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PARTIES

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PLAINTIFFS

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4. Plaintiff MODERN DOG DESIGN CO. (“MODERN DOG”) is a
corporation organized and existing under the laws of Washington,
having its principal place of business at 7903 Greenwood Ave. N.
Seattle, WA 98103.
5. MODERN DOG has received recognition from every major design
organization in the U.S including Type Director’s Club of New York,
One Club, Communication Arts, HOW Magazine, Graphic Design
USA and American Institute of Graphic Arts (AIGA). In 2008 and
2010, MODERN DOG was nominated for a National Design Award
through the Smithsonian's Cooper Hewitt in New York.
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 This
 Exhibit
 was
 submitted
 via
 traditional
 methods,
 by
 hand
 to
 the
 Clerk’s
 Office,
 in

accordance
 with
 Rules
 regarding
 Exhibits
 that
 could
 not
 be
 scanned;
 copies
 will
 be

provided
 to
 Defendants
 very
 shortly
 after
 filing;
 meanwhile,
 the
 Defendants
 can
 see
 the

23 same
 visual
 information
 in
 the
 side-­‐by-­‐side
 comparison
 charts
 provided
 elsewhere
 in
 this

Complaint
 and
 the
 photograph
 of
 the
 Exhibit,
 which
 has
 been
 filed
 electronically
 in
 the

24 online
 submission.

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AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 3
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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6. MODERN DOG has its work represented in the permanent archives
of the Louvre (Paris - Rohan Marsan wing), the Library of Congress
(Washington DC), Hong Kong Heritage Museum (Hong Kong),
Bibliotheque Nationale de France (Paris), Denver Art Museum
(Denver), Museum Fur Kunst und Gewerbe (Hamburg), the Warsaw
National Museum (Warsaw), among others.
7. MODERN DOG has a well-earned reputation for quality
craftsmanship, and enjoys great respect in the commercial and
artistic worlds, and those who populate them.
8. MODERN DOG principals, Ms. Raye and Mr. Strassburger, are
adjunct instructors at Cornish College of the Arts in Seattle where
they have taught for more than a decade. They also lecture and teach
workshops both nationally and internationally.
DEFENDANTS
9. Upon information and belief, Defendant Target Corporation
(NYSE:TGT) (hereinafter referred to as TGT) is a Minnesota
Corporation, with principal place of business and executive offices at
1000 Nicollett Mall, Minnesota, MN 44403. Target Corporation is the
second largest retailer in the United States; it owns and operates over
1,400 Target retail stores throughout the United States, including in
Washington State, and owns and operates Target’s web store located
at the URL of <www.target.com>, which distributes, offers and sells
products (including the accused product) throughout the United
States, including Washington State and this District.
10.
Upon information and belief, Defendant Target Brands, Inc.
(hereinafter referred to as TBI) is a Minnesota Corporation, with
principal place of business and executive offices at 1000 Nicollett
Mall, Minnesota, MN 44403. Defendant Target Brands, Inc. is a
subsidiary of Target Corporation and manufactures, imports, markets
and distributes products (including the accused product) to Target
AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 4
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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stores throughout the United States, including in Washington State,
and this District, and on the Internet at Target’s web store located at
the URL of <www.target.com>.
11.
Upon information and belief, The Walt Disney Company
(“DISNEY”) is a corporation with a place of business at 500 S Buena
Vista St, Burbank, CA, 91521; DISNEY is doing business, inter alia,
in the State of Washington, specifically in this District, by acts
including making (or having made or authorizing to be made), offering
and selling, and or/offering and allowing to be sold, its product(s)
(including the accused product) via Internet sites including
www.target.com, which Internet site is accessible in the State of
Washington, specifically in this District.; moreover the accused
product is identified on its clothing tag with at least one, and possibly
two, Registered Trademarks owned by Disney or its affiliates, e.g.
Disney Enterprises, Inc.
12.
Upon information and belief, Defendant Disney Enterprises, Inc.
(“DISNEY-DEI”) is a corporation fka The Walt Disney Company fka
Walt Disney Productions with a place of business at 500 S Buena
Vista St, Burbank, CA, 91521; DISNEY-DEI is doing business, inter
alia, in the State of Washington, specifically in this District, by acts
including making (or having made or authorizing to be made), offering
and selling, and or/offering and allowing to be sold, its product(s)
(including the accused product) via Internet sites including
www.target.com, which Internet site is accessible in the State of
Washington, specifically in this District; moreover the accused
product is identified on its clothing tag with at least one, and possibly
two, Registered Trademarks owned by DISNEY-DEI or its affiliates.
13.
Upon information and belief, Defendant DISNEY CONSUMER
PRODUCTS (DCP) is the business segment of The Walt Disney
Company and its affiliates that extends the Disney brand to
merchandise ranging from apparel, toys and home décor to books
and magazines, foods and beverages, stationery, electronics and
animation artistry. DCP’s ultimate parent is The Walt Disney
AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 5
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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Company (“DISNEY”); DCP is doing business, inter alia, in the State
of Washington, specifically in this District, by acts including making
(or having made or authorizing to be made), offering and selling, and
or/offering and allowing to be sold, its product(s) (including the
accused product) via Internet sites including www.target.com, which
Internet site is accessible in the State of Washington, specifically in
this District.
14.
Plaintiff does not yet know the true names, identities, or
capacities of JOHN DOES 1-5 (DESIGNER-COPIER(S), JOHN
DOES 6-10 (MANUFACTURER(S), JOHN DOES (DISTRIBUTOR(S),
JOHN DOES 11-15 (MISCELLANEOUS MALEFACTORS,
PRESENTLY UNKNOWN, ALSO LIABLE), and therefore sues these
Defendants under fictitious names. Plaintiff will amend the complaint
to add these names when such names are ascertained.

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CAUSE OF ACTION: FEDERAL COPYRIGHT INFRINGEMENT
COUNT I

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15.

Plaintiff incorporates by reference all preceding paragraphs.

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16.
Upon information and belief, including a news item (Exhibit 2),
Defendants reproduced, adapted, distributed and exhibited and sold
dog drawings found in Plaintiff’s book, for which Plaintiff owns a
Registered Copyright; Defendants have also facilitated and
contributed to infringement by others. Defendants did so in many
ways arising out of designing, making, advertising, and offering for
sale the accused infringing shirt; that news item announced their “DSigned” clothing line endeavor by stating: “Retailer Target has joined
forces with Disney Consumer Products (DCP) to unveil a new line of
apparel and accessories called D-Signed.”, DISNEY, DISNEY-DEI,
DCP, TGT, TBI, and possibly others, including as-yet-unidentified
Defendants, acted to infringe (directly, contributorily, and/or

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AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 6
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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vicariously) the Registered Copyright of, and/or to induce
infringement of that Copyright, and otherwise harm, Plaintiff.

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17.
The Plaintiff’s book entitled “MODERN DOG: 20 Years of
Poster Art” is the copyrighted work (sometimes hereinafter simply
referred to as the “book”) at the heart of this action; it was published
in 2008, in the USA. A copy of this book is attached as Exhibit 3
hereto, note especially the drawings on the inside of the front cover
and on the inside of the back cover.2
18.
A Copyright Registration (TX-7-163-462)(copy attached as
Exhibit 4) was issued on February 22, 2010 for the book entitled
“MODERN DOG: 20 Years of Poster Art” (hereinafter often simply
referred to as the “MODERN DOG book” or simply “the book”); the
Copyright Registration is owned by MODERN DOG. Since the date of
the book’s publication, the Plaintiff has either published or licensed
for publication all copies of the book and/or artwork contained therein.
19.
In compliance with the copyright laws, Plaintiff, since
publication, has remained the sole owner of the copyright rights upon
which the present action for copyright infringement is based.

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20.
The inside front cover of the book has drawings of sixty-nine
(69) dogs under the heading “Dogs We Know”, and the inside back
cover depicts sixty-seven (67) dogs under the heading “Dogs We
Don’t Know”. Thus, together the inside front and back covers of the
book depict one-hundred and thirty-six (136) individual drawings of
dogs. Attached as Exhibit are true and correct copies of: (a) the
inside front cover drawings from the copyrighted book {Ex. 5a}; (b)
the inside front cover drawings from the copyrighted book, with the

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2
 Again,
 this
 Exhibit
 was
 submitted
 via
 traditional
 methods,
 by
 hand
 to
 the
 Clerk’s
 Office,
 in

16
17
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accordance
 with
 Rules
 regarding
 Exhibits
 that
 could
 not
 be
 scanned;
 copies
 will
 be

provided
 to
 Defendants
 very
 shortly
 after
 filing;
 meanwhile,
 the
 Defendants
 can
 see
 the

23 same
 visual
 information
 in
 the
 side-­‐by-­‐side
 comparison
 charts
 provided
 elsewhere
 in
 this

Complaint
 and
 the
 photograph
 of
 the
 Exhibit,
 which
 has
 been
 filed
 electronically
 in
 the

24 online
 submission.

22

25

AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 7
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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alleged infringed drawings circled and denoted by number {Ex. 5b};
(c) the inside back cover drawings from the copyrighted book {Ex. 5c}
and (d) the inside back cover drawings from the copyrighted book,
with the alleged infringed drawings circled and denoted by number
{Ex. 5d}. Note each drawing for which copyright infringement is
alleged is circled and numbered with a numeral identifying BOTH the
drawing, AND the dog depicted thereby. (e.g. DOG 1, DOG 2, etc.);
See Exhibits 5 (a-d). Because the same dogs are depicted on the
accused shirt, it will be seen that the same numbering is used on the
picture of the accused shirt (Exhibit 8).
ACCESS

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21.
On Information and Belief, Defendants had access to both the
inside cover artwork in the book, and to the book itself. Firstly,
access to the book cover artwork is available to Defendants, as to
anyone and everyone in the world with Internet access; anyone may
go to the website www.amazon.com, choose the category of “books”,
enter the obvious search words “dog art books” (see Exhibit 6 at
Exhibit 6a; words circled at top), and be presented with a results list
of books, many with dog drawings; the MODERN DOG book is
number 14 on this list (see again Exhibit 6a, MODERN DOG book
circled at bottom). One seeking artwork to take will come to the
MODERN DOG book, and click on it (see Exhibit 6b, showing “Look
Inside!” link circled), and then may use the “Look Inside” feature to
begin to see first the MODERN DOG book front cover and some of
the inside front cover drawings (“Dogs We Know) (as seen in Exhibit
6c); by continuing to scroll they will see the entirety of the inside front
cover “Dogs We Know” drawings (shown in Exhibit 6d, which is the
inside front cover previously seen in Exhibits 3, 5a and 5b); by
continuing to scroll further they will see the entirety of the inside back
cover “Dogs We Don’t Know” drawings (as seen in Exhibits 3, 5c and
5d); also seen is a portion of the book’s outside back cover. Thus,
anyone with Internet access (e.g. Defendants) and a desire to take
some “dog art”, could easily have used Amazon.com, entered “dog
art books”, and, as explained above and shown in the referenced
AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 8
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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Exhibits, to access the copyrighted work and the drawings therein. In
light of the foregoing, and on information and belief, Plaintiffs allege
that the Defendants therefore had access to the Copyrighted
drawings it alleges were used in the accused shirts.
22.
Secondly (alternatively and/or additionally). Defendants had
access to the book and its inside front and back cover artwork
because of the book’s widespread distribution and availability,
because, since its publication in 2008, the book has reached and
continues to reach its intended audience of the Public, Clients,
Potential Clients, Design Professionals, and others working in
commercial and non-commercial art. The book is part of the
collection of many libraries and Design Studios. DISNEY, DEI, DCP,
TARGET, TBI, and/or the John Doe(s) they are connected with, have
Design Departments which are likely have the book, and which
certainly has staff who are familiar with, and have access to the book
(at work, at home and/or at libraries), which has sold more than
seven thousand (7,000) copies to date – a significant number for a
book of its type.
23.
Thus, Plaintiff alleges that Defendants’ access to the
copyrighted work has been established, and respectfully requests
that this Court make a finding that Defendants had access to the
Plaintiff’s Copyrighted Book, including the drawings on its inside front
cover and inside back cover.
COPYING; STRIKING SIMILARITY; SUBSTANTIAL SIMILARITY
24.
Moreover, Plaintiffs allege that Defendants engaged in actual
copying of Plaintiff’s work, or, alternatively that Defendants created
derivative work(s) from Plaintiff’s work, thus infringing Plaintiff’s rights,
including but not limited to Plaintiff’s Registered Copyright. Plaintiffs
allege that actual copying (or, in the alternative, striking similarity, or,
in the alternative, substantial similarity) between the Plaintiff’s (earlier
published) work having a Registered Copyright and the later
published work(s) of Defendants, is discernible from the comparison
AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 9
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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of the copyrighted work and the accused work, as well as from the
Exhibits hereto.

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25.
The Defendant’s accused product, is a Tee-Shirt, identified as
“DSigned Sharpay Girls’ Short-Sleeve Dogs Graphic Tee – White” as
it is depicted and advertised on target.com website. (See copy of
target.com website page advertising the accused shirt at Exhibit 7)
Note that the copyright information is a cotton Tee-shirt upon which is
sewn a heart-shaped applique of a mesh fabric; silkscreen printed
upon the mesh fabric are twenty-seven (27) drawings of dogs (see
Exhibit 8 is a copy of the actual accused shirt)3 each and every one
of which is copied from one corresponding dog depicted in the
original dog drawings contained in Plaintiff’s Original Copyrighted
Work. In simple terms, every drawing on Defendant’s Tee-shirt was
copied from a drawing on Plaintiff’s Original Copyrighted Work, or if
not exactly copied, was copied with slight, non-material alterations
and/or additions (with most if not all of these due to limitations
inherent in the silk-screening/screenprinting process, which results in,
e.g. some loss of detail); furthermore, it was derived, in the sense of
an unauthorized derivative work, from a drawing on Plaintiff’s Original
Copyrighted Work. Moreover, the overall appearance was copied.
The attached Exhibit 9 is a true and correct copy of a close-up picture
of the accused shirt, showing all the individual drawings thereon (and,
with each drawing for which copyright infringement is alleged being
circled and numbered with a numeral identifying the drawing, and the
dog depicted thereby. (e.g. DOG 1, DOG 2, etc.)(attached).
26.
On information and belief, sometime prior to September, 2011,
Target.com began offering for sale a line of clothes arranged around
the popular Disney character named “Sharpay”, played by actress
3
 Yet
 again,
 this
 Exhibit
 was
 submitted
 via
 traditional
 methods,
 by
 hand
 to
 the
 Clerk’s

Office,
 in
 accordance
 with
 Rules
 regarding
 Exhibits
 that
 could
 not
 be
 scanned;
 copies
 will

be
 provided
 to
 Defendants
 very
 shortly
 after
 filing;
 meanwhile,
 the
 Defendants
 can
 see
 the

23 same
 visual
 information
 in
 the
 side-­‐by-­‐side
 comparison
 charts
 provided
 elsewhere
 in
 this

Complaint
 and
 the
 photograph
 of
 the
 Exhibit,
 which
 has
 been
 filed
 electronically
 in
 the

24 online
 submission.

22

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AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 10
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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Ashley Tisdale; as part of a promotion of the Disney movie
“Sharpay’s Fabulous Adventure” Notably, the offering included the
accused product, i.e. a “D-Signed" Sharpay Girls Short-Sleeve Dogs
Graphic Tee” (Shown at Exhibit 7).
Comparison of Copyrighted Work with Accused Shirt

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27.
The copying and/or preparation of a derivative work, substantial
similarity and/or striking similarity between the dogs depicted in the
copyrighted work and the dogs depicted in the accused shirt is further
illustrated in an attached chart with transparency overlays in Exhibit
10 which (adjusted for scale) shows on the underlying paper each
dog from the accused shirt, and which further shows (on transparent
plastic overlay, to be lifted up by the reader) the corresponding
original copyrighted dog drawing from which Plaintiff alleges the
underlying accused shirt drawing came from.4..
28.

Copyright Infringement analysis:

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a. Regarding the copyright infringement by Defendants by images
on the accused shirts: Reference is now made to Exhibit 11
showing the correspondence, each in a row, between the (Left
Column) drawings depicted on the accused work, i.e. the DSigned Sharpay girls Short-Sleeve Dogs Graphic Tee Shirt and
the (Right Column) Copyrighted drawings from the MODERN
DOG inside book covers. Plaintiff alleges copying and/or
preparation of a derivative work and/or striking similarity and/or
substantial similarity is shown.

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4
 This
 Exhibit
 was
 submitted
 via
 traditional
 methods,
 by
 hand
 to
 the
 Clerk’s
 Office,
 in

accordance
 with
 Rules
 regarding
 Exhibits
 that
 could
 not
 be
 scanned;
 copies
 will
 be

provided
 to
 Defendants
 very
 shortly
 after
 filing;
 meanwhile,
 the
 Defendants
 can
 see
 the

23 same
 visual
 information
 in
 the
 side-­‐by-­‐side
 comparison
 charts
 provided
 elsewhere
 in
 this

Complaint
 and
 the
 photograph
 of
 the
 Exhibit,
 which
 has
 been
 filed
 electronically
 in
 the

24 online
 submission.

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AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 11
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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b. Regarding the Defendant’s infringement by images on the
Internet (e.g. on target.com), please refer to Exhibit 12, a chart
showing a side-by side comparison of internet pictures of the
accused shirt image adjacent to the corresponding original
copyrighted artwork shown in the book. Plaintiff alleges
copying and/or preparation of a derivative work and/or an
striking similarity and/or substantial similarity is shown.

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c. Regarding the copyright infringement by Defendants by
screenprinting on the accused shirts: Such a process
necessarily entails making a screen with which to print the
shirts; this requires making a copy of the copyrighted work onto
the screen, and is itself an act of copyright infringement.
d. Regarding the fact of each image having been “flipped
horizontally”, i.e., shown as a mirror image on the shirt versus
the book: This “flipping” is a common technique of copyright
infringers, a fact of which the Court may take Judicial Notice.
For the sake of completeness, Exhibit 13 shows the
Copyrighted Image as it appears in the book adjacent to a
“flipped” (mirror image) of it, as Plaintiff alleges was used to
produce accused image.
29.
The Plaintiff will have notified the Defendants in writing of the
infringement by providing them with courtesy copies of this
Complaint, including the actual comparison charts and actual objects,
soon after its filing, and by effectuating service as provided by the
Rules.
30.
On Information and Belief, Plaintiffs allege Defendants
accessed copyrighted artwork and committed copyright infringement
by unauthorized copying of it (with copies of the artwork both on the
accused articles themselves and on the target.com website depicting
AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 12
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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the accused article) and/or by preparing derivative work(s) based on
it. Furthermore, given the size and sophistication of the Defendants,
their ability to control the production of the accused works and ability
to realize financial benefits therefrom, Defendants infringing conduct
should be found to be Willful, or, in the alternative, Non-Innocent.
This is additionally so given the presence of the copyright notice in
the actual book and in the amazon.com image of the book, and the
words “COPYRIGHTED MATERIAL” watermarked on each
amazon.com webpage showing the inside cover artwork. Defendants
knew or should have known that the artwork was copyrighted, and,
partly because of this, their actions, Plaintiff respectfully suggests,
should be deemed willful, and a finding of willful infringement made.
Defendants, who benefitted financially from the copyright
infringement, and who exercised or could have exercised control over
the production of the infringing shirts, are directly and/or vicariously
liable for the copyright infringement; moreover, Defendants knew or
should have known of the origin and/or copyrighted nature of the
artwork on the accused shirts, e.g. artwork that was copied directly or
indirectly from copyrighted work and/or was an unauthorized
derivative work derived from copyrighted work.
As elaborated on in the Exhibits and elsewhere herein, Plaintiff
alleges that (i) Defendants access to the Plaintiff’s copyrighted work
has been shown; (ii) striking and/or substantial similarity between the
dog drawings on the Accused Tee Shirt and the MODERN DOG
drawings merits a finding of willful copyright infringement, or, in the
alternative, non-innocent copyright infringement. Moreover, Plaintiff
alleges that it suffered damages as a result of such infringement. In
view of the multi-billion-dollar size of the Defendants, their paramount
expertise in licensing and copyrights, their past litigation histories,
and to deter copyright infringement, Plaintiff requests actual damages
and profits, and reserves the right to elect the statutory maximum
damages as follows: Under 17 U.S.C. § 504(c), $150,000 for willful
infringement or, in the alternative, $30,000 for non-willful
infringement, for EACH of the at least three separate infringements
(e.g. by shirt, website, silkscreen) alleged above and elsewhere
AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 13
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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herein See 17 U.S.C. § 504(c). Plaintiff also seeks attorneys' fees
and costs, and permanent injunctive relief against the infringement.

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COUNT II

CAUSE OF ACTION: VIOLATION OF 17 U.S.C. § 1201

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31.
Upon information and belief, Defendants gained access to the
Plaintiff’s Registered Copyrighted Book, including the artwork
contained therein, which contained copyright information, including an
express copyright notice. The express copyright notice is considered
“copyright management information” under US Copyright Law (see17
U.S.C. § 1201 et seq.), and Defendant’s intentional removal of it
constitutes a violation of 17 U.S.C. § 1201 et seq. With respect to the
Defendants’ aforesaid further violation of Copyright Law, Plaintiffs
seek the maximum statutory damages of $25,000.00, and attorneys'
fees and costs, for each violation of 17 U.S.C. § 1202, et seq.
See 17 U.S.C. § 1203(c)(3)(b).

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32.
Moreover, Defendants, without authorization, copied and/or
prepared derivative works from Plaintiffs Registered Copyrighted
Work. These copies and/or derivative works were distributed and
exhibited on the internet at www.target.com. See Exhibit 12, showing
images taken from internet under www.target.com. As elaborated
upon above, Plaintiff’s hold Defendants liable for these and all
Internet website image infringement and violations as well as for the
infringement and violations with respect to the accused shirt.

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33.

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Therefore, the Plaintiff respectfully demands that:

(a) Until this case is decided the Defendant and the Defendant's
agents are enjoined from disposing of any copies of the accused shirt
by sale or otherwise;
(b) The Defendant account for and pay as damages to the
plaintiff all profits and advantages gained from unfair trade practices
AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 14
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]

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and unfair competition in selling the Defendant's book, and all profits
and advantages gained, directly or indirectly, from infringing the
plaintiff's copyright, and from doing so as part of a larger marketing
campaign of which the infringement was a part; Plaintiff expressly
reserves the right to elect statutory damages, and, if possible and
appropriate, as in some prior cases, to receive both actual and
statutory damages.
(c) The Defendant deliver for impoundment all copies of the
shirt in the Defendant's possession or control and deliver for
destruction all infringing copies and all plates, molds, screens, and
other materials for making infringing copies;
(d) The Defendant pay the plaintiff interest, costs, and
reasonable attorney's fees, pursuant to 17 USC § 505, et seq.,and 17
USC § 1203(b) et seq.; and
That the Court award such additional relief as it believes just.

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DATED this 31st day of October, 2011.
LAW OFFICES OF JOSEPH F. MURPHY, PLLC
By: /s Joseph F. Murphy, Jr.
Joseph F. Murphy, Jr.
WSBA # 37554
Attorney for Plaintiff, MODERN DOG DESIGN CO.

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AMENDED COMPLAINT FOR COPYRIGHT
INFRINGEMENT, ETC. PAGE - 15
CASE NO. 2:11-cv-01816

LAW OFFICES OF
JOSEPH F. MURPHY, PLLC
700 EAST DENNY WAY, SUITE 205
SEATTLE WA 98122
206-734-7471
[e-mail]