`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`Case No. 1:22-cv-1604
`COMPLAINT
`
`DEMAND FOR JURY TRIAL
`
`
`
`
`STEPHEN YANG,
`
` Plaintiff,
`
`v.
`
`JOSHUA D. ZUCKERMAN, MD,
`FACS, P.C. d/b/a ZUCKERMAN
`PLASTIC SURGERY
`
` Defendants.
`
`
`
`
`Plaintiff, Stephen Yang alleges as follows:
`
`
`JURISDICTION AND VENUE
`
`1. This is a civil action seeking damages and injunction relief for
`
`copyright
`
`infringement and
`
`the unauthorized removal of copyright
`
`management information under the Copyright Act of the United States, 17
`
`U.S.C. § 101 et seq and 17 U.S.C. § 1202.
`
`2. This Court has personal jurisdiction over Defendant because
`
`Defendant conducts business and/or resides within the State of New York,
`
`Defendant’s acts of infringement complained of herein occurred in the State
`
`of New York, and Defendant caused injury to Plaintiff within the State of
`
`New York.
`
`3. Venue in this judicial district is proper under 28 U.S.C. § 1391(c)-(d)
`
`and/or § 1400(a) because this is the judicial district in which a substantial
`
`
`
`1
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 2 of 11 PageID #: 2
`
`part of the acts and omissions giving rise to the claims occurred; this is the
`
`district in which Defendant or its agent resides or may be found; Defendant
`
`conducts regular and substantial business in this district, and has regularly
`
`provided services to residents throughout New York including this district;
`
`and Defendant is a corporate defendant whose contacts with this district are
`
`sufficient to subject it to the personal jurisdiction of this Court.
`
`PARTIES
`
`4. Plaintiff Stephen Yang (“Yang”) is an individual residing in the State
`
`of New York and this judicial district.
`
`5. Defendant Joshua D. Zuckerman, MD, FACS, P.C (“Zuckerman”) is
`
`a Domestic Professional Service Corporation, doing business as Zuckerman
`
`Plastic Surgery, organized under the laws of New York. Zuckerman has
`
`one or more offices in New York.
`
`FACTUAL ALLEGATIONS
`
`6. Plaintiff Stephen Yang is a professional photographer who has
`
`licensed or sold his photographs to dozens of major media outlets such as
`
`The New York Post, The New York Times, Slate, The Wall Street Journal,
`
`Google, Bloomberg News, Getty, and Reuters
`
`7. Yang’s livelihood depends on receiving compensation for the
`
`photographs he produces, and the copyright protection afforded to Yang’s
`
`
`
`2
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 3 of 11 PageID #: 3
`
`work deters would be-infringers from copyright and profiting from his work
`
`without permission.
`
`8. Yang is the sole author and exclusive rights holder to an original
`
`photograph of mother and daughter pair, Eva Slikas and Helen Economou
`
`(the “Mother-Daughter Photograph”).
`
`9. A true and correct copy of Yang’s Mother-Daughter Photograph is
`
`attached hereto as Exhibit A.
`
`10. Yang registered the Mother-Daughter Photograph with the United
`
`States Copyright Office under registration number VA 2-055-141 (dated
`
`June 22, 2017).
`
`11. The Mother-Daughter Photograph was first published on the New
`
`York Post (“Post Article”) website on May 6, 2017 in an article titled
`
`“Forget mani-pedis – now moms and daughters bond over Botox”.
`
`12. Yang’s Photograph as featured in the Post Article included a credit
`
`below the bottom left corner crediting the Mother-Daughter Photograph to
`
`Yang. A true and correct copy of the Post Article and close-up of the
`
`Mother-Daughter with the photo credit are attached hereto as Exhibit B.
`
`13. Defendant Zuckerman is the owner and operator of the website
`
`www.zuckermanplasticsurgery.com (“Zuckerman’s Website”).
`
`14. According to Zuckerman’s Website, Zuckerman “is ranked #3 of 531
`
`
`
`3
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 4 of 11 PageID #: 4
`
`in the New York area of cosmetic / plastic surgeons” and “has garnered
`
`numerous professional accolades including being named a SuperDoctors
`
`Rising Star or SuperDoctor with features in the The New York Times
`
`Magazine four years running (2014-2017).”.
`
`15. Zuckerman generates content on Zuckerman’s Website to attract user
`
`traffic, promote Zuckerman’s services, and generate business and revenue
`
`for the company.
`
`16. At all relevant times, Zuckerman’s Website was readily accessible to
`
`the general public throughout New York, the United States, and the world.
`
`17. On or about December 9, 2020, Yang discovered that Zuckerman had
`
`used
`
`the Mother-Daughter Photograph at numerous
`
`locations on
`
`Zuckerman’s Website with the photo credit removed and the New York
`
`Post banner emblazoned over the Mother-Daughter Photograph (“Infringing
`
`Posts”). A true and correct copy of the Infringing Posts featuring Yang’s
`
`Photograph is attached hereto as Exhibit C.
`
`18. Yang has never at any point given Zuckerman a license or other
`
`permission to display, distribute or otherwise use the Mother-Daughter
`
`Photograph on Zuckerman’s Website or any other website or platform.
`
`19. Zuckerman (including his employees, agents, contractors, or others
`
`over whom it has responsibility and control) copied and uploaded the
`
`
`
`4
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 5 of 11 PageID #: 5
`
`Mother-Daughter Photograph to the Zuckerman Website without Yang’s
`
`consent or authorization.
`
`20. Zuckerman (including his employees, agents, contractors, or others
`
`over whom it has responsibility and control) knowingly omitted Yang’s
`
`photo credit when he uploaded the Mother-Daughter Photograph onto
`
`Zuckerman’s Website because Zuckerman knew he did not have permission
`
`to use the Mother-Daughter Photograph.
`
`21. On or about December 29, 2020, Yang, through counsel mailed a
`
`letter
`
`to Zuckerman’s principal place of business demanding
`
`that
`
`Zuckerman immediately cease and desist use of the Mother-Daughter
`
`Photograph and make reasonable compensation to Yang for Zuckerman’s
`
`past and ongoing violations of his copyright.
`
`22. Yang, through his counsel, subsequently made no less than 7
`
`additional attempts to contact and resolve the dispute with Zuckerman by
`
`email, phone, and traditional mail but Zuckerman never responded.
`
`FIRST CAUSE OF ACTION
`COPYRIGHT INFRINGEMENT
`17 U.S.C. § 101 et seq.
`
`23. Plaintiff incorporates by reference all of the above paragraphs of this
`
`Complaint as though fully stated herein.
`
`24. Plaintiff did not consent to, authorize, permit, or allow in any manner
`
`
`
`5
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 6 of 11 PageID #: 6
`
`the said use of Plaintiff’s unique and original Mother-Daughter Photograph.
`
`25. Plaintiff is informed and believes and thereon alleges that the
`
`Defendant willfully
`
`infringed upon Plaintiff’s copyrighted Mother-
`
`Daughter Photograph in violation of Title 17 of the U.S. Code, in that it
`
`used, published, communicated, posted, publicized, and otherwise held out
`
`to the public for commercial benefit, the original and unique Mother-
`
`Daughter Photograph of the Plaintiff without Plaintiff’s consent or
`
`authority, by using them in the Infringing Post on Zuckerman’s Website.
`
`26. As a result of Defendant’s violations of Title 17 of the U.S. Code,
`
`Plaintiff is entitled to any actual damages pursuant to 17 U.S.C. §504(b), or
`
`statutory damages in an amount up to $150,000 pursuant to 17 U.S.C. §
`
`504(c).
`
`27. As a result of the Defendant’s violations of Title 17 of the U.S. Code,
`
`the court in its discretion may allow the recovery of full costs as well as
`
`reasonable attorney’s fees and costs pursuant to 17 U.S.C § 505 from
`
`Defendant.
`
`28. Plaintiff is also entitled to injunctive relief to prevent or restrain
`
`infringement of his copyright pursuant to 17 U.S.C. § 502.
`
`SECOND CAUSE OF ACTION
`FALSIFICATION, REMOVAL AND ALTERATION OF
`COPYRIGHT MANAGEMENT INFORMATION
`
`
`
`6
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 7 of 11 PageID #: 7
`
`17 U.S.C. § 1202
`
`29. Plaintiff incorporates by reference all of the above paragraphs of this
`
`Complaint as though fully stated herein.
`
`30. On information and belief, Defendant knew that Plaintiff created the
`
`Mother-Daughter Photograph because, inter alia, the source of the Mother-
`
`Daughter Photograph that Defendant used to make infringing copies, the
`
`Post Article, specifically attributed the Mother-Daughter Photograph to
`
`Plaintiff.
`
`31. Defendant intentionally falsified copyright management information
`
`related to the Mother-Daughter Photograph with the intent to induce,
`
`enable, facilitate, or conceal an infringement of Plaintiff’s Mother-Daughter
`
`Photograph. Specifically, Defendant purposefully failed to credit Plaintiff in
`
`order to mislead the public into believing that Defendant either owned the
`
`Mother-Daughter Photograph or had legitimately licensed it for use in the
`
`Infringing Post.
`
`32. Defendant’s conduct constitutes a violation of 17 U.S.C. § 1202(a),
`
`and 1202(b).
`
`33. Defendant’s falsification, removal and/or alteration of that copyright
`
`management information was done without Plaintiff’s knowledge or
`
`authorization.
`
`
`
`7
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 8 of 11 PageID #: 8
`
`34. Defendant’s falsification of said copyright management information
`
`was done by Defendant intentionally, knowingly, and with the intent to
`
`induce, enable, facilitate, or conceal Defendant’s infringement of Plaintiff’s
`
`copyright in the Mother-Daughter Photograph. Defendant also knew, or had
`
`reason to know, that such removal and/or alteration of copyright
`
`management information would induce, enable, facilitate, or conceal
`
`Defendant’s infringement of Plaintiff’s copyright in the Mother-Daughter
`
`Photograph.
`
`35. Plaintiff has sustained significant injury and monetary damages as a
`
`result of Defendant’s wrongful acts as hereinabove alleged, and as a result
`
`of being involuntarily associated with Defendant in an amount to be proven.
`
`36. In the alternative, Plaintiff may elect to recover statutory damages
`
`pursuant to 17 U.S.C. § 1203(c)(3) in a sum of not more than $25,000 from
`
`Defendant for each violation of 17 U.S.C. § 1202.
`
`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff prays for judgment against Defendant as follows:
`
`a)
`
`For a finding that Defendant infringed Plaintiff’s copyright
`
`interest in the Mother-Daughter Photograph by copying and displaying it
`
`for commercial purposes without a license or consent;
`
`b)
`
`For an award of actual damages and disgorgement of all of
`
`
`
`8
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 9 of 11 PageID #: 9
`
`Defendant’s profits attributable to the infringement as provided by 17
`
`U.S.C. § 504 in an amount to be proven or, in the alternative, at Plaintiff’s
`
`election, an award for statutory damages against Defendant in an amount up
`
`to $150,000 for each infringement pursuant to 17 U.S.C. § 504(c),
`
`whichever is larger;
`
`c)
`
`For statutory damages against Defendant pursuant to 17 U.S.C.
`
`§ 1203(c)(3) in a sum of not more than $25,000 for each violation
`
`of 17 U.S.C. § 1202;
`
`d)
`
`For an order pursuant to 17 U.S.C. § 502(a) enjoining
`
`Defendant from any infringing use of any of Plaintiff’s copyrighted works;
`
`e)
`
`For costs of litigation and reasonable attorney’s fees against
`
`Defendant pursuant to 17 U.S.C. § 505;
`
`f)
`
`For pre-judgment and post-judgment interests as permitted by
`
`law; and
`
`g)
`
`For any other relief the Court deems just and proper.
`
`
`
`
`
`
`
`
`
`
`9
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 10 of 11 PageID #: 10
`
`DATED: March 23, 2022
`
`
`
`
`Respectfully submitted,
`
`s/ Rayminh L. Ngo
`Rayminh L. Ngo, Esq.
`EDNY No. RN4834
`HIGBEE & ASSOCIATES
`(Of Counsel)
`1504 Brookhollow Dr., Ste 112
`Santa Ana, CA 92705-5418
`(305) 764-9262
`(714) 597-6559 facsimile
`rngo@higbeeassociates.com
`Attorney for Plaintiff
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`10
`COMPLAINT
`
`
`
`Case 1:22-cv-01604 Document 1 Filed 03/23/22 Page 11 of 11 PageID #: 11
`
`DEMAND FOR JURY TRIAL
`Plaintiff Stephen Yang hereby demands a trial by jury in the above matter.
`
`
`Dated: March 23, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Rayminh L. Ngo
`Rayminh L. Ngo, Esq.
`EDNY No. RN4834
`HIGBEE & ASSOCIATES
`(Of Counsel)
`1504 Brookhollow Dr., Ste 112
`Santa Ana, CA 92705-5418
`(305) 764-9262
`(714) 597-6559 facsimile
`rngo@higbeeassociates.com
`Attorney for Plaintiff
`
`11
`COMPLAINT
`
`